jL.  I  B       A.  ^ 

PRiNCEroy.  y.  j.  \ 

The  J<tei)h('n  Collins  Donntion, 
^0.  Cn,r,  Dji^  JNI75... 

Ao.  Boo/,-,  "  T  ;• 


THE 

CONSTITUTIONAL  HISTORY 

or 

ENGLAND 

FKOM 

THE  ACCESSION  OF  HENRY  VII. 

TO 

THE  DEATH  OF  GEORGE  IL 

/ 

BY   HENRY  HALLAM, 

AWTHOR  OF  "EUROPE  DURING  THE  MIDDLE  AGES,"  "LITERATURE  OF  EUROPE  DURING  THE 
FIFTEENTH,  SIXTEENTH,  AND  SEVENTEENTH  CENTURIES,"  ETC 


iFi-om  tfjc  Sift\)  Hontion  3Etiitfon. 


NEW  YORK: 
HARPER  &  BROTHERS,  P  U  B  L  T  S  Ti  E  R  S, 

82  CLIFF  STREET. 

184  7. 


Digitized  by  the  Internet  Archive 
in  2015 


https://archive.org/details/constitutionalhiOOhall_0 


PREFACE. 


The  origin  and  progress  of  the  English  Constitution,  down  to  the  ex- 
tinction of  the  house  of  Plantagenet,  formed  a  considerable  portion  of  a 
work  published  by  me  some  years  since,  on  the  history,  and  especially 
the  laws  and  institutions,  of  Europe  during  the  period  of  the  Middle  Ages. 
It  had  been  my  first  intention  to  have  prosecuted  that  undertaking  in  a 
general  continuation ;  and  when  experience  taught  me  to  abandon  a 
scheme  projected  early  in  life  with  very  inadequate  views  of  its  magni- 
tude, I  still  determined  to  carry  forward  the  Constitutional  History  of  my 
own  country,  as  both  the  most  important  to  ourselves,  and,  in  many  re- 
spects, the  most  congenial  to  my  own  studies  and  habits  of  mind. 

The  title  which  I  have  adopted  appears  to  exclude  all  matter  not  refer- 
rible  to  the  state  of  government,  or  what  is  loosely  denominated  the  Con- 
stitution. I  have,  therefore,  generally  abstained  from  mentioning,  except 
cursorily,  either  military  or  political  transactions,  which  do  not  seem  to 
bear  on  this  primary  subject.  It  must,  however,  be  evident,  that  the  con- 
stitutional and  general  history  of  England,  at  some  periods,  nearly  coin- 
cide ;  and  I  presume  that  a  few  occasional  deviations  of  this  nature  will 
not  be  deemed  unpardonable,  especially  where  they  tend,  at  least  indirect- 
ly, to  illustrate  the  main  topic  of  inquiry.  Nor  will  the  reader,  perhaps, 
be  of  opinion  that  I  have  forgotten  my  theme  in  those  parts  of  the  follow- 
ing work  which  relate  to  the  establishment  of  the  English  Church,  and  to 
the  proceedings  of  the  state  with  respect  to  those  who  have  dissented 
from  it ;  facts  certainly  belonging  to  the  history  of  our  Constitution,  in  the 
large  sense  of  the  word,  and  most  important  in  their  application  to  mod- 
ern times,  for  which  all  knowledge  of  the  past  is  principally  valuable. 
Still  less  apology  can  be  required  for  a  slight  verbal  inconsistency  with 
the  title  of  this  volume  in  the  addition  of  two  supplemental  chapters  on 
Scotland  and  Ireland.  This,  indeed,  I  mention  less  to  obviate  a  criticism, 
which  possibly  might  not  be  suggested,  than  to  express  my  regret  that,  on 
account  of  their  brevity,  if  for  no  other  reasons,  they  are  both  so  dispro- 
portionate to  the  interest  and  importance  of  their  subjects. 

During  the  years  that,  amid  avocations  of  different  kinds,  have  been 
occupied  in  the  composition  of  this  work,  several  others  have  been  given 
to  the  world,  and  have  attracted  considerable  attention,  relating  particu- 
larly to  the  periods  of  the  Reformation  and  of  the  Civil  Wars.  It  seems 
necessary  to  mention  that  I  have  read  none  of  these  till  after  I  had  writ- 
ten such  of  the  following  pages  as  treat  of  the  same  subjects.  The  three 
first  chapters,  indeed,  were  finished  in  1820,  before  the  appearance  of 


iv  PREFACE.  N 

those  publications  which  have  led  to  so  much  controversy  as  to  the 
ecclesiastical  history  of  the  sixteenth  century ;  and  I  was  equally  unac- 
quainted with  Mr.  Brodie's  "  History  of  the  British  Empire  from  the  Ac- 
cession of  Charles  I.  to  the  Restoration,"  while  engaged  myself  on  that 
period.  I  have,  how*ever,  on  a  revision  of  the  present  work,  availed  my- 
self of  the  valuable  labors  of  recent  authors,  especially  Dr.  Lingard  and 
Mr.  Brodie  ;  and  in  several  of  my  notes  I  have  sometimes  supported  my- 
self by  their  authority,  sometimes  taken  the  liberty  to  express  my  dissent : 
but  I  have  seldom  thought  it  necessary  to  make  more  than  a  few  verbal 
modifications  in  my  text. 

It  would,  perhaps,  not  become  me  to  offer  any  observations  on  these 
cotemporaries  ;  but  I  can  not  refrain  from  bearing  testimony  to  the  work 
of  a  distinguished  foreigner,  M.  Guizot,  "  Histoire  de  la  Revolution  d'An- 
gleterre,  depuis  I'Avenement  de  Charles  I.  jusqu'k  la  Chute  de  Jacques 
II.,"  the  first  volume  of  which  was  published  in  1820.  The  extensive 
knowledge  of  M.  Guizot,  and  his  remarkable  impartiality,  have  already 
been  displayed  in  his  collection  of  memoirs  illustrating  that  part  of  Eng- 
lish history ;  and  I  am  much  disposed  to  believe  that  if  the  rest  of  his 
present  undertaking  shall  be  completed  in  as  satisfactory  a  manner  as  the 
first  volume,  he  will  be  entitled  to  the  preference  above  any  one,  perhaps, 
of  our  native  writers,  as  a  guide  through  the  great  period  of  the  seven- 
teenth century. 

In  termmating  the  Constitutional  History  of  England  at  the  accession 
of  George  III.,  I  have  been  influenced  by  unwillingness  to  excite  the  prej- 
udices of  modern  politics,  especially  those  connected  with  personal  char- 
acter, which  extend  back  through  at  least  a  large  portion  of  that  reign. 
It  is,  indeed,  vain  to  expect  that  any  comprehensive  account  of  the  two 
preceding  centuries  can  be  given  without  risking  the  disapprobation  of 
those  parties,  religious  or  political,  which  originated  during  that  period ; 
but  as  I  shall  hardly  incur  the  imputation  of  being  the  blind  zealot  of  any 
of  these,  I  have  little  to  fear,  in  this  respect,  from  the  dispassionate  pub- 
lic, wiiose  favor,  both  in  this  country  and  on  the  Continent,  has  been  be- 
stowed on  my  former  work,  with  a  liberality  less  due  to  any  literary  merit 
it  may  possess,  than  to  a  regard  for  truth,  which  will,  I  trust,  be  found 
equally  characteristic  of  the  present. 

June,  1827. 


ADVERTISEMENT 


TO 

THE  THIRD  EDITION. 


The  present  edition  has  been  revised,  and  some  use  made  of  recent 
publications.  The  note  on  the  authenticity  of  the  Icon  Basilike,  at  the 
end  of  the  second  volume  of  the  three  former  editions,  has  been  with- 
drawn ;  not  from  the  slightest  doubt  in  the  author's  mind  as  to  the  cor- 
rectness of  its  argument,  but  because  a  discussion  of  a  point  of  literary 
criticism,  as  this  ought  to  be  considered,  seemed  rather  out  of  its  place  in. 
the  Constitutional  History  of  England. 

April,  1832. 


ADVERTISEMENT 

TO  ^ 

THE  FIFTH  EDITION. 


Many  alterations  and  additions  have  been  made  in  this  edition,  as  well 
as  some  in  that  published  in  1842.  They  are  distinguished,  when  more 
than  verbal,  by  brackets  and  by  the  date. 

January,  1846. 


The  following  Editions  have  been  used  for  the  References  in  this  Volume. 


Statutes  at  Large,  by  Ruffhead,  except  where  the  late  edition  of  Statutes  of  the  Realm  is 

expressly  quoted. 
State  Trials,  by  Howell. 
Rymer's  Fcedera,  London,  20  vols. 

The  paging  of  this  edition  is  preserved  in  the  margin  of  the  Hague  edition  in  10  vols. 
Parliamentary  History,  new  edition. 
Burnet's  History  of  the  Reformation,  3  vols,  folio,  1681. 

Strype's  Ecclesiastical  Memorials,  Annals  of  Reformation,  and  Lives  of  Archbishops  Cran- 
mer,  Parker,  Grindal,  and  Whitgift,  folio. 

The  paging  of  these  editions  is  preserved  in  those  lately  published  in  8vo. 
Hall's  Chronicles  of  England.  j 
Holingshed's  Chronicles  of  England,  Scotland,  and  Ireland.  S 

The  edition  in  4to  published  in  1808.  S 
Somers  Tracts,  by  Sir  Walter  Scott,  13  vols.  4to. 
Harleian  Miscellany,  8  vols.  4to. 
Neal's  History  of  the  Puritans,  2  vols.  4to. 
Bacon's  Works,  by  Mallet,  3  vols,  folio,  1753. 
Kennet's  Complete  History  of  England,  3  vols,  folio,  1719. 
Wood's  History  of  University  of  Oxford,  by  Gutch,  4  vols.  4to. 
Lingard's  History  of  England,  10  vols.  8vo. 
Butler's  Memoirs  of  English  Catholics,  4  vols.,  1819. 

Harris's  Lives  of  James  I.,  Charles  I.,  Cromwell,  and  Charles  H.,  5  vols.,  1814. 

Clarendon's  History  of  the  Rebellion,  8  vols.  8vo,  Oxford,  1826. 

It  is  to  be  regretted  that  the  editor  has  not  preserved  the  paging  of  the  folio  in  his  mar- 
gin, which  is  of  great  convenience  in  a  book  so  frequently  referred  to ;  and  still  more 
so,  that  he  has  not  thought  the  true  text  worthy  of  a  better  place  than  the  bottom  of 
the  page,  leaving  to  the  spurious  readings  the  post  of  honor. 

Clarendon's  Life,  fol. 

Rush  worth  Abridged,  6  vols.  8vo,  1703. 

This  edition  contains  many  additions  from  works  published  since  the  folio  edition  in  1680. 

Whitelocke's  Memorials,  1732. 

Memoirs  of  Col.  Hutchinson,  4to,  1806. 

May's  Historj-  of  the  Parliament,  4to,  1812. 

Baxter's  Life,  fol. 

Rapin's  History  of  England,  3  vols,  fol.,  1732. 
Burnet's  History  of  his  Own  Times,  2  vols.  fol. 

The  paging  of  this  edition  is  preserv'ed  in  the  margin  of  that  printed  at  O.xford,  1823, 
which  is  sometimes  quoted,  and  the  text  of  which  has  always  been  followed. 
Life  of  William  Lord  RusseU,  by  Lord  John  Russell,  4to. 
Temple's  Works,  2  vols,  fol.,  1720. 
Coxe's  Life  of  Marlborough,  3  vols.  4to. 
Coxe's  Memoirs  of  Sir  Robert  Walpole,  3  vols.  4to. 
Robertson's  History  of  Scotland,  2  vols.  8vo,  1794. 
Laing's  History  of  Scotland,  4  vols.  8vo. 
Dalrymple's  Annals  of  Scotland,  2  vols.  4to. 
Leland's  History  of  Ireland,  3  vols.  4to. 

Spenser's  Account  of  State  of  Ireland,  in  8th  volume  of  Todd's  edition  of  Spenser's  works. 
These  are,  I  believe,  almost  all  the  works  quoted  in  the  following  volume,  concerning  which 
any  uncertainty  could  arise  from  the  mode  of  reference. 


CONTENTS. 


CHAPTER  I. 

ON  THE  ENGLISH  CONSTITUTION  FROM 
HENRY  VII.  TO  MARY. 

Ancient  Government  of  England. — Limitations  of 
Royal  Authority. — Difference  in  the  effective 
Operation  of  these. — Sketch  of  the  State  of  So- 
ciety and  Law. — Henry  VII. — Statute  for  the 
Security  of  the  Subject  under  a  King  de  facto. — 
Statute  of  Fines. — Discussion  of  its  Effect  and 
Motive. — Exactions  of  Money  under  Henry  VII. 
— Taxes  demanded  by  Henry  VIII. — Illegal  Ex- 
actions of  Wolsey  in  1523  and  1525. — Acts  of 
Parhament  releasing  the  King  from  his  Debts. 
— A  Benevolence  again  exacted. — Oppressive 
Treatment  of  Reed. — Severe  and  mijust  Execu- 
tions for  Treason. — Earl  of  Warwick.— Earl  of 
Suffolk. — Duke  of  Buckingham. — New  Treasons 
created  by  Statute. — Executions  of  Fisher  and 
More.  —  Cromwell.  —  Duke  of  Norfolk.  —  Anne 
Boleyn.— Fresh  Statutes  enacting  the  Penalties 
of  Treason. — Act  giving  Proclamations  the  Force 
of  Law. — Govci-nment  of  Edward  VI. 's  Coun- 
gelors. — Attainder  of  Lord  Seymour  and  Duke 
of  Somerset. — Violence  of  Mary's  Reign. — The 
House  of  Commons  recovers  Part  of  its  independ- 
ent Power  in  these  two  Reigns. — Attempt  of 
the  Court  to  strengthen  itself  by  creating  new 
Boroughs. — Causes  of  the  High  Prerogative  of 
the  Tudors. — Jurisdiction  of  the  Council  of  Star 
Chamber. — This  not  the  same  with  the  Court 
erected  by  Henry  VII. — Influence  of  the  Author- 
ity of  the  Star  Chamber  in  enhancing  the  Royal 
Power. — Tendency  of  Religious  Disputes  to  the 
same  End  Page  13 


CHAPTER  II. 

ON  THE  ENGLISH  CHURCH  UNDER  HEN- 
RY VIII.,  EDWARD  VI.,  AND  MARY. 

State  of  public  Opinion  as  to  Religion. — Henry 
VIII.'s  Controversy  with  Luther. — His  Divorce 
from  Catharine. — Separation  from  the  Church  of 
Rome. —  Dissolution  of  Monasteries.  —  Progress 
of  the  Reformed  Doctrine  in  England. — Its  Es- 
tablishment under  Edward.  —  Sketch  of  the 
chief  Points  of  Difference  between  the  two 
Religions.  —  Opposition  made  by  Part  of  the 
Nation.  —  Cranmer. — -His  Moderation  in  intro- 
ducing Changes  not  acceptable  to  the  Zealots. 
— Mary. — Persecution  under  her. — Its  Effects 
rather  favorable  to  Protestantism  ....  43 


CHAPTER  III. 

ON  THE  LAWS  OF  ELIZABETH'S  REIGN 
RESPECTING  THE  ROMAN  CATHOLICS. 

Change  of  Religion  on  the  Queen's  Accession. — 
Acts  of  Supremacy  and  Uniformity. — Resti-aiut 
of  Roman  Catholic  Worship  in  the  first  Years 
of  Elizabeth. — Statute  of  1562. — Speech  of  Lord 
Montague  against  it.  —  This  Act  not  fully  en- 
forced.— Application  of  the  Emperor  in  behalf 
of  the  English  Catholics. — Persecution  of  this 
Body  in  the  ensuing  Period. — -Uncertain  Suc- 
cession of  the' Crown  between  the  Families  of 
Scotland  and  Suffolk. — The  dueen's  Unwilling- 
ness to  decide  this,  or  to  mai-ry. — Imprisonment 
of  Lady  Catharine  Grey. — Mary  dueen  of  Scot- 
land.— Combmation  in  her  Favor. — Bull  of  Pius 
V. — Statutes  for  the  Queen's  Security. — Cath- 
olics more  rigorously  treated. — Refugees  in  the 
Netherlands.  —  Their  Hostility  to  the  Govern- 
ment.— Fresh  Laws  against  the  Catholic  Wor- 
ship.— Execution  of  Campion  and  Others. — De- 
fense of  the  Queen  by  Burleigh.  —  Increased 
Severity  of  the  Govei-nmeut. — Maiy. — Plot  in 
her  Favor. — Her  Execution. — Remarks  upon  it. 
— Continued  Persecution  of  Roman  Catholics. — 
General  Observations  Page  71 


CHAPTER  IV. 

ON  THE  LAWS  OP  ELIZABETH'S  REIGN 
RESPECTING  PROTESTANT  NON-CON- 
FORMISTS. 

Origin  of  the  Differences  among  the  English  Prot- 
estants.— Religious  Inclinations  of  the  Queen. 
— Unwillingness  of  many  to  comply  with  the 
established  Ceremonies.  —  Conformity  enforced 
by  the  Arclibishop. — Against  the  Disposition  of 
Others. — A  more  detenuined  Opposition,  about 
1570,  led  by  Cartwright. — Dangerous  Nature  of 
his  Tenets. —  Puritans  supported  in  the  Com- 
mons, and  in  some  Measure  by  the  Council. — 
Prophesyings. — Archbishops  Grindal  and  Whit- 
gift. — Conduct  of  the  Latter  in  enforcing  Con- 
formity.— High  Commission  Court. — Lord  Bur- 
leigh averse  to  Severity.  —  Puritan  Libels. — 
Attempt  to  set  up  a  Presbyterian  System. — 
House  of  Commons  averse  to  Episcopal  Au- 
thority.—  Independents  liable  to  severe  Laws. 
—  Hooker's  Ecclesiastical  Polity  —  Its  Charac- 
ter.— Spoliation  of  Church  Revenues. — General 


CONTENTS. 


Remarks.  — Letter  of  Walsingham  in  Defense 
of  the  Clueen's  Government    .    .    .   Page  105 


CHAPTER  V. 

ON  THE  CIVIL  GO\'ERNMENT  OF  ELIZ- 
ABETH. 

General  Remarks.  —  Defective  Secnrity  of  the' 
Subject's  Liberty. — Trials  for  Treason  and  oth- 
er political  Offenses  unjustly  conducted. — Ille- 
gal Commitments.  —  Remonstrance  of  Judges 
against  them.  —  Proclamations  unwarranted  by 
Law. — Restrictions  on  Printing. — Martial  Law. 
— Loans  of  Money  not  quite  Voluntarj-. — Char- 
acter of  Lord  Burleigh's  Administration. — Dis- 
position of  the  House  of  Commons. — ^Addresses 
concerning  the  Succession. — Difference  on  this 
between  the  Queen  and  Commons  in  1566.— 
Session  of  1571.  — Influence  of  the  Puritans  in 
ParUament. — Speech  of  Mr.  Wentworth  in  1576. 
— The  Commons  continue  to  seek  Redress  of 
ecclesiastical  Grievances ;  also  of  Monopolies, 
especially  in  the  Session  of  1601. — Influence  of 
the  Crown  in  ParUament — Debate  on  Election 
of  non-resident  Burgesses. — Assertion  of  Priv- 
ileges by  Commons. —  Case  of  Ferrers,  under 
Henry  YTTT. — Other  Cases  of  Privilege. — ^Priv- 
ilege of  determining  contested  Elections  claim- 
ed by  the  House. — The  English  Constitution 
not  admitted  to  be  an  absolute  Monarchy. — 
Pretensions  of  the  Crown  137 


CHAPTER  VI. 

ON  THE  ENGLISH  CONSTITUTION  UN- 
DER JAMES  I. 

Q,uiet  Accession  of  James  — Question  of  his  Title 
to  the  Crown. — Legitimacy  of  the  Earl  of  Hert- 
ford's Issue. — Early  Unpopularity  of  the  King. 

—  Conduct  toward  the  Puritans.  —  Parliament  j 
convoked  by  an  irregular  Proclamarion. — Ques- 
tion of  Fortescue  and  Goodwin's  Election. — 
Shirley's  Case  of  Privilege.  —  Complaints  of 
Grievances.  —  Commons'  Vindication  of  them- 
selves.— Session  of  1605. — Union  with  Scotland 
debated.  —  Continual  Bickerings  between  the 
Crown  and  Commons.  —  Impositions  on  Mer- 
chandise without  Consent  of  Parliament. — Re- 
monstrances against  these  in  Session  of  1610. — 
Doctrine  of  King's  absolute  Power  inculcated 
by  Clergy. — Articuli  Cleri. — Cowell's  Interpret- 
er.— Renewed  Complaints  of  the  Commons. — 
Negotiation  for  giving  up  the  feudal  Revenue. 

—  Dissolution  of  Parliament.  —  Character  of 
James.  —  Death  of  Lord  Salisbun.-.  —  Foreign 
Politics  of  the  Government. — Lord  Coke's  Al- 
ienation from  the  Court. — Dlegal  Proclamations. 
— Means  resorted  to  in  order  to  avoid  the  Meet- 
ing of  ParUament. — ParUament  of  1614. — Under- 
takers.— It  is  dissolved  without  passing  a  single 
Act. — Benevolences. — Prosecution  of  Peacham. 
— Dispute  about  the  Jurisdiction  of  the  Court 
of  Chancery. — Case  of  Commendams. — Arbitra- 
ry  Proceedings  in  Star  Chamber. — ArabeUa  Stu- 


art.— Somerset  and  Overburj-. — Sir  Walter  Ra- 
leigh.— ParUament  of  1621. — Proceedines  asainst 
Mompesson  and  Lord  Bacon. — Violence  in  the 
Case  of  Floyd.  —  Disagreement  between  the 
King  and  Conuuons. — Their  Dissolution,  after  a 
strong  Remonstrance.  —  Marriage  Treaty  with 
Spain. — Parliament  of  1^24. — Impeacliment  of 
Middlesex  Page  IPC 


CH.\PTER  VII. 

ON  THE  ENGLISH  CONSTITUTION  FROM 
THE  ACCESSION  OF  CHARLES  L  TO 
THE  DL^SOLUTION  OF  HIS  THIRD  PAR- 
LIAMENT. 

ParUament  of  1C25.  —  Its  Dissolution.  —  Another 
ParUament  called. — Prosecution  of  Buckingham. 
—  Arbitrary  Proceedings  toward  the  Earls  of 
Arundel  and  Bristol. — Loan  demanded  by  the 
King. — Several  committed  for  Refusal  to  con- 
tribute.— They  sue  for  a  Habeas  Corpus. — Ar- 
guments on  this  Question,  which  is  decided 
against  them. — A  Parliament  called  in  1628. — 
Petition  of  Right. — King  s  Reluctance  to  grant 
it.  —  Tonnage  and  Poundage  disputed. — King 
dissolves  ParUament. — ReUgious  Differences. — 
Prosecurion  of  Puritans  by  Bancroft. — Growth  of 
High-Church  Tenets. — Differences  as  to  the  Ob- 
ser\  aDce  of  Sunday. — Amiinian  Controversy. — 
State  of  CathoUcs  under  James. — ^Jealousy  of 
the  Court's  Favor  toward  them. — Unconstitu- 
tional Tenets  promulgated  by  the  High-Church 
Party. — General  Remarks  215 


CHAPTER  VIII. 

FROM  THE  DISSOLUTION  OP  CHARLES'S 
THIRD  PARLIAMENT  TO  THE  MEET- 
ING OF  THE  LONG  PARLIAMENT. 

Declaration  of  the  King  after  the  Dissolution. — 
Prosecutions  of  EUot  and  others  for  Conduct  in 
Parliament. — Of  Chambers  for  refusing  to  pay 
Customs. — Commendable  Behavior  of  Judges  in 
some  Instances.  —  Means  adopted  to  raise  the 
Revenue. — Compositions  for  Knighthood. — For- 
est Laws. — MonopoUes. — Sliip-money  —  Exten- 
sion of  it  to  inland  Places. — Hampden's  Refasal 
to  pay. — Arguments  on  the  Case. — Proclama- 
tions.—  Various  arbitrary  Proceedings.  —  Star 
Chamber  Jurisdiction.  —  Punishments  iniflicted 
by  it. — Cases  of  Bishop  'WiUiams,  Prynne,  ic. 
— Laud,  his  Character. — Lord  Strafford. —  Cor- 
respondence between  these  Two.- — Conduct  of 
Laud  in  the  Church  Prosecution  of  Puritans. — 
Favor  shown  to  CathoUcs. — Tendency  to  their 
ReUgion. — Expectations  entertained  by  them. — 
Mission  of  Panzani. — Intrigue  of  Bishop  Mon- 
tague with  him.  —  Chdlingworth.  —  Hales.  — 
Character  of  Clarendon's  Writings. — Animad- 
versions on  his  Account  of  this  Period. — Scots 
Troubles,  and  Distress  of  the  Government. — 
ParUament  of  April,  1640. — CouncU  of  York. — 
Convocation  of  Long  Parliament    ....  240 


CONTEXTS. 


ix 


CHAPTER  IX. 

FROM  THE  MEETING  OF  THE  LONG 
PARLIAMENT  TO  THE  BEGINNING  OP 
THE  Crv  iL  WAR. 

Character  of  Long  Parliament. — Its  salutary  Meas- 
ures.— Triennial  BiU. — Other  beneficial  Laws. — 
Observations. — Impeachment  of  Strafford. — Dis- 
cussion of  its  Justice. — Act  against  Dissolution 
of  Parliament  without  its  Consent. — Innovations 
meditated  in  the  Church. — Schism  in  the  Con- 
stitutional Party. — Remonstrance  of  November, 
1641.  —  Suspicions  of  the  King's  Sincerity. — 
Question  of  the  MiUtia. — Historical  Sketch  of 
Military  Force  in  England. — Encroachments  of 
the  Parliament. — Nineteen  Propositions. — Dis- 
cussion of  the  respective  Claims  of  the  two  Par- 
ties to  Support. — Faults  of  both  Page  290 


CHAPTER  X. 

FROM  THE   BREAKING  OUT  OF  THE 
CrVIL  WAR  TO  THE  RESTORATION. 
PART  L 

Success  of  the  King  in  the  first  Part  of  the  War. 
— Efforts  by  the  moderate  Party  for  Peace. — 
Affair  at  Brentford.  —  Treaty  of  Oxford.  —  Im- 
peachment of  the  dueen.— Waller's  Plot. — Se- 
cession of  some  Peers  to  the  King's  Clnarters. 
— Their  Treatment  there  impolitic. — The  anti- 
pacific  Party  gain  the  Ascendant  at  Westmin- 
ster.— The  Parliament  makes  a  new  Great  Seal, 
and  takes  the  Covenant.  —  Persecution  of  the 
Clergy  who  refuse  it. — Impeachment  and  Exe- 
cution of  Land. — Decline  of  the  Kuig's  Affairs 
in  1644. — Factions  at  Oxford. — RoyaUst  Lords 
and  Commoners  summoned  to  that  City. — Treaty 
of  Uxbridge.  —  Impossibility  of  Agreement.  — 
The  Parliament  insist  on  unreasonable  Terms. — 
Miseries  of  the  War. — Essex  and  Manchester 
suspected  of  Lukewarmness. — Self-den\"ing  Or- 
dinance.— Battle  of  Naseby. — Desperate  Condi- 
tion of  the  King's  Affairs. — He  throws  himself 
into  the  Hands  of  the  Scots. — His  Struggles  to 
preserve  Episcopacj-.  against  the  Advice  of  the 
Clueen  and  Others. — Bad  Conduct  of  the  dueen. 
—  Publication  of  Letters  taken  at  Naseby. — 
Discovery  of  Glamorgan's  Treatj-. — King  deliv- 
ered up  by  the  Scots. — Growth  of  the  Independ- 
ents and  Republicans. — Opposition  to  the  Pres- 
byterian Government.  —  Toleration.  —  Intrigues 
of  the  Army  with  the  King. — His  Person  seized. 
— The  Parliament  yield  to  the  Armj-. — Mysteri- 
ous Conduct  of  Cromwell.  —  Imprudent  Hopes 
of  the  King. — He  rejects  the  Proposals  of  the 
Army.  —  His  Flight  from  Hampton  Court.  — 
Alarming  Votes  against  him. — Scots'  Invasion. 
— The  Presbv-terians  regain  the  Ascendant. — 
Treaty  of  Newport. — Gradual  Progress  of  a  Re- 
publican Party. — Scheme  among  the  Officers  of 
bringing  Charles  to  Trial. — This  is  finally  deter- 
mined.— ^Seclusion  of  Presbyterian  Members. — 
Motives  of  some  of  the  King's  Judges. — Ques-  | 
tion  of  his  Execution  discussed. — His  Charac- 
ter.— Icon  Basilike  321 


PART  II. 

Abolition  of  the  Monarchy,  and  of  the  House  of 
Lords.  —  Commonwealth.  —  Schemes  of  Crom- 
well.—  His  Conversations  with  Whitelock. — 
Unpopularity'  of  the  Parhament. — Their  Fall. — 
Little  Parliament. — Instrument  of  Government. 
—  Parliament  called  by  Cromwell.  —  Dissolved 
by  him. — Intrigues  of  the  King  and  his  Party. 
— Insurrectionary  Movements  in  1665. — Rigor- 
ous Measures  of  Cromwell. — His  arbitrary  Gov- 
ernment.— He  summons  another  Parliament. — 
Designs  to  take  the  Crown ;  the  Project  fails, 
but  liis  Authority  as  Protector  is  augmented. — 
He  aims  at  forming  a  new  House  of  Lords. — 
His  Death,  and  Character.  —  Richard  his  Son 
succeeds  him. — Is  supported  by  some  prudent 
Men,  but  opposed  by  a  Coalition. — Calls  a  Par- 
liament. —  The  Army  overthrow  both.  —  Long 
Parliament  restored. — Expelled  aeain,  and  again 
restored.  —  Impossibility  of  establishing  a  Re- 
public.— Intrigues  of  the  Roj-alists. — They  unite 
with  the  Presbyterians. — Conspiracy  of  16.59. — 
Interference  of  Monk.  —  His  Dissimulation.  — 
Secluded  Members  return  to  their  .Seats. — Difii- 
culties  about  the  Restoration.  —  New  Parlia- 
ment.— King  restored. — ^Whether  previous  Con- 
ditions required. — Plan  of  reviving  the  Treaty 
of  Newport  inexpedient. — Difficulty  of  framing 
Conditions.  —  Conduct  of  the  Convention  about 
this  not  blamable,  except  in  respect  of  the  Mi- 
litia.— Conduct  of  Monk  Page  366 


CHAPTER  XI. 

FROM  THE  RESTORATION  OF  CHARLES 
THE  .SECOND  TO  THE  FALL  OF  THE 
CABAL  ADMINISTRATION. 

Popular  Joy  at  the  Restoration. — Proceedings  of 
the  Convection  Parliament. — Act  of  Indemnity. 
—  Exclusion  of  the  Regicides  and  Others. — 
Discussions  between  the  Houses  on  it. — Exe- 
cution of  Regicides. — Restitution  of  Crown  and 
Church  Lands. — Discontent  of  the  Royalists. — 
Settlement  of  the  Revenue. — Abolition  of  Mili- 
tary Tenures. — Excise  granted  instead. — Army 
disbanded. — Clergy  restored  to  their  Benefices. 
— Hopes  of  the  Presby  terians  from  the  King. — 
Projects  for  a  Compromise. — King's  Declaration 
in  Favor  of  it. — Convention  Parliament  dissolv- 
ed.—  Different  Complexion  of  the  next.  —  Con- 
demnation of  Vane.  —  Its  Injustice.  —  Acts  re- 
placing the  Crown  in  its  Prerogatives. — Corpo- 
ration Act.  —  Repeal  of  Triennial  Act.  —  .Star 
Chamber  not  restored. — Presbj-terians  deceived 
bj-  the  King. — Savoy  Conference. — Act  of  Uni- 
formity.— Ejection  of  Non-conformist  Clergy. — 
Hopes  of  the  Catholics. — Bias  of  the  King  to- 
ward them.  —  Resisted  by  Clarendon  and  the 
Parliament. — Declaration  for  Indulgence. — Ob- 
jected to  by  the  Commons. — Act  against  Con- 
venticles.—  Another  of  the  same  Kind.  —  Re- 
marks on  them.  —  Dissatisfaction  increases.  — 
Private  Life  of  the  King. — Opposition  in  Par- 
liament.— Appropriation  of  .Supplies. — Commis- 
sion of  Public  Accounts.  —  Decline  of  Claren- 


X 


CONTENTS. 


don's  Power. — Loss  of  tlie  King's  Favor. — Co- 
alition against  him. — His  Impeachment. — Some 
Articles  of  it  not  unfounded. — Illegal  Imprison- 
ments.— Sale  of  Dunkirk. — Solicitation  of  French 
Money. — His  Faults  as  a  Minister. — His  pusil- 
lanimous Flight,  and  consequent  Banishment. — 
Cahal  Ministrj-. — Scheme  of  Comprehension  and 
Indulgence.  —  Triple  Alliance.  —  Intrigue  with 
France. — King's  Desire  to  be  absolute. — Secret 
Treaty  of  1760. — Its  Objects. — Differences  be- 
tween Charles  and  Louis  as  to  the  Mode  of  its 
Execution. — Fresh  Severities  against  Dissent- 
ers.— Dutch  War. — Declaration  of  Indulgence. 
—  Opposed  by  Parliament,  and  withdrawn. — 
Test  Act.  —  Fall  of  Shaftesbury  and  his  Col- 
leagues  Page  405 


CHAPTER  XII. 

Earl  of  Danby's  Administration. —  Opposition  in 
the  Commons. — Frequently  coi-rupt. — Character 
of  Lord  Danby. — Connection  of  the  popular  Par- 
ty with  France. — Its  Motives  on  both  Sides. — 
Doubt  as  to  their  Acceptance  of  Money. — Se- 
cret Treaties  of  the  King  with  France. — Fall 
of  Danby. — His  Impeachment. — duestions  aris- 
ing on  it. — His  Commitment  to  the  Tower. — 
Pardon  pleaded  in  Bar. — Votes  of  Bishops. — 
Abatement  of  Impeachments  by  Dissolution. — 
Popish  Plot.  —  Coleman's  Letters.  —  Godfrey's 
Death.  —  Injustice  of  Judges  on  the  Trials.  — 
Parliament  dissolved.  —  Exclnsion  of  Duke  of 
York  proposed.  —  Schemes  of  Shaftesbury  and 
Monmouth. — Unsteadiness  of  the  King. — Expe- 
dients to  avoid  the  Exclusion. — Names  of  Whig 
and  Torj'. — New  Council  formed  by  Sir  William 
Temple. — Long  Prorogation  of  Parliament. — Pe- 
titions and  Addresses. — Violence  of  the  Com- 
mons.—  Oxford  Parliament.  —  Impeachment  of 
Commoners  for  Treason  Constitutional. — Fitz- 
harris  impeached. — Proceedings  against  Shaftes- 
bury and  his  Colleagues. — Triumph  of  the  Court. 
— Forfeiture  of  Charter  of  Loudon,  and  of  other 
Places. — Projects  of  Lord  Russell  and  Sidney. 
— Their  Trials.  —  High  Toiy  Principles  of  the 
Clergy.  —  Passive  Obedience.  —  Some  contend 
for  absolute  Power. — Filmer. — Sir  George  Mac- 
kenzie. —  Decree  of  University  of  Oxford.  — 
Connection  with  Louis  broken  off.  —  King's 
Death  456 


CHAPTER  XIII. 

ON  THE  STATE  OF  THE  CONSTITUTION 
UNDER  CHARLES  IL 

Effect  of  the  Press. — Restrictions  upon  it  before 
and  after  the  Restoration. — Licensing  Acts. — 
Political  Writings  checked  by  the  Judges. — 
Instances  of  illegal  Proclamations  not  numer- 
ous.—  Juries  fined  for  Verdicts. —  Question  of 
their  Right  to  return  a  general  Verdict. — Habe- 
as Corpus  Act  passed.  —  Differences  between 
Lords  and  Commons. — Judicial  Powers  of  the 
Lords  historically  traced.  —  Their  Pretensions 
about  the  Time  of  the  Restoration. — Resistance 


made  by  the  Commons.  —  Dispute  about  their 
original  Jurisdiction,  and  that  in  Appeals  from 
Courts  of  Equity.  —  Q,uestion  of  the  exclusive 
Right  of  the  Commons  as  to  Money  BLUs. — Its 
History. — The  Right  extended  further. — State 
of  the  Upper  House  under  the  Tudors  and  Stu- 
arts.— Augmentation  of  the  Temporal  Lords. — 
State  of  the  Commons. — Increase  of  their  Mem- 
bers.— Question  as  to  Rights  of  Election. — Four 
different  Theories  as  to  the  original  Principle. — 
Their  Probability  considered     .    .   .  Page  494 


CHAPTER  XIV. 

THE  REIGN  OF  JAMES  U. 
Designs  of  the  King. — Parliament  of  1685. — King's 
Intention  to  repeal  the  Test  Act. — Deceived  as 
to  the  Dispositions  of  his  Subjects. — Prorogation 
of  Parliament. — Dispensing  Power  confirmed  by 
the  Judges.  —  Ecclesiasrical  Commission.  — 
King's  Scheme  of  estabUshing  Popery.  —  Dis- 
missal of  Lord  Rochester.  —  Prince  of  Orange 
alanned. — Plan  of  setting  the  Princess  aside. — 
Rejected  by  the  King. — Overtures  of  the  Mal- 
contents to  Prince  of  Orange. — Declaration  for 
Liberty  of  Conscience. — Addresses  in  Favor  of 
it. — New-modeling  of  the  Corporations. — Affair 
of  Magdalen  College. — Infatuation  of  the  King. 
— His  Coldness  toward  Louis. — Invitation  sign- 
ed to  the  Prince  of  Orange. — Birth  of  Prince  of 
Wales. — Justice  and  Necessitj'  of  the  Revolu- 
tion.— Favorable  Circumstances  attending  it. — 
Its  salutary  Consequences. — Proceedings  of  the 
Convention. — Ended  by  the  Elevation  of  Will- 
iam and  Mary  to  the  Throne  519 


CHAPTER  XV. 
ON  THE  REIGN  OF  WILLIAM  IH. 
Declaration  of  Rights. — Bill  of  Rights. — Militarj' 
Force  without  Consent  declared  Illegal. — Dis- 
content with  the  new  Government. — Its  Causes. 
—  Incompatibility  of  the  Revolution  with  re- 
ceived Principles.  —  Character  and  Errors  of 
William. — Jealousy  of  the  Whigs. — Bill  of  In- 
demnity.— BUI  for  restoring  Corporations. — Set- 
tlement of  the  Revenue. — Appropriation  of  Sup- 
plies.—  Dissatisfaction  of  the  King.  —  No  Re- 
publican Part)-  in  Existence. — WiUiam  employs 
Tories  in  Ministrj'.  —  Intrigues  with  the  late 
King.  —  Schemes  for  his  Restoration. — Attain- 
der of  Sir  John  Fenwick. — 111  Success  of  the 
War.  —  Its  Expenses.  —  Treaty  of  Ryswick. — 
Jealousy  of  the  Commons.  —  Army  reduced. — 
Irish  Forfeitures  resumed. — Parliamentary  In- 
quiries.— Treaties  of  Partition. — Improvements 
in  Constitution  under  WiUiam. — Bill  for  Trien- 
nial Parliaments.— Law  of  Treason. — Statute  of 
Edward  III. — Its  constructive  Interpretation. — 
Statute  of  Wmiam  III.— Liberty  of  the  Press. 
— Law  of  Libel.  —  Religious  Toleration.  —  At- 
tempt at  Comprehension. — Schism  of  the  Non- 
jurors.— Laws  against  Roman  Catholics. — Act 
of  Settlement. — Limitations  of  Prerogative  con- 
I     tained  in  it.  —  Privy  Council  superseded  by  a 


CONTENTS. 


Cabinet. — Exclusion  of  Placemen  and  Pension- 
ers from  Parliament. — Independence  of  Judges. 
— Oath  of  Abjuration  Page  547 


CHAPTER  XVI. 

ON  THE  STATE  OF  THE  CONSTITUTION 
IN  THE  REIGNS  OF  ANNE,  GEORGE  I., 
AND  GEORGE  II. 
Termination  of  Contest  between  the  Crown  and" 
Parliament.  —  Distinctive  Principles  of  Whigs 
and  Tories. — Changes  effected  in  these  by  Cir- 
cumstances.—  Impeachment  of  Sacheverell  dis- 
plays them  again. — Revolutions  in  the  Ministry 
under  Anne. — War  of  the  Succession. — Treaty 
of  Peace  broken  off.  —  Renewed  again  by  the 
Torj'  Government. — Arguments  for  and  against 
the  Treaty  of  Utrecht. — The  Negotiation  mis- 
managed.—  Intrigues  of  the  Jacobites.  —  Some 
f  of  the  Ministers  engage  in  them. — Just  Alann 
for  the  Hanover  Succession.  —  Accession  of 
George  I.  —  Whigs  come  into  Power.  —  Great 
Disaffection  in  the  Kingdom. — Impeachment  of 
Tory  Ministers.  —  Bill  for  Septennial  Parlia- 
ments.— Peerage  Bill. — Jacobitism  among  the 
Clergy.  —  Convocation. — Its  Encroachments.  — 
Hoadley. — Convocation  no  longer  suffered  to  sit. 
— Infringements  of  the  Toleration  by  Statutes 
under  Anne. — They  are  repealed  by  the  Whigs. 

—  Principles  of  Toleration  fully  established. — 
Banishment  of  Atterbury. — Decline  of  the  Jaco- 
bites.— Prejudices  against  the  reigiiing  Family. 
— Jealousy  of  the  Crown. — Changes  in  the  Con- 
stitution whereon  it  was  founded. — Pemianent 
Military  Force.  —  Apprehensions  from  it.  —  Es- 
tablishment of  Militia. — Influence  over  Parlia- 
ment by  Places  and  Pensions. — Attempts  to  re- 
strain it. — Place  Bill  of  1743. — Secret  Corrup- 
tion. —  Conmiitments  for  Breach  of  Privilege  : 
of  Members  for  Offenses  ;  of  Sti-angers  for  Of- 
fenses against  Members,  or  for  Oflenscs  against 
the  House. — Kentish  Petition  of  1701. — Dispute 
with  Lords  about  Aylesbury  Election.  —  Pro- 
ceedings against  Mr.  Murray  in  17.51. — Commit- 
ments for  Offenses  unconnected  with  the  House. 

—  Privileges  of  the  House  not  conti-oUable  by 
Courts  of  Law. — Danger  of  stretching  this  too 
far. — Extension  of  Penal  Laws. — Diminution  of 
personal  Authority  of  the  Crown.  —  Causes  of 
this. — Party  Connections. — Influence  of  Political 
Writings. — Publication  of  Debates. — Increased 
Influence  of  the  Middle  Ranks  599 


xi 

CHAPTER  XVn. 

ON  THE  CONSTITUTION  OF  SCOTLAND. 

Early  State  of  Scotland. — Introduction  of  Feudal 
System. — Scots  Parliament. — Power  of  the  Aris- 
tocracy.— Royal  Influence  in  Parliament. — Judi- 
cial Power. — Court  of  Session. — Reformation. — 
Power  of  the  Presbyterian  Clergy. — Their  At- 
tempts at  Independence  on  the  State. — Andrew 
Melville. — Success  of  James  VI.  in  restraining 
them. — Establishment  of  Episcopacy. — Innova- 
tions of  Charles  I.  —  Arbitrary  Government. — 
Civil  War. — Tyrannical  Government  of  Charles 

II.  — Reign  of  James  VII. — Revolution  and  Es- 
tablishment of  Presbytery. — Reign  of  William 

III.  —  Act  of  Security.  —  Union.  —  Gradual  De- 
cline of  Jacobitism  Page  657 


CHAPTER  XVni. 

ON  THE  CONSTITUTION  OP  IRELAND. 

Ancient  State  of  Ireland.  —  Its  Kingdoms  and 
Chieftainships. —  Law  of  Tanistry  and  Gavel- 
kind. —  Rude  State  of  Society.  —  Invasion  of 
Henry  II. — Acquisitions  of  English  Barons. — 
Forms  of  English  Constitution  established. — 
Exclusion  of  native  Irish  from  them. — Degener- 
acy of  English  Settlers. — Parliament  of  Ireland. 

—  Disorderly  State  of  the  Island.  —  The  Irish 
regain  Part  of  their  Territories. — English  Law 
confined  to  the  Pale. — Poyning's  Law. — Royal 
Authority  revives  under  Henry  VIII. — Resist- 
ance of  Irish  to  Act  of  Supremacy. — Protestant 
Church  established  by  Elizabeth.  —  Eflfects  of 
this  Measure. — Rebellions  of  her  Reign. — Op- 
position in  Parliament. — Arbitrary  Proceedings 
of  Sir  Henry  Sidney. — James  I. — Laws  against 
Catholics  enforced.  —  English  Law  established 
throughout  Ireland. — Settlements  of  English  in 
Munster,  Ulster,  and  other  Parts. — Injustice  at- 
tending them. — Constitution  of  Irish  Parliament. 

—  Charles  I.  promises  Graces  to  the  Irish.  — 
Does  not  confirm  them.  —  Administration  of 
Strafford. —  Rebellion  of  1641. —  Subjugation  of 
Irish  by  Cromwell. — Restoration  of  Charles  II. 
— Act  of  Settlement.  —  Hopes  of  Catholics  un- 
der Charles  and  James. — War  of  1689,  and  final 
Reduction  of  Ireland.  —  Penal  Laws  against 
Catholics.  —  Dependence  of  Irish  on  English 
Parliament.  —  Growth  of  a  patriotic  Party  in 
1753    676 


THE 


CONSTITUTIOIAL  HISTORY 

OF 

FROM  HENRY  VII.  TO  GEORGE  II. 


CHAPTER  I. 

ON  THE  ENGLISH  CONSTITUTION  FROM  HENRY  VII.  TO  MARY. 


Ancient  Government  of  England. — Limitations  of 
Royal  Authoritj'. — DilFei-ence  in  the  effective 
Operation  of  these. — Sketch  of  the  State  of  So- 
ciet>-  and  Law. — Hemy  VII. — Statute  for  the 
Security  of  the  Subject  under  a  King  dc  facto. — 
Statute  of  Fines. — Discussion  of  its  Effect  and 
Motive. — Exactions  of  Money  under  Heni-y  VII. 
— Taxes  demanded  by  Henry  VIII. — Illegal  Ex- 
actions of  Wolsey  in  1523  and  1525. — Acts  of 
Parliament  releasing  the  King  from  his  Debts. 
— A  Benevolence  again  exacted. — Oppressive 
Treatment  of  Reed. — Severe  and  unjust  Execu- 
tions for  Treason. — Earl  of  Warwick. — Earl  of 
Suffolk. — Duke  of  Buckingham. — New  Treasons 
created  by  Statute. — Executions  of  Fisher  and 
More.  —  Cromwell.  —  Duke  of  Norfolk. — Anne 
Boleyn. — Fresh  Statutes  enacting  the  Penalties 
of  Treason. — Act  giving  Proclamations  the  Force 
of  Law. — Govenunent  of  Edward  VI.'s  Coun- 
selors.— Attainder  of  Lord  Seymour  and  Duke 
of  Somerset. — Violence  of  Mary's  Reign. — The 
House  of  Commons  recovei's  Part  of  its  independ- 
ent Power  in  these  two  Reigns. — Attempt  of 
the  Court  to  strengthen  itself  by  creating  new 
Boroughs. — Causes  of  the  High  Prerogative  of 
the  Tudors. — Jurisdiction  of  the  Coimcil  of  Star 
Chamber. — This  not  the  same  with  the  Court 
erected  by  Henry  VII. — Influence  of  the  Author- 
ity of  the  Star  Chamber  in  enhancing  the  Royal 
Power. — Tendency  of  ReUgious  Disputes  to  the 
same  End. 

The  government  of  England,  in  all  times 
Ancient  gov-  I'ecorded  by  history,  has  been 
ernmentof  one  of  those  mixed  or  limited 
England.  monarchies  which  the  Celtic  and 
Gothic  tribes  appear  universally  to  have  es- 
tablished, in  preference  to  the  coarse  des- 
potism of  Eastern  nations,  to  the  more  arti- 
ficial tyranny  of  Rome  and  Constantinople, 


or  to  the  various  models  of  Republican  poli- 
ty Avhich  were  tried  upon  the  coasts  of  the 
Mediterranean  Sea.  It  bore  the  same  gen- 
eral features ;  it  belonged,  as  it  were,  to  the 
same  family,  as  the  governments  of  almost 
every  European  state,  though  less  resem- 
bling, perhaps,  that  of  France  than  any  oth- 
er. But,  in  the  course  of  many  centuries, 
the  boundaries  which  determined  the  sov- 
ereign's prerogative  and  the  people's  liberty 
or  power  having  seldom  been  very  accu- 
rately defined  by  law,  or  at  least  by  such 
law  as  was  deemed  fundamental  and  un- 
changeable, the  forms  and  principles  of  po- 
litical regimen  in  these  difl'ercnt  nations  be- 
came more  divergent  from  each  other,  ac- 
cording to  their  peculiar  dispositions,  the 
revolutions  they  undei-^vent,  or  the  influ- 
ence of  personal  character.  England,  more 
fortunate  than  the  rest,  had  acquired  in  the 
fifteenth  century  a  just  reputation  for  the 
goodness  of  her  laws  and  the  security'  of 
her  citizens  from  oppression. 

This  liberty  had  been  the  slow  fruit  of 
ages,  still  waiting  a  hiippier  season  for  its 
perfect  ripeness,  but  already  giving  proof 
of  the  vigor  and  industry  which  had  been 
employed  in  its  cultui-e.  I  have  endeavor- 
ed, in  a  work  of  which  this  may  in  a  certain 
degi'ee  be  reckoned  a  continuation,  to  trace 
the  leading  events  and  causes  of  its  prog- 
ress. It  will  be  sufficient  in  this  place 
briefly  to  point  out  the  principal  circum- 
stances in  the  polity  of  England  at  the  ac- 
cession of  Hemy  VII. 


14 


CONSTITUTIONAL  HISTORY  OF  ENGLA'ND 


[Chap.  1. 


The  essential  checks  upon  the  royal  au- 
L  m  tat  on  ^'^°''''-y  '^^cre  five  in  number :  1 . 
of  royal  au-  The  king  could  levy  no  sort  of 
thority.       new  tax  upon  his  people  except 
by  the  grant  of  his  Parliament,  consisting 
as  well  of  bishops  and  miti'ed  abbots  or  lords 
spiritual,  and  of  hereditaiy  peers  or  tempo- 
ra.\  lords,  who  sat  and  voted  promiscuously 
in  the  same  chamber,  as  of  representatives 
from  the  freeholders  of  each  county,  and 
from  the  burgesses  of  many  towns  and  less 
considerable  places,  forming  the  Lower,  or 
Commons'  House.   2.  The  previous  assent 
and  authority  of  the  same  Eissembly  was 
necessary  for  eveiy  new  law,  whether  of  a 
general  or  temporar}'  nature.    3.  No  man 
could  be  committed  to  prison  but  by  a  legal 
warrant  specifying  his  offense ;  and,  by  a 
usEige  nearly  tantamount  to  constitutional 
right,  he  must  be  speedily  brought  to  ti-ial 
by  means  of  regular  sessions  of  jail-deliv- 
ery.   4.  The  fact  of  guilt  or  innocence  on  a 
criminal  charge  was  determined  in  a  public 
court,  and  in  the  county  where  the  offense 
was  alleged  to  have  occurred,  by  a  jmy  of 
twelve  men,  from  whose  unanimous  verdict 
no  appeal  could  be  made.    Civil  rights,  so 
far  as  they  depended  on  questions  of  fact, 
were  subject  to  the  same  decision.   5.  The 
officers  and  sen'ants  of  the  crown,  violating 
the  personal  liberty  or  other  right  of  the 
subject,  might  be  sued  in  an  action  for  dam- 
ages, to  be  assessed  by  a  jury,  or,  in  some 
cases,  were  liable  to  criminal  process ;  nor 
could  they  plead  any  warrant  or  command 
in  their  justification,  not  even  the  direct  or- 
der of  the  king. 

These  secmities,  though  it  would  be  easy 
to  prove  that  they  were  all  rec- 

Diflference  in         .      j  ■     ,  j  i_  - 

the  effective  ognized  m  law,  dmered  much  m 
operation  of  ^jjg  degree  of  their  effective  op- 

tnese.  °  i     /-  , 

eration.  It  may  be  said  of  the 
first  that  it  was  now  completely  established. 
After  a  long  contention,  the  kings  of  Eng- 
land had  desisted  for  near  a  hundred  years 
from  eveiy  attempt  to  impose  taxes  with- 
out consent  of  Parliament;  and  their  re- 
cent device  of  demanding  benevolences,  or 
half-compulsory  gifts,  though  veiy  oppress- 
ive, and  on  that  account  just  abolished  by  an 
act  of  the  late  usurper,  Richard,  was  in  ef- 
fect a  recognition  of  the  general  principle, 
which  it  sought  to  elude  rather  than  trans- 
gress. 

The  necessary  concurrence  of  the  two 


houses  of  Parliament  in  legislation,  though 
it  could  not  be  more  unequivocally  estab- 
lished than  the  former,  had  in  earlier  times 
been  more  free  from  all  attempt  or  pretext 
of  encroachment.  We  know  not  of  any 
laws  that  were  ever  enacted  by  our  kings 
without  the  assent  and  advice  of  their  great 
council ;  though  it  is  justly  doubted  wheth- 
er the  repi'esentatives  of  the  ordinary  free- 
holders, or  of  the  boroughs,  had  seats  and 
suffrages  in  that  assembly  during  seven  or 
eight  reigns  after  the  Conquest.  They 
were  then,  however,  ingrafted  upon  it  with 
plenaiy  legislative  authority ;  and  if  the 
sanction  of  a  statute  were  required  for  this 
fundamental  axiom,  we  might  refer  to  one 
in  the  loth  of  Edward  II.  (1322),  which 
declares  that  "  the  matters  to  be  established 
for  the  estate  of  the  king  and  of  his  heirs, 
and  for  the  estate  of  the  realm  and  of  the 
people,  should  be  treated,  accorded,  and  es- 
tablished in  Parliament,  by  the  king,  and  by 
the  assent  of  the  prelates,  earls,  and  barons, 
and  the  commonalty  of  the  realm,  accord- 
ing as  had  been  before  accustomed."* 

It  may  not  be  impertinent  to  remark  in 
this  place,  that  the  opinion  of  such  as  have 
fancied  the  royal  prerogative  mider  the 
houses  of  Plantagenet  and  Tudor  to  have 
had  no  effectual  or  unquestioned  limitations, 
is  decidedly  refuted  by  the  notorious  fact 
that  no  alteration  in  tlie  general  laws  of  the 
realm  was  ever  made,  or  attempted  to  be 
made,  without  the  consent  of  Pailiament. 
It  is  not  surprising  that  the  council,  in  great 
exigency  of  money,  should  sometimes  em- 
ploy force  to  extort  it  from  the  merchants, 
or  that  sei-vile  lawyers  should  be  found  to 
vindicate  these  encroachments  of  power. 
Impositions,  like  other  arbitrary  measures, 
were  particular  and  temporary,  prompted 
by  rapacity,  and  endui-ed  tlu-ough  compul- 
sion. But  if  the  kings  of  England  had  been 
supposed  to  enjoy  an  absolute  authority,  we 
should  find  some  proofs  of  it  in  their  exer- 


*  This  statute  is  not  even  alluded  to  in  Ruff- 
head's  edition,  and  has  been  very  little  noticed  by 
writers  on  our  law  or  historj-.  It  is  printed  in  the 
late  edition,  published  by  authority,  and  is  brought 
forward  in  the  First  Report  of  the  Lords'  Commit- 
tee, on  the  dignity  of  a  Peer  (1819),  p.  282.  Noth- 
ing can  be  more  evident  than  that  it  not  only  es- 
tablishes by  a  legislative  declaration  the  present 
constitution  of  Parliament,  but  recognizes  it  as  al- 
ready standing  upon  a  custom  of  some  length  of 
time. 


Hk-n.  VII.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


15 


cise  of  the  supreme  function  of  sovereignty,  j  merous  and  respectable  body,  some  occu- 
the  enactment  of  new  laws.  Yet  there  is  pying  their  own  estates,  some  those  of  land- 
not  a  single  instance,  from  tlie  first  dawn  of  lords;  the  burgesses  and  inferior  inhabitants 
our  Constitutional  history,  where  a  procla-  of  trading  towns ;  and,  lastly,  the  peasantry 
mation,  or  order  of  council,  has  dictated  any  and  laborers.  Of  these,  in  earlier  times,  a 
change,  however  trifling,  in  the  code  of  pri-  considerable  part,  though  not,  perhaps,  so 
vate  rights,  or  in  the  penalties  of  criminal  very  large  a  proportion  as  is  usually  taken 
offenses.  Was  it  ever  pretended  that  the  for  gi-anted,  had  been  in  the  ignominious 
king  could  empower  his  subjects  to  devise  state  of  villenage,  incapable  of  possessing 
their  freeholds,  or  to  le\'j'  fines  of  their  en-  property  but  at  the  will  of  their  lords, 
tailed  lands  ?  Has  even  the  slightest  regu-  They  had,  hov\'ever,  gradually  been  raised 
lation,  as  to  judicial  procedure,  or  any  per-  above  this  servitude  ;  many  had  acquhed  a 
manent  prohibition,  even  in  fiscal  law,  been  stable  possession  of  lands  under  the  name 
ever  enforced  without  statute  ?  There  was,  of  copy -holders ;  and  the  condition  of  mere 
indeed,  a  period,  later  than  that  of  Henry  villenage  was  become  rare. 
V^II.,  when  a  control  over  the  subject's  free  '  The  three  courts  at  Westminster — the 
right  of  doing  all  things  not  unlawful  was  King's  Bench,  Common  Pleas,  and  E xcheq- 
□surped  by  means  of  proclamations.  These,  uer — consisting  each  of  four  or  five  judges, 
however,  were  always  temporary,  and  did  administered  justice  to  the  whole  kingdom ; 
not  affect  to  alter  the  established  law.  But  the  first  having  an  appellant  jurisdiction 
though  it  would  be  difficult  to  assert  that  over  the  second,  and  the  third  bein^  in  a 
none  of  this  kind  had  ever  been  issued  in 
rude  and  in-egular  times,  I  have  not  ob- 
served any  under  the  kings  of  the  Plantag- 
enet  name  which  evidently  transgress  the 
boundaries  of  their  legal  prerogative. 

The  general  privileges  of  the  nation  were 
far  more  secure  than  those  of  private  men. 
Great  violence  was  often  used  by  the  va- 
rious oflficers  of  the  crown,  for  which  no 
adequate  redress  could  be  procured ;  the 
courts  of  justice  were  not  strong  enough, 
whatever  might  be  their  temper,  to  chastise 
such  aggi'essions ;  juries,  through  intimida- 
tion or  ignorance,  returned  such  verdicts  as 
were  desired  by  the  crown  ;  and,  in  gener- 
al, there  was  perhaps  little  effective  restraint 
upon  the  government,  except  in  the  two  ar- 
ticles of  levying  money  and  enacting  laws. 

The  peers  alone,  a  small  body  vaiying 
State  of  soci-  from  about  fifty  to  eighty  per- 
ety  and  law.  gons,  enjoyed  the  privileges  of 
aristocracy ;  which,  except  that  of  sitting 
in  Parliament,  were  not  veiy  considerable, 
far  less  oppressive.  AU  below  them,  even 
their  children,  were  commoners,  and  in  the 
eye  of  the  law  equal  to  each  other.  In  the 
gradation  of  ranks,  which,  if  not  legally  rec- 
ognized, must  still  subsist  through  the  nec- 
essary inequalities  of  birth  and  wealth,  we 
find  the  gentiy  or  principal  landholders, 
many  of  them  distinguished  by  knighthood, 
and  all  by  bearing  coat  armor,  but  without 
any  exclusive  privilege ;  the  yeomanry,  or 
email  freeholders  and  farmers,  a  vei-y  nu- 


great  measure  confined  to  causes  affecting 
the  crown's  property-.    But  as  all  suits  re- 

,  lating  to  land,  as  well  as  most  others,  and 
all  criminal  indictments,  could  only  be  de- 
termined, so  far  as  they  depended  upon 
oral  evidence,  by  a  jury  of  the  county,  it 
was  necessaiy  that  justices  of  .issize  and 
jail-delivery,  being  in  general  the  judges 

,  of  the  courts  at  Westminster,  should  travel 
into  each  countj-,  commonly  twice  a  year, 
in  order  to  tiy  issues  of  fact,  so  ciilled  in 
distinction  from  issues  of  law,  where  the 
suitors,  admitting  all  essential  facts,  disput- 
ed the  rule  applicable  to  them.*    By  this 

'  *  The  pleadintrs,  as  they  are  called,  or  written 
allesrations  of  both  parties,  which  form  the  basis 
of  a  judicial  inquirj-,  commence  with  the  declara- 
tion, wherein  the  plaintiff  states,  either  specially 
or  in  some  established  form,  according:  to  the  na- 
ture of  the  case,  that  he  has  a  debt  to  demand 
fi-om,  or  an  injiuy  to  be  redressed  by,  the  defend- 
ant.   The  latter,  in  return,  puts  in  his  plea  ;  which, 

j  if  it  amount  to  a  denial  of  the  facts  alleged  in  the 
declaration,  must  conclude  to  the  countr//,  that  is, 
must  refer  the  whole  matter  to  a  jury.    But  if  it 

,  contain  an  admission  of  the  fact,  alonsr  with  a  lesal 

■  justification  of  it,  it  is  said  to  conclude  to  the  court ; 
the  effect  of  which  is  to  make  it  neccssarj-  for  the 
plaintiff  to  reply ;  in  wliich  replication  he  may  de- 
ny the  facts  pleaded  in  justification,  and  conclude 
to  the  country  ;  or  allege  some  new  matter  in  ex- 
planation, to  show  that  the}'  do  not  meet  all  the 
circumstances,  concluding  to  the  court.  Either 
party  also  may  demur,  that  is,  deny  that,  although 
true  and  complete  as  a  statement  of  facts,  the  dec- 
laration or  plea  is  sufficient  according  to  law  to 
found  or  repel  the  plaintiff's  suit.    In  the  last  case 


IG 

device,  wliicli  is  as  ancient  as  the  reign  of 
Henry  II.,  the  fundamental  privilege  of  ti'ial 
by  jury,  and  the  convenience  of  private  suit- 
ors, as  well  as  accused  persons,  were  made 
consistent  with  a  uniform  jurisprudence ; 
and  though  the  reference  of  every  legal 
question,  however  insignificant,  to  the 
courts  above  must  have  been  inconvenient 
and  expensive  in  a  still  greater  degree  than 
at  present,  it  liad  doubtless  a  powerful  tend- 
ency to  knit  together  the  different  parts  of 
England,  to  check  the  influence  of  feudality 
and  clanship,  to  make  the  inhabitants  of  dis- 

it  becomes  an  issue  iu  law,  and  is  determined  by 
the  judges,  without  the  intervention  of  a  jury ;  it 
being  a  principle  tliat,  by  demumng,  the  pai1y  ac- 
knowledges the  tiiith  of  all  matters  alleged  on  the 
pleadings.  But  in  whatever  stage  of  the  proceed- 
ings cither  of  the  litigants  concludes  to  the  coun- 
ti-y  (which  he  is  obliged  to  do,  whenever  the  ques- 
tion can  be  reduced  to  a  disputed  fact),  a  jury  must 
be  impaimeled  to  decide  it  by  their  verdict.  These 
pleadings,  together  with  what  is  called  the  postea, 
that  is,  an  indorsement  by  the  clerk  of  the  court 
wherein  the  trial  has  been,  reciting  that  aflrrward 
the  cause  was  so  tried,  and  such  a  verdict  return- 
ed, with  the  subsequent  entrj-  of  the  judgment  it- 
self, fonn  the  record. 

This  is  merely  intendad  to  explain  the  pLrn  - 
in  the  text,  which  common  readers  might  not  clear- 
ly understand.  The  theorj'  of  special  pleading,  as  it 
is  generally  called,  could  not  be  farther  elucidated 
without  lengthening  this  note  beyond  all  bounds. 
But  it  all  rests  upon  the  ancient  maxim,  "  De  fac- 
to respondent  juratores,  de  jure  judices."  Per- 
haps it  may  be  well  to  add  one  observation — that 
in  many  forms  of  action,  and  those  of  most  fre- 
quent occuiTence  in  modem  times,  it  is  not  re- 
quired to  state  the  legal  justification  on  the  plead- 
ings, but  to  give  it  in  evidence  on  the  general  is- 
sue ;  that  is,  upon  a  bare  plea  of  denial.  Iu  this 
case  the  whole  matter  is  actually  in  the  power  of 
the  jurj'.  But  they  are  generally  bound  in  con- 
science to  defer,  as  to  the  operation  of  any  rule  of 
law,  to  what  is  laid  down  on  that  head  by  the 
judge ;  and  when  they  disregard  liis  directions,  it 
is  usual  to  amiul  the  verdict,  and  grant  a  new  ti'i- 
al.  There  seem  to  be  some  disadvantages  in  the 
annihilation,  as  it  may  be  called,  of  written  plead- 
ings, by  their  reduction  to  an  unmeaning  fonn, 
which  has  prevailed  iu  three  such  important  and 
extensive  forms  of  action,  as  ejectment,  general  as- 
sumpsit, and  trover ;  both  as  it  throws  too  much 
power  into  the  hands  of  the  juiy,  and  as  it  almost 
nullifies  the  ajipellant  jurisdiction,  which  can  only 
be  exercised  where  some  error  is  apparent  on  the 
face  of  the  record.  But  great  practical  conveni- 
ence, and  almost  necessity,  has  generally  been  al- 
leged as  far  more  than  a  compensation  for  these 
evils. — [1827.]  [This  note  is  left,  but  the  last  par- 
agi'aph  is  no  longer  so  near  the  trath  as  it  was,  iu 
consequence  of  the  alterations  subsequently  made 
by  the  judges  in  the  rules  of  pleading.] 


[Chap.  L 

tant  counties  better  acquainted  with  the 
capital  city  and  more  accustomed  to  the 
course  of  government,  and  to  impair  the 
sph'it  of  provincial  patriotism  and  animosity. 
The  minor  tribunals  of  each  county,  hun- 
dred, and  manor,  respectable  for  their  an- 
tiquity and  for  their  effect  in  preserving  a 
sense  of  fi'cedom  and  justice,  had  in  a  great 
measure,  though  not  probably  so  much  as 
in  modern  times,  gone  into  disuse.  In  a 
few  counties  there  still  remained  a  palatine 
jurisdiction,  exclusive  of  the  king's  courts ; 
but  in  these  the  common  rules  of  law  and 
the  mode  of  trial  by  juiy  were  preseiTed. 
Justices  of  the  peace,  appointed  out  of  the 
gentlemen  of  each  county,  inquired  into 
criminal  charges,  committed  offenders  to 
prison,  and  tried  them  at  their  quarterly 
sessions,  according  to  the  same  forms  as 
the  judges  of  jail-delivery.  The  chartered 
towns  had  their  separate  jurisdiction  under 
the  municipal  magistracy. 

The  laws  against  theft  were  severe,  and 
capital  punishments  unsparingly  inflicted. 
Yet  they  had  little  effect  in  repressing  acts 
of  violence,  to  which  a  rude  and  licentious 
state  of  manners,  and  veiy  imperfect  dispo- 
sitions for  preserving  the  public  peace,  nat- 
urally gave  rise.  These  were  frequentlj^ 
perpetrated  or  instigated  by  men  of  superi- 
or wealth  and  power,  above  the  conti'ol  of 
the  mere  officers  of  justice.  Meanwhile 
the  kingdom  was  increasing  in  opulence  : 
the  English  merchants  possessed  a  large 
share  of  the  trade  of  the  north ;  and  a  wool- 
en manufacture,  established  in  different 
parts  of  the  kingdom,  had  not  only  enabled 
the  Legislature  to  restrain  the  import  of 
cloths,  but  had  begun  to  supply  foreign  na- 
tions. The  population  may  probably  be 
reckoned,  without  any  material  error,  at 
about  three  millions,  but  by  no  means  dis- 
tributed in  the  same  proportions  as  at  pres- 
ent ;  the  northern  counties,  especially  Lan- 
cashire and  Cumberland,  being  veiy  iU  peo- 
pled, and  the  inhabitants  of  London  and 
Westminster  not  exceeding  sixty  or  seven- 
ty thousand.* 

*  The  population  for  148.5  is  estimated  by  com- 
paring a  sort  of  census  iu  1378,  when  the  inhabi- 
tants of  the  realm  seem  to  have  amounted  to  about 
2,300,000,  with  one  still  more  loose  under  EUzabcth, 
in  1588,  which  would  give  about  4,400,000 ;  making 
some  allowance  for  the  more  rapid  increase  in  the 
latter  period.  Three  millions  at  the  accession  of 
Henrj-  VII.  is  probably  not  too  low  an  estimate. 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


Hen.  VII.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


17 


Such  was  the  political  condition  of  Eng- 
land when  Henry  Tudor,  the  only  living 
representative  of  the  house  of  Lancaster, 
though  incapable,  by  reason  of  the  illegiti- 
macy of  the  ancestor,  who  connected  him 
with  it,  of  asserting  a  just  right  of  inherit- 
ance, became  master  of  the  throne  by  the 
defeat  and  death  of  his  competitor  at  Bos- 
worth,  and  by  the  general  submission  of  the 

kingdom.    He  assumed  the  royal 
Henry  VII.    .  ,    .  ,      ,,      ,  .  •' 

title  immediately  alter  his  victory, 

and  summoned  a  Parliament  to  recognize 
or  sanction  his  possession.  The  circum- 
stances were  by  no  means  such  as  to  offer 
an  auspicious  presage  for  the  future.  A 
subdued  party  had  risen  from  the  gi-ound, 
incensed  by  proscription  and  elated  by  suc- 
cess ;  the  late  battle  had,  in  effect,  been  a 
contest  between  one  usurper  and  another ; 
and  England  had  little  better  prospect  than 
a  I'enewal  of  that  desperate  and  intermina- 
ble contention,  which  pretenses  of  heredi- 
tary right  have  so  often  entailed  upon  na- 
tions. 

A  Parliament  called  by  a  conqueror  might 
be  presumed  to  be  itself  conquered.  Yet 
this  assembly  did  not  display  so  servile  a 
temper,  or  so  much  of  the  Lancastrian 
spirit,  as  might  be  expected.  It  was  "  or- 
dained and  enacted  by  the  assent  of  the 
Lords,  and  at  the  request  of  the  Commons, 
that  the  inheritance  of  the  crowns  of  Eng- 
land and  France,  and  all  dominions  apper- 
taining to  them,  should  remain  in  Henry 
VII.  and  the  heirs  of  his  body  forever,  and 
in  none  other."*  Words  studiously  ambig- 
uous, which,  while  they  avoid  the  assertion 
of  an  hereditary  right  that  the  public  voice 
repelled,  were  meant  to  create  a  Parlia- 
mentary title,  before  which  the  pretensions 
of  lineal  descent  were  to  give  way.  They 
seem  to  make  Henry  the  stock  of  a  new 
dynasty.  But,  lest  the  specter  of  indefeas- 
ible right  should  stand  once  more  in  arms 
on  the  tomb  of  the  house  of  York,  the  two 
houses  of  Parliament  showed  an  earnest 
desii-e  for  the  king's  marriage  with  the 

[I  now  incline  to  rate  the  population  somevifhat 
higher,  1841.] 

*  Rot.  Pari.,  vi.,  270.  But  the  pope's  bull  of 
dispensation  for  the  king's  marriage  speaks  of  the 
realm  of  England  as  "jure  haercditario  ad  te  legit- 
imum  in  illo  prsedecessoram  tuorum  successorem 
pertineus."  IljTuer,  xii.,  294.  And  all  Henry's 
own  instruments  claim  an  hereditary  right,  of 
which  many  proofs  appear  in  Rymer. 

B 


daughter  of  Edward  IV  ,  who,  if  .she  should 
bear  only  the  name  of  royalty,  might  trans- 
mit an  undisputed  inheritance  of  its  pre- 
rogatives to  her  posterity. 

This  maiTiage,  and  the  king's  great  vigi- 
lance in  guarding  his  crown,  statute  for 
caused  his  reien  to  pass  with  ^^'^  security 

.  of  the  suliject 

considerable  reputation,  though  under  a  kmg 
not  without  disturbance.  He  '^'J'"'''"- 
had  to  learn  by  the  extraordinaiy,  though 
transient,  success  of  two  impostors,  that 
his  subjects  were  still  strongly  infected 
with  the  prejudice  which  had  once  over- 
thrown the  family  he  claimed  to  represent. 
Nor  could  those  who  sei-ved  him  be  exempt 
from  apprehensions  of  a  change  of  dynasty, 
which  might  convert  them  into  attainted 
rebels.  The  state  of  the  nobles  and  gently 
had  been  intolerable  during  the  alternate 
proscriptions  of  Henry  VI.  and  Edward  IV. 
Such  apprehensions  led  to  a  very  important 
statute  in  the  eleventh  year  of  this  king's 
reign,  intended,  as  far  as  law  could  furnish 
a  prospective  secui-ity  against  the  violence 
and  vengeance  of  factions,  to  place  the  civil 
duty  of  allegiance  on  a  just  and  reasonable 
foundation,  and  indirectly  to  cut  away  the 
distinction  between  governments  de  jure 
and  de  facto.  It  enacts,  after  reciting  that 
subjects,  by  reason  of  their  allegiance,  are 
bound  to  serve  their  prince  for  the  time  be- 
ing against  every  rebellion  and  power  raised 
against  him,  that  "no  person  attending  upon 
the  king  and  sovereign  lord  of  this  land  for 
the  time  being,  and  doing  him  true  and 
faithful  service,  shall  be  convicted  of  high 
treason,  by  act  of  Parliament  or  other  pro- 
cess of  law,  nor  suffer  any  forfeiture  or 
punishment ;  but  that  every  act  made  con- 
trary to  this  statute  should  be  void  and  of 
no  effect."*  The  endeavor  to  bind  future 
Parliaments  was  of  course  nugatory;  but 
the  statute  remains  an  unquestionable  au- 
thority for  the  constitutional  maxim,  that 
possession  of  the  throne  gives  a  sufficient 
title  to  tlie  subject's  allegiance,  and  justifies 
his  resistance  of  those  who  may  pretend  to 
a  better  right.  It  was  much  resorted  to  in 
argument  at  the  time  of  the  Revolution,  and 
in  the  subsequent  period. f 

*  Stat.  11  H.  7,  c.  1. 

t  Blaclistoue  (vol.  iv.,  c.  6)  has  some  rather  per- 
plexed reasoning  on  this  statute,  leaning  a  littla 
toward  the  dcjure  doctrine,  and  at  best  confound- 
ing moral  with  legal  obligations.    In  the  latter 


18 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  L 


It  has  been  usual  to  speak  of  this  reign 
as  if  it  formed  a  great  epoch  in  our  Consti- 
tution ;  the  king  having  by  his  politic  meas- 
ures broken  the  power  of  the  barons  who 
had  hitherto  -withstood  the  prerogative, 
•while  the  Commons  had  not  yet  risen  from 
the  humble  station  which  they  were  sup- 
posed to  have  occuj)ied.  I  doubt,  however, 
whether  the  change  was  quite  so  ))recise!y 
refeiTible  to  the  time  of  Henry  VII.,  and 
whether  his  policy  has  not  been  somewhat 
oveiTated.  In  certain  respects,  his  reign  is 
undoubtedly  an  era  in  our  history.  It  be- 
gan in  revolution  and  a  change  ia  the  line 
of  descent.  It  nearly  coincides,  w^hich  is 
more  material,  with  the  commencement  of 
what  is  termed  modem  history,  as  distin- 
guished from  the  3Iiddle  Ages,  and  with  the 
memorable  events  that  have  led  us  to  make 
that  leading  distinction,  especially  the  con- 
solidation of  the  gi-eat  European  monar- 
chies, among  which  England  took  a  con- 
spicuous station.  But,  relatively  to  the 
main  subject  of  our  inquiiy,  it  is  not  evident 
that  Henry  YII.  carried  the  authority  of 
the  cro'\vn  much  beyond  the  point  at  which 
Edward  IV".  had  left  it.  The  strength  of 
the  nobility  had  been  grievously  impaired 
by  the  bloodshed  of  the  civil  wars,  and  the 
attainders  that  followed  them.  Fi-om  this 
cause,  or  from  the  general  intimidation,  we 
find,  as  I  have  observed  in  another  work, 
that  no  laws  favorable  to  public  liberty,  or 
remedial  with  respect  to  the  aggi-essions  of 
power,  were  enacted,  or  (so  far  as  appears) 
even  proposed  in  Parliament,  during  the 
reign  of  Edward  IV. ;  the  first,  since  that 
of  John,  to  which  such  a  remark  can  be  ap- 
plied. The  Commons,  who  had  not  always 
been  so  humble  and  abject  as  smatterers  in 
history  are  apt  to  fancy,  were  by  this  time 
much  degenerated  from  the  spirit  they  had 
displayed  under  Edward  IH.  and  Richard 
II.  Thus  the  founder  of  the  line  of  Tudor 
came,  not  certainly  to  an  absolute,  but  a 
vigorous  prerogative,  which  his  cautious 
dissembling  temper  and  close  attention  to 
business  were  well  calculated  to  extend. 

sense,  whoever  attends  to  the  preamble  of  the  act 
srill  see  that  Hawkins,  whose  opinion  Blackstone 
calls  in  question,  is  right ;  and  that  he  is  himself 
WTons  in  pretending  that  "  the  statute  of  Heniy 
VII.  does  by  no  means  command  any  opposition  to 
a  king  de  jvrc,  but  excuses  the  obedience  paid  to 
a  king  dc  facto." 


The  laws  of  Henry  VII.  have  been  high- 
ly praised  by  Lord  Bacon  as  "deep  statute  of 
and  not  vulgar,  not  made  upon  the  Fines, 
spur  of  a  particular  occa.sion  for  the  present, 
but  out  of  providence  for  the  future,  to  make 
the  estate  of  his  people  still  more  and  more 
I  happy,  after  the  manner  of  the  legislators 
i  in  ancient  and  heroical  times."    But  when 
j  we  consider  how  very  few  kings  or  states- 
;  men  have  displayed  this  prospective  wisdom 
and  benevolence  in  legislation,  we  may  hes- 
itate a  little  to  bestow  so  rare  a  praise  upon 
j  Henry.    Like  the  laws  of  all  other  times, 
,  his  statutes  seem  to  have  had  no  further 
'  aim  than  to  remove  some  immediate  mis- 
]  chief,  or  to  promote  some  particular  end. 
One,  however,  has  been  much  celebrated 
as  an  instance  of  his  sagacious  policy,  and 
as  the  principal  cause  of  exalting  the  royal 
'  authority  upon  the  ruins  of  the  aristocracy : 
j  I  mean  the  statute  of  fines  (as  one  passed 
in  the  fourth  year  of  his  reign  is  commonly 
1  called),  which  is  supposed  to  have  given  the 
'  power  of  alienating  entailed  lands.  But 
both  the  intention  and  effect  of  this  seem 
'  not  to  have  been  justly  apprehended, 
j     In  the  first  place,  it  is  remarkable  that 
the  statute  of  Henry  VII.  is 

,  ...  Discnssion  of 

merely  a  transcnpt,  with  very  n,  effect  and 
little  variation,  from  one  of  Rich- 
ard  III.,  which  is  actually  printed  in  most 
editions.  It  was  re-enacted,  as  we  must 
presume,  in  order  to  obviate  any  doubt,  how- 
ever ill-grounded,  which  might  hang  upon 
the  validity  of  Richard's  laws.  Thus  van- 
ish at  once  into  air  the  deep  policy  of  Hen- 
ry VII.,  and  his  insidious  schemes  of  lead- 
ing on  a  prodigal  aristocracy  to  its  ruin.  It 
is  surely  strange,  that  those  who  have  ex- 
tolled this  sagacious  monarch  for  breaking 
the  fetters  of  landed  property  (though  many 
of  them  were  lawyers)  should  never  have 
observed,  that  whatever  credit  might  be  due 
for  the  innovation  should  redound  to  the 
honor  of  the  unfortimate  usurper.  But 
Richard,  in  truth,  had  no  leisure  for  such 
long-sighted  projects  of  strengthening  a 
throne  for  his  posterity  which  he  could  not 
presei-ve  for  himself.  His  law,  and  that  of 
his  successor,  had  a  different  object  in  view. 

It  would  be  useless  to  some  readers,  and 
perhaps  disgusting  to  others,  especially  in 
the  very  outset  of  this  work,  to  enter  upon 
the  history  of  the  English  law  as  to  the  pow- 
er of  alienation.    But  I  can  not  explain  the 


Hes. 


FROM  HENRY  VII.  TO  GEORGE  II. 


19 


present  subject  without  mentioning  that,  by 
a  statute  in  the  reign  of  Edward  I.,  com- 
monly called  de  donis  conditionalibus,  lands 
given  to  a  man  and  the  heirs  of  his  body, 
with  remainder  to  other  persons,  or  rever- 
sion to  the  donor,  could  not  be  alienated  by 
the  possessor  for  the  time  being,  either  from 
his  own  issue  or  from  those  who  were  to 
succeed  them.  Such  lands  were  also  inca- 
pable of  forfeiture  for  treason  or  felony ; 
and  more,  perhaps,  upon  this  account  than 
from  any  more  enlarged  principle,  these  en- 
tails were  not  viewed  with  favor  by  the 
courts  of  justice.  Several  attempts  were 
successfully  made  to  relax  their  sti-ictness  ; 
and  finally,  in  the  reign  of  Edward  IV.,  it 
was  held  by  the  judges  in  the  ftlmous  case 
of  Taltarum,  that  a  tenant  in  tail  might,  by 
what  is  called  suffering  a  common  recovery, 
that  is,  by  means  of  a  fictitious  process  of 
law,  divest  all  those  who  were  to  come  af- 
ter him  of  their  succession,  and  become 
owner  of  the  fee  simple.  Such  a  decision 
was  certainly  far  beyond  the  sphere  of  ju- 
dicial authority.  The  Legislature,  it  was 
probably  suspected,  would  not  have  consent- 
ed to  infringe  a  statute  which  they  reck- 
oned the  safeguard  of  their  families.  The 
law,  however,  was  laid  down  by  the  judg- 
es; and  in  those  days  the  appellant  juris- 
diction of  the  House  of  Lords,  by  means  of 
which  the  ai-istocracy  might  have  indignant- 
ly reversed  the  insidious  decision,  had  gone 
wholly  into  disuse.  It  became  by  degrees 
a  fundamental  principle,  that  an  estate  in 
tail  can  be  baired  by  a  common  recoveiy ; 
nor  is  it  possible  by  any  legal  subtlety  to 
deprive  the  tenant  of  this  conti'ol  over  his 
estate.  Schemes  were,  indeed,  gradually 
devised,  which  to  a  limited  extent  have  re- 
sti'ained  the  power  of  alienation ;  but  these 
do  not  belong  to  our  subject. 

The  real  intention  of  these  statutes  of 
Richard  and  Henry  was  not  to  give  the  ten- 
ant in  tail  a  gi'eater  power  over  his  estate 
(for  it  is  by  no  means  clear  that  the  words 
enable  him  to  bar  his  issue  by  levying  a 
fine ;  and  when  a  decision  to  that  effect 
took  place  long  aftenvard  (19  H.  8).  it  was 
with  such  difference  of  opinion  that  it  was 
thought  necessary  to  confirm  the  interpre- 
tation by  a  now  act  of  Parliament) ;  but 
rather,  by  establishing  a  short  term  of  pre- 
scription, to  put  a  check  on  the  suits  for  re- 
covery of  lauds,  which,  after  times  of  so 


much  violence  and  disturbance,  were  natu- 
rally springing  up  in  the  courts.  It  is  the 
usual  policy  of  governments  to  favor  pos- 
session ;  and  on  this  princi|)le  the  statute 
enacts  that  a  fine  levied  v^nth  proclamations 
in  a  public  court  of  justice  shall  after  five 
years,  except  in  particular  circumstances, 
be  a  bar  to  all  claims  upon  lands.  This  was 
its  main  scope  ;  the  libeity  of  alienation  was 
neither  necessaiy,  nor  pi'obably  intended  to 
be  given.* 

The  first  two  of  the  Tudors  rarely  expe- 
rienced opposition  but  when  they  Exactions  of 

endeavored  to  levy  money.  Tax-  U^nry  vii. 
ation,  in  the  eyes  of  their  subjects,  was  so 
far  from  being  no  tyranny,  that  it  seemed 
the  only  species  worth  a  complaint.  Heniy 
VII.  obtained  from  his  first  Parliament  a 
grant  of  tonnage  and  poundage  during  life, 
according  to  several  precedents  of  former 
reigns.  But  when  general  subsidies  were 
granted,  the  same  people,  who  would  have 
seen  an  innocent  man  led  to  prison  or  the 
scaffold  with  little  attention,  twice  broke  out 
into  dangerous  rebellions ;  and  as  these, 
however  arising  from  such  immediate  dis- 
content, were  j'et  a  good  deal  connected 
with  the  opinion  of  Henry's  usurpation  and 
the  claims  of  a  pretendei',  it  was  a  necessa- 
ry policy  to  avoid  too  frequent  imposition 
of  burdens  upon  the  poorer  cliisses  of  the 
community. f    He  had  recourse,  accord- 

*  For  these  observations  on  the  statute  of  Fines, 
I  am  principally  indebted  to  Reeves's  History  of 
the  English  Law  (iv.,  133),  a  work,  especially  in 
the  latter  volumes,  of  great  research  and  judgment : 
a  continuation  of  which,  in  the  same  spirit,  and 
with  the  same  qualities,  would  be  a  valuable  ac- 
cession not  only  to  the  lawyer's,  but  philosopher's 
library.  That  entails  had  been  defeated  by  means 
of  a  common  recovery  before  the  statute,  had  been 
remarked  by  fonner  writers,  and  is  indeed  obvi- 
ous ;  but  the  subject  was  never  put  in  so  clear  a 
light  as  by  Mr.  Reeves. 

The  principle  of  breaking  down  the  statute  de 
donis  was  so  little  established,  or  consistently  act- 
ed upon,  in  this  reign,  that  in  II  H.  7,  the  judges 
held  that  the  donor  of  an  estate-tail  might  resti-ain 
the  tenant  from  sutfeiing  a  recovery. — Id.,  p.  15S, 
from  the  Year  book. 

t  It  is  said  by  the  biographer  of  Sir  Thomas 
More,  that  Parliament  refused  the  king  a  subsidy 
in  1.502,  which  he  demanded  on  account  of  the  mar- 
riage of  his  daughter  Margaret,  at  the  advice  of 
More,  then  but  twenty -two  years  old.  "  Forthwith 
Mr.  Tyler,  one  of  the  privy  chamber,  that  was  then 
present,  resorted  to  the  king,  declaring  that  a 
beardless  boy,  called  More,  had  done  more  harm 
than  all  the  rest,  for  by  his  means  all  the  purpose 


20 


CONSTITUTIONAL  HISTOHY  OF  ENGLAND 


[Chap,  I. 


ingly,  to  the  sj'stem  of  benevolences,  or 
contributions  apparently  voluntaiy,  though 
in  fact  extorted  from  his  richer  subjects. 
These,  having  become  an  intolerable  gi-iev- 
ance  under  Edward  IV.,  were  abolished  in 
the  only  Parliament  of  Richard  III.,  with 
sti'ong  expressions  of  indignation.  But  in 
the  seventh  year  of  Henry's  reign,  when, 
after  having  with  timid  and  parsimonious 
hesitation  suffered  the  maiTiage  of  Anne  of 
Brittany  with  Charles  VIII.,  he  was  com- 
pelled by  the  national  spirit  to  make  a  dem- 
onstration of  war,  he  ventured  to  try  this 
unfair  and  unconstitutional  method  of  ob- 
taining aid ;  which  received  aftenvard  too 
much  of  a  Parliamentaiy  sanction,  by  an  act 
enforcing  the  payment  of  arrears  of  money 
■which  private  men  had  thus  been  prevailed 
upon  to  promise.*  The  statute,  indeed,  of 
Richai'd  is  so  expressed  as  not  clearly  to  for- 
bid the  solicitation  of  voluntary  gifts,  which, 
of  course,  rendered  it  almost  nugatoiy. 

Archbishop  Morton  is  famous  for  the  di- 
lemma which  he  proposed  to  merchants  and 
others,  whom  he  solicited  to  contribute.  He 
told  those  who  lived  handsomely  that  their 
opulence  was  manifest  by  their  rate  of  ex- 
penditure. Those,  again,  whose  course  of 
living  was  less  sumptuous,  must  have  gi-own 
rich  by  their  economy.  Either  class  could 
well  afford  assistance  to  their  sovereign. 
This  piece  of  logic,  unanswerable  in  the 
mouth  of  a  privy  councilor,  acquired  the 
name  of  Morton's  fork.  Henry  doubtless 
reaped  gi'eat  profit  from  these  indefinite  ex- 
actions, miscalled  benevolences.  But,  insa- 
tiate of  accumulating  treasure,  he  discover- 
ed other  methods  of  extortion,  stUl  moi-e 
odious,  and  possibly  more  lucrative.  Many 
statutes  had  been  enacted  in  preceding 
reigns,  sometimes  rashly  or  from  temporaiy 
motives,  sometimes  in  opposition  to  prevail- 
ing usages  which  they  could  not  restrain,  of 
which  the  pecuniary  penalties,  though  ex- 
is  dashed."  This,  of  course,  displeased  Henrj-, 
who  would  not,  however,  he  says,  "  iufring'e  the  an- 
cient libei-ties  of  that  house,  which  would  have 
been  odiously  taken." — ^Wordsworth's  Eccles.  Bi- 
ography, ii.,  66.    This  story  is  also  told  by  Roper. 

*  Stat.  11  H.  7,  c.  10.  Bacon  says  the  benevo- 
lence was  granted  by  act  of  Parliament,  which 
Hume  shows  to  be  a  mistake.  The  preamble  of 
11  H.  7  recites  it  to  have  been  "granted  by  di- 
vers of  your  subjects  severally."  and  contams  a 
provision  that  no  heir  shall  be  charged  on  account 
of  his  ancestor's  promise. 


ceedingly  severe,  were  so  little  enforced  as 
to  have  lost  their  teiTor.    These  his  minis- 
ters raked  out  from  oblivion ;  and,  prosecut- 
ing such  as  could  afford  to  endure  the  law's 
severity,  filled  his  treasury  with  the  dishon- 
orable produce  of  amercements  and  forfeit- 
ures.   The  feudal  rights  became,  as  indeed 
they  always  had  been,  instmmental  to  op- 
pression.   The  lands  of  those  who  died 
without  heirs  fell  back  to  the  crown  by  es- 
cheat.   It  was  the  duty  of  certain  officers 
in  every  county  to  look  after  its  rights.  The 
king's  title  was  to  be  found  by  the  inquest 
of  a  juiy ,  summoned  at  the  instance  of  the 
escheator,  and  returned  into  the  Exchequer. 
It  then  became  a  matter  of  record,  and  could 
not  be  impeached.    Hence  the  escheators 
taking  hasty  inquests,  or  sometimes  falsely 
pretending  them,  defeated  the  right  heir  of 
his  succession.    Excessive  fines  were  im- 
posed on  granting  liveiy  to  the  king's  wards 
on  their  majority.    Informations  for  intru- 
sions, criminal  indictments,  outlawries  on 
civil  process,  in  short,  the  whole  course  of 
justice,  furnished  pretenses  for  exacting 
money  ;  while  a  host  of  dependents  on  the 
court,  suborned  to  play  their  part  as  wit- 
nesses, or  even  as  jurors,  rendered  it  hardly 
possible  for  the  most  innocent  to  escape 
these  penalties.    Empson  and  Dudley  are 
notorious  as  the  prostitute  instraments  of 
Heniy's  avarice  in  the  later  and  more  un- 
popular years  of  his  reign ;  but  they  dearly 
purchased  a  brief  hour  of  favor  by  an  igno- 
minious death  and  perpetual  infamy.*  The 
avarice  of  Henry  VII.,  as  it  rendered  his 
government  unpopular,  wliich  had  always 
been  penurious,  must  be  deemed  a  draw- 
back from  the  wisdom  ascribed  to  him ; 
though  by  his  good  fortune  it  answered  the 
end  of  invigorating  his  power.    By  these 
fines  and  forfeitures  he  impoverished  and  in- 
timidated the  nobility.    The  Earl  of  Oxford 
compounded,  by  the  payment  of  c£l5,000, 
for  the  penalties  he  had  incurred  by  keep- 
ing retainers  in  liveiy  ;  a  practice  mischiev- 
ous and  illegal,  but  too  customary  to  have 
been  punished  before  this  reign.    Even  the 
king's  clemency  seems  to  have  been  influ- 
enced by  the  sordid  motive  of  selling  par- 
dons ;  and  it  has  been  shown  that  he  made 
a  profit  of  every  office  in  his  court,  and  re- 
ceived money  for  conferring  bishopries.! 

*  Hah,  50-2. 

t  Turner's  History  of  England,  iii.,  628,  from  a 


EES.  VIII.] 


FROM  HENRY  VII. 


TO  GEORGE  II. 


21 


It  is  asserted  by  early  \witers,  though 
perhaps  only  on  conjecture,  that  he  left  a 
sum  thus  amassed,  of  no  less  than  1,800,000 
pounds,  at  his  decease.  This  ti-easure  was 
soon  dissipated  bj^  his  successor,  who  had 
recourse  to  the  assistance  of  Parliament  in 
the  very  first  year  of  his  reign.  The  for- 
eign policy  of  Henry  VIII.,  far  unlike  that 
of  his  father,  was  ambitious  and  enterpris- 
ing. No  former  king  had  involved  himself 
so  frequently  in  the  labyrinth  of  Continent- 
al alliances.  And,  if  it  were  necessaiy  to 
abandon  that  neun-ality  which  is  generally 
the  most  advantageous  and  laudable  course, 
it  is  certain  that  his  early  undertakings 
against  France  were  more  consonant  to 
English  interests,  as  well  as  more  honora- 
ble, than  the  opposite  policy  which  he  pur- 
sued after  the  battle  of  Pavia.  The  cam- 
paigns of  Heniy  in  France  and  Scotland 
displayed  the  valor  of  our  English  infantry, 
seldom  called  into  action  for  fifty  years  be- 
fore, and  conh'ibuted,  with  other  circum- 
stances, to  throw  a  luster  over  his  reign, 
which  prevented  most  of  his  contempora- 
ries from  duly  appreciating  his  character. 
But  they  naturally  drew  the  king  into  heavy 
expenses,  and,  together  with  his  profusion 
and  love  of  magnificence,  rendered  his  gov- 
ernment very  burdensome.  At  his  acces- 
sion, however,  the  rapacity  of  his  father's 
administration  had  excited  such  imiversal 
discontent  that  it  was  found  expedient  to 
conciliate  the  nation.  An  act  was  passed 
in  his  first  Parliament  to  coiTect  the  abuses 
that  had  prevailed  in  finding  the  king's  title 
to  lauds  by  escheat.*  The  same  Parlia- 
ment repealed  the  law  of  the  late  reign,  en- 
abling justices  of  assize  and  of  the  peace  to 
determine  all  offenses,  except  ti'eason  and 
felony,  against  any  statute  in  force,  without  a 
jmy,  upon  information  in  the  king's  name.f 
This  serious  innovation  had  evidently  been 
prompted  by  the  spirit  of  rapacity  which, 
probably,  some  honest  juries  had  shown 
courage  enough  to  Avithstand.  It  was  a 
much  less  laudable  concession  to  the  vin- 
dictive temper  of  an  injured  people,  seldom 
unwilling  to  see  bad  methods  employed  in 

manuscript  document.  A  vast  number  of  persons 
paid  fines  for  their  share  hi  the  western  rebeUion 
of  H97,  from  £200  down  to  20s.  Hall,  486.  El- 
lis's Letters,  illustrative  of  English  Historj*,  i.,  38. 
*  1  H.  8,  c.  8. 

t  11  H.  7,  c.  3.    Rep.  1  H.  8,  c.  6. 


punishing  bad  men,  that  Empson  and  Dud- 
ley, who  might,  perhaps,  by  sti-etching  the 
prerogative,  have  incurred  the  penalties  of 
a  misdemeanor,  were  put  to  death  on  a 
frivolous  charge  of  high  ti-eason.* 

The  demands  made  by  Hemy  VIII. 
on  Parliament  were  considerable,  ^ 

Taxi's  de- 

both  in  frequency  and  amount,  inanded  by 
Notwithstanding  the  servility  of  ^^<^'"'>' ^ 
those  times,  they  sometimes  attempted  to 
make  a  stand  against  these  inroads  upon 
the  public  purse.  Wolsey  came  into  the 
House  of  Commons  in  1523,  and  asked  for 
c€800,000,  to  be  raised  by  a  tax  of  one  fifth 
upon  lands  and  goods,  in  order  to  prosecute 
the  war  just  commenced  against  France. 
Sir  Thomas  More,  then  speaker,  is  said  to 
have  urged  the  House  to  acquiesce. f  But 
the  sum  demanded  was  so  much  beyond  any 
precedent,  that  iill  the  independent  mem- 
bers opposed  a  vigorous  resistance.  A  com- 
mittee was  appointed  to  remonstrate  with 
the  cardinal,  and  to  set  forth  the  impossi- 
bility of  raising  such  a  subsidy.  It  was  al- 
leged that  it  exceeded  all  the  cuiTent  coin 
of  the  kingdom.  Wolsey,  after  giving  an 
uncivil  answer  to  the  committee,  came  down 
again  to  the  House,  on  pretense  of  reason- 
ing with  them,  but  probably  with  a  hope  of 
carrying  his  end  by  intimidation.  They  re- 
ceived him,  at  More's  suggestion,  with  all 
the  train  of  attendants  that  usually  encir- 


*  They  were  convicted  by  a  jury,  and  afterward 
attainted  by  Parliament,  but  not  executed  for  more 
tliau  a  year  after  the  king's  accession.  If  we  may 
believe  Holingshed,  the  council  at  Henry  VIII.'s 
accession  made  restitution  to  some  who  had  been 
wronged  by  the  extortion  of  the  late  reign  ;  a  sin- 
gular contrast  to  their  subsequent  proceedings  ! 
This,  indeed,  had  been  enjoined  by  Henry  VII. 's 
will.  But  he  had  excepted  from  this  restitution 
"  what  had  been  done  by  the  course  and  order  of 
our  laws  ;"  which,  as  Mr.  Astle  observes,  was  the 
common  mode  of  his  oppressions. 

t  Lord  Herbert  inserts  an  acute  speech,  which 
he  seems  to  ascribe  to  More,  arguing  more  ac- 
quaintance with  sound  principles  of  political  econ- 
omy than  was  usual  in  iJie  supposed  speaker's 
age,  or  even  in  that  of  the  writer.  But  it  is  more 
probable  that  this  is  of  his  own  invention.  He  has 
taken  a  similar  libertj'  on  another  occasion,  throw- 
ing his  own  broad  notions  of  religion  into  an  imag- 
inary speech  of  some  unnamed  member  of  the 
Commons,  though  manifestly  unsuited  to  the  char- 
acter of  the  times.  That  More  gave  satisfaction  to 
Wolsey  by  his  conduct  in  the  chair,  appears  by  a 
letter  of  the  latter  to  the  king,  in  State  Papers, 
temp.  H.  VIII.,  p.  124. 


22 


CONSTITUTIONAL  HISTOHY  OF  ENGLAND 


[Chap.  L 


cled  the  hauglitiest  subject  who  had  ever 
been  known  in  England  ;  but  they  made 
no  other  answer  to  his  harangue  than  that 
it  was  their  usage  to  debate  only  among 
themselves.  These  debates  hasted  fifteen 
or  sixteen  days.  A  considerable  part  of 
the  Commons  appears  to  have  consisted  of 
the  king's  household  officers,  whose  influ- 
ence, with  the  utmost  difficulty,  obtained  a 
gi'ant  much  inferior  to  the  cardinal's  requi- 
sition, and  payable,  by  instalments,  in  four 
years.  But  Wolsey,  greatly  dissatisfied 
with  this  imperfect  obedience,  compelled 
the  people  to  pay  up  the  whole  subsidy  at 
once.* 

*  Roper's  Life  of  More.  HaU,  6.156,  672.  This 
chronicler,  who  wrote  under  Edward  Yl.,  is  our 
best  witness  for  the  events  of  Henry's  reign. 
Grafton  is  so  literally  a  copjist  from  him,  that  it 
■was  a  great  mistake  to  republish  this  part  of  liis 
chronicle  in  the  late  exjjensive,  and  therefore  in- 
complete collection  ;  since  he  adds  no  one  word, 
and  omits  only  a  few  ebullitions  of  Protestant  zeal 
which  he  seems  to  have  considered  too  warm. 
Holingshed,  thousrb  valuable,  is  later  than  Hall. 
Wolsey,  the  latter  observes,  gave  offense  to  the 
Commons,  by  descanting  on  the  wealth  and  luxury 
of  the  nation,  "  as  though  he  had  repined  or  dis- 
claimed that  any  man  should  fare  weU,  or  be  well 
clothed  but  himself." 

But  the  most  authentic  memorial  of  what  passed 
on  this  occasion  has  been  preserved  in  a  letter 
from  a  member  of  the  Commons  to  the  Earl  of  Siu"- 
rey  (soon  after  Duke  of  Norfolk),  at  that  time  the 
king's  lieutenant  in  the  north. 

"Please  it  your  good  lordships  to  understand, 
that  sithence  the  beginning  of  the  Parliament  there 
hath  been  the  greatest  and  sorest  hold  in  the  Low- 
er House  for  the  pajTnent  of  two  shillings  of  the 
pound  that  ever  was  seen,  I  think,  in  any  Parha- 
ment.  This  matter  hath  been  debated  and  beaten, 
fifteen  or  sixteen  days  together.  The  liighest  ne- 
cessity alleged  on  the  king's  behalf  to  us  that  ever 
was  heard  of;  and,  on  the  contrary,  the  highest 
poverty  confessed,  as  well  by  knights,  esquires, 
and  gentlemen  of  everj-  quarter,  as  by  the  com- 
moners, citizens,  and  burgesses.  There  hath  been 
such  hold  that  the  House  was  like  to  have  been 
dissevered;  that  is  to  say,  the  knights  being  of 
the  king's  council,  the  king's  servants  and  gentle- 
men of  the  one  party  ;  which  in  so  long  time  were 
spoken  with,  and  made  to  see,  yea,  it  may  fortune, 
contrary  to  their  heart,  will,  and  conscience.  Tims 
hanging  this  matter,  yesterday  the  more  part  be- 
ing the  king's  servants,  gentlemen,  were  there  as- 
sembled ;  and  so  they,  being  the  more  part,  willed 
and  gave  to  the  king  two  shiliiuss  of  the  pound  of 
goods  or  lands,  the  best  to  be  taken  for  the  king. 
AH  lands  to  pay  two  shillings  of  the  pound  for  the 
laitj",  to  the  highest.  The  goods  to  pay  two  shil- 
lings of  the  pound,  for  twenty  pound  upward  ;  and 
from  forty  shillings  of  goods  to  twenty  pound,  to 


No  Parliament  was  assembled  for  nearly 
seven  years  after  this  time.  Wol-  Illegal  exac. 
sey  had  already  resorted  to  more  ,„  1552 
arbitrary  methods  of  raising  mon-  a"*!  '^25. 
ey  by  loans  and  benevolences.*  The  j'ear 
before  this  debate  in  the  Commons,  he 
bon'owed  twenty  thousand  pounds  of  the 
city  of  London;  yet  so  insufficient  did  thai 
appear  for  the  king's  exigencies,  that,  with 
in  two  months,  commissioners  were  ap 
pointed  throughout  the  kingdom  to  sweai 
every  man  to  the  value  of  his  possessions, 
requiring  a  ratable  part  according  to  such 
declaration.  The  clergy,  it  is  said,  were 
expected  to  contribute  a  fourth;  but  I  be- 
lieve that  benefices  above  ten  pounds  ia 
yearly  value  were  taxed  at  one  third.  Such 
unparalleled  violations  of  the  clearest  and 
most  important  privilege  that  belonged  to 
Englishmen  excited  a  general  apprehen- 
sion.f     Fresh   commissioners,  however, 

pay  sixteen  pence  of  the  pound ;  and  under  forty 
shillings,  every  person  to  pay  eight  pence.  This 
to  be  paid  in  two  years.  I  have  heard  no  man  in 
my  life  that  can  remember  that  ever  there  was 
given  to  any  one  of  the  king's  ancestors  half  so 
much  at  one  graunt.  Nor,  I  thmk,  there  was  nev- 
er such  a  president  seen  before  this  time.  I  be- 
seeke  Almighty  God,  it  may  be  well  and  peacea- 
bly levied,  and  surely  payd  unto  the  king's  grace, 
without  grudge,  and  especially  without  losing  the 
good  will  and  true  hearts  of  his  subjects,  which  I 
reckon  a  far  greater  treasure  for  the  king  than 
gold  and  silver.  And  the  gentlemen  that  must  take 
pains  to  }evy  this  money  among  the  king's  sub- 
jects, I  think,  shall  have  no  little  business  about 
the  same." — Strj-pe's  Eccles.  Memorials,  vol.  i.,  p. 
49.  This  is  also  printed  in  Ellis's  Letters  illustra- 
tive of  English  Historj-,  i.,  220. 

*  I  may  notice  here  a  mistake  of  Mr.  Hume  and 
Dr.  Lingard.  They  assert  Henry  to  have  receiv- 
ed tonnage  and  poundage  several  years  before  it 
was  vested  in  him  by  the  Legislature.  But  it  was 
granted  by  his  first  Parliament,  stat.  1  H.  8,  c.  20, 
as  will  be  found  even  in  RufFliead's  table  of  con- 
tents, though  not  in  the  body  of  his  volume  ;  and 
the  act  is  of  course  printed  at  length  in  the  great 
edition  of  the  statutes.  That  which  probably  by 
its  title  gave  rise  to  the  error,  6  H.  8,  c.  13,  has  a 
different  object. 

t  Hall,  645.  This  chronicler  says,  the  laitj-  were 
assessed  at  a  tenth  part.  But  this  was  only  so 
for  the  smaller  estates,  namely,  from  i20  to  £300  ; 
for  from  £300  to  £1000,  the  contribution  demand- 
ed was  twenty  marks  for  each  £100,  and  for  an 
estate  of  £1000  two  hundred  marks,  and  so  ia 
proportion  upward.  —  MS.  Instructions  to  commis- 
sioners, penes  auctorem.  This  was,  "upon  suf- 
ficient promise  and  assurance,  to  be  repaid  unto 
them  upon  such  grants  and  contributions  as  shall 
be  given  and  granted  to  his  grace  at  liis  next  Par- 


Hen.  VIII.] 


FROM  HENRY  VII.  TO  GEORGE  IL 


23 


were  appointed  in  1525,  with  insti'uctions  |  demand  Wolsey  made  in  person  to  the 
to  demand  the  sixth  part  of  eveiy  man's  mayor  and  chief  citizens  of  London.  They 
substance,  payable  in  money,  plate,  or  jew-  attempted  to  remonstrate,  but  were  wai-ned 
els,  according  to  the  last  valuation.*    This  to  beware,  lest  "  it  might  fortune  to  cost 


liament." — lb.  "  Aiid  they  shall  practice  by  all 
the  means  to  them  possible  that  such  sums  as  shall 
be  so  granted  by  the  way  of  loan  be  forthwith 
levied  and  paid,  or  the  most  part,  or  at  the  least 
the  moiety  thereof,  the  same  to  be  paid  in  as  brief 
time  after  as  they  can  possibly  persuade  and  in- 
duce them  mito ;  showing  unto  them  that,  for  the 
sure  payment  thereof  they  shall  have  writings  de- 
livered unto  them  under  the  king's  privy  seal  by 
such  person  or  persons  as  shall  be  deputed  by  the 
king  to  receive  the  said  loan,  after  the  foiTU  of  a 
minute  to  be  shown  unto  them  by  the  said  com- 
missioners, the  tenor  whereof  is  thus:  We,  Henry 
VIII.,  by  the  grace  of  God,  King  of  England  and 
of  France,  Defender  of  Faith,  and  Lord  of  Ireland, 
promise  by  these  presents  truly  to  content  and  re- 
pay unto  our  trusty  and  well-beloved  subject,  A. 
B.,  the  sum  of  ,  which  he  hath  lovingly  ad- 
vanced unto  us  by  way  of  loan,  for  defense  of  our 
realm,  and  maintenance  of  our  wars  against  France 
and  Scotland :  In  witness  whereof  we  have  caused 
our  privy  seal  hereunto  to  be  set  and  annexed 

the    day  of  ,  the  fourteenth  year  of  our 

reign." — lb.  The  rate  fixed  on  the  clergy  I  collect 
by  analogy,  from  that  imposed  in  152-5,  which  I  find 
in  another  manuscript  letter. 

*  A  letter  in  my  possession  from  the  Duke  of 
Norfolk  to  Wolsey,  without  the  date  of  the  year, 
relates,  I  believe,  to  this  commission  of  152.5,  rather 
than  that  of  1522  ;  it  being  dated  on  the  10th  of 
April,  which  appears  from  the  contents  to  have 
been  before  Easter;  whereas  Easter  did  not  fall 
beyond  that  day  in  1523  or  1524,  but  did  so  in  1525  ; 
and  the  fii'st  commission,  being  of  die  fourteenth 
year  of  the  king's  reign,  must  have  sat  later  than 
Easter,  1522.  He  infoiTOS  the  cardinal  that,  from 
twenty  pounds  upward,  there  were  not  twenty  in 
the  county  of  Norfolk  who  bad  not  consented. 
"  So  that  I  see  great  likelihood  that  this  grant  shall 
be  much  more  than  the  loan  was."  It  was  done, 
however,  veiy  reluctantly,  as  he  confesses ;  "  as- 
Buring  your  grace  tliat  they  have  not  granted  the 
same  without  shedding  of  many  salt  tears,  only  for 
doubt  how  to  find  money  to  content  the  king's  high- 
ness." The  resistance  went  further  than  the  duke 
thought  fit  to  suppose  ;  for  in  a  veiy  short  time  the 
insurrection  of  the  common  people  took  jjlace  in 
Suffolk.  In  another  letter  from  liim  and  the  Duke 
of  Suffolk  to  the  cardinal  they  treat  this  rather 
lightly,  and  seem  to  object  to  the  remission  of  the 
contribution. 

This  commission  issued  soon  after  the  news  of 
the  battle  of  Pavia  anived.  The  pretext  was  the 
king's  intention  to  lead  an  army  into  France. 
Warham  wrote  more  freely  than  the  Duke  of  Nor- 
folk as  to  the  popular  discontent,  in  a  letter  to 
Wolsey,  dated  April  5.  "  It  hath  been  showed  me 
in  a  secret  maimer  of  my  friends,  the  people  sore 
grudgeth  and  murmureth,  and  speaketh  cursedly 
among  themselves,  as  far  as  they  dare,  saying  that 
they  shall  never  have  rest  of  payments  as  long  as 


some  liveth,  and  that  they  had  better  die  than  to 
be  tlius  continually  handled,  reckonmg  themselves, 
their  children,  and  wives,  as  despoulit,  and  not 
greatly  caring  what  they  do,  or  what  becomes  of 
them.  *  *  *  Further  I  am  informed,  that  there  is  a 
grudge  newly  now  resuscitated,  and  revived  in  the 
minds  of  the  people ;  for  the  loan  is  not  repaid  to 
them  upon  the  first  receipt  of  the  grant  of  Parlia- 
ment, as  it  was  promised  tliem  by  the  commission- 
ers, showing  them  the  king's  grace's  instructions, 
containing  the  same,  signed  with  liis  grace's  own 
hand  in  summer,  that  they  fear  not  to  speak,  that 
they  be  continually  beguiled,  and  no  promise  is 
kept  unto  tliem  ;  and  thereupon  some  of  them  sup- 
pose that  if  this  gift  and  grant  be  once  levied,  albeit 
the  king's  grace  go  not  beyond  the  sea,  yet  nothing 
shall  be  restored  again,  albeit  they  be  showed  the 
contraiy.  And  generally  it  is  reported  unto  me, 
that  for  the  most  part  eveiy  man  saith  he  will  be 
contented  if  the  king's  grace  have  as  much  as  he 
can  spare,  but  verily  many  say  they  be  not  able  to 
do  as  they  be  required.  And  many  denieth  not 
but  they  will  give  the  king's  grace  according  to 
their  power,  but  they  will  not  anj-wise  give  at  oth- 
er men's  appointments,  which  knoweth  not  their 
needs.  *  *  »  *  I  have  heard  say,  moreover,  that 
when  the  people  be  commanded  to  make  fires  and 
tokens  of  joy  for  the  taking  of  the  French  king, 
divers  of  them  have  spoken  that  they  have  more 
cause  to  weep  than  to  rejoice  thereat.  And  divers, 
as  it  liath  been  showed  me  secretly,  have  wished 
openly  that  the  French  king  were  at  his  liberty 
again,  so  as  there  were  a  good  peace,  and  the  king 
should  not  attempt  to  win  France,  the  winning 
whereof  should  be  more  chargeful  to  England  than 
profitable,  and  the  keeping  tliereof  much  more 
chargeful  than  the  winning.  Also  it  hath  been  told 
me  secretly  that  divers  have  recounted  and  repeat- 
ed what  infinite  sums  of  money  the  king's  grace 
hath  spent  already  in  invading  of  France,  once  in 
his  own  royal  person,  and  two  other  sundry  times 
by  his  several  noble  captains,  and  little  or  nothing 
in  comparison  of  liis  costs  hatli  prevailed ;  insomuch 
that  the  king's  grace  at  this  hour  hath  not  one  foot 
of  land  more  in  France  than  his  most  noble  father 
had,  which  lacked  no  riches  or  wisdom  to  win  the 
kingdom  of  France,  if  he  had  thought  it  expedient." 
The  archbishop  goes  on  to  obsei-ve,  rather  oddly, 
that  "  he  would  that  the  time  had  suffered  that  this 
practicing  with  the  people  for  so  gi-eat  sums  might 
have  been  spared  till  the  cuckow  time  and  the  hot 
weather  (at  which  time  mad  brains  be  wont  to  be 
most  busy)  had  been  overpassed." 

Warham  dwells,  in  another  letter,  on  the  great 
difficulty  the  clergy  had  in  making  so  large  a  pay- 
ment as  was  required  of  them,  and  their  unwilling- 
ness to  be  sworn  as  to  the  value  of  their  goods. 
The  archbishop  seems  to  have  thought  it  passing 
strange  that  people  would  be  so  wrongheaded 
about  their  money.  "  I  have  been,"  he  says,  "  in 
tliis  sliire  twentj'  years  and  above,  and  as  yet  I 


2i 


CONSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  L 


some  their  heads."  Some  were  sent  to 
prison  for  hasty  words,  to  which  the  smart 
of  injmy  excited  them.  The  clergy,  from 
whom,  according  to  usage,  a  larger  meas- 
ure of  conh'ibution  was  demanded,  stood 
upon  their  privilege  to  gi-ant  their  money 
only  in  convocation,  and  denied  the  right  of 
a  king  of  England  to  ask  any  man's  money 
without  authoritj'  of  Parliament.  The  rich 
and  poor  agi'eed  in  cm-sing  the  cardinal  as 
the  subverter  of  their  laws  and  liberties, 
and  said,  "  If  men  shoidd  give  their  goods 
by  a  commission,  then  it  would  be  worse 
than  the  taxes  of  France,  and  England 
should  be  bond,  and  not  fi-ee."*  Nor  did 
their  discontent  terminate  in  complaints. 
The  commissioners  met  with  forcible  op- 
position in  several  counties,  and  a  serious 
insuiTection  broke  out  in  Suffolk.  So  men- 
acing a  spirit  overawed  the  proud  tempers 
of  Henry  and  his  minister,  who  found  it 
necessary,  not  only  to  pardon  all  those  con- 
cerned in  these  tumults,  but  to  recede  alto- 
gether, upon  some  frivolous  pretexts,  from 
the  illegal  exaction,  revoking  the  commis- 
^  sions,  and  remitting  all  sums  demanded  un- 
der them.  They  now  resorted  to  the  more 
specious  request  of  a  voluntary  benevolence. 
This,  also,  the  citizens  of  London  endeav- 
ored to  repel,  by  alleging  the  statute  of 
Richard  III.  But  it  was  answered  that  he 
was  a  usurper,  whose  acts  did  not  oblige 
a  lawful  sovereign.  It  does  not  appear 
whether  or  not  Wolsey  was  more  success- 
ful in  this  new  scheme  ;  but,  generally,  rich 
individuals  had  no  remedy  but  to  compound 
with  the  government. 

No  veiy  material  attempt  had  been  made 
since  the  reign  of  Edward  III.  to  levy  a  gen- 
eral imposition  without  consent  of  Parlia- 
ment, and  in  the  most  remote  and  irregular 
times  it  would  be  difficult  to  find  a  prece- 
dent for  so  universal  and  enormous  an  ex- 
action ;  since  tallages,  however  arbiti-ary, 
were  never  paid  by  the  barons  or  fi-eehold- 

have  not  seen  men  but  would  be  conformable  to 
reason,  and  would  be  induced  to  good  order,  till 
this  rime ;  and  wliat  shall  cause  them  now  to  fall 
into  these  willful  and  indiscreet  ways,  I  can  not  tell, 
except  poverty  and  decay  of  substance  be  the  cause 
of  it." 

*  Hall,  696.  These  expressions,  and  number- 
less otliers  might  be  found,  show  the  fallacy  of 
Hume's  hastv^  assertion,  that  the  writei's  of  the  six- 
teenth centurj-  do  not  speak  of  our  own  government 
as  more  free  than  that  of  France. 


'  ers,  nor  by  their  tenants ;  and  the  aids  to 
which  they  were  liable  wei-e  restricted  to 
particular  cases.  If  Wolsey,  therefore, 
{  could  have  procured  the  acquiescence  of 
I  the  nation  under  this  yoke,  there  would  / 
probably  have  been  an  end  of  Parliaments 
for  all  ordinary  purposes ;  though,  like  the 
States  General  of  France,  they  might  still 
be  convoked  to  give  weight  and  security  to 
great  innovations.  We  can  not,  indeed, 
doubt  that  the  unshackled  condition  of  his 
friend,  though  rival,  Francis  I.,  afforded  a  » 
mortifying  conti'ast  to  Henry.  Even  un- 
der his  tyrannical  administration  there  was 
enough  to  distinguish  the  king  of  a  people 
who  submitted,  in  murmuring,  to  violations 
of  their  known  rights  from  one  whose  sub- 
jects had  almost  forgotten  that  they  ever 
possessed  any.  But  the  courage  and  love 
of  freedom  natural  to  the  English  com- 
mons, speaking  in  the  hoarse  voice  of  tu- 
mult, though  very  ill  supported  by  their  su- 
periors, preserved  us  in  so  great  a  peril.* 
If  we  justly  regard  with  detestation  the 
memoiy  of  those  ministers  who  Acu  of  Pariia- 
have  aimed  at  subverting  the  J^e"kin""fro'm° 
liberties  of  their  countiy,  we  h's  debts, 
.shall  scarcely  approve  the  partiality  of  some 
modern  historians  toward  Cardinal  Wolsey; 
a  partiality,  too,  that  contiadicts  the  general 
opinion  of  his  contemporaries.  Haughty 
beyond  comparison,  negligent  of  the  duties 
and  decorums  of  his  station,  profuse  as  well 
as  rapacious,  obnoxious  alike  to  his  own  or- 
der and  to  the  laity,  his  fidi  had  long  been 
secretly  desired  bj'  the  nation  and  contrived 
by  his  adversaries.  His  generosity  and  mag- 
nificence seem  rather  to  have  dazzled  suc- 
ceeding ages  than  his  own.  But,  in  fact, 
his  best  apology  is  the  disposition  of  his 
master.  The  latter  j-ears  of  Heniy's  reign 
were  far  more  t^iTannical  than  those  during 
which  he  listened  to  the  counsels  of  Wol- 
sej';  and  though  this  was  pi-incipally  owing 
to  the  peculiar  circumstances  of  the  latter 
period,  it  is  but  equitable  to  allow  some 
praise  to  a  minister  for  the  mischief  which 
he  may  be  presumed  to  have  averted.  Had 
a  nobler  spiiit  animated  the  Parliament 
which  met  at  the  era  of  Wolsey's  fall,  it 
might  have  prompted  his  impeachment  for 
gi'oss  violations  of  hberty.  But  these  were 
not  the  offenses  that  had  forfeited  his 


*  Hall,  699. 


Hek.  VIII.] 


FROM  HENUY  Vn.  TO  GEOEGE  II. 


25 


prince's  favor,  or  that  they  dared  bring  to 
justice.  They  were  not  absent,  pei-haps, 
from  the  recollection  of  some  of  those  who 
took  a  poi-t  in  prosecuting  the  fallen  minis- 
ter. I  can  discover  no  better  apology  for 
Sir  Thomas  More's  participation  in  im- 
peaching Wolsey  on  articles  so  frivolous 
that  they  have  served  to  redeem  his  fame 
with  later  times,  than  his  knowledge  of 
weightier  offenses  against  the  common 
weal  which  could  not  be  alleged,  and  espe- 
cially tlie  commissions  of  1525.*  But,  in 
truth,  this  Pai-liament  showed  little  outward 
disposition  to  object  any  injustice  of  such  a 
kind  to  the  cardinal.  They  professed  to 
take  upon  themselves  to  give  sanction  to  his 
proceedings,  as  if  in  mockery  of  their  own 
and  their  countiy's  liberties.  They  passed 
a  statute,  the  most  exti-aordinary,  perhaps, 
of  those  strange  times,  wherein  "  they  do, 
for  themselves  and  all  the  whole  bodj'  of  the 
realm  which  they  represent,  freely,  liberal- 
ly, and  absolutely  give  and  gi-ant  unto  the 
king's  highness,  by  authority  of  this  present 
Parliament,  all  and  eveiy  sum  and  sums  of 
money  which  to  them  and  every  of  them, 
is,  ought,  or  might  be  due,  by  reason  of  any 
money,  or  any  other  thing,  to  his  gi-ace  at 
any  time  heretofore  advanced  or  paid  by 
way  of  ti'ust  or  loan,  either  upon  any  letter 
or  letters  under  the  king's  privy  seal,  gen- 
eral or  particular,  letter  missive,  promise 
bond,  or  obligation  of  repayment,  or  by  any 
taxation  or  other  assessing,  by  virtue  of  any 
commission  or  commissions,  or  by  any  other 
mean  or  means,  whatever  it  be,  heretofore 
passed  for  that  purpose. "f    This  extreme 

*  The  word  impeaclimeut  is  not  very  accurately 
applicable  to  these  proceedings  against  Wolsey, 
since  the  articles  were  first  presented  to  the  Upper 
House,  and  sent  down  to  the  Commons,  wliere 
Cromwell  so  ably  defended  his  fallen  master  that 
nothing  was  done  upon  them.  "  Upon  this  honest 
beginning,"  says  Lord  Herbert,  "  Cromwell  obtain- 
ed his  first  reputation."  I  am  disposed  to  conject- 
nre,  from  Cromwell's  character  and  that  of  the 
House  of  Commons,  as  well  as  from  some  passages 
of  Henr\  's  subsequent  behaviour  toward  the  cardi- 
nal, that  it  was  not  the  king's  intention  to  follow 
up  this  prosecution,  at  least  for  the  present.  This 
also  I  find  to  be  Dr.  Lingard's  opinion. 

t  Rot.  Pari.,  N-i.,  164.  Burnet,  Appendix,  No.  31. 
"  'When  this  release  of  the  loan,"  says  Hall,  "  was 
known  to  the  conmions  of  the  realm,  Lord !  so  they 
grudged  and  spake  ill  of  the  whole  Parliament ; 
for  almost  every  man  counted  in  his  debt,  and  reck- 
oned surely  of  the  pa^Tiient  of  the  same,  and  there- 
fore some  made  their  wills  of  the  same,  and  some 


servility  and  breach  of  trust  naturally  excit- 
ed loud  murmurs  ;  for  the  debts  thus  re- 
leased had  been  assigned  over  by  many  to 
theii-  own  creditors,  and  having  all  the  secu- 
rity both  of  the  king's  honor  and  legal  obli- 
gation, were  reckoned  as  valid  as  any  other 
property.  It  is  said  by  Hall,  that  most  of 
this  House  of  Commons  held  offices  imder 
the  crown.  This  illaudablo  precedent  was 
rememl)ered  in  1544,  when  a  similar  act 
passed,  releasing  to  the  king  all  moneys  bor- 
rowed by  him  since  1542,  with  the  addition- 
al provision  that,  if  he  should  have  already 
discharged  any  of  these  debts,  the  party  or 
his  heirs  should  repay  his  majesty.* 

Henry  had  once  more  recourse,  about 
1545,  to  a  general  exaction,  mis-  .  , 

1  rr-ii  benevo- 

called  benevolence.  The  coun-  lence  again 
cil's  instructions  to  the  commis- 
sioners  employed  in  levj-ing  it  leave  no 
doubt  as  to  its  compulsory  character.  They 
Avere  directed  to  incite  aU  men  to  a  loving 
contribution  according  to  the  rates  of  their 
substance,  as  they  were  assessed  at  the  last 
subsidy,  calling  on  no  one  whose  lands  wei-e 
of  less  value  than  40s.,  or  whose  chattels 
were  less  than  <£15.  It  is  intimated  that  the 
least  which  his  majesty  could  reasonably 
accept  would  be  twenty  pence  in  the  pound 
on  the  yearly  value  of  land,  and  half  that 
sum  on  movable  goods.  Thej'  are  to  sum- 
mon but  a  few  to  attend  at  one  time,  and  to 
commune  with  every  one  apart,  "  lest  some 
one  uni'easonable  man,  among  so  many, 
forgetting  his  duty  towaixl  God,  his  sover- 
eign lord,  and  his  counti-y,  may  go  about  by 
his  malicious  frowardness  to  silence  all  the 
rest,  be  they  never  so  well  disposed."  They 
were  to  use  "good  words  and  amiable  be- 
havior," to  induce  men  to  contribute,  and  to 
dismiss  the  obedient  with  thanks.  But  if 
any  person  should  withstand  their  gentle 
solicitations,  alleging  either  poverty  or  some 
other  pretense  which  the  connnissioners 
should  deem  unfit  to  be  allowed,  then,  after 

other  did  set  it  over  to  other  for  debt ;  and  so  many 
men  liad  loss  by  it,  which  caused  them  sore  to 
mumiur,  but  there  was  no  remedy." — P.  767. 

*  Stat.  33  H.  8,  c.  12.  I  find  in  a  manuscript, 
which  seems  to  have  been  copied  from  an  original 
in  the  Exchequer,  that  tlie  moneys  thus  received  by 
way  of  loan  in  1543  amomited  to  £110,147  \5s.  8d. 
There  was  also  a  sum  called  derolion  money, 
amounting  only  to  £1093  8,s\  3(/.,  levied  in  1544, 
"of  the  devotion  of  his  highnesse's  subjects  for  De- 
fense of  Christendom,  against  the  Turk." 


26 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  I. 


failure  of  pei"suasions  and  reproaches  for  in- 
gratitude, they  were  to  command  his  at- 
tendance before  the  privy  council,  at  such 
time  as  they  should  appoint,  to  whom  they 
were  to  certify  his  behavior,  enjoining  him 
silence  in  the  mean  time,  that  his  evil  exam- 
ple might  not  cornipt  the  better  disposed.* 
It  is  only  through  the  accidental  publica- 
tion of  some  family  papers  that  we  have  be- 
come acquainted  with  this  document,  so 
curiously  illustrative  of  the  government  of 
Henry  Ylll.  From  the  same  authority 
may  be  exhibited  a  particular  specimen  of 
the  consequences  that  awaited  the  refusal 
of  this  benevolence.  One  Richard  Reed, 
an  alderman  of  London,  had  stood 

Oppressive  ' 

treatment  alone,  as  is  Said,  among  his  fellow- 
citizens,  in  refusing  to  contribute. 
It  was  deemed  expedient  not  to  overlook 
this  disobedience ;  and  the  course  adopted 
in  pursuing  it  is  somewhat  remarkable.  The 
English  army  was  then  in  the  field  on  the 
Scots  border.  Reed  was  sent  down  to 
sene  as  a  soldier  at  his  own  charge ;  and 
the  general,  Sir  Ralph  Ewer,  received  inti- 
mations to  employ  him  on  the  hardest  and 
most  perilous  duty,  and  subject  him,  when 
in  garrison,  to  the  greatest  privations,  that 
he  might  feel  the  smart  of  his  folly  and  stur- 
dy disobedience.  "  Finally,"  the  letter  con- 
cludes, "  you  must  use  him  in  all  things  ac- 
cording to  the  sharpe  disciplyne  militar  of 
the  northei-n  wars."f  It  is  natural  to  pre- 
sume that  few  would  expose  themselves  to 
the  treatment  of  this  unfortunate  citizen  ; 
and  that  the  commissionei-s,  whom  we  find 
appointed  two  years  afterward  in  eveiy 
county,  to  obtain  from  the  king's  subjects 
as  much  as  they  would  willingly  give,  if 

*  Lodsre's  Illustrations  of  British  Historj-,  i.,  711. 
Strype's  Eccles.  Memorials,  Appendix,  n.  119. 
The  sums  raised  from  different  counties  for  this 
benevolence  afford  a  sort  of  criterion  of  their  relative 
opulence.    Somerset  pave  X6807 ;  Kent,  £6471 ; 
Suffolk,  £4512;  Norfolk,  £4046;  Devon,  £4527; 
Essex,  £5051  ;  but  L  ancaster  only  £660,  and  Cum-  | 
berland,  £574.    The  whole  produced  £119,581  7s. 
6d.,  besides  an-ears.    In  Hajnies's  State  Papers,  ' 
p.  54,  we  find  a  curious  minute  of  Secretary  Paget,  1 
containing  reasons  why  it  was  better  to  get  the 
money  wanted  by  means  of  a  benevolence  than  ] 
through  Parliament.    But  he  does  not  hint  at  any 
difficulty  of  obtaining  a  Parliamentary'  grant.  | 

t  Lodee,  p.  80.    Lord  Herbert  mentions  this  , 
storj-,  and  obsei-ves,  tliat  Reed  ha\-ing  been  taken  ' 
by  the  Scots,  was  compelled  to  pay  much  more  for 
nis  ransom  than  the  benevolence  required  of  him.  , 


they  did  not  always  find  perfect  readiness, 
had  not  to  complain  of  many  peremptory 
denials.* 

Such  was  the  security  that  remained 
against  arbitrajy  taxation  under  Severe  and 
the  two  Henries.    Were  men's  ""J"»' 

cijtion  for 

lives  better  protected  from  unjust  treason, 
measures,  and  less  at  the  mercy  of  a  jealous 
court  ?  It  can  not  be  necessaiy  to  expati- 
ate very  much  on  this  subject  in  a  work  that 
supposes  the  reader's  acquaintance  with  the 
common  facts  of  our  history ;  yet  it  would 
leave  the  picture  too  imperfect,  were  I  not 
to  recapitulate  the  more  striking  instances 
of  sanguinaiy  injustice  that  have  cast  so  deep 
a  shade  over  the  memory  of  these  princes. 

The  Duke  of  Clarence,  attainted  in  the 
reign  of  his  brother  Edward  IV.,  Earlof 
left  one  son,  whom  his  uncle  re-  Warwick, 
stored  to  the  title  of  Earl  of  Warwick. 
This  boy,  at  the  accession  of  Henry  VII., 
being  then  about  twelve  years  old,  was  shut 
up  in  the  Tower.  Fifteen  years  of  captiv- 
ity had  elapsed,  when,  if  we  trust  to  the 
common  story,  having  unfortunately  be- 
come acquainted  with  his  fellow-prisoner 
Perkin  Warbeck,  he  listened  to  a  scheme 
for  their  escape,  and  would  probably  not 
have  been  averse  to  second  the  ambitious 
views  of  that  young  man.  But  it  was  sur- 
mised, with  as  much  likelihood  as  the  char- 
acter of  both  parties  could  give  it,  that  the 
king  had  promised  Ferdinand  of  Aragon  to 
remove  the  Earl  of  Warwick  out  of  the  way, 
as  the  condition  of  his  daughter's  mamage 
with  the  Prince  of  Wales,  and  the  best 
means  of  secui-ing  their  inheritance.  War- 
wick accordingly  was  brought  to  trial  for  a 
conspiracy  to  overturn  the  government ; 
which  he  was  induced  to  confess,  in  the 
hope,  as  we  must  conceive,  and  perhaps 
with  an  assurance,  of  pai'don,  and  was  im- 
mediately executed. 

The  nearest  heir  to  the  house  of  York, 
after  the  queen  and  her  children,  and  Earl  of 
the  descendants  of  the  Duke  of  Clar-  Suffolk, 
ence,  was  a  son  of  Edward  IV. 's  sister,  the 
Earl  of  Suffolk,  whose  elder  brother,  the 
Earl  of  Lincoln,  had  joined  in  the  rebellion 
of  Lambert  Simnel,  and  perished  at  the  bat- 
tle of  Stoke.  Sufiblk,  having  killed  a  man 
in  an  affray,  obtained  a  pardon,  which  the 
king  compelled  him  to  plead  in  open  court 

*  RjTner.  xv.,  84.  These  commissions  bear  date 
5th  Jan.,  1546. 


Hen.  VIIL] 


FROM  HENRY  VII.  TO  GEORGE  II. 


27 


at  his  arraignment.  This  laudable  impar- 
tialitj'  is  said  to  have  given  him  ofiense,  and 
provoked  his  flight  into  the  Netherlands ; 
whence,  being  a  man  of  a  turbulent  dispo- 
sition, and  partaking  in  the  hati'ed  of  his 
family  towai-d  the  house  of  Lancaster,  he 
engaged  in  a  conspiracy  with  some  persons 
at  home,  which  caused  him  to  be  attainted 
of  treason.  Some  time  aftei-ward,  the  Arch- 
duke Philip,  having  been  shipwrecked  on 
the  coast  of  England,  found  himself  in  a 
sort  of  honorable  detention  at  Henry's  court. 
On  consenting  to  his  departure,  the  king  re- 
quested him  to  send  over  the  Earl  of  Suf- 
folk; and  Philip,  though  not  insensible  to 
the  breach  of  hospitality  exacted  from  him, 
was  content  to  satisfy  his  honor  by  obtain- 
ing a  promise  that  the  prisoner's  life  should 
be  spared.  Henry  is  said  to  have  reckoned 
this  engagement  merely  personal,  and  to 
have  left  as  a  last  injunction  to  his  successor 
that  he  should  carry  into  effect  the  sentence 
against  Suffolk.  Though  this  was  an  evi- 
dent violation  of  the  promise  in  its  spirit, 
yet  Henry  VHI.,  after  the  lapse  of  a  few 
years,  with  uo  new  pretext,  caused  him  to 
be  executed. 

The  Duke  of  Buckingham,  representing 
Duke  of  tlie  ancient  family  of  Stafford, 
Buckingham,  and  hereditaiy  high  constable  of 
England,  stood  the  first  in  rank  and  conse- 
quence, perhaps  in  riches,  among  the  no- 
bility. But  being  too  ambitious  and  ari'o- 
gant  for  the  age  in  which  he  was  born,  he 
drew  on  himself  the  jealousy  of  the  king 
and  the  resentment  of  Wolsey.  The  evi- 
dence, on  his  trial  for  high  treason,  was  al- 
most entirely  confined  to  idle  and  vaunting 
language,  held  with  servants  who  betra3"ed 
his  confidence,  and  soothsayers  whom  he 
had  believed.  As  we  find  no  other  persons 
charged  as  parties  with  him,  it  seems  man- 
ifest that  Buckingham  was  innocent  of  any 
real  conspii'acy.  His  condemnation  not  only 
gratified  die  cardinal's  revenge,  but  answer- 
ed a  veiy  constant  purpose  of  the  Tudor 
government,  that  of  intimidating  the  gi-eat 
families,  from  whom  the  preceding  dynasty 
had  experienced  so  much  disquietude.* 

*  Hall,  622.  Hume,  who  is  favorable  to  Wolsey, 
says,  "  There  is  uo  reason  to  think  the  sentence 
against  Buckinghain  unjust."  But  no  one  who 
reads  the  trial  will  find  any  evidence  to  satisfy  a 
reasonable  mind ;  and  Hume  hunself  soon  after 
adds,  that  his  crime  jjroceeded  more  from  indis- 


The  execution,  however,  of  Suffolk  was 
at  least  not  contraiT  to  law  :  and 

'  INew  treason 

even  Buckingham  was  attainted  created  by 
on  evidence  which,  according  to 
the  tremendous  latitude  with  which  the 
law  of  treason  had  been  construed,  a  court 
of  justice  could  not  be  expected  to  disre- 
gard. But  after  the  fall  of  Wolsey,  and 
Henry's  breach  with  the  Roman  See,  his 
fierce  temper,  strengthened  by  habit  and 
exasperated  by  resistance,  demanded  more 
constant  supplies  of  blood ;  and  many  per- 
ished by  sentences  which  wc  can  hardly  pre- 
vent our.selves  from  considering  as  illegal, 
because  the  statutes  to  which  they  might 
be  conformable  seem,  from  their  temporary 
dm-ation,  their  violence,  and  the  passiveness 
of  the  Parliaments  that  enacted  them, 
rather  like  arbiti-ary  invasions  of  the  law 
than  alterations  of  it.  By  an  act  of  15.34, 
not  only  an  oath  was  imposed  to  maintain 
the  succession  in  the  heirs  of  the  king's 
second  marriage,  in  exclusion  of  the  Prin- 
cess Mary,  but  it  was  made  high  treason  to 
deny  that  ecclesiastical  supremacy  of  the 
crown,  which,  tUl  about  two  years  before, 
no  one  had  ever  ventured  to  assert.*  Bish- 
op Fisher,  the  most  inflexibly  „ 
1  1      /-  1    1  Executions 

honest  churchman  who  filled  a  or  Fisher  and 

high  station  in  that  age,  was  be- 
headed  for  this  denial.  Sir  Thomas  More, 
whose  name  can  ask  no  epithet,  underwent 
a  similar  fate.  He  had  offered  to  take  the 
oath  to  maintain  the  succession,  which,  as 
he  justly  said,  the  Legislature  was  compe- 
tent to  alter ;  but  prudently  avoided  to  give 


cretion  than  deliberate  malice.  In  fact,  the  con- 
demnation of  this  great  noble  was  owing  to  Wol- 
sey's  resentment  acting  on  the  savage  temper  of 
Henry. 

*  [25  H.  8,  c.  22.  This  is  not  accurately  stated. 
This  act  does  not  make  it  treason  to  deny  tlie  eccle- 
siastical supremacy,  which  is  not  hinted  in  any 
part  of  it ;  but  makes  a  refusal  to  take  the  oath  to 
maintain  the  succession  in  the  issue  of  the  king's 
man-iage  with  Anne  Boleyn  misprision  of  treason ; 
and  on  this  More  and  Fisher,  who  scnipled  the 
preamble  to  the  oath,  denying  the  pope's  right  of 
dispensation,  though  they  would  have  sworn  to  the 
succession  itself,  as  a  legislative  enactment,  were 
convicted  and  imprisoned.  But  a  siibseqiient  stat- 
ute, 26  H.  8,  c.  13,  made  it  high  treason  to  wish 
by  words  to  depinve  the  king  of  his  title,  name,  or 
dignitj-;  and  the  appellation,  .Supreme  Head,  being 
part  of  this  title,  not  only  More  and  Fisher,  but 
several  others,  suffered  death  on  this  construction. 
See  this  fully  explained  in  the  27th  volume  of  the 
ArcliKologia,  by  Mr.  Bruce.  184.').] 


28 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  I. 


an  opinion  as  to  the  supremacy,  till  Rich, 
solicitor-general,  and  afterward  chancellor, 
elicited,  in  a  private  conversation,  some  ex- 
pressions which  were  thought  sufficient  to 
bring  him  withiu  the  fangs  of  the  recent 
statute.  A  considerable  number  of  less 
distinguished  persons,  chiefly  ecclesiastical, 
were  aftenvard  executed  by  virtue  of  this 
law. 

The  sudden  and  harsh  innovations  made 
by  He  my  in  religion,  as  to  which  every  fir- 
tifice  of  concealment  and  delay  is  required, 
his  desti'uction  of  venerable  establishments, 
his  tyranny  over  the  recesses  of  the  con- 
science, excited  so  dangerous  a  rebellion  in 
the  north  of  England,  that  his  own  general, 
the  Duke  of  Norfolk,  thought  it  absolutely 
necessaiy  to  employ  measures  of  concilia- 
tion.* The  insurgents  laid  down  their  arms, 
on  an  unconditional  promise  of  amnesty. 
But  another  rising  having  occurred  in  a  dif- 
ferent quarter,  the  king  made  use  of  this 
pretext  to  put  to  death  some  persons  of  su- 
perior rank,  who,  though  they  had,  volimta- 
rily  or  by  compulsion,  partaken  in  the  first 
rebellion,  had  no  concern  in  the  second,  and 
to  let  loose  mihtary  law  upon  their  follow- 
ers. Nor  was  his  vengeance  confined  to 
those  who  had  evidently  been  guilty  of  these 
tumults.  It  is,  indeed,  unreasonable  to  deny 
that  there  might  be,  nay,  there  probably 

*  Several  letters  that  passed  between  the  coun- 
cil and  Duke  of  Noiiblk  (Hardwicke  State  Papers, 
i.,  28,  &c.)  teud  to  confirm  what  some  historians 
have  hinted,  that  he  was  suspected  of  leaning  too 
favorahly  toward  the  rebels.  The  king  was  most 
nuwilliug  to  grant  a  free  pardon.  Xorfolk  is  told, 
"  If  you  conld,  by  any  good  means  or  possible  dex- 
terity, reserve  a  very  few  persons  for  punislmients, 
you  should  assnredlj'  administer  the  greatest  pleas- 
ure to  his  highness  tliat  could  be  imagined,  and 
much  iu  the  same  advance  your  own  honor." — P. 
32.  He  must  have  thought  himself  in  danger  from 
some  of  these  letters,  which  indicate  the  king's 
distrast  of  him.  He  had  recommended  the  em- 
plo\niient  of  men  of  high  rank  as  lords  of  the 
marches,  instead  of  the  ratlier  inferior  persons 
whom  the  king  had  lately  chosen.  This  called 
down  on  him  rather  a  wann  reprimand  (p.  39); 
for  it  was  the  natural  policy  of  a  despotic  court  to 
restrain  the  ascendency  of  great  families ;  nor  were 
there  wanting  veiy  good  reasons  for  this,  even  if 
the  public  weal  had  been  the  sole  object  of  Henry's 
council.  See,  also,  for  the  subject  of  this  note,  the 
State  Papers,  Hen.  VIII.,  p.  518,  et  aUbi.  They 
contain  a  good  deal  of  interesting  matter  as  to  the 
northern  rebellion,  whicli  gave  Henrj-  a  pretext  for 
great  severities  toward  the  monasteries  iu  that  part 
of  England. 


were,  some  real  conspirators  among  those 
who  suffered  on  the  scaffolds  of  Henry. 
Yet  in  the  proceedings  against  the  Count- 
ess of  Salisbury,  an  aged  woman,  but  ob- 
noxious as  the  daughter  of  the  Duke  of 
Clarence  and  mother  of  Reginald  Pole,  an 
active  instrument  of  the  pope  in  fomenting 
rebellion*  against  the  abbots  of  Reading  and 
Glastonbuiy,  and  others  who  were  implica- 
ted in  charges  of  treason  at  this  period,  we 
find  so  much  haste,  such  neglect  of  judicial 
forms,  and  so  blood-thirsty  a  determination 
to  obtain  convictions,  that  we  are  naturally 
tempted  to  reckon  them  among  the  victims 
of  revenge  or  rapacity. 

It  was  probably  during  these  prosecutions 
that  Cromwell,  a  man  not  destitute  ^ 
of  liberal  qualities,  but  who  is  liable 
to  the  one  great  reproach  of  having  obeyed 
too  implicitly  a  master  whose  commands 
were  crimes,  asked  of  the  judges  whether, 
if  Parliament  should  condemn  a  man  to  die 
for  treason  without  hearing  him,  the  attain- 
der could  ever  be  disputed.  They  answer- 
ed that  it  was  a  dangerous  question,  and 
that  Parliament  should  rather  set  an  exam- 
ple to  inferior  courts  by  proceeding  accord- 
ing to  justice.  But  being  pressed  to  reply 
by  the  king's  express  commandment,  they 
said  that  an  attainder  in  Parliament,  wheth- 
er the  party  had  been  heard  or  not  in  his 
defense,  could  never  be  reversed  in  a  court 
of  law.  No  proceedings,  it  is  said,  took 
place  against  the  person  intended,  nor  is  it 
known  who  he  was.f  But  men  prone  to 
remark  all  that  seems  an  appropriate  retri- 
bution of  Providence,  took  notice,  that  he, 
Avho  had  thus  solicited  the  interpreters  of 
the  law  to  sanction  such  a  violation  of  natu- 

*  Pole,  at  his  own  solicitation,  was  appointed 
legate  to  the  Low  Countries  in  1337,  with  the  sole 
object  of  keeping  alive  the  flame  of  the  northern 
rebellion,  and  exciting  foreign  powers,  as  well  as 
the  English  nation,  to  restore  religion  by  force,  if 
not  to  dethrone  Henry.  It  is  difBctUt  not  to  sus- 
pect that  he  was  influenced  by  ambitious  views  in 
a  proceeding  so  treasonable,  and  so  httle  in  con- 
formity with  his  polished  manners  and  temperate 
life.  Philips,  his  able  and  artful  biogi-apher,  both 
proves  and  glories  in  the  treason. — Life  of  Pole, 
sect.  3. 

t  Coke's  4th  Institute,  37.  It  is,  however,  said 
by  Lord  Herbert  and  others,  that  the  Countess  of 
Salisbuiy  and  the  Marchioness  of  Exeter  were  not 
heard  in  their  defense.  The  acts  of  attainder 
a?ainst  them  were  certainly  hurried  through  Par- 
liament, but  whether  without  hearing  the  parties 
does  not  appear. 


Hen.  VIII.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


29 


ral  justice,  was  himself  its  earliest  exam- 
ple. In  the  apparent  zenith  of  favor,  this 
able  and  faithful  minister,  the  king's  vicege- 
rent in  his  ecclesiastical  supremacy,  and  re- 
cently created  Earl  of  Essex,  fell  so  sud- 
denly, and  so  totally  without  offense,  that 
it  has  perplexed  some  writers  to  assign  the 
cause.  But  there  seems  little  doubt  that 
Henry's  dissatisfaction  with  his  fourth  wife, 
Anne  of  Cleves,  whom  CromweU  had  rec- 
ommended, alienated  his  selfish  temper,  and 
inclined  his  ear  to  the  whisperings  of  those 
courtiers  who  abhoiTed  the  favorite  and  his 
measures.  An  act  attainting  him  of  trea- 
son and  heresy  was  hurried  through  Parlia- 
ment, without  hearing  him  in  his  defense.* 
The  charges,  indeed,  were  so  ungrounded, 
that,  had  he  been  permitted  to  refute  them, 
his  condemnation,  though  not  less  certain, 
might,  perhaps,  have  caused  more  shame. 
This  precedent  of  sentencing  inen  unheard, 
by  means  of  an  act  of  attainder,  was  follow- 
ed in  the  case  of  Dr.  Barnes,  burned  not 
long  afterward  for  heresy. 

The  Duke  of  Norfolk  had  been,  through- 
Puke  of  0"*^  Henry's  reign,  one  of  his  most 
Norfolk,  confidential  ministers.  But  as  the 
king  approached  his  end,  an  inordinate  jeal- 
ousy of  great  men,  rather  than  mere  ca- 
price, appears  to  have  prompted  the  reso- 
lution of  destroying  the  most  conspicuous 
family  in  England.  Norfolk's  son,  too,  the 
Ear!  of  Surrey,  though  long  fi  favorite  with 

*  Burnet  observes  that  Craiimer  was  absent  the 
first  day  the  bill  was  read,  17th  of  June,  1540  ;  and 
by  his  silence  leaves  the  reader  to  infer  that  he 
was  so  likewise  on  the  19th  of  ,Iuno,  when  it  was 
read  a  second  and  third  time.  But  this,  I  fear,  can 
not  be  asserted.  He  is  marked  in  the  journal  as 
present  on  the  latter  day  ;  and  there  is  the  follow- 
ing enti-y:  "  Hodie  lecta  est  pro  secuudo  et  tertio, 
biUa  attincturaa  Thomae  Comitis  Essex,  et  communi 
omnium  procerum  tunc  praeseutium  concessu,  ne- 
mine  discrepante,  expcdita  est."  And  at  the  close 
of  the  session,  we  find  a  still  more  remarkable  tes- 
timony to  the  unanimity  of  Parliament,  in  the  fol- 
lowing words :  "  Hoc  animadveitendum  est,  quod 
in  hac  sessione  cum  proceres  darent  sufFragia,  et 
dicerent  sententias  super  actibus  praedictis,  ea  erat 
Concordia  et  sententiarum  confonnitas,  ut  singuli 
iis  et  eonim  singulis  asseuserint,  nemine  discrep- 
ante. Thomas  de  Soulemont,  Cleric.  Parliament- 
orum."  As  far,  therefore,  as  entries  on  the  jour- 
nals are  evidence,  Cranmer  was  placed  in  the  pain- 
ful and  humiliating  predicament  of  voting  for  the 
death  of  his  innocent  friend.  He  had  gone  as  far 
as  he  dared  in  writing  a  letter  to  Henry,  which 
might  be  construed  into  an  apology  for  Cromwell, 
though  it  was  full  as  much  so  for  himself. 


the  king,  possessed  more  talents  and  re- 
nown, as  well  as  a  more  haughty  spirit, 
than  was  compatible  with  his  safety.  A 
sti'ong  party  at  court  had  always  been  hos- 
tile to  the  Duke  of  Norfolk,  and  his  ruin 
was  attributed  especially  to  the  influence  of 
the  two  Seymours.  No  accusations  could 
be  more  futile  than  those  which  sufficed  to 
take  away  the  life  of  the  noblest  and  most 
accomplished  man  in  England.  Surrey's 
treason  seems  to  have  consisted  chiefly  in 
quartering  the  ro3'al  arms  in  his  escutch- 
eon; and  this  false  heraldiy,  if  such  it  were, 
must  have  been  considered  as  evidence  of 
meditating  the  king's  death.  His  father 
ignominiously  confessed  the  charges  against 
himself,  in  a  vain  hope  of  mercy  from  one 
who  knew  not  what  it  meant.  An  act  of 
attainder  (for  both  houses  of  Parliament 
were  commonly  made  accessary  to  the  le- 
gal murders  of  this  reign)  was  passed  with 
mucli  haste,  and  perhaps  irregularly  ;  but 
Henry's  demise  ensuing  at  the  instant,  pre- 
vented the  execution  of  Norfolk.  Continu- 
ing in  prison  during  Edward's  reign,  he  just 
survived  to  be  released  and  restored  in  blood 
under  Mary. 

Among  the  victims  of  this  monarch's  fe- 
rocity, as  we  bestow  most  of  our  ^ 
admiration  on  Sir  Thomas  Rlore, 
so  we  reserve  our  gi'eatest  pity  for  Anne  Bo- 
leyn.    Few,  very  few,  have  in  any  age  hesi- 
itated  to  admit  her  innocence.*   But  her  dis- 

*  Buniet  has  taken  much  pains  with  the  subject, 
and  set  her  iimocence  in  a  very  clear  light  (i.,  197, 
and  iii.,  114.  See,  also,  Strype,  i.,  280,  and  Ellis's 
Letters,  ji.,  5-2).  But  Anne  had  all  the  failings  of 
a  vain,  weak  woman,  raised  suddenly  to  greatness. 
She  behaved  with  unamiable  vindictiveness  toward 
Wolsey,  and  perhaps  (but  this  worst  charge  is  not 
fully  authenticated)  exasperated  the  king  against 
More.  A  remarkable  passage  in  Cavendish's  Life 
of  Wolsey,  p.  103,  edit.  1667,  strongly  displays  her 
indiscretion. 

A  late  writer,  whose  acuteness  and  industry 
would  raise  him  to  a  very  respectable  place  among 
our  historians,  if  he  could  have  repressed  the  invet- 
erate partiality  of  his  profession,  has  used  every 
oblique  artifice  to  lead  his  readers  into  a  belief  of 
Anne  BoleJ^l'3  guilt,  while  he  affects  to  hold  the 
balance,  and  state  both  sides  of  the  question  with- 
out determining  it.  Thus  he  repeats  what  he 
must  have  known  to  be  the  strange  and  extrava- 
gant lies  of  Sanders  about  her  birth  ;  without  vouch- 
ing for  them  indeed,  but  without  any  reprobation 
of  their  absurd  malignity. — Lingard's  Hist,  of  Eng- 
land, vi.,  153  (8vo  edit).  Thus  he  intimates  that 
"  the  records  of  her  trial  and  conviction  have  perish- 
ed, perhaps  by  the  hands  of  those  who  respected 


30 


CONSTITUTIONAL  HISTORY  OF  ENGLAIS'D 


[Chap.  I. 


cretion  was  by  no  means  sufficient  to  pre- 
serve her  steps  on  that  dizzy  height,  which 
she  had  ascended  with  more  eager  ambition 
than  feminine  delicacy  could  approve.  Hen- 
ry was  probably  quicksighted  enough  to 
perceive  that  he  did  not  possess  her  affec- 
tions, and  his  own  were  soon  ti'ansfeiTed 
to  another  object.  Nothing  in  this  detesta- 
ble reign  is  worse  than  her  ti'ial.  She  was 
indicted,  pai'tly  on  the  statute  of  Edwai'd 
III.,  which,  by  a  just,  though  rather  tech- 
nical construction,  has  been  held  to  extend 
the  guilt  of  treason  to  an  adulterous  queen 
as  well  as  to  her  paramour,  and  partly  on 
the  recent  law  for  preservation  of  the  suc- 
cession, which  attached  the  same  penalties 
to  any  thing  done  or  said  in  slander  of  the 
king's  issue.  Her  levities  in  discourse  were 
brought  within  this  strange  act  by  a  still 
more  strange  interpi-etation.  Nor  was  the 
wounded  pride  of  the  king  content  with  her 
death.  Under  the  fear,  as  is  most  likely, 
of  a  more  cruel  punishment,  which  the  law 

her  memory,"  p.  316,  though  the  evidence  is  given 
by  Bui-net ;  and  the  record  (in  the  technical  sense) 
of  a  trial  contains  nothing  from  which  a  party's 
gnilt  or  innocence  can  be  inferred.  Thus  he  says 
that  those  wlio  were  executed  on  tlie  same  charge 
with  the  queen,  neither  admitted  nor  denied  the 
offense  for  which  tbey  suffered ;  thougli  the  best 
informed  writers  assert  that  Norris  constantly  de- 
clared the  queen's  innocence  and  his  own. 

Dr.  Lingard  can  hardly  be  thought  serious  when 
he  takes  credit  to  himself,  in  tlie  commencement 
of  a  note  at  the  end  of  the  same  volume,  for  not 
"rendering  his  book  move  interesting,  by  repre- 
senting her  as  an  innocent  and  injured  woman, 
falling  a  victim  to  the  mti-igues  of  a  religious  fac- 
tion." He  well  knows  that  he  could  not  have  done 
so  without  contradicting  the  tenor  of  his  entire 
work,  without  ceasing,  as  it  were,  to  be  himself 
All  the  rest  of  this  note  is  a  pretended  balancing 
of  evidence,  in  the  stj-le  of  a  judge  who  can  hardly 
bear  to  put  for  a  moment  the  possibility  of  a  pris- 
oner's innocence. 

I  regi-et  very  much  to  be  compelled  to  add  the 
name  of  Mr.  Sharon  Turner  to  those  who  have 
countenanced  the  supposition  of  Anne  Bolej-n's 
guilt.  But  Mr.  Turner,  a  most  worthy  and  pains- 
taking man,  to  whose  earlier  writings  our  literature 
is  much  indebted,  has,  in  his  historj'  of  Henry  VIII., 
gone  upon  the  strange  principle  of  exalting  that 
tyrant's  reputation  at  the  expense  of  every  one  of 
his  victims,  to  whatever  party  they  may  have  be- 
longed. Odit  damnatos.  Perhaps  he  is  the  first, 
and  wiU  be  the  last  who  has  defended  the  attainder 
of  Sir  Thomas  More.  A  verdict  of  a  jurj',  an  as- 
sertion of  a  statesman,  a  recital  of  an  act  of  Par- 
liament, are,  with  him,  satisfactorj-  proofs  of  the 
most  improbable  accusations  against  the  most 
blameless  character. 


affixed  to  her  offense,  Anne  was  induced  to 
confess  a  pre-contract  with  Lord  Percy,  on 
which  her  mamage  with  the  king  Avas  an- 
nulled by  an  ecclesiastical  sentence,  without 
awaiting  its  certain  dissolution  by  the  ax.* 
Henry  seems  to  have  thought  his  honor  too 
much  sullied  by  the  infidelity  of  a  lawful 
wife.  But  for  this  destiny  he  was  yet  re- 
sen-ed.  I  shall  not  impute  to  him  as  an 
act  of  tyranny  the  execution  of  Catharine 
Howard,  since  it  appears  probable  that  the 
licentious  habits  of  that  young  woman  had 
continued  after  her  man'iage  ;f  and  though 
we  might  not,  in  general,  applaud  the  ven- 
geance of  a  husband  who  should  put  a  guilty 
wife  to  death,  it  could  not  be  expected  that 
Henry  VHI.  should  lose  so  reasonable  an 
opportunity  of  shedding  blood. t    It  was  af- 

*  The  Lords  pronounced  a  singular  sentence, 
that  she  should  be  bui-ned  or  beheaded  at  the  king's 
pleasure.  Bumet  says,  the  judges  complained  of 
this  as  unprecedented.  Perhaps,  in  strictness,  the 
king's  right  to  alter  a  sentence  is  questionable,  or 
rather  would  be  so,  if  a  few  precedents  were  out 
of  the  way.  In  high  treason  committed  by  a  man, 
the  beheading  was  part  of  the  sentence,  and  the 
king  only  remitted  the  more  cruel  preliminaries. 
Women,  till  1T91,  were  condemned  to  be  burned. 
But  the  two  queens  of  Henry,  the  Countess  of  Salis- 
bury, Lady  Rochford,  Lady  Jane  Grey,  and,  in 
later  times,  Mrs.  Lisle,  were  beheaded.  Poor  Mrs. 
Gaunt  was  not  thought  noble  enough  to  be  rescued 
from  the  fire.  In  felony,  where  beheading  is  no 
part  of  the  sentence,  it  has  been  substituted  by  the 
king's  warrant  in  the  cases  of  the  Duke  of  Somer- 
set and  Lord  Audlej-.  I  know  not  why  the  latter 
obtained  this  favor  ;  for  it  had  been  refused  to  Lord 
Stourton,  hanged  for  murder  under  Mary,  as  it  was 
afterward  to  Earl  Ferrers. 

[t  The  letters  published  in  State  Papers,  temp. 
Hen.  VIII.,  vol.  i.,  p.  689.  et  post,  by  no  means  in- 
creases this  probabiUt)' ;  Catharine  Howard's  post- 
nuptial guilt  must  remain  verj-  questionable,  which 
makes  her  execution,  and  that  of  others  who  suf- 
fered with  her,  another  of  Henr3''s  murders.  There 
is  too  much  appearance  that  Cranmer,  by  the  king" a 
order,  promised  that  her  life  should  be  spared,  with 
a  view  of  obtaining  a  confession  of  a  pre-contract 
with  Derham.  1B45.] 

I  It  is  often  difficult  to  understand  the  grounds 
of  a  Parliamentary  attainder,  for  which  any  kind 
of  evidence  was  thoaght  sufficient ;  and  the  strong- 
est proofs  against  Catharine  Howard  undoubtedly 
related  to  her  behavior  before  mamage,  wliich 
could  be  no  legal  crime.  But  some  of  the  deposi- 
tions extend  further. 

Dr.  Lingard  has  made  a  curious  obser\'ation  on 
this  case.  "  A  plot  was  woven  by  the  industry  of 
the  Reformers,  which  brought  the  yomig  queen  to 
the  scaffold,  and  weakened  the  ascendency  of  the 
reigning  party,"  p.  407.  This  is  a  verj-  strange  as- 
sertion ;  for  he  proceeds  to  admit  her  ante-nuptial 


Hen.  VIII.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


31 


ter  the  execution  of  this  fifth  wife  that  tho 
celebrated  law  was  enacted,  whereby  any 
woman  whom  the  king  should  maiTy  as  a 
virgin  incurred  the  penalties  of  treason  if 
she  did  not  previously  reveal  any  failings 
that  had  disqualified  her  for  the  service  of 
Diana.* 

These  Parliamentary  attainders,  being  in- 
Fresh  Stat-  tended  rather  as  judicial  than  leg- 
utes  enact-  jslativo  proceedings,  were  viola- 

ing  the  pen-  „  ,  .      .      .  , 

altiesof  tions  01  reason  and  justice  m  the 
treason.  application  of  law.  But  many  gen- 
eral enactments  of  this  reign  bear  the  same 
character  of  servility.  New  political  offens- 
es were  created  in  every  Parliament,  against 
which  the  severest  penalties  were  denounc- 
ed. The  nation  had  scai'cely  time  to  rejoice 
in  the  termination  of  those  long  debates  be- 
tween the  houses  of  York  and  Lancaster, 
when  the  king's  divorce,  and  the  consequent 
illegitimacy  of  his  eldest  daughter,  laid  open 
the  succession  to  fresh  questions.  It  was 
needlessly  unnatural  and  unjust  to  bastard- 
ize the  Princess  Mary,  whose  title  ought 
rather  to  have  had  the  confirmation  of 
Parliament.  But  Heniy,  who  would  have 
deemed  so  moderate  a  proceeding  injurious 
to  his  cause  in  the  eyes  of  Europe,  and  a 
sort  of  concession  to  the  adversaries  of  the 
divorce,  procured  an  act  settling  the  crown 
on  his  cliildren  by  Anne  or  any  subsequent 
wife.  Any  person  disputing  the  lawfulness 
of  the  king's  second  marriage  might,  by  the 
Bort  of  construction  that  would  be  put  on 
this  act,  become  liable  to  the  penalties  of 
treason.  In  two  years  more  this  very 
marriage  was  annulled  by  sentence ;  and  it 
would,  perliaps,  have  been  treasonable  to 
assert  the  Princess  Elizabeth's  legitimacy. 
The  same  punishment  was  enacted  against 
such  as  should  marry  without  license  under 
the  great  seal,  or  have  a  criminal  inter- 
course with,  any  of  the  king's  children 

guilt,  which,  indeed,  she  is  well  known  to  have 
confessed,  and  does  not  give  the  slightest  proof  of 
any  plot.  Yet,  he  adds,  speaking  of  the  queen  and 
Lady  Rocliford,  "  I  fear  [i.  e.,  wish  to  insinuate] 
bothwere  sacrificed  to  the  manesof  Anue  Boleyn." 
*  Stat.  26  H.  8,  c.  13. 

It  may  be  here  observed,  that  the  act  attainting 
Catharine  Howard  of  treason  proceeds  to  declai'e 
that  the  king's  assent  to  bills  by  commission  under 
the  great  seal  is  as  valid  as  if  he  were  personally 
present,  any  custom  or  use  to  the  contrary  notwith- 
standing.— 33  H.  8,  c.  21.  This  may  be  presumed, 
tlierefore,  to  be  the  earliest  instance  of  the  king's 
passing  bills  in  tliis  manner. 


"  lawfully  born,  or  othenvise  commonly  re- 
puted to  bo  his  children,  or  his  sister,  aunt, 
or  niece."* 

Henry's  two  divorces  had  CT'eated  an  un- 
certainty as  to  the  line  of  succes-  Art  giving' 
sion,  which  Parliament  endeav-  fj'„"'s'''thr 
ored  to  remove,  not  by  such  con-  f^fcc  of  law, 
stitutional  provisions,  in  concurrence  with 
the  crown,  as  might  define  the  course  of  in- 
heritance, but  by  enabling  the  king,  on  fail- 
ure of  issue  by  Jane  Seymour,  or  any  oth- 
er lawful  wife,  to  make  over  and  bequeath 
tho  kingdom  to  any  persons  at  his  pleasure, 
not  even  reserving  a  preference  to  the  de- 
scendants of  former  sovereigns,  f  By  a  sub- 
sequent statute,  the  Princesses  IVIary  and 
Elizabeth  were  nominated  in  the  entail,  af- 
ter the  king's  male  issue,  subject,  however, 
to  such  conditions  as  he  should  declare,  by 
non-compliance  with  which  their  right  was 
to  cease. t  This  act  still  left  it  in  his  pow- 
er to  limit  the  remainder  at  his  discretion. 
In  execution  of  this  authority,  he  devised 
the  crown,  upon  failure  of  issue  from  his 
three  children,  to  the  heirs  of  the  body  of 
Mary,  duchess  of  Suffolk,  the  younger  of 
his  two  sisters ;  postponing  at  least,  if  not 
excluding,  the  royal  family  of  Scotland,  de- 
scended from  his  elder  sister  Margaret. 
In  surrendering  the  regular  laws  of  the 
monai'chy  to  one  man's  caprice,  this  Par- 
liament became  accessory,  so  far  as  in  it 
lay,  to  dispositions  which  might  eventually 
have  kindled  the  flames  of  civil  war.  But 
it  seemed  to  aim  at  inflicting  a  still  deeper 
injuiy  on  future  generations,  in  enacting 
that  a  king,  after  he  should  have  attained 
the  age  of  twenty-four  years,  might  repeal 
any  statutes  made  since  his  accession. § 
Such  a  provision  not  only  tended  to  annihi- 
late the  authority  of  a  regency,  and  to  ex- 
pose the  kingdom  to  a  sort  of  anarchical 
confusion  during  its  continuance,  but  seem- 
ed to  prepare  tho  way  for  a  more  absolute 
power  of  abrogating  all  acts  of  the  Legisla- 
ture. Three  years  afterward  it  was  en- 
acted that  proclamations  made  by  the  king 
and  council,  under  penalty  of  fine  and  im- 
prisonment, should  have  the  force  of  stat- 
utes, so  that  they  should  not  be  prejudicial 
to  any  person's  inheritance,  offices,  liber- 
ties, goods,  and  chattels,  or  infringe  the  es- 
tablished laws.    This  has  been  often  no- 

*  28  H.  8,  C.  18.  t  28  H.  8,  c.  7. 

t  35  H.  8,  c.  1.  §  28  H.  8,  c.  17. 


32 


COXSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  I. 


ticed  as  an  instance  of  senile  compliance.  | 
It  is,  howevei',  a  sti'iking  testimony  to  the 
free  constitution  it  infringed,  and  demon- 
Sti'ates  that  the  prerogative  could  not  soar 
to  the  heights  it  aimed  at,  till  thus  impeded 
by  the  perfidious  hand  of  Parliament.  It  is 
also  to  be  observed,  that  the  power  given 
to  the  king's  proclamations  is  considerably 
limited.* 

A  government  administered  with  so  fre- 
quent violations,  not  only  of  the  chartered 
privileges  of  Englishmen,  but  of  those  still 
more  sacred  rights  which  natural  law  has 
established,  must  have  been  regarded,  one 
would  imagine,  with  just  abhoirence,  and 
earnest  longings  for  a  change.  Yet  contem- 
poraiy  authorities  by  no  means  answer  to 
this  expectation.  Some  mention  Heniy  af- 
ter his  death  in  language  of  eulogy- ;  and,  if 
we  except  those  whom  attachment  to  the 
ancient  religion  had  inspired  with  hati'ed 
toward  his  memory,  very  few  ajipear  to 
have  been  aware  that  his  name  would  de- 
scend to  posterity  among  those  of  the  many 
tyrants  and  oppressors  of  innocence  whom 
the  wrath  of  Heaven  has  raised  up,  and  the 
servility  of  men  has  endured.  I  do  not,  in- 
deed, believe  that  he  had  really  conciliated 
his  people's  affection.  That  perfect  fear 
which  attended  him  must  have  cast  out  love. 
But  he  had  a  few  qualities  that  desen  e  es- 
teem, and  several  which  a  nation  is  pleased 
to  behold  in  a  sovereign.    He  wanted,  or 

*  31  H.  8,  c.  8.  Burnet,  i.,  263,  explains  the 
origin  of  this  act.  Great  exceptions  had  been 
taken  to  some  of  the  king's  ecclesiastical  procla- 
mations, vrhich  altered  laws  and  laid  taxes  on 
spiritual  persons.  He  justly  observes  that  the  re- 
strictions contained  in  it  gave  great  power  to  the 
judges,  who  had  the  power  of  expounding  in  their 
hands.  The  preamble  is  full  as  offensive  as  the 
body  of  the  act ;  reciting  the  contempt  and  disobe- 
dience of  the  king's  proclamations  by  some  "who 
did  not  consider  u-liat  a  kin^  hy  his  royal  power 
might  do,"  which,  if  it  continued,  would  tend  to  the 
disobedience  of  the  laws  of  God,  and  the  dishonor 
of  the  king's  majestj",  "  who  might  full  ill  bear  it," 
Icc.  See  this  act  at  length  in  the  great  edition  of 
the  statutes.  There  was  one  singular  provision: 
the  clause  protecting  all  persons,  as  mentioned,  in 
their  inheritance  or  other  propertv-,  proceeds,  "uor 
shall  by  virtue  of  the  said  act  suffer  any  pains  of 
death."  But  an  exception  is  afterward  made  for 
"  such  persons  which  shall  offend  against  any  proc- 
lamation to  be  made  by  the  king's  higlmess,  his 
heirs  or  successors,  for  or  concerning  any  kind  of 
heresies  against  Christian  doctrine."  Thus  it  seems 
that  the  king  claimed  a  power  to  declare  heresy 
by  proclamation,  under  penalty  of  death. 


at  least  did  not  manifest  in  any  eminent  de- 
gree, one  usual  vice  of  tyrants,  dissimula- 
tion :  his  manners  were  affable,  and  his  tem- 
per generous.  Though  his  schemes  of  for- 
eign policy  were  not  veiy  sagacious,  and 
his  wars,  either  with  France  or  Scotland, 
productive  of  no  material  advantage,  they 
were  uniformly  successful,  and  retrieved 
the  honor  of  the  English  name.  But  the 
main  cause  of  the  reverence  with  which  our 
forefathers  cherished  this  king's  memoiy, 
was  the  share  he  had  taken  in  the  Refor- 
mation. They  saw  in  him,  not,  indeed,  the 
proselyte  of  their  faith,  but  the  subveiter  of 
their  enemies'  power,  the  avenging  minister 
of  Heaven,  by  whose  giant  arm  the  chain 
of  superstition  had  been  broken,  and  the 
prison  gates  burst  asunder.* 

The  ill-assorted  body  of  counselors  who 
exercised  the  functions  of  regen-  Government 
cy  by  Heniy's  testament,  were  °4vs7oan- 
sensible  that  they  had  not  sinews  selors. 
to  wield  his  u-on  scepter,  and  that  some 
sacrifice  must  be  made  to  a  nation  exasper- 
ated as  well  as  overawed  by  the  violent 
measures  of  his  reign.  In  the  first  ses- 
sion, accordingly,  of  Edward's  Parliament, 
the  new  treasons  and  felonies  which  had 
been  created  to  please  his  father's  sangui- 
nary disposition  were  at  once  abrogated. f 
The  statute  of  Edward  III.  became  again 
the  standard  of  high  ti'eason,  except  that  the 
denial  of  the  king's  supremacy  was  still  lia- 
ble to  its  penalties.  The  same  act,  which 
relieves  the  subject  from  these  terrors,  con- 
tains also  a  repeal  of  that  which  had  given 

*  Gray  has  finely  glanced  at  this  bright  point  of 
Henrj's  character,  in  that  beautiful  stanza  where 
he  has  made  the  founders  of  Cambridge  pass  before 
our  eyes,  like  shadows  over  a  magic  glass : 

The  majestic  lord, 
broke  the  bonds  of  Rorae. 

In  a  poet,  this  was  a  fair  emplojiuent  of  his  art ; 
but  the  partiality-  of  Bumet  toward  Heurj-  VIII. 
is  less  wairantable ;  and  he  should  have  blushed 
to  excuse,  by  absurd  and  unworthy  sopliistiy,  the 
punishment  of  those  who  refused  to  swear  to  the 
king's  supremacy,  p.  351. 

After  all,  Henry  was  every  whit  as  good  a  king 
and  man  as  Francis  I.,  whom  there  are  still  some, 
on  the  other  side  of  the  Channel,  servile  enough  to 
extol;  not  in  the  least  more  tyrannical  and  san- 
guinarj-,  and  of  better  faith  toward  his  neighbors. 

t  1  Edw.  6,  c.  12.  By  this  act  it  is  proWded 
that  a  lard  of  Parliament  shall  have  the  benefit  of 
clergy,  though  he  can  not  read. — Sect.  14.  Yet  one 
can  hardly  believe  that  this  provision  was  neces- 
sary at  so  late  an  era. 


Edw.  VI.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


33 


legislative  validity  to  the  king's  proclama- 
tions. These  pi-ovisions  appear  like  an 
elastic  recoil  of  the  Constitution  after  the  ex- 
traordinary pressure  of  that  despotic  reign. 
But,  however  they  may  indicate  the  temper 
of  Parliament,  we  must  consider  them  but 
as  an  unwilling  and  insincere  compliance  on 
the  part  of  the  government.  Henry,  too 
arrogant  to  dissemble  with  his  subjects,  had 
stamped  the  law  itself  with  the  print  of  his 
despotism.  The  more  wily  courtiers  of 
Edward's  council  deemed  it  less  obnoxious 
to  violate  than  to  new-mold  the  Constitu- 
tion ;  for,  although  proclamations  had  no 
longer  the  legal  character  of  statutes,  we 
find  several  during  Edward's  reign  enforced 
by  penalty  of  fine  and  imprisonment.  Many 
of  the  ecclesiastical  changes  were  first  es- 
tablished by  no  other  authority,  though  af- 
terward sanctioned  by  Parliament.  Rates 
were  thus  fixed  for  the  price  of  provisions  ; 
bad  money  was  cried  down,  with  penalties 
on  those  who  should  buy  it  under  a  certain 
value,  and  the  melting  of  the  current  coin 
prohibited  on  pain  of  forfeiture.*  Some  of 
these  might  possibly  have  a  sanction  from 
precedent,  and  from  the  acknowledged  pre- 
rogative of  the  crown  in  regulating  the  coin. 
But  no  legal  apology  can  be  made  for  a  proc- 
lamation in  April,  1549,  addressed  to  all 
justices  of  the  peace,  enjoining  them  to  ar- 
rest sowers  and  tellers  abroad  of  vain  and 
forged  tales  and  lies,  and  to  commit  them  to 
the  galleys,  there  to  row  in  chains  as  slaves 
during  the  king's  pleasure. f     One  would 

*  2  Strype,  147,  341,  491. 

t  Id.,  149.  Dr.  Lingard  has  remarked  an  im- 
portant change  in  the  coronation  ceremony  of  Ed- 
ward VI.  Formerly,  the  king  had  taken  an  oatli 
to  preserve  the  Uberties  of  the  reahn,  and  especial- 
ly those  granted  by  Edward  the  Confessor,  &c., 
before  the  people  were  asked  whether  they  would 
consent  to  have  him  as  their  king.  See  the  form 
observed  at  Richard  the  Second's  coronation  in 
Ryraer,  vii.,  158.  Bat  at  Edward's  coronation,  the 
archbishop  presented  the  king  to  the  people,  as 
rightful  and  undoubted  inheritor  by  the  laws  of 
God  and  man  to  the  royal  dignity  and  crown  impe- 
rial of  this  realm,  ice,  and  asked  if  they  would 
serve  him  and  assent  to  his  coronation,  as  by  their 
duty  of  allegiance  they  were  bound  to  do.  AH  this 
was  hefore  the  oath. — 2  Bamet,  Appendix,  p.  93. 

Few  will  pretend  that  the  coronation,  or  the  cor- 
onation oath,  was  essential  to  the  legal  succession 
of  the  crown,  or  the  exercise  of  its  prerogatives. 
But  this  alteration  in  the  form  is  a  curious  proof  of 
the  solicitude  displayed  by  the  Tudors,  as  it  was 
much  more  by  the  next  family,  to  suppress  every 

c 


imagine  that  the  late  statute  had  been  re- 
pealed, as  too  far  restraining  the  royal  pow- 
er, rather  than  as  giving  it  an  unconstitu- 
tional extension. 

It  soon  became  evident  that,  if  the  new 
administration  had  not  fully  im-  ...    .  , 

*;  Attainder  of 

bibed  the  sanguinary  spirit  of  Lord  Sey- 
their  late  master,  they  were  as 
little  scrupulous  in  bending  the  rules  of  law 
and  justice  to  their  pui-pose  in  cases  of  trea- 
son. The  Duke  of  Somerset,  nominated 
by  Henry  only  as  one  of  his  sixteen  execu- 
tors, obtained  almost  immediately  afterward 
a  patent  from  the  young  king,  constituting 
him  sole  regent  under  the  name  of  protect- 
or, with  the  assistance,  indeed,  of  the  rest 
as  his  counselors,  but  with  the  power  of 
adding  any  others  to  their  number.  Con- 
scious of  his  own  usurpation,  it  was  natural 
for  Somerset  to  dread  the  aspiring  views  of 
others ;  nor  was  it  long  before  he  discovered 
a  rival  in  his  brother,  Lord  Seymour  of 
Sudeley,  whom,  according  to  the  policy  of 
that  age,  he  thought  it  necessary  to  desti'oy 
by  a  bill  of  attainder.  Seymour  was  appa- 
rently a  dangerous  and  unprincipled  man ; 
he  had  courted  the  favor  of  the  young  king 
by  small  presents  of  money,  and  appears  be- 
yond question  to  have  entertained  a  hope 
of  marrying  the  Princess  Elizabeth,  who 
had  lived  much  in  his  house  during  his  short 
union  with  the  queen  dowager.  It  was  sur- 
mised that  this  lady  had  been  poisoned  to 
make  room  for  a  still  nobler  consort.*  But 
in  this  there  could  be  no  treason ;  and  it  is 
not  likely  that  any  evidence  was  given  which 
could  have  brought  him  within  the  statute 
of  Edward  III.  In  this  prosecution  against 
Lord  Seymour,  it  was  thought  expedient 

recollection  that  could  make  their  sovereignty  ap- 
pear to  be  of  popular  origin. 

*  Ha_>-nes's  State  Papers  contain  many  curioaa 
proofs  of  the  incipient  amour  between  Lord  Sey- 
mour and  Elizabeth,  and  show  much  indecent  fa- 
miliarity on  one  side,  with  a  little  childish  coquetry 
on  the  other.  These  documents  also  rather  tend 
to  confinn  tlie  story  of  our  elder  historians,  which 
I  have  found  attested  by  foreign  writers  of  that 
age  (though  Burnet  has  thrown  doubts  upon  it), 
that  some  differences  between  the  queen-dowager 
and  the  Duchess  of  Somerset  aggravated  at  least 
those  of  their  husbands. — P.  61,  69.  It  is  alleged 
with  absurd  exaggeration,  in  the  articles  against 
Lord  Sej-mour,  that,  had  tlie  former  proved  imme- 
diately with  child  after  her  marriage  with  him,  it 
might  have  passed  for  the  king's.  This  marriage, 
however,  did  not  take  place  before  June,  Henry 
having  died  in  January. — Ellis's  Letters,  ii.,  150. 


34 


CONSTITUTIONAL  HISTOEY  OF  ENG^LAND 


[Chap.  L 


to  follow  the  veiy  worst  of  Henry's  prece- 
dents, by  not  hearing  the  accused  in  his  de- 
fense. The  bill  passed  through  the  Upper 
House,  the  natural  guardian  of  a  peer's  life 
and  honor,  without  one  dissenting  voice. 
The  Commons  addressed  the  king  that  they 
might  hear  the  witnesses,  and  also  the  ac- 
cused. It  was  answered  that  tlie  king  did 
not  think  it  necessary  for  them  to  hear  the 
latter,  but  that  those  who  had  given  their 
depositions  before  the  Lords  might  repeat 
their  evidence  before  the  Lower  House. 
It  rather  appeai-s  that  the  Commons  did  not 
insist  on  this  any  further ;  but  the  bill  of  at- 
tainder was  carried  with  a  few  negative 
voices.*  How  striking  a  picture  it  affords 
of  the  sixteenth  centuiy,  to  behold  the  pop- 
ular and  well-natured  Duke  of  Somerset, 
more  estimable,  at  least,  than  any  other 
statesman  employed  under  Edward,  not 
only  promoting  this  unjust  condemnation  of 
his  brother,  but  signing  the  warrant  under 
which  he  was  beheaded  ! 

But  it  was  more  easy  to  crush  a  single 

.    .  ,     ,  competitor  than  to  keep  in  sub- 
Attainder  of  .  ' 
Duke  of  So-  jection  the  subtle  and  daimg  spir- 

mersot.  ti'ained  in  Heniy's  council's, 

and  jealous  of  the  usurpation  of  an  equal. 
The  Protector,  attributing  his  success,  as 
is  usual  with  men  in  power,  rather  to  skill 
than  fortune,  and  confident  in  the  two  frail- 
est suj)ports  that  a  minister  can  have,  the 
favor  of  a  child  and  of  the  lower  people, 
was  stripped  of  his  authority  within  a  few 
months  after  the  execution  of  Lord  Sey- 
mour, by  a  confederacy  which  he  had  nei- 
ther the  discretion  to  prevent  nor  the  firm- 
ness to  resist.  Though  from  this  time  but 
a  secondary  character  upon  the  public  stage, 
he  was  so  near  the  throne  as  to  keep  alive 
the  suspicions  of  the  Duke  of  Northumber- 
land, who,  with  no  ostensible  title,  had  be- 
come not  less  absolute  than  himself.  It  is 
not  improbable  that  Somerset  was  innocent 
of  the  charge  imputed  to  him,  namely,  a 
conspiracy  to  murder  some  of  the  privy- 
counselors,  which  had  been  erected  into 
felony  by  a  recent  statute ;  but  the  evi- 
dence, though  it  may  have  been  false,  does 
not  seem  legally  insufficient.  He  demand- 
ed on  his  trial  to  be  confi-onted  with  the 

*  Joumftls,  Feb.  27,  March  4,  1548-9.  From 
these  I  am  led  to  doubt  whether  the  Commons  ac- 
tually heard  witnesses  aQ;ainst  Sej-mniir,  which 
Burnet  and  Strype  have  taken  for  granted. 


witnesses;  a  favor  rarely  gi-anted  ia  that 
age  to  state  criminals,  and  which  he  could 
not  veiy  decently  solicit  after  causing  his 
brother  to  be  condemned  unheard.  Three 
lords,  against  whom  he  was  charged  to  have 
consj)ired,  sat  upon  his  trial;  and  it  Ava3 
thought  a  sufKicient  reply  to  his  complaints 
of  this  breach  of  a  known  principle,  that  no 
challenge  could  be  allowed  in  the  case  of  a 
peer. 

From  this  designing  and  unscrupulous  ol- 
igarchy no  measure  conducive  to  liberty 
and  justice  could  be  expected  to  spring. 
But  among  the  Commons  there  must  have 
been  men,  although  their  names  have  not 
descended  to  us,  Avho,  animated  by  a  purer 
zeal  for  these  objects,  perceived  on  how 
precarious  a  thread  the  life  of  every  man 
was  suspended,  when  the  private  disposition 
of  one  suborned  witness,  unconfronted  with 
the  prisoner,  could  suffice  to  obtain  a  con- 
viction in  cases  of  treason.  In  the  worst 
period  of  Edward's  reign  we  find  inserted 
in  a  bill  creating  some  new  treasons  one  of 
the  most  important  constitutional  provisions 
which  the  annals  of  the  Tudor  family  afford. 
It  is  enacted,  that  "  no  person  shall  be  in- 
dicted for  any  manner  of  treason,  except  on 
the  testimony  of  two  lawful  witnesses,  who 
shall  be  brought  in  person  before  the  ac- 
cused at  the  time  of  his  ti'ial,  to  avow  and 
maintain  what  they  have  to  say  against 
him,  unless  he  .shall  willingly  confess  the 
charges."*  This  salutary  provision  vras 
strengthened,  not  taken  away,  as  some  later 
judges  ventured  to  assert,  by  an  act  in  the 
reign  of  Mary.  In  a  subsequent  part  of 
this  woi'k,  I  shall  find  an  opportunity  for 
discussing  this  important  branch  of  consti- 
tutional law. 

It  seems  hai'dly  necessary  to  mention 
the  momentary  usurpation  of  Lady  vj„]g„pg 
Jane  Grey,  founded  on  no  pretext  of  .Mary's 
of  title  which  could  be  sustained  by  ^'^'S"- 
any  argument.  She  certainly  did  not  ob- 
tain that  degi'ee  of  actual  possession  which 
might  have  sheltered  her  adherents  under 
the  statute  of  Henry  VII. ;  nor  did  the 
Duke  of  Northumberland  allege  this  excuse 
on  his  trial,  thougli  he  set  up  one  of  a  more 
technical  nature,  that  the  gi-eat  seal  was  a 
sufficient  protection  for  acts  done  by  its  au- 
thoritj-.f    The  reign  that  immediately  fol- 


*  Stat.  .">  &  6  Edw.  6,  c.  11,  s.  12. 

t  Burnet,  ii.,  243.    An  act  was  made  to  confirm 


Mart.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


35 


lowed  is  chiefly  remembered  as  a  period  of 
sanguinary  persecution ;  but  though  I  re- 
serve for  the  next  chapter  all  mention  of  ec- 
clesiastical disputes,  some  of  Mary's  pro- 
ceedings in  re-establishing  popery  belong  to 
the  civU  history  of  our  Constitution.  Impa- 
tient, under  the  existence,  for  a  moment, 
of  rites  and  usages  which  she  abhorred,  this 
bigoted  woman  anticipated  the  legal  author- 
ity which  her  Parliament  was  ready  to  in- 
terpose for  their  abrogation;  the  Latin  lit- 
urgy was  restored,  the  married  clergy  ex- 
pelled from  their  livings,  and  even  many 
Protestant  ministers  thrown  into  prison  for 
no  other  crime  than  their  religion,  before 
any  change  had  been  made  in  the  establish- 
ed laws.*  The  queen,  in  fact,  and  those 
around  her,  acted  and  felt  as  a  legitimate 
government  i-estored  after  a  usurpation,  and 
treated  the  recent  statutes  as  null  and  in- 
valid. But  even  in  matters  of  temporal  gov- 
ernment, the  stretches  of  prerogative  were 
more  violent  and  alarming  than  during  her 
brother's  reign.  It  is  due,  indeed,  to  the 
memory  of  one  who  has  left  so  odious  a 

deeds  of  private  persons,  dated  during  Jane's  ten 
days,  concerning  which  some  doubts  had  arisen. — 
1  Mary,  sess.  2,  c.  4.  It  is  said  in  this  statute, 
"  her  highness's  most  lawful  possession  was  for  a 
time  disturbed  and  disquieted  by  traitorous  rebell- 
ion and  usurpation." 

It  appears  that  the  younc:  kind's  original  inten- 
tion was  to  establish  a  modified  Salic  law,  exclud- 
ing females  from  the  crown,  but  not  their  male 
heirs.  In  a  writing  drawn  by  himself,  and  entitled 
"My  Device  for  the  Succession,"  it  is  entailed  on 
the  heirs  male  of  the  lady  queen,  if  she  have  any 
before  his  death :  then  to  the  Lady  Jane  and  her 
heirs  male :  then  to  the  heirs  male  of  Lady  Kath- 
arine ;  and  in  every  instance,  except  Jane,  exclud- 
ing the  female  herself.  Strype's  Cranmer,  Append., 
164.  A  late  author,  on  consulting  the  original  MS., 
in  the  king's  handwriring,  found  that  it  had  been 
at  first  written,  "  the  Lady  Jane's  heirs  male."  but 
that  the  words  "  and  her"  had  been  interlined. — 
Nares's  Memoirs  of  Lord  Burghley,  i.,  4.')1.  Mr. 
Nares  does  not  seem  to  doubt  but  that  this  was 
done  by  Edward  himself:  the  change,  however,  is 
remarkable,  and  should  probably  be  ascribed  to 
Northumberland's  influence. 

*  Bm-net.  Strype,  iii.,  .'50,  53.  Carte,  290.  I 
doubt  whether  we  have  any  thing  in  our  liistorv 
more  like  conquest  than  the  administration  of  l.'j.53. 
The  queen,  in  the  month  only  of  October,  presented 
to  256  livings,  restoring  all  those  turned  out  under 
the  acts  of  uniformitj'.  Yet  the  deprivation  of  the 
bishops  might  be  justified  probably  by  the  term.s 
of  the  commission  they  had  taken  out  in  Edward's 
reign,  to  hold  their  sees  during  the  king's  pleasure, 
for  which  was  afterward  siibstitutetl  "  during  good 
behavior." — Buniet,  App.,  257.    Collier,  218. 


name,  to  remark  that  Maiy  was  conscien- 
tiously averse  to  encroach  upon  what  she 
understood  to  be  the  privileges  of  her  peo- 
ple. A  wretched  book  having  been  written 
to  exalt  her  prerogative,  on  the  ridiculous 
pretense  that,  as  a  queen,  she  was  not  bound 
by  the  laws  of  former  kings,  she  showed  it 
to  Gardiner,  and  on  his  expressing  indigna- 
tion at  the  sophism,  threw  it  herself  into 
the  fire.  An  act  passed,  however,  to  settle 
such  questions,  which  declares  the  queen 
to  have  all  the  lawful  prerogatives  of  the 
crown.*  But  she  was  surrounded  by  wick- 
ed counselors,  renegades  of  every  faith,  and 
ministers  of  every  tyranny.  We  must,  in 
candor,  attribute  to  their  advice  her  arbiti'a- 
ry  measures,  though  not  her  persecution  of 
heresy,  which  she  counted  for  virtue.  She 
is  said  to  have  extorted  loans  from  the  citi- 
zens of  London,  and  others  of  her  subjects. f 
This,  indeed,  was  not  more  than  had  been 
usual  with  her  predecessors.  But  we  find 
one  clear  instance,  during  her  reign,  of  a 
duty  upon  foreign  cloth,  imposed  without 
assent  of  Parliament ;  an  encroachment  un- 
precedented since  the  reign  of  Richard  II. 
Several  proofs  might  be  adduced  from  rec- 
ords of  arbitrary  inquests  for  oflTenses,  and 
illegal  modes  of  punishment.  The  torture 
is,  perhaps,  more  frequently  mentioned  in 
her  short  reign  than  in  all  fonnor  ages  of 
our  history  put  together  ;  and  probably  from 
that  imitation  of  foreign  governments,  which 
contributed  not  a  little  to  deface  our  Consti- 
tution in  tlie  sixteenth  century,  seems  de- 
liberately to  have  been  inti-oduced  as  a  part 
of  the  process  in  those  dark  and  uncontroll- 
ed ti'ibunals  which  investigated  offenses 
against  the  state. t  A  commission  issued  in 
1557,  authorizing  the  persons  named  in  it 
to  inquire,  by  any  means  they  could  devise, 
into  charges  of  heresy  or  other  religious  of- 
fenses, and  in  some  instances  to  punish  the 
guilty,  in  others  of  a  giaver  nature  to  remit 
them  to  their  ordinaries,  seems  (as  Burnet 
has  well  obsei-ved)  to  have  been  meant  as  a 
preliminary  step  to  bringing  in  the  Inquisi- 
tion.   It  was  at  least  the  germ  of  the  High- 

*  Buniet,  ii.,  278.  Stat.  1  Mary,  sess.  3,  c.  1. 
Dr.  Lingard  rather  strangely  tells  this  story  on  the 
authority  of  Father  Persons,  whom  his  readers 
probably  do  not  esteem  quite  as  much  as  he  does. 
If  he  had  attended  to  Burnet,  he  would  have  found 
a  more  sufficient  voucher.  t  Carte,  330. 

t  Haynes,  195.  Baniet,  ii.,  Appendix,  256  ;  iii, 
243. 


36 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap,  t 


Commission  Court  in  the  next  reign.*   One  | 
proclamation,  in  the  last  year  of  her  inau- 
spicious administration,  may  be  deemed  a 
flight  of  tyrann}-  beyond  her  father's  exam- 
ple ;  which,  after  denouncing  the  importa- 
tion of  books  filled  with  heresy  and  tresison 
from  beyond  sea,  proceeds  to  declare,  that  | 
whoever  should  be  found  to  have  such  books 
in  his  possession  should  be  reputed  and  tak- 
en for  a  rebel,  and  executed  according  to  ' 
martial  law.f    This  had  been  provoked  as  ■ 
well  by  a  violent  libel  written  at  Geneva  by 
Goodman,  a  refugee,  exciting  the  people  to 
dethrone  the  queen,  as  by  the  recent  at- 
tempt of  one  .Stafford,  a  descendant  of  the 
house  of  Buckingham,  who,  having  land- 
ed with  a  small  force  at  .Scarborough,  had 
vainly  hoped  that  the  general  disaffection 
would  enable  him  to  overthrow  her  govern-  ; 
ment.J  j 
Notwithstanding,  however,  this  apparent- 

*  Buniet,  ii.,  347.  Collier,  ii.,  404,  and  Lineard,  , 
vii.,  256  (who,  by  the-way,  confounds  this  commis-  : 
eion  with  somethin?  different  two  j  ears  earlier),  j 
will  not  hear  of  this  allosiou  to  the  Inquisition.  ! 
But  Burnet  has  said  nothing  that  is  not  perfectly  j 
just.  +  Strj-pe,  iii.,  459. 

t  See  Stafford's  proclamation  from  Scarborough  i 
Castle,  Strype,  iii..  Appendix.  No  71.  It  contains 
no  allusion  to  religion,  both  parties  beins  wearj-  of  , 
Marj'S  Spanish  counsels.  The  important  letters 
of  NoaiUes,  the  French  ambassador,  to  which  Carte  ' 
had  access,  and  which  have  since  been  printed, 
have  afforded  information  to  Dr.  Lineard,  and, 
with  those  of  the  imperial  ambassador,  Renard. 
which  I  have  not  had  an  opportunity  of  seein?, 
throw  much  Ueht  on  this  reign.  They  certainly 
appear  to  justify  the  restraint  put  on  Ehzabeth, 
who,  if  not  herself  priry  to  the  conspiracies  planned 
in  her  behalf  (which  is,  however,  ver>-  probable*, 
was  at  least  too  dangerous  to  be  left  at  liberty. 
Koailles  intrigued  with  the  malcontents,  and  in- 
stigated the  rebellion  of  Wyatt,  of  wliich  Dr.  Lin- 
eard gives  a  very  interesting  account.  Carte,  In- 
deed, differs  from  him  in  many  of  these  circam- 
Btances,  though  writing  from  the  same  source,  and 
particularly  denies  that  Noailles  gave  any  encour- 
agement to  Wj-att.  It  is,  however,  evident  from 
the  tenor  of  his  dispatches  that  he  had  gone  great 
lengths  in  fomenting  the  discontent,  and  was  evi- 
dently  desirous  of  the  success  of  the  insurrection, 
iii,  36,  43,  kc.  This  critical  state  of  the  government 
may  furnish  the  usual  excuse  for  its  rigor.  Bat  its 
unpopularity  was  brought  on  by  Marj  's  breach  of 
her  word  as  to  religion,  and  still  more  by  her  obsti- 
nacy in  forming  her  cmion  with  Philip  against  the 
general  voice  of  the  nation,  and  the  opposition  of 
Gardiner;  who,  however,  after  her  resolution  was 
taken,  became  its  strenuoxis  supporter  in  public. 
For  the  detestation  in  which  the  queen  was  held, 
see  the  letters  of  Noailles,  passim ;  but  with  scms 
degree  of  aUowaoce  for  his  own  antipathy  to  her. 


ly  uncontrolled  career  of  power,  it  is  cer- 
tain that  the  children  of  Henry  VIII.  did 
not  preserve  his  almost  absolute  dominion 
over  Parliament.    I  have  only  The  Hoas* 
met  with  one  instance  in  his  "^^mim^s* 

recmcrs  part 

reign  where  the  Commons  re-  of  lu  mJe- 
fused  to  pass  a  bill  recommended  ^",n"hrte'' 
by  the  crown.  This  was  in  1.332;  """"g"- 
but  so  unquestionable  were  the  legislative 
rights  of  Parliament,  that  ahhough  much 
displeased,  even  Henry  was  forced  to  yield.* 
We  find  several  instances  during  the  reign  of 
Edward,  and  still  more  in  that  of  Mary,  where 
the  Commons  rejected  bills  sent  down  from 
the  Upper  House  :  and  though  there  was  al- 
ways a  majoritj-  of  peers  for  the  government, 
yet  the  dissent  of  no  small  number  is  fre- 
quentlj-  recorded  in  the  former  reign.  Thus 
the  Commons  not  only  threw  out  a  bill  creat- 
ing several  new  treasons,  and  substituted  one 
of  a  more  moderate  nature,  with  that  memo- 
rable clause  for  two  witnesses  to  be  produ- 
ced in  open  court,  which  I  have  already 
mentioned, t  but  rejected  one  attainting 
Tunstal,  bishop  of  Durham,  for  misprision 
of  treason,  and  were  hardly  brought  to  grant 
a  subsidy. t  Their  conduct  in  the  two  for- 
mer instances,  and  probably  in  the  third, 
must  be  attributed  to  the  indignation  that 
was  generally  felt  at  the  usurped  power  of 
Northumberland,  and  the  untimely  fate  of 
Somerset.  Sevend  cases  of  similar  unwill- 
ingness to  go  along  with  court  measures  oc- 
curred under  Mary.  She  dissolved,  in  fact, 
her  first  two  Parliaments  on  this  account. 
But  the  third  was  far  from  obsequious,  and 
rejected  several  of  her  favorite  bills. §  Two 
reasons  principally  contributed  to  this  oppo- 
sition :  the  one,  a  fear  of  entailing  upon  the 
country  those  numerous  exactions  of  which 
so  many  generations  had  complained,  by  re- 
viving the  papal  supremacy,  and  more  espe- 
cially of  a  restoration  of  abbey  lands ;  the 
other,  an  extreme  repugnance  to  the  queen's 


'  Burnet,  i.,  117.  The  king  refused  his  assent 
to  a  bill  which  had  passed  both  Houses,  but  ap- 
parently not  of  a  political  nature. — Lords'  Journals, 
p.  162.  t  Burnet,  190. 

t  Id.,  195,  215.  This  was  the  Parliament,  in  or- 
der to  secure  favorable  elections  for  which  the 
council  had  written  letters  to  the  sheriffs.  These 
do  not  appear  to  have  availed  so  much  as  they 
might  hope. 

§  Carte,  311,  322.  Noailles,  v.,  252.  He  says 
that  she  committed  some  knights  to  the  Tower  for 
their  language  in  the  House. — Id.,  247.  Bumet, 
p.  324,  mentions  the  same. 


Edw.  VI.  &  Mart.] 


FROM  HENRY  VII.  TO  GEORGE  U. 


37 


Spanish  connection.*  If  Mary  could  have 
obtained  the  consent  of  Parliament,  she 
would  have  settled  the  crown  on  her  hus- 
band, and  sent  her  sister,  perhaps,  to  the 
scaffold,  t 

There  can  not  be  a  stronger  proof  of  the 

,  increased  weight  of  the  Corn- 
Attempt  of  ,    .       ,  1  , 
the  court  to  mons  during  these  reigns  than  the 

Useirbjlcre-  anxiety  of  the  court  to  obtain  fa- 
sting new  vorable  elections.  Many  ancient 
oroughs.  boroughs  undoubtedly  have  at  no 
period  possessed  sufficient  importance  to 
deserve  the  elective  franchise  on  the  score 
of  their  riches  or  population  ;  and  it  is  most 
likely  that  some  temporary  interest  or  par- 
tiality, which  can  not  now  be  ti-aced,  first 
caused  a  writ  to  be  addressed  to  them.  But 
there  is  much  reason  to  conclude  that  the 
counselors  of  Edward  VI.,  in  erecting  new 
boroughs,  acted  upon  a  deliberate  plan  of 
strengthening  their  influence  among  the 
Commons.  Twenty-two  boroughs  were 
created  or  restored  in  this  short  reign ; 
some  of  them,  indeed,  places  of  much  con- 
sideration, but  not  less  than  seven  in  Corn- 
wall, and  several  others  that  appear  to  have 
been  insignificant.  Maiy  added  fourteen  to 
the  number ;  and  as  the  same  course  was 
pursued  under  Elizabeth,  we  in  fact  owe  a 
great  part  of  that  irregularity  in  our  popular 
representation,  the  advantages  or  evils  of 
which  we  need  not  here  discuss,  less  to 
changes  wrought  by  time  than  to  deliberate 
and  not  very  constitutional  policy.  Nor  did 
tlie  government  scruple  a  direct  and  avowed 
interference  with  elections.  A  circular  let- 
ter of  Edward  to  all  the  sheriffs  commands 
them  to  give  notice  to  the  freeholders,  cit- 

*  Burnet,  322.  Carte,  296.  Noailles  says,  that 
a  third  part  of  the  Commons  in  Mary's  first  Parlia- 
ment was  hostile  to  the  repeal  of  Edward's  laws 
about  reUgion,  and  that  the  debates  lasted  a  week, 
ii.,  247.  The  Journals  do  not  mention  any  division ; 
though  it  is  said  in  Strype,  iii.,  204,  that  one  mem- 
ber. Sir  Ralph  Bagnal,  refused  to  concur  in  the  act 
abolishing  the  supremacy.  The  queen,  however, 
in  her  letter  to  Cardinal  Pole,  says  of  this  repeal : 
"  quod  non  sine  conteutione.  disputatione  acri,  et 
summo  labore  fidelium  factum  est." — Lingard, 
Carte.  Philips's  Life  of  Pole.  Noailles  speaks  re- 
peatedly of  the  strength  of  the  Protestant  party, 
and  of  the  enmity  which  the  English  nation,  as  he 
expressed  it,  bore  to  the  pope.  But  the  aversion 
to  the  marriage  with  Philip,  and  dread  of  falling 
under  the  yoke  of  Spain,  were  common  to  both 
religions,  with  the  exception  of  a  few  mere  bigots 
to  the  Church  of  Rome. 

t  Noailles,  vol.  v.,  passim. 


izens,  and  burgesses  within  their  respective 
counties,  "  that  our  pleasure  and  command- 
ment is,  that  they  shall  choose  and  appoint, 
as  nigh  as  they  possibly  may,  men  of  knowl- 
edge and  experience  within  the  counties, 
cities,  and  boroughs  ;"  but  nevertheless,  that 
where  the  privy  council  should  "  recom- 
mend men  of  learning  and  wisdom,  in  such 
case  their  directions  be  regarded  and  follow- 
ed." Several  persons,  accordingly,  were 
recommended  by  letters  to  the  sheriffs,  and 
elected  as  knights  for  different  shires  ;  all 
of  whom  belonged  to  the  court,  or  were  in 
places  of  trust  about  the  king.*  It  appears 
probable  that  persons  in  ofifice  formed  at  all 
times  a  very  considerable  portion  of  the 
House  of  Commons.  Another  circular  of 
Mary  before  the  Parliament  of  1554,  direct- 
ing the  sheriffs  to  admonish  the  electors  to 
choose  good  Catholics  and  "  inhabitants,  as 
the  old  laws  require,"  is  much  less  uncon- 
stitutional;  but  the  Earl  of  Sussex,  one  of 
her  most  active  counselors,  wrote  to  the  gen- 
tlemen of  Norfolk,  and  to  the  burgesses  of 
Yarmouth,  requesting  them  to  reserve  their 
voices  for  the  person  he  should  name.f 
There  is  reason  to  believe  that  the  court, 
or,  rather,  the  imperial  ambassador,  did 
homage  to  the  power  of  the  Commons  by 
presents  of  money,  in  order  to  procure  their 
support  of  the  unpopular  marriage  with 
Philip  ;  J  and  if  Noailles,  the  ambassador  of 
Henry  II.,  did  not  make  use  of  the  same 
means  to  thwart  the  grants  of  subsidy  and 
other  measures  of  the  administration,  he 
was  at  least  very  active  in  promising  the 
succor  of  France,  and  animating  the  patri- 
otism of  those  unknown  leaders  of  that  as- 
sembly who  withstood  the  design  of  a  be- 
sotted woman  and  her  unprincipled  coun- 
selors to  transfer  this  kingdom  under  the 
yoke  of  Spain.§ 

It  appears  to  be  a  very  natural  inquiry, 
after  beholding  the  course  of  administi-ation 


*  Strype,  ii.,  394. 

t  Id.,  iii.,  155.    Burnet,  ii.,  228. 

t  Burnet,  ii.,  2C2,  277. 

§  Noailles,  v.,  190.  Of  the  truth  of  this  plot  there 
can  be  no  rational  ground  to  doubt;  even  Dr.  Lin- 
gard has  nothing  to  advance  against  it  but  the  as- 
sertion of  Mary's  counselors,  the  Pagets  and  Arun- 
dels,  the  most  worthless  of  mankind.  We  are,  in 
fact,  greatly  indebted  to  Noailles  for  his  spirited 
activity,  which  contributed,  in  a  high  degree,  to 
secure  both  the  Protestant  religion  and  the  national 
independence  of  our  ancestors. 


38 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap  L 


Oausesofthe  under  the  Tudor  line,  by  what 
ai'fve  of  UiT  means  a  government  so  violent  in 
Tudors.  itself,  and  so  plainly  inconsistent 
with  the  acknowledged  laws,  could  be  main- 
tained; and  what  had  become  of  that  Eng- 
lish spirit  which  had  not  only  controlled  such 
injudicious  princes  as  John  and  Richard  II., 
but  withstood  the  first  and  third  Edward, 
in  the  fullness  of  their  pride  and  gloiy.  Not, 
indeed,  that  the  excesses  of  prerogative  had 
ever  been  thoroughly  restrained,  or  that,  if 
the  memorials  of  earlier  ages  had  been  as 
carefully  preserved  as  those  of  the  sixteenth 
century,  we  might  not  possibly  find  in  them 
equally  flagrant  instances  of  oppression ;  but 
still  the  petitions  of  Parliament  and  frequent 
statutes  remain  on  record,  bearing  witness 
to  our  constitutional  law  and  to  the  energy 
that  gave  it  birth.  There  had  evidently 
been  a  retrograde  tendency  toward  absolute 
monarchy  between  the  reigns  of  Henry  VI. 
and  Henry  VIII.  Nor  could  this  be  attrib- 
uted to  the  common  engine  of  despotism,  a 
military  force.  For,  except  the  yeomen  of 
the  guard,  fifty  in  number,  and  the  common 
servants  of  the  king's  household,  there  was 
not,  in  time  of  peace,  an  armed  man  receiv- 
ing pay  throughout  England.*  A  govern- 
ment that  ruled  by  intimidation  was  ab- 
solutely destitute  of  force  to  intimidate. 
Hence  risings  of  the  mere  commonalty  were 
sometimes  highly  dangerous,  and  lasted 
much  longer  than  ordinaiy.  A  rabble  of 
Cornishmen,  in  the  refign  of  Henry  VII., 
headed  by  a  blacksmith,  marched  up  from 
their  own  county  to  the  suburbs  of  Lon- 
don without  resistance.  The  insuiTections 
of  1525  in  consequence  of  Wolsey's  illegal 
taxation,  those  of  the  north  ten  years  after- 
ward, wherein,  indeed,  some  men  of  higher 
quality  were  engaged,  and  those  which 
broke  out  simultaneously  in  several  coun- 
ties under  Edward  VI.,  excited  a  well- 
grounded  alarm  in  the  country ;  and  in  the 
two  latter  instances  were  not  quelled  with- 
out much  time  and  exertion.  The  reproach 
of  servility  and  patient  acquiescence  under 
usurped  power  falls  not  on  the  English  peo- 
ple, but  on  its  natural  leaders.  We  have 
*  Henry  VII.  first  established  a  band  of  fifty 
archers  to  wait  on  him.  Henry  VIII.  had  fifty 
horse-guards,  each  with  an  archer,  demi-lance,  and 
couteiller,  like  the  gendarmerie  of  France;  but  on 
account,  probably,  of  the  expense  it  occasioned, 
their  equipment  being  too  magnificent,  this  soon 
was  given  up. 


seen,  indeed,  that  the  House  of  Commons 
now  and  then  gave  signs  of  an  independent 
spirit,  and  occasioned  more  trouble,  even  to 
Henry  VIII.,  than  his  compliant  nobility. 
They  yielded  to  every  mandate  of  his  im- 
perious will ;  they  bent  with  eveiy  breath 
of  his  capricious  humor ;  they  are  responsi- 
ble for  the  illegal  trial,  for  the  iniquitous  at- 
tainder, for  the  sanguinary  statute,  for  the 
tyranny  which  they  sanctioned  by  law,  and 
for  that  which  they  permitted  to  subsist 
without  law.  Nor  was  this  selfish  and  pusil- 
lanimous subserviency  more  characteristic 
of  the  minions  of  Henry's  favor,  the  Crom- 
wells,  the  Riches,  the  Pagets,  the  Russels, 
and  the  Powletts,  than  of  the  representa- 
tives of  ancft;nt  and  honorable  houses,  the 
Howards,  the  Fitz-Alans,  and  the  Talbots. 
We  trace  the  noble  statesmen  of  those 
reigns  concurring  in  all  the  inconsistencies 
of  their  revolutions,  supporting  all  the  relig- 
ions of  Heniy,  Edward,  Maiy,  and  Eliza- 
beth; adjudging  the  death  of  Somei-set  to 
gratify  Northumberland,  and  of  Northum- 
berland to  redeem  their  participation  in  his 
fault,  setting  up  the  usui-pation  of  Lady 
Jane,  and  abandoning  her  on  the  first  doubt 
of  success,  constant  only  in  the  rapacious 
acquisition  of  estates  and  honors,  from  what- 
ever source,  and  in  adherence  to  the  pres- 
ent power. 

1  have  noticed  in  a  former  work  that  il- 
legal and  arbitraiy  jurisdiction  ex-  .lurisdiction 
ercised  by  the  council,  which,  in  "f  '^l>e  coun- 

^  '       cu  of  Star 

despite  of  several  positive  stat-  Chamber, 
utes,  continued  in  a  greater  or  less  degi'ee, 
through  all  the  period  of  the  Plantagenet 
family,  to  deprive  the  subject,  in  many  crim- 
inal chai'ges,  of  that  sacred  privilege,  trial 
by  his  peers.*  This  usurped  jurisdiction, 
carried  much  further  and  exercised  more 
vigorously,  was  the  principal  grievance  un- 
der the  Tudors ;  and  the  forced  submission 
of  our  forefathers  was  chiefly  owing  to  the 
terrors  of  a  tribunal,  which  left  them  secure 
from  no  infliction  but  public  execution,  or 
actual  dispossession  of  their  freeholds  ;  and 
though  it  was  beyond  its  direct  province  to 
pass  sentence  on  capital  charges,  yet,  by  in- 


*  View  of  Middle  Ages,  ch.  8.  I  must  here  ac- 
knowledge that  I  did  not  make  the  requisite  A\s- 
tinction  between  tlie  concilium  secretum,  or  privy 
council  of  state,  and  the  concilium  ordinarium,  as 
Lord  Hale  calls  it,  which  alone  exercised  juris- 
diction. 


Hen.  VII.  TO  Mart.]  FROM  HENRY  VII.  TO  GEORGE  II. 


89 


tiinidating  jurors,  it  pi-ocured  convictions 
which  it  was  not  authorized  to  pronounce. 
We  are  naturally  astonished  at  the  easiness 
with  wliich  verdicts  were  sometimes  given 
against  persons  accused  of  treason  on  evi- 
dence insufficient  to  support  tlie  charge  in 
point  of  law,  or  in  its  nature  not  competent 
to  be  received,  or  unworthy  of  belief.  But 
this  is  explained  by  the  peril  that  hung  over 
the  jury  in  case  of  acquittal.  "  If,"  says 
Sir  Thomas  Smith,  in  his  Treatise  on  the 
Commonwealth  of  England,  "  they  do  pro- 
nounce not  guilty  upon  the  prisoner,  against 
whom  manifest  witness  is  brought  in,  the 
prisoner  escapeth,  but  the  twelve  are  not 
only  rebuked  by  the  judges,  but  also  threat- 
ened of  punishment,  and  many  times  com- 
manded to  appear  in  the  Star  Chamber,  or 
before  the  privy  council,  for  tlie  matter. 
But  this  threatening  chanceth  oftener  than 
the  execution  tliereof ;  and  the  twelve  an- 
swer with  most  gentle  words,  they  did  it 
according  to  their  consciences,  and  pray  the 
judges  to  be  good  unto  them ;  they  did  as 
they  tliouglit  right,  and  as  they  accorded 
all;  and  so  it  passeth  away  for  the  most 
part.  Yet  I  have  seen  in  my  time,  but  not 
in  the  reign  of  the  king  now  [Elizabeth], 
that  an  inquest  for  pronouncing  one  not 
guilty  of  treason  conti'ary  to  such  evidence 
as  was  brought  in,  were  not  only  imprison- 
ed for  a  space,  but  a  large  fine  set  upon  their 
heads,  which  they  were  fain  to  pay ;  anotlier 
inquest,  for  acquitting  anothei%  beside  pay- 
ing a  fine,  were  put  to  open  ignominy  and 
shame.  But  these  doings  were  even  then 
accounted  of  many  for  violent,  tyrannical, 
and  contrary  to  the  liberty  and  custom  of 
the  realm  of  England."*  One  of  the  in- 
stances to  which  he  alludes  was  probably 
that  of  the  juiy  who  acquitted  Sir  Nicholas 
Throckmorton  in  the  second  year  of  Maiy. 
He  had  conducted  his  own  defense  with 
singular  boldness  and  dexterity.  On  de- 
livering their  verdict,  the  court  committed 
them  to  prison.  Four,  having  acknowledged 
their  oflfense,  were  soon  released ;  but  the 
rest,  attempting  tojustify  themselves  before 

*  Commonwealth  of  England,  book  3,  e.  1.  The 
statute  26  H.  8,  c.  4,  enacts,  that  if  a  jury  in  Wales 
acquit  a  felon,  contrary  to  good  and  pregnant  evi- 
dence, or  otherwise  misbehave  themselves,  the 
judge  may  bind  them  to  appear  before  the  presi- 
dent and  council  of  the  Welsh  marches.  The  par- 
tiality of  WeLsh  jurors  was  notorious  in  that  age  ; 
and  the  reproach  has  not  quite  ceased. 


the  council,  were  sentenced  to  pay,  some  a 
fine  of  two  thousand  pounds,  some  of  one 
thousand  marks  ;  a  part  of  which  seems  ulti- 
mately to  have  been  remitted.* 

It  is  here  to  be  observed,  that  the  coun- 
cil of  which  we  liave  just  heard,  j.^^^ 
or,  as  Lord  Hale  denominates  it  s^""^ 
(though  rather,  I  believe,  for  the  erected  by 
sake  of  distinction  than  upon  any  ^^°^y 
ancient  autliority),   the    king's  ordinary 
council,  was  something  different  from  the 
privy  council,  with  wliich  several  modern 
writers  are  apt  to  confound  it;  that  is,, the 
comt  of  jurisdiction  is  to  be  distinguished 
from  the  deliberative  body,  the  advisers  of 
the  crown.    Eveiy  privy  counselor  belong- 
ed to  the  concilium  ordinarium  ;   but  the 
chief  justices,  and  perhaps  several  others 
who  sat  in  the  latter  (not  to  mention  all  tem- 
poral and  spiritual  peers,  who,  in  tlie  opin- 
ion at  least  of  some,  had  a  right  of  suffrage 
therein),  were  not  necessarily  of  the  former 
body.*    This  can  not  be  called  in  question, 

*  State  Trials,  i.,  901.  Strype,  ii.,  120.  lu  a 
letter  to  the  Duke  of  Norfolk  (Hardwicke  Papers, 
i.,  46)  at  the  time  of  the  Yorkshire  rebellion  in 
1536,  he  is  directed  to  question  the  jury  who  had 
acquitted  a  particular  person,  in  order  to  discover 
their  motive.  Norfolk  seems  to  have  objected  to 
this  for  a  good  reason,  "  least  the  fear  thereof 
might  trouble  others  in  the  like  case."  But  it 
may  not  be  uncandid  to  ascribe  this  rather  to  a 
leaning  toward  the  insurgents  than  a  constitution- 
al principle. 

t  Hale's  Jurisdiction  of  the  Lords'  House,  p.  5. 
Coke,  4th  Inst.,  65,  where  we  have  the  following 
passage  :  "  So  this  court  [the  court  of  Star  Cham- 
ber, as  the  concilium  was  then  called],  being  hold- 
en  coram  rege  et  concilio,  it  is,  or  may  be,  com- 
pounded of  tliree  several  councils  ;  that  is  to  say, 
of  the  lords  and  others  of  his  majesty's  privy 
council,  always  judges  without  appointment,  as 
before  it  appeareth.  2.  The  judges  of  either 
bench  and  barons  of  the  Exchequer  are  of  the 
king's  council,  for  matters  of  law,  &c. ;  and  the 
two  chief  justices,  or,  in  their  absence,  other  two 
justices,  are  standing  judges  of  this  court.  3. 
Tlie  lords  of  Parliament  are  properly  de  magno 
concilio  regis  ;  but  neither  those,  not  being  of  the 
king's  privy  council,  nor  any  of  the  rest  of  the 
judges  or  barons  of  the  Exchequer,  are  standing 
judges  of  the  court."  But  Hudson,  in  his  Treatise 
of  the  Court  of  Star  Chamber,  written  about  the 
end  of  James's  reign,  inclines  to  think  that  all 
peers  had  a  right  of  sitting  in  the  Court  of  Star 
Chamber ;  there  being  several  instances  where 
some  who  were  not  of  the  council  of  state  were 
present  and  gave  judgment,  as  in  the  case  of  Mr. 
Davison,  "  and  how  they  were  complete  judges 
unsworn,  if  not  by  their  native  right,  I  can  not 
comprehend ;  for  surely  the  calling  of  them  in 


40 


CONSTITUTIONAL  HISTOKY  OF  ENGLAND 


[Chap.  I. 


without  either  charging  Lord  Coke,  Lord 
Hale,  and  other  writers  on  the  subject,  with 
ignorance  of  what  existed  in  their  own  age, 
or  gratuitously  supposing  that  an  entirely 
novel  ti-ibunal  sprang  up  in  the  sixteenth 
centui-y  under  the  name  of  the  Star  Cham- 
ber. It  has,  indeed,  been  often  assumed, 
that  a  statute  enacted  early  in  the  reign  of 
Henry  VIL  gave  the  first  legal  authority  to 
the  criminal  jurisdiction  exercised  by  that  i 
famous  court,  which  in  reality  was  nothing 
else  but  another  name  for  the  ancient  con- 
cilium regis,  of  which  our  records  are  full, 
and  whose  encroachments  so  many  statutes 
had  endeavored  to  repress  ;  a  name  derived 
from  the  chamber  wherein  it  sat,  and  which 
is  found  in  many  precedents  before  the  time 
of  Henry  VH.,  though  not  so  specially  ap- 
plied to  the  council  of  judicature  as  after- 
ward.* The  statute  of  this  reign  has  a 
much  more  limited  operation.  1  have  ob- 
served in  another  work  that  the  coercive 
jurisdiction  of  the  council  had  great  conven- 
ience, in  cases  where  the  ordinary  course 
of  justice  was  so  much  obstructed  by  one 
party,  through  writs,  combinations  of  main- 
tenance, or  overawing  influence,  that  no 
inferior  court  would  find  its  process  obey- 
ed ;  and  that  such  seem  to  have  been  reck- 
oned necessary  exceptions  from  the  statutes 
which  restrain  its  interference.  The  act  of 
3  H.  7,  c.  1,  appears  intended  to  place  on 
a  la^vful  and  permanent  basis  the  jurisdic- 
tion of  the  council,  or  rather  a  part  of  the 

that  case  was  not  made  leiritimate  by  any  act  of 
Parliament ;  neither  without  their  right  were  they 
more  apt  to  be  judges  than  any  other  inferior  per- 
sons in  the  kingdom  ;  and  yet  I  doubt  not  but  it 
resteth  in  the  king's  pleasure  to  restrain  any  man 
from  that  table,  as  well  as  he  may  an}'  of  his  coun- 
cil from  the  board. " — Collectanea  Juridica,  ii.,  p. 
24.  He  says  also,  that  it  was  demurrable  for  a 
bill  to  pray  process  against  the  defendant,  to  ap- 
pear before  the  king  and  his  privy  council. — Ibid. 

"  The  privy  council  sometimes  met  in  the  Star 
Chamber,  and  made  orders.  See  one  in  18  H.  6, 
Harl.  MSS.,  Catalogue,  N.  1S78,  fol.  20.  So  the 
statute,  21  H.  8,  c.  16,  recites  a  decree  by  the 
king's  council  in  his  Star  Chamber,  that  no  alien 
artificer  shall  keep  more  than  two  alien  servants, 
and  other  matters  of  the  same  kind.  This  could 
no  way  belong  to  the  Court  of  Star  Chamber, 
which  was  a  judicial  tribunal. 

It  should  be  remarked,  though  not  to  our  imme- 
diate purpose,  that  this  decree  was  supposed  to 
require  an  act  of  Parliament  for  its  confirmation  ; 
go  far  was  the  government  of  Henry  VIII.  from 
arrogating  a  legislative  power  in  matters  of  pri- 
vate right. 


council,  over  this  peculiar  class  of  offenses ; 
and  after  reciting  the  combinations  support- 
ed by  giving  hveries,  and  by  indentures  or 
promises,  the  partiality  of  sheriffs  in  mak- 
ing panels,  and  in  untrue  returns,  the  tak- 
ing of  money  by  juries,  the  great  riots  and 
unlawful  assemblies,  which  almost  annihila- 
ted the  fair  adminLstration  of  justice,  em 
powers  the  chanceUor,  treasurer,  and  keep- 
er of  the  privy  seal,  or  an_y  two  of  them, 
with  a  bishop  and  temporal  lord  of  the  coun- 
cil, and  the  chief  justices  of  King's  Bench 
and  Common  Pleas,  or  two  other  justices 
in  their  absence,  to  call  before  them  such 
as  offended  in  the  before  -  mentioned  re- 
spects, and  to  punish  them  after  examina- 
tion in  such  manner  as  if  they  had  been 
convicted  by  course  of  law.  But  this  stat- 
ute, if  it  renders  legal  a  jurisdiction  which 
had  long  been  exercised  with  much  advan- 
tage, must  be  allowed  to  limit  the  persons 
in  whom  it  should  reside,  and  certainly  does 
not  convey  by  any  implication  more  extens- 
ive functions  over  a  different  description  of 
misdemeanors.  By  a  later  act,  21  H.  8,  c. 
20,  the  president  of  the  council  is  added  to 
the  judges  of  this  court;  a  decisive  proof 
that  it  still  existed  as  a  tribunal  perfectly  dis- 
tinct from  the  council  itself.  But  it  is  not 
styled  by  the  name  of  Star  Chamber  in  this, 
any  more  than  in  the  preceding  statute.  It 
is  very  difficult,  I  believe,  to  determine  at 
what  time  the  jurisdiction  legally  vested  in 
this  new  court,  and  still  exercised  by  it  for- 
ty years  afterward,  fell  silently  into  the 
hands  of  the  body  of  the  council,  and  was 
extended  by  them  so  far  beyond  the  bound- 
aries assigned  by  law,  under  the  appellation 
of  the  Court  of  Star  Chamber.  Sir  Thom- 
as Smith,  writing  in  the  early  part  of  Eliza- 
beth's reign,  while  he  does  not  advert  to  the 
former  court,  speaks  of  the  jurisdiction  of 
the  latter  as  fully  established,  and  ascribes 
the  whole  praise  (and  to  a  certain  degree  it 
was  matter  of  praise)  to  Cardinal  Wolsey. 

The  celebrated  statute  of  31  H.  8,  c.  8, 
which  gives  the  king's  proclamations,  to  a 
certain  extent,  the  force  of  acts  of  Parlia- 
ment, enacts  that  offenders  convicted  of 
breaking  such  proclamations  before  certain 
persons  enumerated  therein  (being  appa- 
rently the  usual  officers  of  the  privy  council, 
together  with  some  bishops  and  judges), 
"  in  the  Star  Chamber  or  elsewhere,"  shall 
suffer  such  penalties  of  fine  and  imprison- 


Hen.  VII.  TO  Mary.]  PKOM  HENRY  VII.  TO  GEORGE  II. 


41 


mcnt  ns  they  shall  adjudge.  "  It  is  the  ef- 
fect of  this  court,"  Smith  says,  "to  bridle 
such  stout  noblemen  or  gentlemen  which 
would  offer  wrong  by  force  to  any  manner 
of  men,  and  can  not  be  content  to  deniand 
or  defend  the  right  by  order  of  the  law.  It 
began  long  before,  but  took  nugmentatioii 
and  authority  at  that  time  that  Cardinal 
Wolsey,  archbishop  of  York,  was  chancel- 
lor of  England,  who  of  some  was  thought  to 
have  first  devised  that  court,  because  that 
he,  after  some  intermission,  by  negligence 
of  time,  augmented  the  authority  of  it,* 

*  Lord  Hale  thinks  that  the  jurisdiction  of  the 
council  was  gradually  "brought  into  great  disuse, 
thouijli  there  remain  some  stragsrling  footsteps  of 
their  proceedings  till  near  3  H.  7,"  p.  38.  "  The 
continual  complaints  of  the  commons  against  the 
proceedings  before  the  council  in  causes  civil  or 
criminal,  although  they  did  not  always  attain  their 
concession,  yet  brought  a  disreputation  upon  the 
proceedings  of  tlie  council,  as  contrary  to  Magna 
Charta  and  the  known  laws,"  p.  39.  He  seems 
to  admit  afterward,  however,  that  many  instances 
of  proceedings  before  them  in  criminal  causes 
might  be  added  to  those  mentioned  by  Lord  Coke, 
p.  43. 

The  paucity  of  records  about  the  time  of  Ed- 
ward IV.  renders  the  negative  argument  rather 
weak ;  but,  from  the  expression  of  Sir  Thomas 
Smith  in  the  text,  it  may  perhaps  be  inferred  that 
the  council  had  intermitted  in  a  considerable  de- 
gree, though  not  absolutely  disused,  their  exercise 
of  jurisdiction  for  some  time  before  the  accession 
of  the  liouse  of  Tudor. 

Mr.  Brodie,  in  his  History  of  the  British  Empire 
under  Charles  I.,  i.,  158,  has  treated  at  consider- 
able length,  and  with  much  acuteness,  this  subject 
of  the  antiquity  of  the  Star  Chamber.  I  do  not 
coincide  in  all  his  positions  ;  but  tlie  only  one  very 
important  is  that  wherein  we  fully  agree,  that  its 
jurisdiction  was  chiefly  usurped,  as  well  as  ty- 
rannical. 

I  will  here  observe  that  this  part  of  our  ancient 
Constitutional  history  is  likely  to  be  elucidated  by 
a  friend  of  my  own,  who  has  already  given  evi- 
dence to  the  world  of  his  singular  competence  for 
such  an  undertaking,  and  who  unites,  with  all  the 
learning  and  diligence  of  Spelman,  Prynne,  and 
Madox,  an  acuteness  and  vivacity  of  intellect 
which  none  of  those  writers  possessed.  [1827.] 
[This  has  since  been  done  in  "An  Essay  upon  the 
Original  Authority  of  the  King's  Council,  by  Sir 
Francis  Palgrave,  K.H.,"  1834.  The  -'Proceed- 
ings and  Ordinances  of  the  Privy  Council  of  Eng- 
land," published  by  Sir  Harris  Nicolas,  contain  the 
transactions  of  that  body  from  10  Ric.  II.  (1387)  to 
13  Hen.  VI.  (143.'>),  with  some  scattered  entries 
for  the  rest  of  the  latter  reign.  They  recommence 
'in  1540.  And  a  material  change  appears  to  have 
occurred,  doubtless  through  Wolsey,  in  the  latter 
years  of  the  interval ;  the  privy  council  exercising 
the  same  arbitrary  and  penal  jurisdiction,  or  near- 


which  was  at  that  time  marvelous  necessa- 
ry to  do  to  repress  the  insolency  of  the  no- 
blemen and  gentlemen  in  the  north  parts  of 
England,  who  being  far  from  the  king  and 
the  seat  of  justice,  made  almost,  as  it  were, 
an  ordinary  war  among  themselves,  and 
made  their  force  their  law,  binding  them- 
selves, with  their  tenants  and  servants,  to 
do  or  revenge  an  injury  one  against  another 
as  they  listed.  This  thing  seemed  not  sup- 
portable to  the  noble  prince  Henry  VIII.; 
and  sending  for  them  one  after  another  to 
his  court,  to  answer  before  the  persons  be- 
fore named,  after  they  had  remonstrance 
showed  them  of  their  evil  demeanor,  and 
been  well  disciplined,  as  well  by  words  as 
by  fleeting  [confinement  in  the  Fleet  pris- 
on] a  while,  and  thereby  their  pride  and 
courage  somewhat  assuaged,  they  began  to 
range  themselves  in  order,  and  to  under- 
stand that  they  had  a  prince  who  would 
rule  his  subjects  by  his  law  and  obedience. 
Since  that  time,  this  court  has  been  in  more 
estimation,  and  is  continued  to  this  day  in 
manner  as  I  have  said  befwe."*  But  as 
the  court  erected  by  the  statute  of  Henry 
VII.  appears  to  have  been  in  activity  as  late 
as  the  fall  of  Cardinal  Wolsey,  and  exercised 
its  jurisdiction  over  precisely  that  class  of  of- 
fenses which  Smith  here  describes,  it  may, 
perhaps,  be  more  likely  that  it  did  not 
wholly  merge  in  the  general  body  of  the 
council  till  the  minority  of  Edward,  whea 
that  oligarchy  became  almost  independent 
and  supreme.  It  is  obvious  that  most,  if 
not  all,  of  the  judges  in  the  court  held  un- 
der that  statute  were  members  af  the  coun- 
cil ;  so  that  it  might  in  a  certain  sense  be 
considered  as  a  committee  from  that  body, 

ly  such,  as  the  concilium  ordinarium  had  done  with 
so  much  odium  under  Edw.  HI.  and  Ric.  II. 
There  may  possibly  be  a  very  few  instances  of 
this  before,  to  be  traced  in  the  early  volumes  of 
the  Proceedings;  but  from  1540  to  1547  the  course 
of  the  privy  council  is  just  like  that  of  the  Star 
Chamber,  as  Sir  Thomas  Smith  intimates  in  the 
passage  above  quoted  (p.  39) ;  and,  in  fact,  consid- 
erably more  unconstitutional  and  dangerous,  from 
there  being  no  admixture  of  the  judges  to  keep  up 
some  regard  to  law.  1845.] 

*  Commonwealth  of  England,  book  3,  c.  4.  We 
find  Sir  Robert  Sheffield  in  1517  "  put  into  the 
Tower  again  for  the  complaint  he  made  to  the 
king  of  my  lord  cardinal." — Lodge's  Illustrations, 
i.,  p.  27.  See,  also,  Hall,  p.  .585,  for  Wolsey's 
strictness  in  punishing  "  the  lords,  knights,  and 
men  of  all  sorts,  for  riots,  bearing,  and  mainte- 
nance." 


42 


COXiTITUTIOXAL  HISTOaY  OF  ENGLAND 


[Chap.  I. 


who  had  long  before  been  wont  to  interfere 
with  the  punishment  of  similar  misdemean- 
oi's.  And  the  distinction  was  so  soon  for- 
gotten, that  the  judges  of  the  King's  Bench 
in  the  13th  of  Elizabeth  cite  a  case  from 
the  year-book  of  8  H.  7,  as  "  conceraing 
the  Star  Chamber,"  which  related  to  the 
limited  coui't  erected  by  the  statute.* 

In  this  half-barbarous  state  of  manners  we 
certainly  discover  an  apology,  as  well  as  mo- 
tive, for  the  council's  interterence  ;  for  it  is 
rather  a  serv  ile  woi-shiping  of  names  than  a 
rational  love  of  hberty,  to  prefer  the  forms 
of  trial  to  the  attainment  of  justice,  or  to  fan- 
cy that  verdicts  obtained  by  violence  or  cor- 
ruption are  at  all  less  iniquitous  than  the  vi- 
olent or  corrupt  sentences  of  a  court.  But 
there  were  many  cases  wherein  neither  the 
necessity  of  circumstances,  nor  the  legal 
sanction  of  any  statute,  could  excuse  the  ju- 
risdiction habitually  exercised  by  the  Court 
of  Star  Cliamlier.  Lord  Bacon  takes  occa- 
sion from  the  act  of  Heniy  VII.  to  descant 
on  the  sage  and  noble  institution,  as  he  terms 
it,  of  that  court,  whose  walls  had  been  so 
often  witnesses  to  the  degradation  of  liis  own 
mind.  It  took  cognizance  principally,  he 
tells  us,  of  four  kinds  of  causes,  "forces, 
frauds,  crimes  various  of  stellionate,  and  the 
inchoations  or  middle  acts  toward  crimes 
capital  or  heinous,  not  actually  conmiitted  or 
perpetrated."!  Sir  Thomas  Smith  uses 
expressions  less  mdefinite  than  these  last, 
and  specifies  scandalous  reports  of  persons 
in  power,  and  seditious  news,  as  offenses 
which  they  were  accustomed  to  punish. 
We  shall  find  abundant  proofs  of  this  de- 
partment of  their  functions  in  the  succeed- 
ing reigns.  But  this  was  in  violation  of  many 
ancient  laws,  and  not  in  the  least  supported 
by  that  of  Hemy  VII. t 

*  Plowden's  Commentaries,  393.  In  the  year- 
book itself,  8  H.  7.  pi.  ult.,  tlie  word  Star  Cham- 
ber is  not  used.  It  is  held  in  this  case,  that  the 
chancellor,  treasurer,  and  privj-  seal  were  the  only 
judses,  and  the  rest  but  assistants.  Coke,  4  Inst., 
62,  denies  this  to  be  law  ;  but  on  no  better  grounds 
than  that  the  practice  of  the  Star  Chamber,  that 
is,  of  a  different  tribunal,  was  not  such. 

t  Hist,  of  Henry  VII.  in  Bacon's  Works,  ii.,  p. 
290. 

i  The  result  of  what  has  been  said  in  the  last  I 
paces  may  be  summed  up  in  a  few  propositions. 
1.  The  court  erected  by  the  statute  of  3  Henry 
VII.  was  not  the  Court  of  Star  Chamber.    2.  This 
court,  by  the  statute,  subsisted  in  fiiU  force  rill  be-  ! 
yond  the  middle  of  Henrj-  VUL'b  reign,  but  not  ' 


A  tribunal  so  vigilant  and  severe  as  that  of 
the  Star  Chamber,  proceeding  by  ,„fl,e„„  ^ 
modes  of  interrogatory  unknown  tiieauitioru/ 

»    »1  11  »f  Star 

to  the  common  law,  and  possess-  Chanii>er  in 
ing  a  discretionary  power  of  fine  rwal^ 
and  imprisonment,  was  easily  able  power, 
to  quell  any  private  opposition  or  contuma- 
cy. We  have  seen  how  the  council  dealt 
with  those  who  refused  to  lend  monej'  by 
way  of  benevolence,  and  with  the  juries 
who  found  verdicts  that  they  disapproved. 
Those  that  did  not  yield  obedience  to  their 
proclamations  were  not  likely  to  fare  better. 
I  know  not  whether  menaces  were  'used 
toward  members  of  the  Commons  who  took 
part  against  the  crown  ;  but  it  would  not  be 
unreasonable  to  believe  it,  or,  at  least,  that  a 
man  of  moderate  courage  would  scarcely 
care  to  expose  himself  to  the  resentment 
which  the  council  might  indulge  after  a  dis- 
solution. A  knight  was  sent  to  the  Tower 
by  Maiy  for  his  conduct  in  Parliament  ;* 
and  Henry  VIII.  is  reported,  not,  perhaps, 
on  very  certain  authority,  to  have  talked  of 
cutting  off  the  heads  of  refractoiy  common- 
ers. 

In  the  persevering  struggles  of  earlier 
Parliaments  against  Edward  III.,  Richard 
II.,  and  Henry  IV.,  it  is  a  very  probable 
conjecture  that  many  considerable  peers 
acted  in  union  with,  and  encom^aged  the  ef- 
forts of,  the  Commons.  But  in  the  period 
now  before  us,  the  nobility  were  precisely 
the  class  most  deficient  in  that  constitution- 
al spirit  which  was  far  from  being  extinct 
in  those  below  them.  They  knew  what 
havoc  had  been  made  among  their  fathers 
by  multiplied  attainders  during  the  rivalry 
of  the  two  Roses.  They  had  seen  terrible 
examples  of  the  danger  of  giving  umbrage 
to  a  jealous  court,  in  the  fate  of  Lord  Stan- 
ley and  the  Duke  of  Buckingham,  both  con- 
demned on  slight  evidence  of  treacherous 
friends  and  servants,  from  whom  no  man 
could  be  secure.  Though  ligor  and  cruelty 
tend  frequently  to  overturn  the  government 
of  feeble  princes,  it  is  unfortunately  too  true 
that,  steadily  employed  and  combined  with 
vigilance  and  courage,  they  are  often  the 

long  afterward  went  into  disuse.  3.  The  Court  of 
Star  Chamber  was  the  old  concilium  ordinarium. 
against  whose  jurisdiction  many  statutes  had  been 
enacted  from  the  time  of  Edward  III.  4.  Xo  part 
of  the  jurisdiction  exercised  by  the  Star  Chamber 
could  be  maintained  on  the  autliority  of  the  stat- 
ute of  Henry  VIL  '  Burnet,  iL,  324. 


B-EFORMATION.] 


FROM  HENRY  VII.  TO  GKORGE  II. 


43 


safest  policy  of  despotism.  A  single  sus- 
picion in  the  dark  bosom  of  Henry  VII.,  a 
single  cloud  of  wayward  humor  in  his  son, 
would  have  been  sufficient  to  send  the 
proudest  peer  of  England  to  the  dungeon 
and  the  scaffold.  Thus  a  life  of  eminent 
services  in  the  field,  and  of  unceasing  com- 
pliance in  council,  could  not  rescue  the 
Duke  of  Norfolk  from  the  effects  of  a  dis- 
like which  we  can  not  even  explain.  Nor 
were  the  nobles  of  this  age  more  held  in 
subjection  by  terror  than  by  the  still  baser 
influences  of  gain.  Our  law  of  forfeiture 
was  well  devised  to  stimulate  as  well  as  to 
deter;  and  Henry  VIII.,  better  pleased  to 
slaughter  the  prey  than  to  gorge  himself 
with  the  carcass,  distributed  tlie  spoils  it 
brought  him  among  those  who  had  helped 
in  the  chase.  The  dissolution  of  the  mon- 
asteries opened  a  more  abundant  source  of 


munificence ;  eveiy  courtier,  eveiy  peer, 
looked  for  an  increase  of  wealth  from 
gi-ants  of  ecclesiastical  estates,  and  naturally 
thought  that  the  king's  favor  would  most 
readily  be  gained  by  an  implicit  conformity 
to  his  will.  Nothing,  however,  seems  more 
to  have  sustained  the  arbitrary  Temienry  of 
rule  of  Henry  VIII.  than  the  "i.g.uu»d,s. 

^  putes  to  the 

jealousy  of  the  two  religious  par-  same  emi. 
ties  formed  in  his  time,  and  who,  for  all 
the  latter  years  of  his  life,  were  maintaining 
a  doubtful  and  emulous  contest  for  his  fa- 
vor. But  this  religious  contest,  and  the  ul- 
timate establishment  of  the  Reformation, 
ai-e  events  far  too  important,  even  in  a  con- 
stitutional historj%  to  be  treated  in  a  cursory 
manner ;  and  as,  in  order  to  avoid  transitions, 
I  have  purposely  kept  them  out  of  sight 
in  the  present  chapter,  they  will  form  the 
proper  subject  of  the  next. 


CHAPTER  II. 

ON  THE  ENGLISH  CHyRCH  UNDER  HENRY  VIII.,  EDWARD  VI.,  AND  MARY. 


State  of  public  Opinion  as  to  Relisjion. — Henry 
VIII.'s  Controversy  with  Lutlier. — His  Divorce 
from  Catharine. — Separation  from  the  Cliurch  of 
Rome. —  Dissolution  of  Monasteries.  —  Proirress 
of  the  Reformed  Doctrine  in  England.- — Its  Es- 
tablishment under  Edward.  —  Sketch  of  the 
chief  Points  of  DiflFereuce  between  the  two 
Religions.  —  Opposition  made  by  Part  of  the 
Nation.  —  Crannier.  —  His  Moderation  in  intro- 
ducing Changes  not  acceptable  to  the  Zealots. 
—Man'.. — Persecution  under  her. — Its  Effects 
rather  favorable  to  Protestantism. 
No  revolution  has  ever  been  more  grad- 
ually prepared  than  that  which 

State  of  pub-  ,    ,  T    ir  CT^ 

lie  opinion  as  separated  almost  one  holt  ot  Eu- 
to  religion,    ^.^p^  ^^.^^^^  jj^^  communion  of  the 

Roman  See ;  nor  were  Luther  and  Zuin- 
gle  any  more  than  occasional  instruments 
of  that  change,  which,  had  they  never  ex- 
isted, would,  at  no  great  distance  of  time, 
have  been  effected  under  the  names  of  some 
other  reformers.  At  the  beginning  of  the 
sixteenth  century,  the  learned  doubtfully 
and  with  caution,  tlie  ignorant  with  zeal 
and  eagerness,  were  tending  to  depart  from 
the  faith  and  rites  which  authority  pre- 
scribed. But  probably  not  even  Germany 
was  so  far  advanced  on  this  course  as  Eng- 
land. Almost  a  hundred  and  fifty  years 
before  Luther,  nearly  the  same  docftfines  as 


lie  tauglit  had  been  maintained  by  Wick- 
liffe,  whose  disciples,  usually  called  Lol- 
lards, lasted  as  a  numerous,  though  obscure 
and  proscribed  sect,  till,  aided  by  the  con- 
fluence of  foreign  sti-eams,  they  swelled 
into  the  Protestant  Church  of  England. 
We  hear,  indeed,  little  of  them  during 
some  part  of  the  fifteenth  century,  for  they 
generally  shunned  persecution ;  and  it  is 
chiefly  through  records  of  persecution  that 
we  learn  the  existence  of  heretics.  But 
immediately  before  the  name  of  Luther 
was  known,  they  seem  to  have  become 
more  numerous,  or  to  have  attracted  more 
attention,  since  several  persotis  were  burned 
for  heresy,  and  others  abjured  their  errors, 
in  the  first  years  of  Hemy  VIII.'s  reign. 
Some  of  these  (as  usual  among  ignorant 
men  engaging  in  religious  speculations)  are 
charged  with  very  absurd  notions ;  but  it  is 
not  so  material  to  observe  their  particular 
tenets,  as  the  general  fact,  that  an  inquis- 
itive and  sectarian  spirit  had  begun  to  pre- 
vail. 

Those  who  took  little  interest  in  theolog- 
ical questions,  or  who  retained  an  attach- 
ment to  the  faith  in  which  they  had  been 
educated,  were  in  general  not  less  oflended 


44 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  II. 


than  tlie  LoUards  themselves  with  the  in- 
ordinate opulence  and  encroaching  temper 
of  the  clergy.    It  had  been  for  two  or  three 
centuries  the  policy  of  our  lawyers  to  re- 
strain these  within  some  bounds.    No  ec-  I 
clesiastical  privilege  had  occasioned  such ' 
dispute,  or  proved  so  mischievous,  as  the 
immunity  of  all  tonsured  persons  from  civil 
punishment  for  crimes.    It  was  a  material 
improvement  in  the  law  under  Henry  VI., 
that,  instead  of  being  instantly  claimed  by 
the  bishop  on  their  arrest  for  any  criminal 
charge,  they  were  compelled  to  plead  their 
privilege  at  their  arraignment,  or  after  con-  ' 
viction.    Heniy  VII.  carried  this  much  fur-  ' 
ther,  by  enacting  that  clerks  convicted  of  j 
felony  should  be  burned  in  the  hand.    And  j 
in  1-51.3  (4  H.  8),  the  benefit  of  clergy  was 
entirely  taken  away  from  murderers  and 
highway  robbers.    An  exemption  was  still 
preserved  for  priests,  deacons,  and  subdea-  ' 
cons.    But  this  was  not  sufficient  to  sat-  | 
isfy  the  Church,  who  had  been  accustomed 
to  shield  under  the  mantle  of  her  immunity 
a  vast  number  of  persons  in  the  lower  de- 
grees of  oi-ders,  or  without  any  orders  at  all ; 
and  had  owed  no  small  part  of  her  influence 
to  those  who  derived  so  important  a  benefit 
from  her  protection.    Hence,  besides  vio- 
lent language  in  preaching  against  this  stat- 
ute, the  convocation  attacked  one  Dr.  Stand- 
ish,  who  had  denied  the  divine  right  of 
clerks  to  their  exemption  from  temporal 
jurisdiction.    The  temporal  courts  natural- 
ly defended  Standish ;  and  the  Parliament 
addressed  the  king  to  support  him  against 
the  malice  of  his  persecutors.    Henry,  af- 
ter a  full  debate  between  the  opposite  par- 
ties in  his  presence,  thought  his  prerogative 
concerned  in  taking  the  same  side  ;  and  the 
clergy  sustained  a  mortifying  defeat.  About 
the  same  time  a  citizen  of  London,  named 
Hun,  having  been  confined  on  a  charge  of 
heresy  in  the  bishop's  prison,  was  found 
hanged  in  his  chamber;    and  though  this 
was  asserted  to  be  his  own  act,  yet  the 
bishop's  chancellor  was  indicted  for  the 
murder  on  such  vehement  presumptions, 
that  he  would  infallibly  have  been  convict- 
ed, had  the  attorney-general  thought  fit  to 
proceed  in  the  trial.    This  occurring  at  the 
same  time  with  the  affair  of  Standish,  fur- 
nished each  party  with  an  argument ;  for 
the  clergy  maintained  that  they  should  have 
no  chance  of  justice  in  a  temporal  court,  one 


of  the  bishops  declaring  that  the  London  ju- 
ries were  so  prejudiced  against  the  Church 
that  they  would  find  Abel  guilty  of  the  mur- 
der of  Cain.  >Such  an  admission  is  of  more 
consequence  than  whether  Hun  died  by  his 
own  hands  or  those  of  a  clergyman ;  and 
the  story  is  chiefly  worth  remembering,  a3 
it  illustrates  the  popular  disposition  toward 
those  who  had  once  been  the  objects  of  rev- 
erence.* 

Such  was  the  temper  of  England  when 
Martin  Luther  threw  down  his  „  ,rT,i. 

Henry  Vm.  s 

gauntlet  of  defiance  against  the  cimtrmersy 
ancient  hierarchy  of  the  Catho- 
lie  Church.  But,  ripe  as  a  great  portion  of 
the  people  might  be  to  applaud  the  efl["ort3 
of  this  reformer,  they  were  viewed  with  no 
approbation  by  their  sovereign.  Henry  had 
acquired  a  fair  portion  of  theological  learn- 
ing, and  on  reading  one  of  Luther's  treatis- 
es, was  not  only  shocked  at  its  tenets,  but 
undertook  to  refute  them  in  a  formal  an- 
swer.f  Kings  who  divest  themselves  of 
their  robes  to  mingle  among  polemical  writ- 
ers have  not,  perhaps,  a  claim  to  much 
deference  from  strangers ;  and  Luther,  in- 
toxicated with  arrogance,  and  deeming  him- 
self a  more  prominent  individual  among  the 
human  species  than  any  monarch,  treated 
Henry,  in  replj-ing  to  his  book,  with  the 
rudeness  that  characterized  his  temper. 
A  few  yeai"s  afterward,  indeed,  he  thought 
proper  to  write  a  letter  of  apology  for  the 
language  he  had  held  toward  the  king ;  but 
this  letter,  a  strange  medley  of  abjectness 

j  *  Burnet.  Reeves's  History  of  the  Law,  iv.,  p. 
308.  The  contemporary  authority  is  Keilwey's 
Reports.  Collier  disbelieves  the  murder  of  Hun 
on  the  authority  of  Sir  Thomas  More ;  but  he  was 
surely  a  prejudiced  apologist  of  the  clergy",  and 
this  liistorian  is  hardly  less  so.  An  entrj-  on  the 
journals,  7  H.  8,  drawn,  of  course,  by  some  ecclesi- 
astic, particularly  complains  of  Standish  as  the  au- 
thor of  periculosissimse  seditiones  inter  clericam  et 
secularem  potestatem. 

t  Burnet  is  confident  that  the  answer  to  Luther 
was  not  written  by  Henrj'  (vol.  iii.,  171),  and  others 
have  been  of  the  same  opinion.    The  king,  how- 
'  ever,  in  his  answer  to  Luther's  apologetical  letter, 
I  where  this  was  insinuated,  declares  it  to  be  his 
own.    From  Henrj  's  general  character  and  prone- 
^  ness  to  tlieological  disputation,  it  may  be  inferred 
that  he  had.  at  least,  a  considerable  share  in  the 
work,  thoudi  probably  with  the  assistance  of  some 
wlio  had  more  command  of  the  Latin  language. 
Burnet  mentions  in  another  place  that  be  had  seen 
I  a  copy  of  tlie  Necessary  Erudition  of  a  Cliristian 
I  Man,  full  of  interlineations  by  the  king. 


Reformation.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


45 


Hnd  impertinence,  excited  only  contempt  in 
Henry,  and  was  published  by  him  with  a 
severe  commentary.*  Whatever  appre- 
hension, therefore,  for  the  future  might  be 
grounded  on  the  humor  of  the  nation,  no 
king  in  Eui'ope  appeared  so  steadfast  in  his 
allegiance  to  Rome  as  Henry  VHI.  at  the 
moment  when  a  storm  sprang  up  that  broke 
the  chain  forever. 

It  is  certain  that  Henry's  maiTiage  with 
_.  ,.         his  brother's  widow  was  unsup- 

His  divorce 

frrnn  Catha-  ported  by  any  precedent,  and 
that,  although  the  pope's  dis- 
pensation might  pass  for  a  cure  of  all  de- 
fects, it  had  been  originally  considered  by 
many  persons  in  a  veiy  different  light  from 
those  unions  which  are  merely  prohibited 
by  the  canons.  He  himself,  on  coming  to 
the  age  of  fourteen,  entered  a  protest  against 
the  marriage,  which  had  been  celebrated 
more  than  two  j-ears  before,  and  declared 
his  intention  not  to  confirm  it;  an  act  which 
must  naturally  be  ascribed  to  his  father.f 

*  Epist.  Lutheri  ad  Heuricum  regeni  missa,  &c., 
Lond.,  152e.  The  letter  bears  date  at  Wittenberg, 
Sept.  1,  1525.  It  had  no  relation,  therefore,  to 
Henrj's  quarrel  with  the  pope,  though  probably 
Luther  imagined  that  the  king  was  becoming  more 
favorably  disposed.  After  saying  that  he  had 
■written  against  the  king,  "stultus  ac  praeceps," 
which  was  true,  he  adds,  "  invitantibus  iis  qui  ma- 
jestali  tU!B  parum  favebant,"  which  was  surely  a 
pretense ;  since  who,  at  Wittenberg,  in  15-21, 
could  have  any  motive  to  wish  that  Henry  should 
be  60  scurrilously  treated  ?  He  then  bursts  out 
into  the  most  absurd  attack  on  Wolsey :  "  Illud 
monstrum  et  publicum  odium  Dei  et  hominum, 
Cardinalis  Eboracensis,  pestis  ilia  regni  tui."  This 
■was  a  singular  stjle  to  adopt  in  writing  to  a  king 
whom  he  affected  to  propitiate,  Wolsey  being 
nearer  than  any  man  to  Heairj's  heart:.  Thence, 
relapsing  into  bis  tone  of  abasement,  lie  says,  "  Ita 
■nt  vehementer  nunc  pudefactus,  metuam  ocnios 
coram  majestate  tua  levare,  qui  passus  sim  levitate 
ista  me  moveri  in  talem  tantumque  regem  perma- 
lignos  istos  operarios ;  prsesertim  cum  sim  faex  et 
vermis,  quem  solo  contempta  oportuit  victum  aut 
neglectum  esse,"  &c.  Among  the  many  strange 
things  which  Lutlier  said  and  wrote,  I  know  not 
one  more  extravagant  than  this  letter,  which  al- 
most justifies  the  supposition  that  there  was  a  vein 
of  insanity  in  his  very  remarkable  character. 

t  Collier,  vol.  ii..  Appendix,  No.  2.  In  the  Hard- 
wicke  Papers,  i.,  13,  we  have  an  account  of  the 
ceremonial  of  the  first  marriage  of  Henry  with 
Catharine  in  1503.  It  is  remarkable  that  a  person 
was  appointed  to  object  publicly  in  Latin  to  the 
maniage,  as  unlawful,  for  reasons  he  should  there 
exiiibit ,  "  whereunto  Mr.  Doctor  Barnes  shall  re- 
ply, and  declare  solemnly,  also  in  Latin,  the  said 
marriage  to  be  good  and  effectual  in  the  law  of 


It  is  ti'ue  that  in  this  very  instrument  we 
find  no  mention  of  the  impediment  on  the 
score  of  affinity;  yet  it  is  hard  to  suggest 
any  other  objection,  and  possibly  a  common 
form  had  been  adopted  in  drawing  up  the 
protest.  He  did  not  cohabit  with  Catharine 
during  his  father's  lifetime.  Upon  his  own 
accession  he  was  remarried  to  her ;  and  it 
does  not  appear  manifest  at  what  time  his 
scruples  began,  nor  whether  they  preceded 
liis  passion  for  Anne  Boleyn.*  This,  how- 
ever, seems  the  more  probable  supposition ; 
}-et  there  can  be  little  doubt  that  weariness 
of  Catharine's  person,  a  woman  considera- 
bly older  than  himself,  and  unlikely  to  bear 
more  children,  had  a  far  greater  effect  on 
his  conscience  than  the  study  of  Thomas 
Aquinas  or  any  other  theologian.  It  by  no 
means  follows  from  hence  that,  according 
to  the  casuistry  of  the  Catholic  Church  and 
the  principles  of  canon  law,  the  merits  of 
that  famous  process  W'ere  so  much  against 
I  Henry,  as,  out  of  dislike  to  him  and  pity  for 
his  queen,  we  are  apt  to  imagine,  and  as 
the  writers  of  that  persuasion  have  subse- 
quently assumed. 

It  would  be  unnecessary  to  repeat  what 
is  told  by  so  many  historians,  the  vacillating 
and  evasive  behavior  of  Clement  VII.,  the 
assurances  he  gave  the  king,  and  the  arts 
with  which  he  receded  from  them,  the  un- 
finished trial  in  England  before  his  delegates, 
Campeggio  and  Wolsej',  the  opinions  ob- 
tained fi-om  foreign  imiversities  in  the  king's 
favor,  not  always  without  a  little  briber}',! 

Christ's  Church,  by  virtue  of  a  dispensation,  which 
he  shall  have  then  to  be  openly  read."  There  seems 
to  be  something  in  this  of  the  tortuous  policy  of 
Henry  VII. ;  but  it  shows  that  the  marriage  had 
given  offense  to  scrupulous  minds. 

*  See  Buniet,  Lingard,  Turner,  and  the  letters 
lately  printed  in  State  Papers,  temp.  Henry  VIII., 
p.  194,  196. 

t  Buniet  wishes  to  disprove  the  briberj-  of  these 
foreign  doctors.  But  there  are  strong  presumptions 
that  some  opinions  were  got  by  money  (Collier,  ii., 
58)  ;  and  the  greatest  difficulty  was  found,  where 
corruption  perhaps  had  least  influence,  in  the  Sor. 
boime.  Burnet  himself  proves  that  some  of  the 
cardinals  were  bribed  by  the  king's  ambassador, 
both  in  1528  and  1532.— 'V'ol.  i..  Append.,  p.  30,  110. 
See,  too,  Strype,  i.    Append,  No.  40. 

The  same  writer  will  not  allow  that  Henry  men- 
aced the  University  of  Oxford  in  case  of  non-com- 
pliance; yet  there  are  three  letters  of  his  to  them, 
a  tenth  part  of  which,  considering  the  nature  of  the 
writer,  was  enough  to  terrify  his  readers. — Vol. 
iii..  Append.,  p.  25.  These,  probably,  Burnet  did 
not  know  when  he  published  his  first  volume. 


46 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  n. 


and  those  of  the  same  import  at  home,  not 
given  without  a  little  intimidation,  or  the  te- 
dious continuance  of  the  process  after  its  ad- 
journment to  Rome.  More  than  five  years 
had  elapsed  from  the  first  application  to  the 
pope,  before  Henry,  though  by  nature  the 
most  uncontrollable  of  mankind,  though  irri- 
tated by  perpetual  chicanery  and  breach  of 
promise,  though  stimulated  l)y  impatient 
love,  presumed  to  set  at  naught  the  juris- 
diction to  which  he  had  submitted  by  a  mar- 
riage with  Anne.  Even  this  was  a  furtive 
step ;  and  it  was  not  till  compelled  by  the 
consequences  that  he  avowed  her  as  his 
wife  ;  and  was  finally  divorced  from  Cath- 
arine by  a  sentence  of  nullity,  which  would 
more  decently,  no  doul)t,  have  preceded  his 
second  marriage.*  But,  determined  as  his 
mind  had  become,  it  was  plainly  impossible 
for  Clement  to  have  conciliated  him  by  any 
thing  short  of  a  decision,  which  he  could  not 
utter  without  the  loss  of  the  emperor's  fa- 
vor, and  the  ruin  of  his  own  family's  inter- 
ests in  Italy.  And  even  for  less  selfish 
reasons,  it  was  an  exti-emely  embarrassing 
nieasiu'e  for  the  pope,  in  the  critical  circum- 
stances of  that  age,  to  set  aside  a  dispensa- 

*  The  kinjj's  marriage  is  related  by  the  earlier 
historians  to  have  taken  place  Nov.  14,  1532.  Bur- 
net, liowever,  is  convinced  by  a  letter  of  Cranraer, 
who,  be  says,  could  not  be  mistaken,  though  he 
was  not  apprised  of  the  fact  till  some  time  after- 
ward, that  it  vras  not  solemnized  till  about  the 
25th  of  January  (vol.  iii.,  p.  70).  This  letter  has 
since  been  published  in  the  Archneologia,  vol.  xviii., 
arnl  in  EUis's  Letters,  ii.,  34.  Elizabeth  was  bom 
September  7,  1533;  for  though  Buniet,  on  the  au- 
thority, he  says,  of  Cranmcr,  places  her  birth  on 
Sept.  14,  the  fonner  date  is  decisively  confirmed  by 
letters  in  Harl.  MSS.,  vol.  cclxxxiii.,  22,  and  vol. 
dcclxxxvii.,  1  (both  set  down  incoirectly  in  the  cat- 
alogue). If  a  late  liistorian,  therefore,  had  con- 
tented himself  with  commenting  on  these  dates  and 
the  clandestine  nature  of  the  marriage,  be  would 
not  have  gone  beyond  the  limits  of  that  character 
of  an  advocate  for  one  party  which  he  lias  chosen 
to  assume.  It  may  not  be  unlikely,  though  by  no 
means  evident,  that  Anne's  prudence,  though,  as 
Fuller  sajs  of  her,  "she  was  cunning  in  her  chas- 
tity," was  sui-prised  at  the  end  of  this  long  court- 
ship. I  think  a  prurient  curiosity  about  such  obso- 
lete scandal  veiy  unworthy  of  historj'.  But  when 
this  author  asserts  Heni-y  to  have  cohabited  with 
her  for  three  years,  and  repeatedly  calls  her  his 
mistress,  when  he  attributes  Henry's  patience  with 
the  pope's  chicanery  to  "  the  infocundity  of  Anne," 
and  all  this  on  no  other  authority  than  a  letter  of 
the  French  ambassador,  which  amounts  hardly  to 
evidence  of  a  transient  rumor,  we  can  not  but  com- 
plain of  a  great  deficiency  in  historical  candor.  | 


tion  granted  by  his  predecessor;  knowing 
that,  however  some  erroneous  allegations 
of  fact  contained  therein  might  serve  for  an 
outward  pretext,  yet  the  principle  on  which 
the  divorce  was  commonly  supported  in  Eu- 
rope went  generally  to  restrain  the  dispens- 
ing power  of  the  Holy  See.  Hence  it  may 
seem  very  doubtful  whether  the  treaty 
which  was  afterward  partially  renewed 
through  the  mediation  of  Francis  I.,  during 
his  interview  with  the  pope  at  Nice  about 
the  end  of  1533,  could  have  led  to  a  resto- 
ration of  amity  through  the  only  possible 
means  ;  when  we  consider  the  weight  of 
the  imperial  party  in  the  conclave,  the  dis- 
credit that  so  notorious  a  submission  would 
have  tlirown  on  the  Church,  and,  above  all, 
the  precarious  condition  of  the  Medici  at 
Florence  in  case  of  a  niptiue  with  Chailes 
V.  It  was,  more  probably,  the  aim  of 
Clement  to  delude  Hemy  once  more  by  his 
promises ;  but  this  was  prevented  by  the 
more  violent  measures  into  which  the  car- 
dinals forced  him,  of  a  definitive  sentence 
in  favor  of  Catharine,  whom  the  king  was 
required,  under  pain  of  excommunication,  to 
take  back  as  his  wife.  This  sentence  of  the 
23d  of  March,  1534,  proved  a  declaration  of 
interminable  war;  and  the  king,  who,  in 
consequence  of  the  liopes  held  out  to  him 
by  Francis,  had  already  dispatched  an  en- 
voj'  to  Rome  with  his  submission  to  what 
the  pope  should  decide,  now  resolved  to 
break  off  all  intercourse  forever,  and  trust  to 
his  own  prerogative  and  power  over  his  sub- 
jects for  securing  the  succession  to  the 
crown  in  the  line  which  he  designed.  It 
was  doubtless  a  regard  to  this  consideration 
that  put  him  upon  his  last  overtures  for  an 
amicable  settloinent  with  thecourtof  Rome.* 

*  The  principal  authority  on  the  story  of  Henry's 
divorce  from  Catharine  is  Burnet,  in  the  first  and 
third  volumes  of  his  Histoiy  of  the  Refoniiation ; 
the  latter  connecting  the  former  from  additional  doc- 
uments. Strj-pe,  in  his  Ecclesiastical  Memorials, 
adds  some  particulars  not  contained  in  Burnet,  es- 
pecially as  to  the  negotiations  with  the  pope  in 
1528 ;  and  a  very  little  may  be  gleaned  from  Col- 
lier, Carte,  and  other  writers.  There  are  few  parts 
of  history,  on  the  whole,  that  have  been  better  elu- 
cidated. One  exception,  perhaps,  may  j'et  be 
made.  The  beautiful  and  aftecting  story  of  Catha- 
rine's behavior  before  the  legates  at  Dunstable  is 
told  by  Cavendish  and  H.tII,  from  whom  later  his- 
torians have  copied  it.  Buniet,  however,  in  his 
third  volume,  p.  4fi,  disputes  its  truth,  and  on  what 
should  seem  conclusive  authority,  that  of  tlie  orig- 
inal register,  from  which  it  appears  that  the  queen 


Refoumation.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


47 


But-  long  before  this  final  cessation  of  in- 
tercourse with  that  court,  Henry  had  en- 
tered upon  a  course  of  measures  which 
would  have  opposed  fresh  obstacles  to  a  re- 
newal of  the  connection.  He  had  found  a 
great  part  of  his  subjects  in  a  disposition  to 
go  beyond  all  he  could  wish  in  sustaining  his 
qufirrel,  not,  in  this  instance,  from  mere 
terror,  but  because  a  jealousy  of  ecclesias- 
tical power  and  of  the  Roman  court  had 
long  been  a  sort  of  national  sentiment  in 
England.  The  pope's  avocation  of  the  pro- 
cess to  Rome,  by  which  his  duplicity  and 
alienation  from  the  king's  side  were  made 
evident,  and  the  disgrace  of  Wolsey,  took 
place  in  the  summer  of  1529.  The  Parlia- 
ment which  met  soon  aftei-vi'ard  was  con- 
tinued through  several  sessions  (an  unusual 
circumstance),  till  it  completed  the  separa- 
tion of  this  kingdom  fi-om  the  supremacy  of 
Rome.  In  the  progi-ess  of  ecclesiastical 
usurpation,  the  papal  and  episcopal  powers 
had  lent  mutual  support  to  each  otlier; 
both,  consequently,  were  involved  in  the 
8ame  odium,  and  had  become  the  object  of 
restrictions  in  a  similar  spirit.  Warm  at- 
tacks were  made  on  the  clei-gy  by  speeches 

never  came  into  court  but  once,  June  18,  1529,  to 
read  a  paper  protesting  against  the  jurisdiction, 
and  that  the  king  never  entered  it.  Carte  accord- 
ingly treated  the  story  as  a  fabrication.  Hume,  of 
course,  did  not  choose  to  omit  so  interesting,'  a  cir- 
cumstance ;  but  Dr.  Lingard  has  pointed  out  a  let- 
ter of  the  king,  which  Burnet  himself  had  printed, 
vol.  i.,  Append.,  7H,  mentioning  tlie  queen's  pres- 
ence as  well  as  his  own,  on  June  21,  and  greatly 
corroborating  the  popular  account.  To  say  the 
truth,  tliei'e  is  no  small  difficulty  in  choosing  be- 
tween two  authorities  so  considerable,  if  they  can 
not  be  reconciled,  which  seems  impossible ;  but, 
npon  the  wliole,  the  preference  is  due  to  Henry's 
letter,  dated  June  23,  as  he  could  not  be  mistaken, 
and  had  no  motive  to  misstate. 

This  is  not  altogether  immaterial ;  for  Catharine's 
appeal  to  Henry,  de  integi-itate  corporis  usque 
ad  secundas  nuptias  servata,  without  reply  on  his 
part,  is  an  important  circumstance  as  to  that  part 
of  the  question.  It  is,  Iiowever,  certain,  that 
whether  on  this  occasion  or  not,  she  did  constantly 
declare  this ;  and  the  evidence  adduced  to  prove 
the  contrary  is  very  defective,  especially  as  oppos- 
ed to  tlie  assertion  of  so  virtuous  a  woman.  Dr. 
Lingard  says  that  all  the  favorable  answers  which 
the  king  obtained  from  foreign  universities  went 
upon  the  supposition  that  the  former  mann age  had 
been  consummated,  and  were  of  no  avail  unless  that 
could  be  proved.  See  a  letter  of  Wolsey  to  the 
king,  July  1,  1.527,  printed  in  State  Papers,  temp. 
Henry  VIII.,  p.  VJi  ;  whence  it  appears  that  the 
queen  had  been  consistent  in  her  denial. 


in  the  Commons,  which  Bishop  Fisher  se- 
verely reprehended  in  the  Upper  House. 
This  provoked  the  Commons  to  send  a  com- 
plaint to  the  king  by  their  speaker,  demand- 
ing reparation  ;  and  Fisher  explained  away 
the  words  that  had  given  offense.  An  act 
passed  to  limit  the  fees  on  probates  of  wills, 
a  mode  of  ecclesiastical  extortion  much 
complained  of,  and  upon  mortuaries.*  The 
next  proceeding  was  of  a  far  more  serious 
nature.  It  was  pretended  that  Wolsey's 
exercise  of  anthority  as  papal  legate  contra- 
vened a  statute  of  Richard  II.,  and  that 
both  himself  and  the  whole  body  of  the  cler- 
gy, by  their  submission  to  him,  had  incurred 
the  penalties  of  a  prsmunire,  that  is,  the 
forfeiture  of  their  movable  estate,  besides 
imprisonment  at  discretion.  These  old  stat- 
utes in  restraint  of  the  papal  jurisdiction 
had  been  so  little  regarded,  and  so  many 
legates  had  acted  in  England  without  objec- 
tion, that  Henry's  prosecution  of  the  Church 
on  this  occasion  was  extremely  harsh  and 
unfair.  The  clergy,  however,  now  felt 
themselves  to  be  the  weaker  party.  In  con- 
vocation they  implored  the  king's  clemency, 
and  obtained  it  by  paying  a  large  sum  of 
money.  In  their  petition  he  was  stj'led  the 
protector  and  supreme  head  of  the  Church 
and  clergy  of  England.  Many  of  that  body 
were  staggered  at  the  unexpected  introduc- 
tion of  a  title  that  seemed  to  strike  at  tho 
supi'emacy  they  had  always  acknowledged 
in  the  Roman  See.  And  in  the  end  it 
passed  only  with  a  veiy  suspicious  qualifica- 
tion, "  so  far  as  is  permitted  by  the  law  of 
Christ."  Henry  had  previously  given  tho 
pope  several  intimations  that  he  could  pro- 
ceed in  his  divorce  without  him  ;  for,  be- 
sides a  strong  remonstrance  by  letter  from 
the  temporal  peers  as  well  as  bisliops 
against  the  procrastination  of  sentence  in  so 
just  a  suit,  the  opinions  of  English  and  for- 
eign universities  had  been  laid  before  both 
houses  of  Parliament  and  of  convocation, 
and  the  divorce  approved  without  difficulty 
in  the  former,  and  by  a  great  majority  in 
the  latter.  These  proceedings  took  place 
in  the  first  months  of  1531,  while  the  king's 
ambassadors  at  Rome  were  still  pressing  for 

*  Stat.  21  Hen.  8,  c.  5,  6.  Strype,  i.,  7.-!.  Burnet, 
83.  It  cost  a  thousajid  marks  to  prove  Sir  William 
Compton's  will  in  1528.  These  exactions  had  been 
much  autnncntcd  by  Wolsey,  who  interfered,  as 
legate,  with  the  prerogative  court. 


48 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IL 


a  favorable  sentence,  though  with  dimin- 
ished hopes.  Next  year  the  annates,  or 
first-fruits  of  benefices,  a  constant  source  of 
discord  between  the  nations  of  Europe  and 
their  spn-itual  chief,  were  taken  away  by  act 
of  Parliament;  but  with  a  remarkable  con- 
dition, that  if  the  pope  would  either  abolish 
the  payment  of  annates,  or  reduce  them  to 
a  moderate  burden,  the  king  might  declare 
before  the  next  session,  by  letters  patent, 
whether  this  act,  or  any  part  of  it,  should  be 
observed.  It  was  accordingly  confirmed  by 
letters  patent  more  than  a  year  after  it  re- 
ceived the  royal  assent. 

It  is  difficult  for  us  to  determine  whether 
the  pope,  by  conceding  to  Henry  the  great 
object  of  his  solicitude,  could  in  this  stage 
have  not  only  arrested  the  progress  of  the 
schism,  but  recovered  his  former  ascenden- 
cy over  the  English  Church  and  kingdom. 
But  probably  he  could  not  have  done  so  in 
ita  full  extent.  Sir  Thomas  More,  who 
had  rather  complied  than  concurred  with 
the  proceedings  for  a  divorce,  though  his 
acceptance  of  the  gi-eat  seal  on  Wolsey's 
disgrace  would  have  been  inconsistent  with 
his  character,  had  he  been  altogether  op- 
posed in  conscience  to  the  king's  measures, 
now  thought  it  necessary  to  resign,  when 
the  papal  authority  was  steadily,  though 
grfidually  assailed.*     In  the  next  session 


*  It  is  hard  to  say  wliat  were  More's  original 
Bentiments  about  the  divorce.  In  a  letter  to  Crom- 
well (Strj-pe,  i.,  183,  and  App.,  No.  48  ;  Buniet, 
App.,  p.  280).  he  speaks  of  himself  as  always  doubt- 
ful. But,  if  his  disposition  had  not  been  rather  fa- 
vorable to  the  king,  would  he  have  been  offered, 
or  have  accepted,  the  great  seal  ?  We  do  not,  in- 
deed, find  his  name  in  the  letter  of  remonstrance 
to  the  pope,  signed  by  the  nobility  and  chief  com- 
moners in  1530,  which  Wolsey,  tlioueh  then  in  dis- 
grace, very  willingly  subscribed.  But  in  March, 
1531,  he  went  down  to  the  House  of  Commons,  at- 
tended by  several  lords,  to  declare  the  king's  scru- 
ples about  his  marriage,  and  to  lay  before  them  the 
opinions  of  universities.  In  this  he  perhaps  thought 
himself  acting  ministerially.  But  there  can  be  no 
doubt  that  he  always  considered  the  divorce  as  a 
matter  wholly  of  the  pope's  competence,  and  which 
no  other  party  could  take  out  of  his  hands,  though 
he  had  gone  along  cheerfully,  as  Burnet  says,  with 
the  prosecution  against  the  clergy,  and  wished  to 
cut  off  the  illegal  jurisdiction  of  the  Iloman  See. 
The  king  did  not  look  upon  him  as  hostile  ;  for  even 
so  late  as  l.")32.  Dr.  Bennet,  the  envoy  at  Rome, 
proposed  to  the  pope  that  the  cause  should  be  tried 
by  four  commissioners,  of  whom  the  king  should 
name  one.  either  Sir  Thomas  More,  or  Stokesly, 
bishop  of  London. — Burnet,  i.,  126. 


an  act  was  passed  to  take  away  all  appeals 
to  Rome  from  ecclesiastical  courts,  which 
annihilated,  at  one  stroke,  the  jurisdiction 
built  on  long  usage  and  on  the  authority  of 
the  false  decretals.  This  law  rendered  the 
king's  second  marriage,  which  had  preced- 
ed it,  secure  from  being  annulled  by  the 
papal  court.  Henry,  however,  still  advan- 
ced very  cautiously  ;  and  on  the  death  of 
Warham,  archbishop  of  Canterbury,  not 
long  before  this  time,  applied  to  Rome  for 
the  usual  bulls  in  behalf  of  Cranmer,  whom 
he  nominated  to  the  vacant  see.  These 
were  the  last  bulls  obtained,  and  probably 
the  last  instance  of  any  exercise  of  the  pa- 
pal supremacy  in  this  reign.  An  act  fol- 
lowed in  the  next  session,  that  bi-shops  elect- 
ed by  their  chapter  on  a  royal  recommend- 
ation should  be  consecrated,  and  archbish- 
ops receive  the  pall,  without  suing  for  the 
pope's  bulls.  All  dispensations  and  licenses 
hitherto  gianted  by  that  court  were  set 
aside  by  another  statute,  and  the  power  of 
issuing  them  in  lawful  cases  transferred  to 
the  Archbishop  of  Canterbury.  The  king 
is  in  this  act  recited  to  be  the  supreme  head 
of  the  Church  of  England,  as  the  clergy 
had  two  years  before  acknowledged  in  con- 
vocation. But  this  title  was  not  formally 
declared  by  Parliament  to  appertain  to  the 
crown  till  the  ensuing  session  of  Parliament.* 
By  these  means  was  the  Church  of  Eng- 
land altogether  emancipated  fi-om  Sop.-»raiinn 
the  superiority  of  that  of  Rome.  c^^J.^.^of 
For  as  to  the  pope's  merely  spir-  R.^me. 
itual  primacy  and  authority  in  matters  of 
faith,  which  are,  or  at  least  were,  defend- 
ed by  Catholics  of  the  Gallican  or  Cisalpine 
school  on  quite  different  grounds  from  his 
jurisdiction  or  his  legislative  power  in  points 
of  discipline,  they  seem  to  have  attracted  lit- 
tle peculiar  attention  at  the  time,  and  to 


*  Dr.  Lingard  has  pointed  out,  as  Burnet  had 
done  less  distinctly,  that  the  bill  abrogating  the 
papal  supremacy  was  brought  into  the  Commons 
in  the  beginning  of  March,  and  received  the  royal 
.assent  on  the  30th,  whereas  the  determination  of 
the  conclave  at  Rome  against  the  divorce  was  on 
the  23d ;  so  that  the  latter  could  not  have  been  the 
cause  of  this  final  rupture.  Clement  VII.  might 
have  been  outwitted  in  his  turn  by  the  king,  if, 
after  pronouncing  a  decree  in  favor  of  the  divorce, 
he  had  found  it  too  late  to  regain  his  jurisdiction  in 
England.  On  the  other  hand,  so  flexible  were  the 
Parliaments  of  this  reign,  that,  if  Henry  had  made 
terms  with  the  pope,  the  supremacy  might  have 
revived  again  as  easily  as  it  had  been  extinguished. 


Reformation.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


49 


linve  dropped  oft'  as  a  dead  branch,  when 
the  ax  had  lopped  the  fibers  that  gave  it 
nourishment.  Like  other  momentous  rev- 
ohitions,  this  divided  the  judgment  and  feel- 
ings of  the  nation.  In  the  previous  aft'air 
of  Catharine's  divorce,  generous  minds  were 
more  influenced  by  the  rigor  and  indignity 
of  her  treatment  than  by  tlie  king's  inclina- 
tions, or  the  venal  opinions  of  foreign  doc- 
tors in  law.  Bellay,  bishop  of  Bayotme, 
the  French  ambassador  at  London,  wrote 
home  in  1528,  that  a  revolt  was  apprehend- 
ed from  the  general  unpopularity  of  the  di- 
vorce.* Much  difficulty  was  found  in  pro- 
curing the  judgments  of  Oxford  and  Cam- 
bridge against  the  marriage  ;  which  was  ef- 
fected in  the  former  case,  as  is  said,  by  ex- 
cluding the  masters  of  arts,  the  younger  and 
less  worldly  part  of  the  University,  from 
their  right  of  suflrage.  Even  so  late  as 
1532,  in  the  pliant  House  of  Commons,  a 
member  had  the  boldness  to  move  an  ad- 
dress to  the  king  that  he  would  take  back 
his  wife.  And  this  temper  of  the  people 
seems  to  have  been  the  great  inducement 
with  Henry  to  postpone  any  sentence  by  a 
domestic  jurisdiction,  so  long  as  a  chance  of 
the  pope's  sanction  remained. 

The  aversion  entertained  by  a  large  part 
of  the  community,  and  especially  of  the 
clerical  order,  toward  the  divorce,  was  not, 
perhaps,  so  generally  founded  upon  motives 
of  justice  and  compassion  as  on  tlie  obvi- 
ous tendency  which  its  prosecution  latter- 
ly manifested  to  bring  about  a  separation 
from  Rome.  Though  the  principal  Luther- 
ans of  Gennany  were  far  less  favorably  dis- 
posed to  the  king  in  their  opinions  on  this 
subject  than  the  Catholic  theologians,  hold- 
ing that  the  prohibition  of  raariying  a  broth- 
er's widow  in  the  Levitical  law  was  not 
binding  on  Christians,  or  at  least  that  the 
marriage  ought  not  to  be  annulled  after  so 
many  years'  continuance,!  yet  in  England 

*  Bumet,  ill.,  44  ;  and  App.,  24. 

t  Conf.  Bumct,  i.,  94,  and  App.,  No.  35.  Sti-ype, 
i.,  230.  Slcidan,  Hist,  de  la  Reformation,  par 
Couraycr,  1.,  10.  The  notions  of  these  divines,  as 
here  stated,  are  not  very  consistent  or  intelligible. 
The  Swiss  Reformers  were  in  favor  of  the  divorce, 
though  they  advised  that  the  Princess  Mary  should 
not  be  declared  illegitimate.  Luther  seems  to  have 
inclined  towai-d  compromising  the  difference  by  the 
marriage  of  a  secondary  wife. — Lingard,  p.  172. 
Melancthon,  this  writer  says,  was  of  the  same  opin- 
ion. Bumet,  indeed,  denies  this  ;  but  it  is  render- 
ed not  improbable  by  tlie  well-authenticated  fact 

D 


the  interests  of  Anne  Boleyn  and  of  the 
Reformation  were  considered  as  the  same. 
She  was  herself  strongly  suspected  of  an 
inclination  to  the  new  tenets  ;  and  her  friend 
Craumer  had  been  the  most  active  person 
both  in  promoting  the  divorce,  and  the  rec- 
ognition of  the  king's  supremacy.  The  lat- 
ter was,  as  I  imagine,  by  no  means  unac- 
ceptable to  the  nobility  and  gentry,  who  saw 
in  it  the  only  effectual  method  of  cutting  off 
the  papal  exactions  that  had  so  long  impov- 
erished the  realm;  nor  yet  to  the  citizens 
of  London  and  other  large  towns,  who,  with 
the  same  dislike  of  the  Roman  court,  had 
begun  to  acquire  some  taste  for  the  Prote"S- 
tant  doctrine.  But  the  common  people,  es- 
pecially in  remote  counties,  had  been  used 
to  an  implicit  reverence  for  the  Holy  See, 
and  had  suffered  comparatively  little  by  its 
impositions.  They  looked  up,  also,  to  their 
own  teachers  as  guides  in  faith ;  and  the 
main  body  of  the  clergy  were  certainly  very 
reluctant  to  tear  themselves,  at  the  pleasure 
of  a  disappointed  monarch,  in  the  most  dan- 
gerous crisis  of  religion,  from  the  bosom  of 
Catholic  unity.*  They  complied,  indeed, 
with  all  the  measures  of  government  far 
more  than  men  of  rigid  conscience  could 
have  endured  to  do  ;  but  many,  who  want- 
ed the  coui-age  of  More  and  Fisher,  were 

that  these  divines,  together  with  Bucer,  signed  a 
pennission  to  the  Landgi-ave  of  Hesse  to  take  a  wife 
or  concubine,  on  account  of  the  dninkenness  and 
disagi'eeable  person  of  his  landirravine. — Bossuet, 
Hist,  des  Var.  des  Egl.  Protest,  vol.  i.,  where  the 
instrument  is  published.  [Cranmer,  it  is  just  to 
say,  remonstrated  with  Osiander  on  this  pennis- 
sion, and  on  the  general  laxity  of  the  Lutherans  in 
matrimonial  questions. — Jenkins's  edition,  i.,  303.] 
Clement  VII.,  however,  recommended  the  king  to 
many  immediately,  and  then  prosecute  his  suit  for 
a  divorce,  which  it  would  be  easier  for  liim  to  ob- 
tain in  such  circumstances.  This  was  as  early  as 
January,  1528.  (Bumet,  i.,  App.,  p.  27.)  But  at  a 
much  later  period,  September,  1530,  he  expressly 
suggested  the  expedient  of  allowing  the  king  to  re- 
tain two  wives.  Tho'hgh  the  letter  of  Cassali,  the 
king's  ambassador  at  Rome,  containing  this  propo- 
sition, was  not  found  by  Bumet,  it  is  quoted  at 
length  by  an  author  of  unquestionable  veracity, 
Lord  Herbert.  Henry  had  himself,  at  one  time, 
favored  this  scheme,  according  to  Bumet,  wlio  does 
not,  however,  produce  any  authority  for  tiie  instruc- 
tions to  that  effect  said  to  have  been  given  to  Brian 
and  Vannes,  dispatched  to  Rome  at  the  end  of 
1528.  But  at  the  time  when  the  pope  made  this 
proposal,  the  king  had  become  exasperated  against 
Catharine,  and  little  inclined  to  treat  either  her  or 
the  Holy  See  with  an}'  respect. 
*  Stiype,  i.,  151,  et  alibi. 


50 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IL 


not  far  removed  from  their  way  of  thinking.* 
This  repugnance  to  so  gi*eat  an  alteration 
showed  itself,  above  all,  in  the  monastic  or- 
ders, some  of  whom  by  wealth,  hospitality, 
and  long-established  dignity,  others  by  ac- 
tivity in  preaching  and  confessing,  enjoyed 
a  very  considerable  influence  over  the  poor- 
er class.  But  they  had  to  deal  with  a  sov- 
ereign whose  policy  as  well  as  temper  dic- 
tated that  he  had  no  safety  but  in  advancing ; 
and  their  disaffection  to  his  government, 
while  it  overwhelmed  them  in  ruin,  pro- 
duced a  second  grand  innovation  in  the  ec- 
clesiastical polity  of  England. 

The  enormous,  and  in  a  great  measure 
Dissoiutmn  ill-gotten,  opulence  of  the  regu- 
of  monaster-  lar  clergj'  had  long  since  excited 
jealousy  in  eveiy  part  of  Eui'ope. 
Though  the  statutes  of  mortmain  under 
Edward  I.  and  Edward  III.  had  put  some 
obstacle  to  its  increase,  yet,  as  these  were 
eluded  by  licenses  of  alienation,  a  larger 
proportion  of  landed  wealth  was  constantly 
accumulating  in  hands  which  lost  nothing 
tliat  they  had  gi-asped.f  A  writer  much 
inclined  to  partiality  toward  the  monaster- 
ies says,  that  they  held  not  one  fifth  part 
of  the  kingdom;  no  insignificant  patrimony ! 
He  adds,  what  may  probably  be  ti'ue,  that, 
fJirough  granting  easy  leases,  they  did  not 
enjoy  more  than  one  tenth  in  value. t  These 
vast  possessions  were  veiy  unequally  dis- 
tributed among  four  or  five  hundred  monas- 
teries. Some  abbots,  as  those  of  Reading, 
GlastonbuiT,  and  Battle,  lived  in  princely 
splendor,  and  were,  in  eveiy  sense,  the  spir- 
itual peers  and  magnates  of  the  I'ealm.  In 
other  foundations,  the  revenues  did  Uttle 

*  Strype,  passim.  Tunstal,  Gardiner,  and  Bon- 
ner wrote  in  favor  of  the  royal  supremacy;  all  of 
tliem,  no  doubt,  insincerely.  The  first  of  these  lias 
escaped  sevei'e  censui-e  by  the  mildness  of  his  gen- 
eral character,  but  was  full  as  much  a  temporizer 
as  Cranmer.  But  the  history  of  this  ])eriod  has 
teen  written  with  such  undisguised  partiality  by 
Burnet  and  Strj  pe  on  the  one  hand,  and  lately  by 
Dr.  Lingard  on  the  other,  that  it  is  almost  amus- 
ing to  find  the  most  opposite  conclusions  and  gen- 
eral  results  from  neai-ly  the  same  premises.  Col- 
lier, though  with  many  prejudices  of  his  own,  is, 
an  things  considered,  the  fairest  of  our  ecclesiastical 
writers  as  to  this  reign. 

t  Bumet,  188.  For  the  methods  by  which  the 
regulars  acquired  wealth,  fair  and  unfair,  I  may  be 
allowed  to  refer  to  the  View  of  the  Middle  Ages, 
ch.  7,  or  rather  to  the  sources  from  which  the  sketch 
there  given  was  derived. 

t  Harmer's  Specimens  of  Errors  in  Bumet. 


more  than  afford  a  subsistence  for  the 
monks,  and  defray  the  needful  expenses. 
As  they  were  in  general  exempted  from 
episcopal  visitation,  and  intrusted  with  the 
care  of  their  own  discipline,  such  abuses 
had  gradually  pi'evailed  and  gained  strength 
by  connivance,  as  we  may  naturally  expect 
in  coi-porate  bodies  of  men,  leading,  almost 
of  necessity,  useless  and  indolent  lives,  and 
in  whom  veiy  indistinct  views  of  moral  ob- 
ligations wei"e  combined  with  a  great  facil- 
ity of  violating  them.  The  vices  that  for 
many  ages  had  been  supposed  to  haunt  the 
monasteries  had  certainly  not  left  their  pre- 
cincts in  that  of  Heniy  VIII.  Wolsey,  as 
papal  legate,  at  the  instigation  of  Fox,  bish- 
op of  Hereford,  a  favorer  of  the  Reforma- 
tion, commenced  a  visitation  of  the  profess- 
ed as  well  as  secular  clergy  in  1.52.3,  in  con- 
sequence of  the  general  complaint  against 
, their  manners.*  This  great  minister,  though 
not,  perhaps,  very  rigid  as  to  the  moi-ahty 
of  the  Church,  was  the  first  who  set  an  ex- 
ample of  reforming  monastic  foundations  in 
the  most  efficacious  manner,  by  converting 
their  revenues  to  different  pm'poses.  Full 
of  anxious  zeal  for  promoting  education,  the 
noblest  part  of  his  character,  he  obtained 
bulls  from  Rome  suppressing  many  con- 
vents (among  which  was  that  of  St.  Frides- 
wide  at  O.xford),  in  order  to  erect  and  en- 
dow a  new  college  in  that  University,  his 
favorite  work,  which,  after  his  fall,  was 
more  completely  established  by  the  name 
of  Christ  Church. f  A  few  more  were  af- 
terward extinguished  through  his  instiga- 
tion; and  thus  the  prejudice  against  inter- 
ference with  tliis  species  of  property  was 
somewhat  worn  off,  and  men's  minds  grad- 
ually prepared  for  the  sweeping  confisca- 
tions of  Cromwell.  The  king,  indeed,  was 
abundantly  willing  to  replenish  his  excheq- 
uer by  violent  means,  and  to  avenge  him- 
self on  those  who  gainsayed  his  suprema- 
cy ;  but  it  was  this  able  statesman  who, 
prompted  both  by  the  natural  appetite  of 
ministers  for  the  subject's  money,  and,  as 
has  been  generally  surmised,  by  a  secret 
partiality  towai-d  the  Reformation,  devised 


*  Strype,  i.,  Append.,  19. 

t  Burnet.  Strype.  Wolsey  alleged  as  the 
ETound  for  this  suppression,  the  great  wickedness 
that  prevailed  therein.  Strjpe  says  the  number 
was  twenty;  but  Collier,  ii.,  19,  reckons  them  at 
forty. 


Reformation.] 


FROM  HENKY  VII.  TO  GEORGE  II. 


51 


and  cairied  on  with  complete  success,  if  not 
with  the  utmost  prudence,  a  measure  of  no 
incoivsiderable  hazard  and  difficulty.  For 
such  it  surely  was,  under  a  .system  of  gov- 
ernment which  rested  so  much  on  antiqui- 
ty, and  in  spite  of  the  peculiar  sacredness 
which  the  English  attach  to  all  fi-eehold 
property,  to  annihilate  so  many  prescrip- 
tive baronial  tenures,  the  posse.ssors  where- 
of composed  more  than  a  third  part  of  the 
House  of  Lords,  and  to  subject  so  many 
estates,  which  the  law  had  rendered  inal- 
ienable, to  maxims  of  escheat  and  forfeiture 
that  had  never  been  held  applicable  to  their 
tenure.  But  for  this  purpose  it  was  neces- 
sary, by  exposino;  the  gi-oss  corrujjtions  of 
monasteries,  both  to  intimidate  the  regular 
clergy,  and  to  excite  popular  indignation 
against  them.  It  is  not  to  be  doubted  that 
in  the  visitation  of  these  foundations  under 
the  direction  of  Cromwell,  as  lord  vicege- 
rent of  the  king's  ecclesiastical  supremacy, 
many  things  were  done  in  an  arbitraiy  man- 
ner, and  much  was  unfairly  represented.* 
Yet  the  reports  of  these  visitors  are  so  mi- 
nute and  specific,  that  it  is  rather  a  prepos- 
terous degree  of  incredulity  to  reject  their 
testimony,  whenever  it  bears  liard  on  the 
regulars.  It  is  always  to  be  remembered, 
that  the  vices  to  which  they  bear  witness 
are  not  only  probable  from  the  nature  of 
such  foundations,  but  are  imputed  to  them 
by  the  most  respectable  writers  of  preced- 
ing ages.  Nor  do  I  find  that  the  reports 
of  this  visitation  were  impeached  for  gen- 
eral falsehood  in  that  age,  whatever  exag- 
geration there  might  be  in  particular  cases. 
And  surely  the  commendation  bestowed  on 
some  religious  houses  as  pure  and  unexcep- 
tionable, may  afford  a  presumption  that  the 
censure  of  others  was  not  an  indiscriminate 
prejudging  of  their  merits. f 

*  Collier,  though  not  implicitly  to  be  trasted, 
tells  some  hard  tmtlis,  and  charsrcs  Cromwell  with 
receiving  bribes  from  several  abbeys  in  order  to 
spare  them,  p.  159.  This  is  repeated  by  Lingard, 
on  the  authority  of  some  Cottouian  manuscripts. 
Even  Burnet  speaks  of  the  violent  proceedings  of 
a  Doctor  Loudon  toward  the  monasteries.  This 
man  was  of  infamous  character,  and  became  after- 
ward a  conspirator  against  Cranmer,  and  a  perse- 
cutor of  Protestants. 

t  Buniet,  190.  Sti-j-pe,  i.,  ch.  35  ;  see  especially 
p.  -257.  Ellis's  Letters,  ii.,  71.  We  should  be  on 
our  guard  against  the  Romanizing  high-churchmen, 
such  as  Collier,  and  the  whole  class  of  antiquaries, 
Wood,  Heame,,  Drake,  Browne  Willis,  &c.,  &c., 


The  dread  of  these  visitors  soon  induced 
a  number  of  abbots  to  make  surrenders  to 
the  king;  a  step  of  very  questionable  legal- 
ity. But  in  the  next  session  the  smaller 
convents,  whose  revenues  were  less  than 
c£200  a  year,  were  suppressed  by  act  of 
Parliament,  to  the  numl)er  of  three  hund- 
red and  seventy-six,  and  their  estates  vest- 
ed in  the  crown.  This  summary  spoliation 
led  to  the  gi-eat  northern  rebellion  soon  af- 
terward. It  was,  in  fact,  not  merely  to 
wound  the  people's  strongest  impressions 
of  religion,  and  especially  those  connected 
with  their  departed  friends,  for  whose  souls 
prayers  were  offered  in  the  monasteries, 
but  to  deprive  the  indigent,  in  many  places, 
of  succor,  and  the  better  rank  of  hospitable 
reception.  This,  of  course,  was  experi- 
enced in  a  far  greater  degree  at  the  disso- 
lution of  the  larger  monasteries,  which  took 
place  in  1540.  But,  Henry  having  entirely 
.subdued  the  rebellion,  and  being  now  ex- 
ceedingly dreaded  by  both  the  religious  par- 
ties, this  measure  produced  no  open  resist- 
ance, though  there  seems  to  have  been  less 
pretext  for  it  on  the  score  of  immorality 
and  neglect  of  discipline  than  was  found  for 
abolishing  the  smaller  convents.*  These 

who  are,  with  hardly  an  exception,  partial  to  the 
monastic  orders,  and  sometimes  scarce  keep  on  the 
mask  of  Protestantism.  No  one  fact  can  be  better 
supported  by  cun-ent  epinion,  and  that  general 
testimony  which  carries  conviction,  than  the  relax- 
ed and  vicious  state  of  those  foundations  for  many 
ages  before  their  fall.  Kcclesiastical  writers  had 
not  then  learned,  as  they  have  since,  the  trick  of 
suppressing  what  might  excite  odium  against  their 
church,  but  speak  out  boldly  and  bitterly.  Thus 
wefindin  Wilkins,  iii.,  C30,  a  bull  of  Innocent  VIII. 
for  the  refomi  of  monasteries  in  England,  charging 
many  of  them  with  dissoluteness  of  life.  And  this 
is  followed  by  a  severe  monition  from  Archbishop 
Morton  to  the  Abbot  of  St.  Alban's,  imputing  all 
kinds  of  scandalous  vices  to  him  and  hjs  monks. 
Those  who  reject  at  once  the  reports  of  Heniy's 
visitors,  will  do  well  to  consider  this.  See,  also, 
Fosbrook's  British  Monachism,  passim.  [The 
"  Letters  relating  to  the  Suppression  of  Monas- 
teries," published  by  the  Camden  Society,  and 
edited  by  Mr.  Thomas  Wright,  1843,  contain  a 
part  only  of  extant  documents  illustrative  of  this 
great  transaction.  There  seems  no  reason  for  set- 
ting aside  their  evidence  as  wholly  false,  though 
some  lovers  of  monachism  raised  a  loud  clamor  at 
their  publication.  184.5.] 

•  The  preamble  of  27  H.  8,  c.  28,  which  gives 
the  smaller  monasteries  to  the  king,  after  reciting 
that  "  manifest  sin,  vicious,  carnal,  and  abominable 
living,  is  daily  used  and  committed  commonly  in 
such  little  and  small  abbeys,  priories,  and  other  re- 


52 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  n. 


gi'eat  foundations  were  all  surrendered ;  a 
few  excepted,  which,  against  every  princi- 
ple of  received  law,  were  held  to  fall  by  the 
attainder  of  their  abbots  for  high  treason. 
Parliament  had  only  to  confirm  the  king's 
title  arising  out  of  these  suirenders  and  for- 
feitures. Some  historians  assert  the  monks 
to  have  been  turned  adrift  with  a  small  sum 
of  money.  But  it  rather  appears  that  they 
generally  received  pensions  not  inadequate, 
and  which  are  said  to  have  been  pretty 
faithfully  paid.*  These,  however,  were 
voluntary  gifts  on  the  part  of  the  crown ; 
for  the  Parliament  which  dissolved  the 
monastic  foundations,  while  it  took  abund- 
ant care  to  presei-ve  any  rights  of  prop- 
erty which  private  persons  might  enjoy 
over  the  estates  thus  escheated  to  the 
crow],  vouchsafed  not  a  word  toward  se- 
cuiing  the  slightest  compensation  to  the  dis- 
possessed owners. 

The  fell  of  the  mitred  abbots  changed  the 
proportions  of  the  two  estates  which  con- 
stitute the  Upper  House  of  Parliament. 

ligious  houses  of  monks,  canons,  and  nuns,  where 
the  congregation  of  such  rehgious  persons  is  under 
the  number  of  twelve  persons,"  bestows  praise  on 
many  of  the  gi-eater  foundations,  and  certainly  does 
not  intimate  that  their  fate  was  so  near  at  hand. 
Nor  is  any  misconduct  alleged  or  insinuated  against 
the  greater  monasteries  in  the  act  31  H.  8,  c.  13, 
that  abohshes  them  ;  which  is  rather  more  remark- 
able, as  in  some  instances  the  religious  had  been 
induced  to  confess  their  evil  lives  and  ill  deserts. 
—Burnet,  236. 

*  Id.  ibid.,  and  Append.,  p.  151.  CoUier,  167. 
The  pensions  to  the  superiors  of  the  dissolved  great- 
er monasteries,  says  a  writer  not  likely  to  spare 
Hem-y's  government,  appears  to  have  varied  from 
£266  to  £6  per  armum.  The  priors  of  cells  received 
generally  £13.  A  few,  whose  sernces  had  merited 
the  distinction,  obtained  X20.  To  the  other  monks 
were  allotted  pensions  of  six,  four,  or  two  pounds, 
with  a  small  sum  to  each  at  his  departure,  to  pro- 
vide for  his  immediate  wants.  The  pensions  to 
nuns  averaged  about  X4. — Lingard,  vi.,  341.  He 
admits  that  these  were  ten  times  their  present 
value  in  money ;  and  surely  they  were  not  un- 
reasonably small.  Compare  them  with  those,  gen- 
erally and  justly  thought  mmiificent,  which  this 
countiy  bestows  on  her  veterans  of  Chelsea  and 
Greenwich.  The  monks  had  no  right  to  expect 
more  than  the  means  of  that  hard  fare  to  which 
they  ought  by  their  rules  to  have  been  confined  in 
the  convents.  The  whole  revenues  were  not  to  be 
shared  among  them  as  private  property.  It  can 
not,  of  course,  be  denied,  that  the  compulsory 
change  of  life  was  to  many  a  severe  and  unmerited 
hai-dship ;  but  no  gveat  revolution,  and  the  Refor- 
mation as  little  as  any,  could  be  achieved  without 
much  private  suffering. 


Though  the  number  of  abbots  and  priors  to 
whom  Wilts  of  summons  were  directed  va- 
ried considerably  in  different  Parliaments, 
they  always,  joined  to  the  twenty-one  bish- 
I  ops,  preponderated  over  the  temporal  peers.* 
It  was  no  longer  possible  for  the  prelacy  to 
offer  an  efficacious  opposition  to  the  refor- 
mation they  abhorred.  Their  own  baro- 
nial tenure,  their  high  dignity  as  legislative 
counselors  of  the  land,  remained ;  but,  one 
branch  as  ancient  and  venerable  as  their  own 
thus  lopped  off,  tVie  spiritual  aristocracy  was 
reduced  to  play  a  very  secondary  part  in  the 
councils  of  the  nation.  Nor  could  the  Prot- 
j  estant  religion  have  easily  been  established 
by  legal  methods  under  Edward  and  Eliza- 
beth without  this  previous  destruction  of 
the  monasteries.  Those  who,  professing  an 
attachment  to  that  religion,  have  swollen 
the  clamor  of  its  adversaries  against  the  dis- 
solution of  foundations  that  existed  only  for 
the  sake  of  a  different  faith  and  worship, 
seem  to  me  not  very  consistent  or  enlight- 
I  ened  reasoners.  In  some,  the  love  of  an- 
'  tiquity  produces  a  sort  of  fanciful  illusion ; 
^  and  the  veiy  sight  of  those  buildings,  so 
I  magnificent  in  their  prosperous  hour,  so 
i  beautiful  even  in  their  present  ruin,  begets 
i  a  sympathy  for  those  who  founded  and  in- 
habited them.  In  many,  the  violent  cours- 
es of  confiscation  and  attainder  which  ac- 
companied this  great  revolution  excite  so 
just  an  indignation,  that  they  either  forget 
to  ask  whether  the  end  might  not  have  been 
reached  by  more  laudable  means,  or  con- 
demn that  end  itself  either  as  sacrilege,  or 
at  least  as  an  atrocious  violation  of  the  rights 
of  property.  Others,  again,  who  acknowl- 
edge that  the  monastic  discipline  can  not  be 
reconciled  with  the  modern  system  of  relig- 
ion, or  with  public  utility,  lament  only  that 
these  ample  endowments  were  not  bestowed 
upon  ecclesiastical  corporations,  freed  from 

*  The  abbots  sat  till  the  end  of  the  first  session 
of  Henrj  's  sixth  Parliament,  the  act  extinguishing 
them  not  ba\'ing  passed  till  the  last  day.  In  the 
next  session  they  do  not  aitpear,  the  writ  of  sum- 
mons not  being  supposed  to  give  them  personal 
seats.  There  are,  indeed,  so  many  parallel  ui- 
stanccs  among  spiritual  lords,  and  the  principle  is 
so  obsaous,  that  it  would  not  be  worth  noriciug,  but 
for  a  sti'ange  doubt  said  to  be  thrown  out  by  some 
legal  authorities,  near  the  beginning  of  George 
III.'s  reign,  in  the  case  of  Pearce,  bishop  of  Roches- 
ter, whether,  after  resigning  his  see,  he  would  not 
retain  his  seat  as  a  lord  of  Parliament ;  in  conse- 
I  quence  of  which,  his  resignation  was  not  accepted. 


Reformation.] 


PROM  HENRY  VII.  TO  GEORGE  11. 


53 


the  monkish  cowl,  but  still  belonging  to  that 
si)iritiml  profession  to  whose  use  they  were 
originally  consecrated.  And  it  was  a  very 
natural  theme  of  complaint  at  the  time,  that 
such  abundant  revenues  as  might  have  sus- 
tained the  dignity  of  the  crown  and  supplied 
the  means  of  public  defense  without  bur- 
dening the  subject,  had  served  little  other 
purpose  than  that  of  swelling  the  fortunes 
of  rapacious  courtiers,  and  had  left  the  king 
as  necessitous  and  craving  as  before. 

Notwithstanding  these  various  censiu'es, 
I  must  own  myself  of  opinion,  both  that  the 
abolition  of  monastic  institutions  might  have 
been  conducted  in  a  manner  consonant  to 
justice  as  well  <is  policy,  and  that  Henry's 
profuse  alienation  of  the  abbey  lands,  how- 
ever illaudable  in  its  motive,  has  proved,  upon 
the  whole,  more  beneficial  to  England  than 
any  other  disposition  would  have  turned  out. 
I  can  not,  until  some  broad  principle  is 
mfide  more  obvious  than  it  ever  has  yet  been, 
do  such  violence  to  all  common  notions  on 
the  subject,  as  to  attach  an  equal  inviolabil- 
ity to  private  and  corporate  property.  The 
law  of  hereditary  succession,  as  ancient  and 
universal  as  that  of  pi-operty  itself,  the  law 
of  testamentaiy  disposition,  the  complement 
of  the  former,  so  long  established  in  most 
counti'ics  as  to  seem  a  natural  right,  have 
invested  the  individual  possessor  of  the  soil 
with  such  a  fictitious  immortality,  such  an- 
ticipated enjoyment,  as  it  were,  of  futurity, 
that  his  perpetual  ownership  could  not  be 
limited  to  the  term  of  his  own  existence, 
without  what  he  would  justly  feel  as  a  real 
deprivation  of  property.  Nor  are  the  ex- 
pectancies of  children,  or  other  probable 
heirs,  less  real  possessions,  which  it  is  a 
hardship,  if  not  an  absolute  injury,  to  defeat. 
Yet  even  this  hereditary  claim  is  set  aside 
by  the  laws  of  forfeiture  which  have  almost 
eveiy  where  prevailed.  But  in  estates  held, 
as  we  call  it,  in  mortmain,  there  is  no  inter- 
community, no  natural  privity  of  interest, 
between  the  present  possessor  and  those 
who  may  succeed  him  ;  and  as  the  former 
can  not  have  any  pretext  for  complaint,  if, 
his  own  rights  being  preserved,  the  Legis- 
lature should  alter  the  course  of  ti-ansmis- 
sion  after  his  decease,  so  neither  is  any 
hardship  sustained  by  others,  unless  their 
succession  has  been  already  designated  or 
rendered  probable.  Corporate  property, 
therefore,  appears  to  stand  on  a  veiy  differ- 


ent footing  from  that  of  private  individuals  ; 
and  while  all  infringements  of  the  estnblislied 
privileges  of  the  latter  are  to  be  sedulously 
avoided,  and  held  justifiable  only  by  the 
strongest  motives  of  public  expediency,  we 
can  not  but  admit  the  full  right  of  the  Leg- 
islature to  new  mold  and  regulate  the  for- 
mer, in  all  that  does  not  involve  existing  in- 
terests, upon  far  slighter  reasons  of  conve- 
nience. If  Henry  had  been  content  with 
prohibiting  the  profession  of  religious  per- 
sons for  the  futui'e,  and  had  gradually  di- 
verted their  revenues  instead  of  violently 
confiscating  them,  no  Protestant  could  have 
found  it  easy  to  censure  his  policy. 

It  is  indeed  impossible  to  feel  too  much  in- 
dignation at  the  spirit  iu  which  these  proceed- 
ings were  conducted.  Besides  the  hardship 
sustained  by  so  many  persons  tvu'ned  loose 
upon  society  for  whose  occupations  they 
were  unfit,  the  indiscriminate  destruction  of 
convents  produced  several  public  mischiefs. 
The  visitors  themselves  sti'ongly  interceded 
for  the  nunnery  of  Godstow,  as  irreproach- 
ably managed,  and  an  excellent  place  of  ed- 
ucation ;  and  no  doubt  some  other  founda- 
tions should  have  been  preserved  for  the 
same  reason.  Latimer,  who  could  not  have 
a  prejudice  on  that  side,  begged  earnestly 
that  the  priory  of  Malvern  might  be  spared, 
for  the  maintenance  of  preaching  and  hos- 
pitality. It  was  urged  for  Hexham  Abbey 
that,  there  not  being  a  house  for  many  miles 
in  that  part  of  England,  the  country  would 
be  in  danger  of  going  to  waste.*  And  the 
total  want  of  inns  in  many  parts  of  the  king- 
dom must  have  rendered  the  loss  of  these 
hospitable  places  of  reception  a  serious 
grievance.  These,  and  probably  other  reas- 
ons, ought  to  have  checked  the  destroy- 
ing spirit  of  reform  in  its  career,  and  sug- 
gested to  Heniy's  counselors  that  a  few 
years  would  not  be  ill  consumed  in  contriv- 
ing new  methods  of  attaining  the  beneficial 
effects  which  monastic  institutions  had  not 
failed  to  produce,  and  in  preparing  the  peo- 
ple's minds  for  so  imi)ortant  an  innovation. 

The  suppression  of  monasteries  poured 
in  an  instant  such  a  torrent  of  wealth  upon 
the  crown  as  has  seldom  been  equaled  in 
any  country  by  the  confiscations  following  a 
subdued  rebellion.  The  clear  yearly  value 
was  rated  at  cf  131,G07,  but  was  in  reality, 
if  we  believe  Burnet,  ten  times  as  great,  the 
*  Burnet,  i.    Append.,  96. 


54 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IL 


courtiers  undervaluing  those  estates,  in  or- 
der to  obtain  gi-ants  or  sales  of  them  more 
easily.  It  is  certain,  however,  that  Bur- 
net's supposition  errs  extravagantly  on  the 
other  side.*  The  movables  of  the  small- 
er monasteries  alone  were  reckoned  _^at 
6£lOO,000  ;  and,  as  the  rents  of  these  were 
less  than  a  fouith  of  the  whole,  we  may 
calculate  the  aggi'egate  value  of  movable 
wefUth  in  the  same  propoition.  All  this  was 
enough  to  dazzle  a  more  pinident  mind  than 
that  of  Henry,  and  to  inspire  those  sanguine 
dreams  of  inexhaustible  affluence  with  which 
private  men  are  so  often  filled  by  sudden 
prosperity. 

The  monastic  rule  of  life  being  thus  abro- 
gated, as  neither  conformable  to  pure  relig- 
ion nor  to  policy,  it  is  to  be  considered  to 
what  uses  these  immense  endowments 
ought  to  have  been  applied.  There  are 
some,  perhaps,  who  may  be  of  opinion  that 
the  original  founders  of  monasteries,  or  those 
who  had  afterward  bestowed  lands  on  them, 
having  annexed  to  their  grants  an  implied 
condition  of  the  continuance  of  certain  de- 
votional seiTices,  and  especially  of  prayers 
for  the  repose  of  their  souls,  it  were  but 
equitable  that,  if  the  Legislature  rendered 
the  pei-formance  of  this  condition  impossible, 
their  heirs  should  re-enter  upon  the  lands 
that  would  not  have  been  alienated  from 
them  on  any  other  account.  But,  without 
adverting  to  the  difficulty  in  many  cases  of 
ascertaining  the  lawful  heir,  it  might  be  an- 
swered, that  the  donors  had  absolutely  di- 
vested themselves  of  all  interest  in  their 
grants,  and  tliat  it  was  more  consonant  to 
the  analogy  of  law  to  treat  these  estates  as 
escheats  or  vacant  possessions,  devolving  to 

*  P.  268.  Dr.  Lingard,  on  the  anthoritj"  of  Nas- 
miths  edirion  of  Tanners  Notitia  Monastics,  puts 
the  annual  revenue  of  all  the  monastic  houses  at 
JC142,914.  This  would  only  be  one  twentieth  part 
of  the  rental  of  the  kingdom,  if  Home  were  right 
in  estimating  that  at  three  millions.  But  this  is 
certainly  by  much  too  high.  The  author  of  Har- 
mer's  Observations  on  Burnet,  as  I  have  mention- 
ed above,  says  the  monks  will  be  found  not  to  have 
possessed  above  one  fifth  of  the  kingdom,  and  in 
value,  by  reason  of  their  long  leases,  not  one  tenth. 
But,  on  this  supposition,  the  crown"s  gain  was 
enormous. 

According  to  a  valuation  in  Speed's  Catalogue 
of  Religious  Houses,  apud  CoUier,  Append.,  p.  34, 
ELXteen  mitred  abbots  had  revenues  above  i;iOOO 
per  annum.  St.  Peter's,  Westminster,  was  the 
richest,  and  valued  at  £3977,  Glastonbury  at  £3508, 
St.  Alban  s  at  £2310,  &c. 


the  sovereign,  than  to  imagme  a  right  of  re- 
version that  no  party  had  ever  contempla- 
ted. There  was  indeed  a  class  of  persons, 
veiy  different  from  the  founders  of  monas- 
teries, to  whom  restitution  was  due.  A 
large  proportion  of  conventual  revenues 
arose  out  of  parochial  tithes,  diverted  from 
the  legitimate  object  of  maintaining  the  in- 
cumbent to  swell  the  pomp  of  some  remote 
abbot.  These  impropriations  were  in  no 
one  instance,  I  believe,  restored  to  the  pa- 
rochial clergy,  and  have  passed  either  into 
the  hands  of  laymen,  or  of  bishops  and  oth- 
er ecclesiastical  persons,  who  were  fre- 
quently compelled  by  the  Tudor  princes  to 
take  them  in  exchange  for  lands.*  It  was 
not  in  the  spirit  of  Heniy's  policy,  or  in  tliat 
of  the  times,  to  preserve  much  of  these  rev- 
enues to  the  Church,  though  he  had  design- 
ed to  aUot  d£l6,000  a  j-ear  for  eighteen  new 
sees,  of  which  he  only  erected  six  with  far 
inferior  endowments.  Isor  was  he  much 
better  inclined  to  husband  them  for  public 
exigencies,  although  more  than  sufficient  to 
make  the  crown  independent  of  Parliament- 
ary aid.  It  may,  perhaps,  be  reckoned  a 
providential  circumstance,  that  his  thought- 
less humor  should  have  rejected  the  obvi- 
ous means  of  establishing  an  uncontrollable 
des[K)tism,  by  rendering  unnecessaiy  the 
only  exertion  of  power  which  his  subjects 
were  likely  to  withstand.  Henry  VII. 
would  probably  have  followed  a  very  differ- 
ent course.  Large  sums,  however,  are  said 
to  have  been  expended  in  the  repair  of  high- 
ways, and  in  fortifying  poits  in  the  Chan- 
nel.f    But  the  greater  part  was  dissipated 

*  An  act  entitling  the  queen  to  take  into  her 
bands,  on  the  avoidance  of  any  bishopric,  so  much 
of  the  lands  belonging  to  it  as  should  be  equal  in 
j  value  to  the  impropriate  rectories,  ice.,  within  the 
'  same,  belonging  to  the  crown,  and  to  give  the  latter 
in  exchange,  was  made  ll  Eliz.,  c.  19).    This  bill 
passed  on  a  division  in  the  Commons  by  104  to  90 
[  and  was  iU  taken  by  some  of  the  bishops,  who  saw 
themselves  reduced  to  live  on  the  lawful  subsist- 
ence of  the  parochial  clergy. — Strype's  Annals,  i., 
68,  97. 

t  Burnet  268,  339.    In  Scrype,  i.,  211,  we  have 
'  a  paper  drawn  up  by  Cromwell  for  the  kings  in- 
1  spection,  setting  forth  what  might  be  done  with 
j  the  revenues  of  the  lesser  monasteries.    Among  a 
few  other  particulars  are  the  following :  "  His  grace 
may  furnish  200  gentlemen  to  attend  on  bis  person, 
every  one  of  them  to  have  100  marks  yearly — 20,000 
'  marks.    His  highness  may  assign  to  the  yearly 
reparation  of  highways  in  sundry  parts,  or  the  doing 
I  of  other  good  deeds  for  the  Commonwealth,  5000 


Refokmation.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


55 


in  profuse  gi'ants  to  the  courtiers,  who  fre- 
quently contrived  to  veil  their  acquisitions 
under  cover  of  a  purchase  from  the  crown. 
It  has  been  surmised  that  Cromwell,  in  his 
desire  to  promote  the  Reformation,  advised 
the  king  to  make  this  partition  of  abbey 
lands  among  the  nobles  and  gentiy,  either 
by  grant,  or  by  sale  on  easy  terms,  that,  be- 
ing thus  bound  by  the  sure  ties  of  private 
interest,  they  might  always  oppose  any  re- 
turn toward  the  dominion  of  Rome.*  In 
Mary's  reign,  accordingly,  her  Parhament, 
so  obsequious  in  all  matters  of  religion,  ad- 
hered with  a  firm  grasp  to  the  possession  of 
Church  lands  ;  nor  could  the  papal  suprem- 
acy be  re-established  uutil  a  sanction  was 
given  to  their  enjoyment.  And  we  may  as- 
cribe part  of  the  zeal  of  the  same  class  in 
bringing  back  and  preserving  the  Reformed 
Church  under  Elizabeth  to  a  similar  mo- 
tive ;  not  that  these  gentlemen  were  hypo- 
critical pretenders  to  a  belief  they  did  not 
entertain,  but  that,  according  to  the  general 
laws  of  human  nature,  they  gave  a  readier 
reception  to  truths  which  made  their  es- 
tates more  secure. 

But  if  the  participation  of  so  many  persons 
in  the  spoils  of  ecclesiastical  property  gave 
stability  to  the  new  religion,  by  pledging 
them  to  its  support,  it  was  also  of  no  slight 
advantage  to  our  civil  constitution,  strength- 
ening, and,  as  it  were,  infusing  new  blood 
into  the  territorial  aristocracy,  who  were  to 
withstand  the  enormous  prerogative  of  the 
crown.  For  if  it  be  true,  as  surely  it  is, 
that  wealth  is  power,  the  distribution  of  so 
lai'ge  a  portion  of  the  kingdom  among  the 
nobles  and  gentiy,  the  elevation  of  so  many 
new  families,  and  the  increased  opulence  of 
the  moi'e  ancient,  must  have  sensibly  affect- 
ed their  weight  in  tlie  bakmce.  Those  fam- 
ilies, indeed,  within  or  without  the  bounds 
of  the  peerage,  which  are  now  deemed  the 
most  considerable,  will  be  found,  with  no 
great  number  of  exceptions,  to  have  first  be- 
come conspicuous  under  the  Tudor  line  of 
kings ;  and,  if  we  could  ti'ace  the  titles  of 
their  estates,  to  have  acquired  no  small  por- 
tion of  them,  mediately  or  immediately,  from 
monastic  or  other  ecclesiastical  foundations. 
And  better  it  has  been  that  these  revenues 

marks."  In  such  scanty  propoition  did  the  claims 
of  public  utilitj'  come  after  those  of  selfish  pomp, 
or  rather,  perhaps,  looking  more  attentively,  of 
canning  corruption.  *  Burnet,  i.,  223. 


should  thus  fronr  age  to  ago  have  been  ex- 
pended in  liberal  hospitalitj-,  in  discerning 
charity,  in  the  promotion  of  industry  and 
cultivation,  in  the  active  duties  or  even  gen- 
erous amusements  of  life,  than  in  maintain- 
ing a  host  of  ignorant  and  inactive  monks, 
in  deceiving  the  populace  by  superstitious 
pageantry,  or  in  the  encouragement  of  idle- 
ness and  mendicity.* 

A  very  ungrounded  prejudice  had  long 
obtained  currency,  and,  notwithstanding  the 
conti'adiction  it  has  experienced  in  our  more 
accurate  age,  seems  still  not  eradicated,  that 
the  alms  of  monasteries  maintained  the  in- 
digent throughout  the  kingdom,  and  that  the 
system  of  parochial  relief,  now  so  raucli  the 
topic  of  complaint,  was  rendered  necessary 
i)y  the  dissolution  of  those  beneficent  foun- 
dations. There  can  be  no  doubt  that  many 
of  the  impotent  poor  derived  support  from 

*  It  is  a  favorite  theoiy  with  many  who  regret 
the  absolute  secularization  of  conventual  estates, 
that  they  might  have  been  rendered  useful  to  learn- 
ing and  religion  hy  being  bestowed  on  chapters  and 
colleges.  Thomas  Whitaker  has  sketched  a  pretty 
scheme  for  the  Abbey  of  Whalle}*,  wherein,  besides 
ceitain  opulent  prebendaries,  he  would  provide  for 
schoolmasters  and  phjsicians.  I  suppose  this  is 
considered  an  adherence  to  the  donor's  intention, 
and  no  sort  of  violation  of  propeitj' ;  somewhat  on 
the  principle  called  cy  pres.  adopted  by  the  Coui't 
of  Chancery  in  cases  of  charitable  bequests ;  ac- 
cording to  which,  that  trihunal,  if  it  holds  the  test- 
ator's intention  unfit  to  be  executed,  cairies  the 
bequest  into  effect  hy  doing  what  it  presumes  to 
come  next  in  his  wishes,  though  sometimes  very 
far  from  them.  It  might  be  difficult,  indeed,  to 
prove  that  a  Norman  baron,  who,  not  quite  easy 
about  his  future  prospects,  took  comfort  in  his  last 
hours  from  the  anticipation  of  daily  masses  for  his 
soul,  would  have  been  belter  satisfied  that  his  lauds 
should  maintain  a  grammar-school  than  that  they 
should  escheat  to  the  crown.  But  to  wave  this, 
and  to  revert  to  the  principle  of  public  utilitj-,  it 
may  possibly  be  ti-ue  tliat,  in  one  instance,  such  as 
Wlialley,  a  more  beneficial  disposition  could  have 
been  made  in  favor  of  a  college  than  by  granting 
away  the  lands.  But  the  question  is,  whether  all, 
or  even  a  great  part,  of  the  monastic  estates  could 
have  been  kept  in  mortraahi  with  advantage.  We 
may  easily  argue  that  the  Dei-weutwater  property, 
applied  as  it  has  been,  has  done  the  state  more 
sei-vice  than  if  it  had  gone  to  maintain  a  race  of 
Ratcliffes,  and  been  squandered  at  White's  or 
Newmarket.  But  does  it  follow  that  the  kingdom 
would  be  tlie  more  prosperous  if  all  the  estates  of 
the  peerage  were  diverted  to  similar  endowments  ? 
And  can  we  seriously  believe  that,  if  such  a  plan 
had  been  adopted  at  the  suppression  of  monas- 
teries, either  religion  or  learning  would  have  been 
the  better  for  such  an  inundation  of  prebendaries 
and  schoohnasters  ? 


56 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  U. 


their  chanty.  But  the  blind  eleemosynary 
spirit  inculcated  by  the  Koniish  Church  is 
notoriously  the  cause,  not  the  cure,  of  beg- 
gary and  wretchedness.  The  monastic 
fouiidutions,  scattered  in  different  counties, 
but  i)y  no  means  at  regular  distances,  and 
often  in  sequestered  places,  could  never  an- 
swer the  end  of  local  and  limited  succor, 
meted  out  in  just  proportion  to  the  demands 
of  poverty.  Their  gates  might  indeed  be 
open  to  those  who  knocked  at  them  for  alms, 
and  came  in  search  of  streams  that  must  al- 
ways be  too  scanty  for  a  thirsty  multitude. 
Nothing  could  have  a  stronger  tendency  to 
promote  that  vagabond  mendicity,  which  un- 
ceasing and  veiy  severe  statutes  were  en- 
acted to  repress.  It  was  and  must  always 
continue  a  hard  problem,  to  discover  the 
means  of  rescuing  tliose  whom  labor  can 
not  maintain  from  the  last  extremities  of 
helpless  suffering.  The  regular  clergy 
were  in  all  respects  ill  fitted  for  this  gieat 
office  of  humanity.  Even  while  the  mon- 
asteries were  yet  standing,  the  scheme  of  a 
provision  for  the  poor  had  been  adopted  by 
the  Legislature,  by  means  of  regular  coUec- 
tions,  which  in  the  course  of  a  long  series 
of  statutes,  ending  in  the  43d  of  Elizabeth, 
were  almost  insensibly  converted  into  com- 
pulsory assessments.*  It  is  by  no  means 
probable  that,  however  some  in  particular 
districts  may  have  had  to  lament  the  cessa- 
tion of  hospitalitj-  in  the  convents,  the  poor  in 
general,  after  some  time,  were  placed  in  a 
worse  condition  by  their  dissolution  ;  nor 
are  we  to  forget  that  the  class  to  whom  the 
abbey  lands  have  fallen  have  been  distin- 
guished at  all  times,  and  never  more  than 
in  the  first  century  after  tliat  ti'ansference 
of  property,  for  their  chai'ity  and  munifi- 
cence. 

These  two  great  political  measures,  the 
separation  from  the  Roman  See  and  the 
suppression  of  monasteries,  so  broke  the 
vast  power  of  the  English  clergy,  and  hum- 
bled their  spirit,  that  they  became  the  most 

*  The  first  act  for  the  relief  of  tlie  impotent  poor 
passed  in  1535  (27  H.  8,  c.  25).  By  tliis  statute  no 
abns  were  allowed  to  be  given  to  beggars,  on  pain 
of  forfeiting  ten  times  the  value  ;  but  a  collection 
was  to  be  made  in  every  paiisb.  The  compulsory 
contiibutions,  properly  speaking,  began  in  1572 
(14  Eliz.,  c.  .5).  But  by  an  earlier  statute,  1  Edw. 
6,  c.  3,  the  bisliop  was  empowered  to  proceed  in 
his  court  against  such  as  should  refuse  to  contiib- 
ute,  or  dissuade  others  from  doing  so. 


abject  of  Henry's  vassals,  and  dared  not  of- 
fer any  steady  opposition  to  his  caprice, 
even  when  it  had  led  him  to  make  innova- 
tions in  the  essential  parts  of  their  religion. 
It  is  certain  that  a  large  majority  of  that 
order  would  gladly  have  retained  their  al- 
legiance to  Rome,  and  that  they  viewed 
with  horror  the  downfall  of  the  monaster- 
ies. In  rending  away  so  much  that  had 
been  incorporated  with  the  public  faith, 
Henry  seemed  to  prepare  the  road  for  the 
still  more  radical  changes  of  the  Reformers. 
These,  a  numerous  and  increasing  sect,  ex- 
ulted by  turns  in  the  innovations  he  promul- 
gated, lamented  their  dilatoriness  and  imper- 
fection, or  trembled  at  the  reaction  of  his 
bigotiy  against  themselves.  Trained  in  the 
school  of  theological  controversy,  and  draw- 
ing from  those  bitter  waters  fresh  aliment 
for  his  sanguinaiy  and  imperious  temper, 
he  disjjlayed  the  impartiality  of  his  intoler- 
ance by  alternately  persecuting  the  two 
conflicting  parties.  We  all  have  read  how 
three  persons  convicted  of  disputing  his  su- 
premacy, and  three  deniers  of  transubstan- 
tiation,  were  drawn  on  the  same  hurdle  to 
execution.  But  the  doctrinal  system  adopt- 
ed by  Henry  in  the  latter  years  of  his  reign, 
varying,  indeed,  in  some  measure,  from 
time  to  time,  was  about  equally  removed 
from  popish  and  Protestant  orthodoxy. 
The  corporal  presence  of  Christ  in  the 
consecrated  elements  was  a  tenet  which 
no  one  might  dispute  without  incurring  the 
l)enalty  of  death  by  fire  ;  and  the  king  had 
a  capricious  partiality  to  the  Romish  prac- 
tice in  those  very  points  where  a  great 
many  real  Catholics  on  the  Continent  were 
earnest  for  its  alteration,  the  communion  of 
the  laity  by  bread  alone,  and  the  celibacy 
of  the  clergy.  But  in  several  other  re- 
spects he  was  wought  upon  by  Cranmer 
to  draw  pretty  near  to  the  Lutheran  creed, 
and  to  permit  such  explications  to  be  given 
in  the  books  set  forth  by  his  authority,  the 
Institution,  and  the  Erudition,  of  a  Chris- 
tian man,  as,  if  they  did  not  absolute!}'  pro- 
scribe most  of  the  ancient  opinions,  threw, 
at  best,  much  doubt  upon  them,  and  gave 
intimations  which  the  people,  now  become 
attentive  to  these  questions,  were  acute 
enough  to  interpret.* 

*  The  Institution  was  printed  in  1537;  (he  Em- 
dition,  accordiu'-c  to  Bunict.  in  15-10;  but  in  CoUier 
and  Sti'ji)e's  opinion,  not  till  1543.    They  are  both 


Reformation] 


PROM  HENRY  VII.  TO  GEORGE  11. 


57 


It  was  natural  to  suspect,  from  the  pre- 
Progress  of  vious  temper  of  the  nation,  that 
the  Reicjim-  ^.j^^  revokitioiiary  spirit  which 

ed  uoctriiie  .  - 

in  England,  blazecl  out  in  Germany  should 
spread  rapidly  over  England.  The  ene- 
mies of  ancient  superstition  at  home,  by 
frequent  communication  with  the  Lutheran 
and  Swiss  Reformers,  acquired  not  only 
more  enlivening  confidence,  but  a  surer 
and  more  definite  system  of  belief.  Books 
printed  in  Germany  or  in  the  Flemish  prov- 
inces, where  at  first  the  administration  con- 
nived at  the  new  religion,  were  imported 
and  read  with  that  eagerness  and  delight 
which  always  compensate  the  risk  of  for- 
bidden studies.*  Wolsey,  who  had  no  turn 
toward  persecntion,  contented  himself  with 
ordering  heretical  writings  to  be  burned,  and 
strictly  prohibiting  their  importation.  But 
to  withstand  the  course  of  popular  opinion  is 
always  like  a  combat  against  the  elements 
in  commotion  ;  nor  is  it  likely  that  a  govern- 
ment far  more  steady  and  unanimous  than 
that  of  Henry  VIII.  could  have  eflfectually 
prevented  the  diflfusion  of  Protestantism. 
And  the  severe  punishment  of  many  zeal- 
ous Reformers,  in  the  subsequent  part  of 
this  reign,  tended,  beyond  a  doubt,  to  excite 
a  favorable  prejudice  for  men  whose  mani- 
fest sincerity,  piety,  and  constancy  in  suf- 
fering were  as  good  pledges  for  the  truth 
of  their  doctrine,  as  the  people  had  been  al- 
ways taught  to  esteem  the  same  qualities 
in  the  legends  of  the  early  martyrs.  Nor 
were  Henry's  persecutions  conducted  upon 
the  only  rational  principle,  that  of  the  In- 
quisition, which  judges  from  the  analogy  of 
medicine,  that  a  deadly  poison  can  not  be 
extirpated  but  by  the  speedy  and  radical 
excision  of  the  diseased  part ;  but  falling 
only  upon  a  few  of  a  more  eager  and  offi- 
cious zeal,  left  a  well-grounded  opinion 

artfully  drawn,  probably  in  the  main  by  Cranmer, 
but  not  without  the  interference  of  some  less  favor- 
able to  the  new  doctrine,  and  under  the  eye  of  the 
king  himself  Collier,  137,  1?9.  The  doctrinal  va- 
riations in  these  two  summaries  of  royal  faith  are 
by  no  means  inconsiderable. 

*  Sti-ype,  i.,  1G5.  A  statute  enacted  in  1534  (25 
H.  8,  c.  l.j),  after  reciting  that  "  at  this  day  there 
be  witliin  this  realm  a  great  number  cunning  and 
expert  in  printing,  and  as  able  to  execute  the  said 
craft  as  any  stranger,"  proceeds  to  forbid  the  sale 
of  bound  books  imported  from  the  Continent.  A 
ten-ible  blow  was  thus  leveled  both  against  general 
literatm-e  and  tlie  Reformed  religion ;  but,  like 
majiy  other  bad  laws,  produced  very  little  elfect. 


among  the  rest,  that  by  some  degree  of 
temporizing  prudence  thoy  might  escape 
molestation  till  a  season  of  liberty  should 
arrive. 

One  of  the  books  originally  included  in 
the  list  of  proscription  among  the  writings 
of  Luther  and  the  foreign  Protestants  was 
a  transhition  of  the  New  Testament  into 
English  by  Tyndale,  printed  at  Antwerp  ia 
1.52G.  A  complete  version  of  the  Bible, 
partly  by  Tyndale  and  partly  by  Coverdale, 
appeared,  perhaps  at  Hamburgh,  in  153.5 ; 
a  second  edition,  under  the  name  of  Mat- 
thews, following  in  1537;  and  as  Cranmer's 
influence  over  the  king  became  gi'eater,  and 
his  aversion  to  the  Roman  Church  more  in- 
veterate, so  material  a  change  was  made  in 
the  ecclesiastical  policy  of  this  reign  as  to 
direct  the  Scriptures  in  this  translation  (but 
with  corrections  in  many  places)  to  be  set 
up  in  parish  churches,  and  permit  them  to 
be  publicly  sold.*    This  measure  had  a 

*  The  accounts  of  early  editions  of  the  English 
Bible  in  Burnet,  Collier,  Strype,  and  an  essay  by 
Johnson  in  Watson's  Theological  Tracts,  vol.  iii., 
are  eiToneous  or  defective.  A  letter  of  Stiype  iu 
Harleian  MSS.,  3782,  which  has  been  printed,  is 
better;  but  the  most  complete  enumeration  is  in 
Cotton's  list  of  editions,  1821.  The  dispersion  of 
the  Scriptures,  with  full  liberty  to  read  them,  was 
greatly  due  to  Cromwell,  as  is  shown  by  Burnet. 
Even  after  his  fall,  a  proclamation,  dated  May  6, 
1.542,  referring  to  the  king's  fornaer  injunctions  for 
the  same  pui-pose,  directs  a  large  Bible  to  be  set 
up  in  every  parish  church.  But,  next  year  the 
Duke  of  Norfolk  and  Gardiner  prevailing  over  Cran- 
mer, Henry  reti-aced  a  part  of  his  steps ;  and  the 
act  34  H.  8,  c.  1,  forbids  the  sale  of  Tyndale's  "  false 
translation,"  and  the  reading  of  the  Bible  in  church- 
es, or  by  yeomen,  women,  and  other  incapable  per- 
sons. The  popish  bishops,  well  aware  how  much 
turned  on  this  general  liberty  of  reading  tlie  Scrip- 
tures, did  all  in  their  power  to  discredit  tlie  new 
version.  Gardiner  made  a  list  of  about  one  hund- 
red words  which  he  thought  unfit  to  be  trauslated, 
and  which,  in  case  of  an  authorized  versioii  (where- 
of the  clei'gy  in  convocation  had  reluctantly  admit- 
ted the  expediency),  ought,  in  his  opuiion,  to  be  left 
in  Latin.  Tyndale's  translation  may,  I  apprehend, 
be  reckoned  the  basis  of  that  now  in  use,  but  has 
undergone  several  coiTections  before  the  last.  It 
has  been  a  matter  of  dispute  whether  it  were  made 
from  the  original  languages  or  from  the  Vulgate. 
Hebrew  and  even  Greek  were  vei-y  little  known 
in  England  at  that  time. 

The  edition  of  1537,  called  Matthews's  Bible, 
printed  by  Grafton,  contains  margiu.al  notes  re- 
flecting on  the  con-uptions  of  popery.  These  it  was 
thought  expedient  to  suppress  m  tliat  of  1539,  com- 
monly called  Cramiier's  Bible,  as  havnng  been  re- 
used by  him,  and  in  later  editions.    In  ail  these 


58 


CONSTITUTIONAL  HISTOKY  OF  ENGLAND 


[Chap.  U. 


sti'ong  tendency  to  promote  the  Refoima- 
tion,  especially  among  those  who  were  ca- 
pable of  reading;  not,  surely,  that  the  con- 
troveitcd  doctrines  of  the  Romish  Church 
are  so  palpably  erroneous  as  to  bear  no  sort 
of  examination,  but  because  such  a  promul- 
gation of  the  Scriptures  at  that  particular 
time  seemed  both  tacitly  to  admit  the  chief 
point  of  contest,  that  they  were  the  exclu- 
sive standard  of  Christian  faith,  and  to  lead 
the  people  to  interpret  them  with  that  sort 
of  prejudice  which  a  juiy  would  feel  in  con- 
sidering evidence  that  one  party  in  a  cause 
had  attempted  to  suppress  ;  a  danger  which 
those  who  wish  to  restrain  the  course  of 
free  discussion  without  very  sure  means  of 
success  will  in  all  ages  do  well  to  reflect 
upon. 

The  gi'eat  change  of  religious  opinions  was 
not  so  much  effected  by  reasoning  on  points 
of  theological  controversy,  upon  which  some 
are  apt  to  fancy  it  turned,  as  on  a  persua- 
sion that  fraud  and  con  uption  pervaded  the 
Established  Church.  The  pretended  mir- 
acles, which  had  so  long  held  the  under- 
standing in  captivity,  were  wisely  exposed 
to  ridicule  and  indignation  by  the  govern- 
ment. Plays  and  interludes  were  repre- 
sented in  churches,  of  which  the  usual  sub- 
ject was  the  vices  and  coiTuptions  of  the 
monks  and  clergy.  These  were  disapprov- 
ed of  by  the  graver  sort,  but  no  doubt  serv- 
ed a  useful  purpose.*  The  press  sent  forth 
its  light  host  of  libels  ;  and  though  the  Cath- 
olic party  did  not  fail  to  try  the  same  means 
of  influence,  they  had  both  less  liberty  to 
write  as  they  pleased,  and  fewer  I'eaders 
than  their  antagonists. f 

editions  of  Henry's  reigii,  though  the  version  is 
properly  Tyndale's,  there  are,  as  I  am  infoiTned, 
considerable  variations  and  amendments.  Thus, 
in  Cranmer's  Bible,  the  word  ecclcxia  is  always  ren- 
dered congregation  instead  of  church  ;  either  as  the 
primary  meaning,  or,  more  probably,  to  point  out 
that  the  laity  had  a  share  in  the  govennnent  of  a 
Christian  society. 

*  Burnet,  318.  Stiype's  Life  of  Parker,  18. 
Collier  (187)  is  of  course  much  scandalized.  In  his 
view  of  things,  it  had  been  better  t«  give  np  the 
Reformation  entirely  than  to  suffer  one  reflection 
on  the  clergy.  These  dramatic  satires  on  that  or- 
der had  also  an  effect  in  promoting  the  Reforma- 
tion in  Holland. — Brandt's  History  of  Refoi-mation 
in  Low  Countiies,  vol.  i.,  p.  128. 

t  "In  place  of  the  ancient  reverence  which  was 
entertained  for  the  pope  and  the  Romish  chair, 
there  was  not  a  masquerade,  or  other  pastime,  in 
which  some  one  was  not  to  be  seen  going  about  in 


In  this  feveri.sh  state  of  the  public  mind  on 
the  most  interesting  subject,  en- 
sued  the  death  of  Henry  VIII.,  ment  uuder 
who  had  excited  and  kept  it  up. 
More  than  once,  during  the  latter  part  of 
his  capricious  reign,  the  popish  party,  head- 
ed by  Norfolk  and  Gardiner,  had  gained  an 
ascendant ;  and  several  persons  had  been 
burned  for  denying  transubstantiation.  But 
at  the  moment  of  his  decease,  Norfolk  was 
a  prisoner  attainted  of  treason,  Gardiner  in 
disgrace,  and  the  favor  of  Cranmer  at  its 
height.  It  is  said  that  Henry  had  medita- 
ted some  further  changes  in  religion.  Of 
his  executors,  the  greater  part,  as  their  sub- 
sequent conduct  evinces,  were  nearly  indif- 
ferent to  the  two  systems,  except  so  far  as 
more  might  be  gained  by  innovation.  But 
Somerset,  the  new  protector,  appears  to 
have  inclined  sincerely  toward  the  Refor- 
mation, though  not  wholly  uninfluenced  by 
similar  motives.  His  authority  readily  over- 
came all  opposition  in  the  council ;  and  it 
was  soon  perceived  that  Ed'ward,  whose 
singular  precocity  gave  his  opinions  in  child- 
hood an  importance  not  wholly  ridiculous, 
had  imbibed  a  steady  and  ardent  attachment 
to  the  new  religion,  which  probably,  had  he 
lived  longer,  would  have  led  him  both  to  di- 
verge further  from  what  he  thought  an  idol- 
atrous superstition,  and  to  have  treated  its 
adherents  with  severity.*    Uuder  his  reign, 

the  dress  of  a  pope  or  cardinal.  Even  the  women 
jested  incessantly  at  the  pope  and  his  servants, 
and  thought  they  could  do  no  greater  disgrace  to 
any  man  than  by  caUing  him  priest  of  the  pope,  or 
papist." — Extract  from  an  anon\-mous  French  MS. 
by  a  person  resident  at  the  English  court  about 
1540,  in  Raumer's  Histoi-}'  of  16th  and  17th  ceutu 
ries  illusti-ated,  vol.  ii.,  p.  C6,  1845. 

*  I  can  hardly  avoid  doubting  whether  Edward 
VI. 's  Jounial,  published  in  the  second  volume  of 
Burnet,  be  altogether  his  own,  because  it  is  strange 
for  a  boy  of  ten  years  old  to  write  with  the  precise 
brevity  of  a  man  of  business.  Yet  it  is  hard  to  say 
how  far  an  intercourse  with  able  men  on  serious 
subjects  may  foi'ce  a  royal  plant  of  such  natui-al 
vigor;  and  his  letters  to  his  young  friend  Baniaby 
Fitzpatrick,  published  by  H.  Walpole  in  1774,  are 
quite  unlike  the  style  of  a  boy.  One  could  wish  this 
journal  not  to  be  genuine  ;  for  the  manner  in  which 
he  speaks  of  the  execution  of  both  his  tmcles 
does  not  show  a  good  lieart.  Unfortunately,  how- 
ever, there  is  a  letter  extant,  of  the  king  to  Fitz- 
patrick, which  must  be  genuine,  and  is  in  the  same 
sti-ain.  He  treated  his  sister  Mai-y  harshly  about 
her  religion,  and  had,  I  suspect,  too  much  Tudor 
blood  in  his  veins.  It  is  certain  that  he  was  a 
verj-  exti'aordinarj-  boy,  or,  as  Cardan  calls  him, 


Reformation.] 


FROM  HEXRY  VII.  TO  GEORGE  II. 


59 


accordingly,  a  series  of  alterations  in  the 
tenets  and  homilies  of  the  English  Church 
were  made,  the  principal  of  which  I  shall 
point  out,  without  following  a  chronological 
order,  or  adverting  to  such  matters  of  con- 
troversy as  did  not  produce  a  sensible  effect 
on  the  people. 

I.  It  was  obviously  among  the  first  steps 
Sketch  of  the  requii'ed  in  order  to  inti-oduco  a 
chief  points    mode  of  religion  at  once  more 

of  (lifTereiice  i  ,         i  i 

between  the  reasonable  and  more  earnest  than 
tworeiigmns.  ^j^^  former,  that  the  public  servi- 
ces of  the  Church  should  be  exj)ressed  in 
the  mother  tongue  of  the  congi-egation.  The 
Latin  ritual  liad  been  unchanged  ever  since 
the  age  when  it  was  vernacular,  partly 
through  a  sluggish  dislike  of  innovation,  but 
partly,  also,  because  the  mysteriousness  of 
an  unknown  dialect  served  to  impose  on  the 
vulgar,  and  to  tlu-ow  an  air  of  wisdom  around 
the  priesthood.  Yet  what  was  thus  con- 
cealed would  have  borne  the  light.  Our 
own  liturgy,  so  justly  celebrated  for  its 
piety,  elevation,  and  simplicity,  is  in  great 
measure  a  translation  from  the  Catholic  ser- 
vices, or,  more  properly,  from  those  which 
had  been  handed  down  from  a  more  primi- 
tive age  ;  those  portions,  of  course,  being 
omitted  which  had  relation  to  diftisrent  prin- 
ciples of  worship.  In  the  second  j'ear  of 
Edward's  reign,  the  reformation  of  the  pub- 
lic service  was  accomplished,  and  an  Eng- 
lish liturgy  compiled,  not  essentially  differ- 
ent from  that  in  present  use.* 

II.  No  part  of  exterior  religion  was  more 
prominent,  or  more  olfensive  to  those  who 
had  imbibed  a  Prot(\stant  sjiirit,  than  the 
worship,  or  at  least  veneration,  of  images, 
which  in  remote  and  barbarous  ages  had 
given  excessive  scandal  both  in  the  Greek 
and  Latin  churches,  though  long  fully  es- 
tablished in  the  practice  of  each.  The  pop- 
ulace, in  towns  where  the  reformed  tenets 
prevailed,  began  to  pull  them  down  in  the 


monstrificus  puellus ;  and  the  reluctance  witli 
•which  he  yielded,  on  the  soUcitations  of  Cranmer, 
lo  siifii  the  wan-ant  for  burning  Joan  Bouclier,  is 
as  much  to  his  honoi-  as  it  is  against  the  archbish- 
op's.   [But  see  p.  64.] 

*  Tlie  litany  had  been  translated  into  Enghsh  in 
1542.  Buraet,  i.,  .331.  Collier,  111 ;  where  it  may 
be  read,  not  much  differing  from  that  now  in  use. 
It  was  aKvays  lield  out  by  our  Cliurch,  when  the 
object  was  conciliation,  tliat  the  Uturgy  was  essen- 
tially the  same  with  tlie  mass-book.  Stry-pe's  An- 
nals, ii.,  39.    Holiugshed,  iii.,  921  (4to  edition). 


veiy  first  days  of  Edward's  reign;  and  af- 
ter a  little  pretense  at  distinguishing  those 
which  had  not  been  abused,  orders  were 
given  that  all  images  should  be  taken  away 
from  churches.  It  was  perhaps  necessaiy 
thus  to  hinder  the  zealous  Protestants  from 
abating  them  as  nuisances,  which  had  al- 
ready caused  several  disturbances.*  But 
this  order  was  executed  with  a  rigor  which 
lovers  of  art  and  antifjuity  have  long  deplor- 
ed. Our  churches  bear  witness  to  the  dev- 
astation committed  in  the  wantonness  of 
triumphant  reform  by  defacing  statues  and 
crosses  on  the  exterior  of  buildings  intended 
for  worship,  or  windows  and  moimments 
within.  INIissals  and  other  books  dedicated 
to  superstition  perished  in  the  same  manner. 
Altars  were  taken  down,  and  a  great  varie- 
ty of  ceremonies  abrogated  ;  such  as  the  use 
of  incense,  tapers,  and  holy  water ;  and 
though  more  of  these  were  retained  than 
eager  innovators  could  approve,  the  whole 
surface  of  religioxts  ordinances,  all  that  is 
palpable  to  common  minds,  miderwent  a  sur- 
prising transformation. 

III.  But  this  change  in  ceremonial  observ- 
ances and  outwai'd  show  was  trifling  when 
compared  to  that  in  the  objects  of  worship, 
and  in  the  purposes  for  which  they  wei'e 
addressed.  Those  who  have  visited  some 
Catholic  temples,  and  attended  to  the  cui- 
rent  language  of  devotion,  nmst  have  per- 
ceived, what  the  writings  of  apologists  or 
decrees  of  councils  will  never  enable  theui 
to  discover,  that  the  saints,  but  more  espe- 
cially the  Virgin,  are  almost  exclusively  the 
popular  deities  of  that  religion.  All  this 
polytheism  was  swept  away  by  the  Reform- 
ers ;  and  in  this  may  be  deemed  to  consist 
the  most  specific  difference  of  the  two  sys- 
tems. Nor  did  they  spare  the  belief  in 
purgatory,  that  unknown  liind  which  the 
hierarchy  swayed  with  so  alisolute  a  rule, 
and  to  which  the  earth  had  been  rendered 
a  tributary  province.  Yet  in  the  first  lit- 
urgy put  forth  under  Edward,  the  prayers 
for  departed  souls  were  retained  ;  wliethei- 
out  of  respect  to  the  prejudices  of  the  peo- 
ple, or  to  the  immemorial  antiquity  of  the 
practice.  But  such  prayers,  if  not  neces- 
sarily implying  the  doctrine  of  purgatoi-y 

*  "  It  was  observed,"  says  Strype,  ii.,  79,  "  that 
where  iraasres  were  left,  there  was  most  contest, 
and  most  peace  where  they  were  all  sheer  pulled 
down,  as  they  were  in  some  places." 


60 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  II. 


(which  yet,  in  the  main,  they  appear  to  do), 
are  at  least  so  closely  connected  with  it,  that 
the  belief"  could  never  be  eradicated  while 
they  remained.  Hence,  in  the  revision  of 
the  liturgy,  four  years  aftei^ward,  they  were 
laid  aside,*  and  sevei-al  other  changes  made, 
to  eradicate  the  vestiges  of  the  ancient  su- 
perstition. 

IV.  Auricular  confession,  as  commonly 
called,  or  the  private  and  special  confession 
of  sins  to  a  priest  for  the  purpose  of  obtain- 
ing his  absolution,  an  imperative  duty  in  the 
Church  of  Rome,  and  preserved  as  such  in 
the  statute  of  the  Six  Articles,  and  in  the  re- 
ligious codes  published  by  Henry  VHI.,  was 
left  to  each  man's  discretion  in  the  new  order ; 
a  judicious  temperament,  which  the  Reform- 
ei-s  would  have  done  well  to  adopt  in  some 
other  points.  And  thus,  while  it  has  never 
been  condemned  in  our  church,  it  went  with- 
out dispute  into  complete  neglect.  Those 
■who  desire  to  augment  the  influence  of  the 
clergy,  regret,  of  course,  its  discontinuance  ; 
and  some  may  conceive  that  it  would  sei-ve 
either  for  wholesome  restraint  or  useful  ad- 
monition. It  is  very  difficult,  or  perhaps 
beyond  the  reach  of  any  human  being,  to 
determine  absolutely  how  far  these  benefits, 
which  can  not  be  reasonably  denied  to  result 
in  some  instances  from  the  rite  of  confes- 
sion, out\veigh  the  mischiefs  connected  with 
it.  There  seems  to  be  something  in  the 
Roman  Catholic  discipline  (and  I  know  noth- 
ing else  so  likely)  which  keeps  the  balance, 
as  it  were,  of  moral  influence  pretty  even 
between  the  two  religions,  and  compensates 
for  the  ignorance  and  superstition  which 
the  elder  preserves ;  for  I  am  not  sure  that 
the  Protestant  sj-stem  in  the  pi-esent  age 
has  any  very  sensible  advantage  in  this  re- 
spect, or  that  in  countries  where  the  com- 
parison can  fairly  be  made,  as  in  Germany 
or  Switzerland,  there  is  more  honesty  in 
one  sex,  or  more  chastity  in  the  other,  when 
they  belong  to  the  Reformed  churches.  Yet, 

*  Collier,  p.  257,  enters  into  a  vindication  of  the 
practice,  which  appears  to  have  prevailed  in  the 
Church  from  the  second  ceuturj-.  It  was  defend- 
ed in  general  by  the  non-jurors,  and  the  whole 
school  of  Andrews.  But,  independenth-  of  its 
wanting  the  authority  of  Scripture,  which  the  Re- 
formers set  up  exclusively  of  all  tradition,  it  con- 
tradicted the  doctrine  of  justification  by  mere 
faith,  in  the  strict  sense  which  they  affixed  to 
that  tenet.  See  preamble  of  the  act  for  dissolu- 
tion of  chantries,  1  Edw.  6,  c.  14. 


on  the  other  hand,  the  practice  of  confes- 
sion is  at  the  best  of  very  doubtful  utility, 
when  considered  in  its  full  extent  and  gen- 
eral bearings.  The  ordinary  confessor,  list- 
ening mechanically  to  hundreds  of  penitents, 
can  hai'dly  preserve  much  authority  over 
most  of  them.  But  in  proportion  as  his  atten- 
tion is  directed  to  the  secrets  of  conscience, 
his  influence  may  become  dangerous ;  men 
gi-ow  accustomed  to  the  control  of  one  per- 
haps more  feeble  and  guilty  than  themselves, 
but  over  whose  frailties  they  exercise  no  re- 
ciprocal command;  and  if  the  confessors  of 
kings  have  been  sometimes  tenible  to  na- 
tions, their  ascendency  is  probably  not  less 
mischievous,  in  proportion  to  its  extent, 
j  within  the  sphere  of  domestic  life.  In  a 
j  political  light,  and  with  the  object  of  lessen- 
ing the  weight  of  the  ecclesiastical  order  in 
j  temporal  afi'airs,  there  can  not  be  the  least 
;  hesitation  as  to  the  expediency  of  discontin- 
uing the  usage.* 

I  V.  It  has  very  rarely  been  the  custom 
of  theologians  to  measure  the  importance 
of  orthodox  opinions  by  their  effect  on  the 
lives  and  hearts  of  those  who  adopt  them ; 
nor  was  this  predilection  for  speculative 
above  practical  doctrines  ever  more  evident 
than  in  the  leading  controvei-sy  of  tlie  six- 
teenth century,  that  respecting  the  Lord's 
Supper.  No  eiTors  on  this  point  could  have 
had  any  influence  on  men's  moral  conduct, 
nor,  indeed,  much  on  the  general  nature 
of  their  faith  ;  yet  it  was  selected  as  the 
test  of  heresy  ;  and  most,  if  not  all  of  those 
who  suftered  death  upon  that  charge,  wheth- 
er in  England  or  on  the  Continent,  were 
convicted  of  denying  the  corporeal  presence 
in  the  sense  of  the  Roman  Church.  It  had 
been  well  if  the  Reformers  had  learned,  by 
abhon-ing  her  persecution,  not  to  practice  it 
in  a  somewhat  less  degree  upon  each  other, 
or,  by  exposing  the  absurdities  of  transub- 
stantiation,  not  to  contend  for  equal  non- 
sense of  their  own.  Four  prmcipal  theories, 
to  say  nothing  of  subordinate  varieties,  di- 
vided Europe  at  the  accession  of  Edward 
VI.  about  the  sacrament  of  the  Eucharist. 
The  Church  of  Rome  would  not  depart  a 
single  letter  from  transubstantiation,  or  the 

*  Collier,  p.  248,  descants,  in  the  true  spirit  of  a 
hieh  churchman,  on  the  importance  of  confession. 
This  also,  as  is  well  known,  is  one  of  the  points 
on  which  his  party  disagreed  with  the  generality 
of  Protestants. 


Refokmation-.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


61 


change,  at  the  moment  of  consecration,  of 
the  substances  of  bread  and  wine  into  those 
of  Christ's  body  and  blood  ;  the  accidents, 
in  scliool  language,  or  sensible  qualities  of 
the  former  remaining,  or  becoming  inherent 
in  the  new  substance.  This  doctiine  does 
not,  as  vulgarly  supposed,  contradict  the  evi- 
dence of  our  senses,  since  our  senses  can 
report  nothing  as  to  the  unknown  being, 
which  the  schoolmen  denominated  sub- 
stance, and  which  alone  was  the  subject  of 
this  conversion.  But  metaphysicians  of  lat- 
er ages  might  inquire  whether  materiiiJ  sub- 
stances, abstractedly  considered,  exist  at  all, 
or,  if  they  exist,  whether  they  can  have  any 
specific  distinction  except  their  sensible  qual- 
ities. This,  perhaps,  did  not  suggest  itself 
in  the  sixteenth  century  ;  but  it  was  strongty 
objected  that  the  simultaneous  existence  of 
a  body  in  many  places,  which  the  Roman 
doctrine  implied,  was  inconceivable,  and 
even  contradictory.  Luther,  partly,  as  it 
seems,  out  of  his  determination  to  multiply 
differences  with  the  Church,  invented  a 
theory  somewhat  different,  usually  called 
consubstantiation,  which  was  adopted  in  the 
Confession  of  Augsburg,  and  to  which,  at 
least  down  to  the  middle  of  the  eighteenth 
century,  the  divines  of  that  communion 
were  much  attached.  They  imagined  the 
two  substances  to  be  united  in  the  sacra- 
mental elements,  so  that  they  might  be 
termed  bread  and  wine,  or  the  body  and 
blood,  with  equal  propriety.*  But  it  must 
be  obvious  that  there  is  little  more  than  a 
metaphysical  distinction  between  this  doc- 
ti-ine  and  that  of  Rome ;  though,  when  it 
suited  the  Lutherans  to  magnify,  rather 
than  dissemble,  their  deviations  from  the 
mother  church,  it  was  raised  into  an  im- 
portant difference.  A  simpler  and  more 
rational  explication  occmTed  to  Zuingle  and 
05  colampadius,  from  whom  the  Helvetian 
Protestants  imbibed  their  faith.  Rejecting 
every  notion  of  a  real  presence,  and  divest- 
ing the  institution  of  all  its  mystery,  they 
saw  only  figurative  symbols  in  the  elements 
which  Christ  had  appointed  as  a  commem- 
oration of  his  death.  But  this  novel  opinion 
excited  as  much  indignation  in  Luther  as  in 

*  Nostra  sententia  est,  says  Luther,  apnd  Bur- 
net, 111.  Appendix,  194,  corpus  ita  cum  pane, 
Beu  in  pane  esse,  ut  revera  cum  pane  manducetur, 
et  quemcunque  motum  vel  actionem  panis  habet, 
euadem  et  coi-pus  Cliristi. 


the  Romanists.  It  was,  indeed,  a  rock  on 
which  the  Reformation  was  nearly  ship- 
wrecked; since  the  violent  contests  which 
it  occasioned,  and  the  narrow  intolerance 
which  one  side  at  least  displayed  through- 
out the  controversy,  not  only  weakened  on 
several  occasions  the  temporal  power  of  the 
Protestant  Churches,  but  disgusted  many 
of  those  who  might  have  inclined  toward 
espousing  theh  sentiments.  Besides  these 
three  hypotheses,  a  fourth  was  promulgated 
by  Martin  Bucer  of  Strasburgh,  a  man  of 
much  acuteness,  but  prone  to  metaphysical 
subtilty,  and  not,  it  is  said,  of  a  very  ingenu- 
ous character.*  Bucer,  as  I  apprehend, 
though  his  expressions  are  unusually  con- 
fused, did  not  acknowledge  a  local  presence 
of  Christ's  body  and  blood  in  the  elements 
after  consecration — so  far  concuiring  with 
the  Helvetians  ;  while  he  contended  that 
they  were  really,  and  without  figure,  re- 
ceived by  the  worthy  communicant  through 
faith,  so  as  to  preserve  the  belief  of  a  mys- 
terious union,  and  of  what  was  sometimes 
called  a  real  presence.  Bucer  himself  came 
to  England  early  in  the  reign  of  Edwiii-d, 
and  had  a  considerable  share  in  advising  the 
measures  of  reformation.  But  Peter  Mar- 
tyr, a  disciple  of  the  Swiss  school,  had  also 
no  small  influence.  In  the  Forty-two  Ar- 
ticles set  forth  by  authority,  the  real  or  cor- 
poreal piesence,  using  these  words  as  sy- 
nonymous, is  explicitly  denied.  This  clause 
was  omitted  on  the  revision  of  the  articles 
under  Elizabeth. f 

VI.  These  various  innovations  were  ex- 
ceedingly inimical  to  the  influence  and  in- 
terests of  the  priesthood.  But  that  order 
obtained  a  sort  of  compensation  in  being  re- 
leased from  its  obligation  to  celibacy.  This 

*  "Bucer  thought,  that  for  avoiding  contention, 
and  for  maintaining:  peace  and  quietness  in  the 
Cliurch,  somewhat  more  ambiguous  Vfords  should 
be  used,  that  might  have  a  respect  to  both  per- 
suasions concerning  the  presence.  But  Martyr 
was  of  another  judgment,  and  affected  to  speak 
of  the  sacrament  with  all  plainness  and  perspi- 
cuity."— Stiype,  ii.,  121.  Tlie  ti-uth  is,  that  there 
were  but  two  opinions  at  bottom  as  to  this  main 
point  of  the  couti'oversy ;  nor  in  the  nature  of 
things  was  it  possible  that  there  should  be  more  ; 
for  what  can  be  predicated  concerning  a  body,  in 
its  relation  to  a  given  space,  but  presence  and  ab- 
sence ? 

t  Buniet,  ii.,  10.5.  App.,  216.  Sti-j-pe,  ii.,  121, 
208.  Collier,  &c.  The  Calviuists  certainly  did 
not  own  a  local  presence  in  the  elements. 


G2 


CONSTITUTIONAL  HISTOEY  OP  ENGL^D 


[Chap.  IL 


obligation,  though  unwaiTanted  by  Scrip- 
tiu-e,  rested  on  a  most  ancient  and  universal 
rale  of  discipline  ;  for  though  the  Greek  and 
Eastern  churches  have  always  pennitted 
the  ordination  of  man-ied  persons,  yet  they 
do  not  allow  those  aheady  ordained  to  take 
wives.  No  veiy  good  reason,  however,  could 
be  given  for  this  distinction ;  and  the  con- 
sti'ained  celibacy  of  the  Latin  clergy  had 
given  rise  to  mischiefs,  of  which  their  gen- 
eral practice  of  retaining  concubines  might 
be  reckoned  among  the  smallest.*  The 
German  Protestants  soon  rejected  this  bur- 
den, and  encouraged  regular  as  well  as  sec- 
ular priests  to  marry.  Cranmer  had  him- 
self taken  a  wife  in  Germany,  whom  Hen- 
ly's  law  of  the  Six  Articles,  one  of  which 
made  the  marriage  of  priests  felony,  com- 
pelled him  to  send  away.  In  the  reign  of 
Edward  this  was  justly  reckoned  an  indis- 
pensable part  of  the  new  Refoitnation.  But 
the  biU  for  that  purpose  passed  the  Lords 
with  some  little  difficulty,  nine  bishops  and 
four  peers  dissenting ;  and  its  preamble  cast 
such  an  imputation  on  the  practice  it  allow- 
ed, h'eating  the  marriage  of  priests  as  ig- 
nominious and  a  tolerated  evil,  that  another 
act  was  thought  necessary  a  few  years  af- 
te Inward,  when  the  Refomiation  was  better 
established,  to  vindicate  this  right  of  the 
Protestant  Church. f  A  gi-eat  number  of 
the  clergy  availed  themselves  of  their  liber- 
ty ;  which  may  probably  have  had  as  ex- 
tensive an  effect  in  conciliating  the  ecclesi- 
astical profession,  as  the  suppression  of  mon- 
astei'ies  had  in  rendering  the  gentiy  favor- 
able to  the  new  order  of  religion. 

But  great  as  was  the  number  of  those 

^  whom  conviction  or  self-interest 

Opposition  ,.  ,  ,  ,  T,  , 
made  bvpart  enlisted  under  the  Protestant  ban- 
ofthenkt.on.  ^^^.^  appears  plain  that  the  Ref- 
onnation  moved  on  with  too  precipitate  a 
step  for  the  majority.  The  new  docti-ines 
prevailed  in  London,  in  many  large  towns, 
and  in  the  eastern  counties.  But  in  the 
north  and  west  of  England,  the  body  of  the 


*  It  appears  to  have  been  common  for  the  cler- 
gy.  By  license  from  their  bishops,  to  retain  concu- 
bines, who  were,  Collier  says,  for  the  most  part 
their  wives,  p.  262.  But  I  do  not  clearly  under- 
stand in  what  the  distinction  could  have  consist- 
ed :  for  it  seems  unlikely  that  maniaires  of  priests 
were  ever  solemnized  at  so  late  a  period,  or  if 
they  were,  they  were  invalid. 

t  Stat.  2  and  3  Edw.  6,  c.  21.  5  and  6  Edw.  6, 
c.  12.    Bumct,  89. 


people  were  strictly  Catholics.  The  clergy, 
though  not  very  scrapulous  about  confomi- 
ing  to  the  innovations,  were  generally  averse 
to  most  of  them.*  And  in  spite  of  the 
Church  lands,  I  imagine  that  most  of  the 
nobility,  if  not  the  gentiy,  inclined  to  the 
same  persuasion ;  not  a  few  peers  having 
sometimes  dissented  from  the  bills  passed  on 
the  subject  of  religion  in  this  reign,  while  no 
sort  of  disagi-eement  i^ppears  in  the  Upper 
House  during  that  of  Maiy.  In  the  west- 
ern insuiTection  of  1.549,  which  partly  orig- 
inated in  the  alleged  grievance  of  inclosures, 
many  of  the  demands  made  by  the  I'ebels  go 
to  the  entire  re-establishment  of  popery. 
Those  of  the  Norfolk  insurgents  in  the  same 
year,  whose  political  complaints  were  the 
same,  do  not,  as  far  as  I  perceive,  show  any 
such  tendency.  But  a  historian,  whose  bias 
was  certainly  not  unfavorable  to  Protestant- 
ism, confesses  that  all  endeavors  were  too 
weak  to  overcome  the  aversion  of  the  peo- 
ple toward  reformation,  and  even  intimates 
that  German  ti-oops  were  sent  for  fi-om  Ca- 
lais, on  account  of  the  bigotry  with  which 
the  bulk  of  the  nation  adhered  to  the  old 
superstition.!  This  is  somewhat  a  humil- 
iating admission,  that  the  Protestant  faith 
was  imposed  upon  our  ancestors  by  a  foreign 
aiTny.  And  as  the  Refonners,  though  stiU 
the  fewer,  were  undeniably  a  great  and  in- 
creasing party,  it  may  be  natural  to  inquire, 
whether  a  regard  to  policy  as  well  as  equi- 
table considerations  should  not  have  repress- 
ed still  more,  as  it  did  in  some  measure,  the 


*  2  Strype,  53.  Latimer  pressed  the  necessity 
of  expelUng  these  temporizing:  conformists  :  "  Out 
with  them  all !  I  requu'e  it  in  God's  behalf:  make 
tliem  qnondams,  all  the  pack  of  them." — Id.,  204. 
Burnet,  143. 

t  Burnet,  iii.,  190,  196.  "The  use  of  the  old  re- 
ligion," saj-s  Paget,  in  remonstrating  with  Somer- 
set on  his  rough  treatment  of  some  of  the  gentry, 
and  partiality  to  tlie  Commons,  "  is  forbidden  by  a 
law,  and  the  use  of  the  new  is  not  yet  printed  in 
the  stomachs  of  eleven  out  of  twelve  parts  of  the 
realm,  whatever  countenance  men  make  outward, 
ly  to  please  them  in  whom  they  see  the  power 
resteth." — Strype,  ii.  Appendix,  H.  H.  This 
seems  rather  to  refer  to  the  upper  classes  than  to 
the  whole  people.  But,  at  any  rate,  it  was  an  ex- 
aggeration of  the  fact,  the  Protestants  being  cer- 
tainly in  a  much  greater  proportion.  Paget  was 
the  adviser  of  the  scheme  of  sending  for  German 
troops  in  1549,  which,  however,  was  in  order  to 
quell  a  seditious  spirit  in  the  nation,  not  by  any 
means  wholly  founded  upon  reUgious  grounds. — 
Strv-pe,  xi.,  169. 


Reformatio!*.] 


FROM  HENRY  VH.  TO  GEORGE  II. 


63 


zeal  of  Cranmer  and  Somerset  ?  It  might 
be  asked,  whether,  in  the  acknowledged  co- 
existence of  t\vo  religions,  some  preference 
were  not  fairly  claimed  for  the  creed  which 
all  had  once  held,  and  which  the  greater 
part  yet  retained ;  whether  it  were  becom- 
ing that  the  counselors  of  an  infant  king 
should  use  such  violence  in  breaking  up 
the  ecclesiastical  constitution ;  whether  it 
were  to  be  expected  that  a  free-spirited 
people  should  see  their  consciences  thus 
transferred  by  proclamation,  and  aU  that 
they  had  learned  to  venerate  not  only  torn 
away  from  them,  but  exposed  to  what  they 
must  reckon  blasphemous  contumely  find 
profanation  ?  The  demolition  of  shrines  and 
images,  far  unlike  the  speculative  disputes 
of  theologians,  was  an  overt  insult  on  every 
Catholic  heart.  Still  more  were  they  ex- 
asperated at  the  ribaldry  which  vulgar  Prot- 
estants uttered  against  their  most  sacred 
mystery.  It  was  found  necessaiy,  in  the 
very  first  act  of  the  first  Protestant  Parlia- 
ment, to  denounce  penalties  against  such  as 
spoke  irreverently  of  the  sacrament,  an  in- 
decency not  luiusual  witli  those  who  held 
the  Zuinglian  opinion  in  that  age  of  coarse 
pleasantly  and  luuiiixed  invective.*  Nor 
could  the  people  repose  mucli  confidence  in 
the  judgment  and  sincerity  of  theii-  govern- 
ors, whom  they  had  seen  suljinitting,  with- 
out outward  repugnance,  to  Henry's  various 
schemes  of  religion,  and  whom  they  saw 
every  day  enriching  themselves  with  the 
plunder  of  the  Church  they  affected  to  re- 
form. There  was  a  sort  of  endowed  col- 
leges or  fraternities,  called  chantiues,  con- 
sisting of  secular  priests,  whose  duty  was  to 
say  daily  masses  for  the  founders.  These 
were  abolished  and  given  to  the  king  by  acts 
of  Parliament  in  the  last  year  of  Henry  and 
the  first  of  Edward.  It  was  intimated  in 
the  preamble  of  the  latter  statute  that  their 
revenues  should  be  converted  to  the  erec- 
tion of  schools,  the  augmentation  of  the  vmi- 
versities,  and  the  sustenance  of  the  indi- 
gent.!   ^I't  tliis  was  entirely  neglected,  and 

*  2  Edw.  6,  c.  1.    Stiype,  xi.,  81. 

t  37  ir.  8,  c.  2.  1  Edw.  6,  c.  11.  Stiype,  ii., 
63.  Biiriict,  &c.  Cranmer,  as  well  as  the  Catlio- 
lic  bisliops,  protested  against  tliis  act,  well  know- 
ing how  little  rcgai'd  would  be  paid  to  its.intention. 
In  the  latter  part  of  the  young  king's  reign,  as  he 
became  more  capable  of  exerting  his  own  power, 
he  endowed,  as  is  well  known,  several  excellent 
foundations. 


the  estates  fell  into  the  hands  of  the  com  t- 
iers.  Nor  did  they  content  thenis<"lves 
with  this  escheated  wealth  of  the  Church. 
Almost  every  bishopric  was  spoiled  by  their 
J  ravenous  power  in  this  reign,  either  through 
mere  alienations,  or  long  leases,  or  unequal 
exchanges.  Exeter  and  Llandatf,  from  be- 
j  ing  among  the  richest  sees,  fell  into  the 
j  class  of  the  poorest.  Litchfield  lost  the 
i  chief  part  of  its  lands  to  raise  an  estate  for 
Lord  Paget.  London,  Winchester,  and 
even  Canterbury,  suffered  considerably. 
The  Duke  of  Somerset  was  much  beloved ; 
yet  he  had  given  no  unjust  oflTense  by  pull- 
ing down  some  churches  in  order  to  erect 
Somerset  House  with  the  materials.  He 
had  even  projected  the  demolition  of  West- 
minster Abbey  ;  but  the  chapter  averted  this 
outrageous  piece  of  rapacity,  sufTicient  of 
itself  to  characterize  that  age,  by  the  usual 
method,  a  grant  of  some  of  their  estates.* 

Tolerance  in  religion,  it  is  well  known,  so 
unanimously  admitted  (at  least  verbally)  even 
by  theologians  in  the  present  centuiy,  was 
seldom  considered  as  practicable,  much  less 
as  a  matter  of  right,  during  the  period  of 
the  Reformation.  The  diflerence  in  this 
respect  between  the  Catholics  and  Protes- 
tants was  only  in  degree,  and  in  degi*ee 

*  Stiype,  Burnet,  Collier,  passim.  Haraier's 
Specimen's,  100.  .Sir  Philip  Hobby,  oiu-  minister 
ill  Gemiany,  writes  to  the  Protector  in  l.")-18,  that 
the  foreign  Protestants  thought  our  bishops  too 
rich,  and  advises  him  to  reduce  them  to  a  compe- 
tent living ;  he  particularly  recommends  his  taking 
away  all  the  prebends  in  England.  Sti-ype,  68. 
These  counsels,  and  the  acts  which  they  prompted, 
disgust  us,  from  the  spirit  of  rapacity  they  breathe. 
Yet  it  might  be  urged  with  some  force,  that  the 
enonnous  wealth  of  the  superior  ecclesiastics  had 
been  the  main  cause  of  those  conuptions  which  it 
was  sought  to  cast  away,  and  that  most  of  the  dig- 
nitaiies  were  vevy  averse  to  the  new  religion. 
Even  Cranmer  had  written  some  years  before  to 
Cromwell,  deprecating  the  establishment  of  any 
prebends  out  of  the  conventual  estates,  and  speak- 
ing of  tlie  collegiate  clergy  as  an  idle,  ignorant,  and 
gormandizing  race,  who  might,  without  any  harm, 
be  extinguished  along  with  the  regulars.  Burnet, 
iii.,  141.  But  the  gross  selfishness  of  the  great 
men  in  Edwai-d's  reign  justly  made  him  anxious  to 
save  what  he  could  for  the  Church,  that  seemed  on 
the  brink  of  absolute  rain.  Collier  mentions  a  char- 
acteristic circiunstance.  So  great  a  quantity  of 
church  plate  had  been  stolen,  that  a  commission 
was  appointed  to  inquire  into  the  f;icts,  and  compel 
its  restitution.  Instead  of  this,  the  commissioners 
foimd  more  left  than  they  thought  sufficient,  and 
seized  the  gi-eater  part  to  the  king's  use. 


64 


CONSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  IL 


there  vf(\s  much  less  difference  tlian  we  are 
apt  to  believe.  Persecution  is  the  deadly 
original  sin  of  the  Reformed  churches  ;  that 
which  cools  eveiy  honest  man's  zeal  for 
their  cause,  in  proportion  as  his  reading 
becomes  more  extensive.  The  Lutheran 
princes  and  cities  in  Germany  constantly  re- 
fused to  tolerate  the  use  of  the  miiss  as  an 
idolatrous  service  ;*  and  this  name  of  idola- 
tiy,  though  adopted  in  retaliation  for  that  of 
heresy,  answered  the  same  end  as  the  oth- 
er, of  exciting  animosity  and  uncharitable- 
ness.  The  Roman  worship  was  equally 
proscribed  in  England.  Many  persons  were 
sent  to  prison  for  hearing  mass  and  similar 
offenses. f  The  Princess  Maiy  supplica- 
ted iu  vain  to  have  the  exercise  of  her  own 
religion  at  home,  and  Charles  V.  several 
times  interceded  in  her  behalf ;  but  though 
Cranmer  and  Ridley,  as  well  as  the  coun- 
cil, would  have  consented  to  this  indulgence, 
the  young  king,  whose  education  had  un- 
happily infused  a  good  deal  of  bigotiy  into 
his  mind,  could  not  be  prevailed  upon  to  con- 
nive at  such  idolatry. J  Yet  in  one  memo- 
rable instance  he  had  shown  a  milder  spirit, 
stmggling  against  Cranmer  to  save  a  fanat- 
ical woman  from  the  punishment  of  heresy. § 

*  They  declared,  in  the  famous  protestation  of 
Spire,  which  gave  them  the  name  of  Protestants, 
that  their  preachers  having  confuted  the  mass  by 
passages  m  Scripture,  thej-  could  not  permit  their 
subjects  to  go  thither,  since  it  would  afford  a  bad 
example  to  suffer  two  sorts  of  sei^vice,  directlj-  op- 
posite to  each  other,  in  their  churches. — Schmidt, 
Hist,  des  AUemauds,  vi.,  394 ;  vii.,  24. 

t  Stat.  2  ic  3  Edw.  6,  c.  1.  Strype's  Cranmer, 
p.  233. 

i  Burnet,  192.  Somerset  had  always  allowed 
her  to  exercise  her  reUgion,  though  censured  for 
this  by  Warwick,  who  died  himself  a  papist,  but 
had  pretended  to  fall  in  with  the  young  king's 
prejudices.  Her  ill  treatment  was  subsequent  to 
the  Protector's  overthrow.  It  is  to  be  observed, 
that,  iu  her  father's  life,  she  had  acknowledged  his 
supremacy,  and  the  justice  of  lier  mother's  divorce. 
— IStiype,  285.  2  Buniet,  241.  Lingard,  vi.,  326. 
It  was,  of  course,  by  intimidation ;  but  that  excuse 
might  be  made  for  others.  Cranmer  is  said  to  liave 
persuaded  Henry  not  to  put  her  to  death,  which 
we  must  in  charity  hope  she  did  not  know. 

§  It  has  been  pointed  out  to  me  by  a  correspond- 
ent, that  Mr.  Bnice,  in  his  edition  of  Roger  Hutch- 
inson's works  (Parker  Society,  1842,  preface,  p.  8), 
has  given  sti-ong  reasons  for  qiiestioning  tliis  re- 
monstrance of  Jidward  with  Cranmer,  which  rests 
originally  on  no  authority  but  that  of  Fox.  In 
some  of  its  circumstances,  the  storj-  told  by  Fox  is 
certainly  disproved;  but  it  is  not  impossible  that 
the  young  king  may  have  expressed  his  reluctance 


This  is  a  stain  upon  Cranmer's  memory 
which  nothing  but  his  own  death  could  have 
lightened.  In  men  hardly  escaped  fi  om  a 
similar  peril,  in  men  who  had  nothing  to 
plead  but  the  right  of  private  judgment,  in 
men  who  liad  defied  the  prescriptive  author- 
ity of  past  ages  and  of  established  power, 
the  crime  of  persecution  assumes  a  far  deep- 
er hue,  and  is  capable  of  far  less  extenuation, 
!  than  in  a  Roman  inquisitor.  Thus  the  death 
of  SeiTetus  h;is  weighed  down  the  name  and 
memory  of  Calvin.  And  though  Cranmer 
was  incapable  of  the  rancorous  malignity  of 
the  Genevan  lawgiver,  j'et  I  regret  to  say 
that  there  is  a  peculiar  circumstance  of  £ig- 
gravation  in  his  pursuing  to  death  this  wom- 
an, Joan  Boucher,  and  a  Dutchman  that  had 
been  convicted  of  Arianism.  It  is  said  that 
he  had  been  accessoiy  in  the  preceding 
reign  to  the  condemnation  of  Lambert,  and 
perhaps  some  others,  for  opinions  concern- 
ing the  Lord's  Supper  which  he  had  him- 
self aftenvard  embraced.*  Such  an  evi- 
dence of  the  fallibility  of  human  judgment, 
such  an  example  that  persecutions  for  her- 
esy, how  conscientiously  soever  managed, 
are  liable  to  end  in  shedding  the  blood  of 
those  who  maintain  truth,  should  have  taught 
him,  above  all  inen,  a  scrupulous  repugnance 
to  cany  into  effect  those  sanguinary  laws. 
Compared  with  these  executions  for  here- 
sy, the  imprisonment  and  deprivation  of 
Gai'diner  and  Bonner  appear  but  measures 
of  ordinary  severity  toward  political  adver- 
saries under  the  pretext  of  religion  ;  yet  are 
they  wholly  unjustifiable,  particularly  in  the 
former  instance  ;  and  if  the  subsequent  re- 
taliation of  those  bad  men  was  beyond  all 
proportion  excessive,  we  should  remeinber 
that  such  is  the  natm'al  consequence  of  ty- 
rannical  aggressions. f 

to  have  the  sentence  caiTied  into  execution,  though 
his  sigiiature  of  the  warrant  was  not  required. 
This,  however,  is  mere  conjectm-e  ;  and  perhaps  it 
ma3'  be  better  that  the  whole  anecdote  should  van- 
ish from  historj-.  This,  of  course,  mitigates  the 
censure  on  Cranmer  in  the  text  to  an  indefinite  de- 
gree. 1845. 

*  When  Joan  Boucher  was  condemned,  she  said 
to  her  judges,  "  It  was  not  long  ago  since  you  burn- 
ed Amie  Askew  for  a  piece  of  bread,  and  yet  came 
yourselves  soon  after  to  believe  and  profess  the 
same  doctiine  for  which  you  burned  her;  and  now 
you  vi-ill  "needs  bum  me  for  a  piece  of  flesh,  and  in 
the  end  you  will  come  to  believe  this  also,  when 
you  have  read  the  Scriptures  and  understand 
them." — Stiype,  ii.,  214. 
t  Gardiner  had  some  virtues,  and  entertained 


Reformation.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


65 


The  person  most  conspicuous,  though 
Ridley  was  perhaps  the  most  learn- 
ed divine,  in  molding  the  faith  and 
discipline  of  the  English  Church,  which  has 
not  been  very  materially  altered  since  his 
time,  was  Archbishop  Cranmer.*  Few 

sounder  notions  of  the  ci\41  constitution  of  England 
than  his  adversaries.  In  a  letter  to  Sir  John  God- 
salve,  giving  his  reasons  for  refusing  compUance 
with  the  injunctions  issued  hy  the  council  to  the 
ecclesiastical  visitors  (which,  Burnet  says,  does 
him  more  honor  than  any  thing  else  in  his  life),  he 
dwells  on  the  king's  wantmg  power  to  command 
any  thing  contraiy  to  common  law,  or  to  a  statute, 
and  brings  authorities  for  this. — Buniet,  ii.  Ap- 
pend., 112.  See,  also,  Lingard,  vi.,  387,  for  another 
instance.  Nor  was  tins  regard  to  tlie  Constitution 
displaj'ed  only  when  out  of  the  siuisliine.  For  in 
the  next  reign  he  was  against  despotic  counsels,  of 
which  an  instance  has  been  given  in  the  last  chap- 
ter. His  conduct,  indeed,  witli  i-espect  to  the 
Spanish  connection  is  equivocal.  He  was  much 
against  the  marriage  at  first,  and  took  credit  to 
himself  for  the  securities  exacted  in  the  treaty  with 
Philip,  and  established  by  statute. — Burnet,  ii., 
267.  But  afterward,  if  we  may  trust  Noailles,  he 
fell  in  with  the  Spanish  party  in  the  council,  and 
even  suggested  to  Parliament  that  the  queen  should 
have  the  same  power  as  her  father  to  dispose  of 
the  succession  by  will. — Ambassades  de  NoaiUes, 
iii.,  153,  &c.,  &c.  Yet,  according  to  Dr.  Lingard, 
on  the  imperial  ambassador's  authority,  he  saved 
Elizabeth's  life  against  all  the  council.  The  article 
Gardinek,  in  the  Biograpliia  Britannica,  contains 
an  elaborate  and  partial  apologj-,  at  great  length; 
and  the  historian  just  quoted  has  of  course  said  all 
he  could  in  favor  of  one  who  labored  so  strenuously 
for  the  extii-pation  of  the  northeni  heresy.  But  he 
was  certainly  not  an  honest  man,  and  had  been 
active  in  Heiu'y's  reign  against  his  real  opinions. 

Even  if  the  ill  treatment  of  Gardiner  and  Bonner 
by  Edward's  counsel  could  be  excused  (and  the  lat- 
ter, by  his  rudeness,  might  deserve  some  pmiish- 
ment),  what  can  be  said  for  the  imprisomnent  of 
the  bishops  Heath  and  Day,  worthy  and  moderate 
men,  who  had  gone  a  great  way  with  the  Refor- 
mation, but  objected  to  the  removal  of  altars,  an 
innovation  by  no  means  necessaiy,  and  which 
sliould  have  beendefeiTed  till  the  people  had  gi-own 
ripe  for  further  cliange  ?  Mr.  Southey  says,  "  Gar- 
diner and  Bormer  were  deprived  of  their  sees,  and 
imprisoned  ;  but  no  rigor  was  used  toward  them." 
— Book  of  the  Church,  ii.,  111.  Liberty  and  prop- 
erty being  trifles ! 

*  The  doctrines  of  the  English  Chm-ch  were  set 
forth  in  Forty-two  Articles,  drawn  u[),  as  is  gen- 
erally believed,  by  Craruner  and  Ridley,  with  the 
advice  of  Buccr  and  MartjT,  and  perhaps  of  Cox. 
The  last  three  of  these,  condemning  some  novel 
opinions,  were  not  renewed  under  Elizabeth,  and 
a  few  other  variations  were  made  ;  but,  upon  the 
whole,  there  is  little  difference,  and  none,  perhaps, 
in  tliose  tenets  which  have  been  most  the  object 
of  discussion.  See  the  original  Articles  in  Buniet, 
ii.  App.,  N.  55.  They  were  never  confinned  by 
E 


men,  about  whose  conduct  there  is  so  Uttle 
room  for  conti'oversy  upon  facts,  have  been 
represented  in  more  opposite  lights.  We 
know  the  favoring  colors  of  Protestant  writ- 
ers ;  but  turn  to  the  bitter  invective  of  Bos- 
suet,  and  the  patriarch  of  our  Reformed 
Church  stands  forth  as  the  most  abandoned 
of  time-serving  hypocrites.  No  political 
factions  afll'ect  the  impartiality  of  men's 
judgment  so  grossly  or  so  permanently  as 
religious  heats.  Doubtless,  if  we  should  re- 
verse the  picture,  and  imagine  tlie  end  and 
scope  of  Cranmer's  labor  to  have  been  the 
establishment  of  the  Roman  Catholic  relig- 
ion in  a  Protestant  countiy,  the  estimate 
formed  of  his  behavior  would  be  somewhat 
less  favorable  than  it  is  at  present.  If,  cast- 
ing away  all  prejudice  on  either  side,  we 
weigh  the  character  of  this  prelate  in  an 
equal  balance,  he  will  appear  far  indeed  re- 
moved from  the  turpitude  imputed  to  him 
by  his  enemies,  yet  not  entitled  to  any  ex- 
ti'aordinaiy  veneration.  Though  it  is  most 
etninently  true  of  Cranmer  that  his  faults 
were  always  the  effect  of  circumstances, 
and  not  of  intention,  yet  this  palliating  con- 
sideration is  rather  weakened  when  we  rec- 
ollect that  he  consented  to  place  himself  in 
a  situation  where  those  circumstances  oc- 
curred. At  the  time  of  Cranmer's  elevation 
to  the  see  of  Canterbuiy,  Heniy,  though  on 
the  point  of  separating  forever  from  Rome, 
had  not  absolutely  determined  upon  so  strong 
a  measure,  and  his  policy  required  that  the 
new  archbishop  should  solicit  the  usual  bulls 
from  the  pope,  and  take  the  oath  of  canon- 
ical obedience  to  him.  Ci'anmer,  already  a 
rebel  from  that  dominion  in  his  heart,  had 
recourse  to  the  disingenuous  shift  of  a  pro- 
test, before  his  consecration,  that  "  he  did 
not  intend  to  restrain  himself  thereby  from 
any  thing  to  which  he  was  bound  by  his  du- 
ty to  God  or  the  king,  or  from  taking  part 
in  any  reformation  of  the  English  Church 

a  convocation  or  a  Parliament,  but  imposed  by  the 
king's  supremacy  on  all  the  clergy  and  on  the  uni- 
versities. His  death,  however,  ensued  before  they 
could  be  actually  subscribed.  [The  late  editor  of 
Cranmer's  works  thinks  lum  mainly  responsible 
for  the  Forty-two  Articles  :  he  probably  took  the 
advice  of  Ridley.  A  considerable  portion  of  them, 
including  those  of  chief  importance,  is  taken,  ahnost 
literally,  either  from  the  Augsburg  Confession,  or 
a  set  of  ai-ticles  agreed  upon  by  some  German  and 
English  divines  at  a  conference  in  1538.  Jenltins's 
Cramner,  preface  xxiii.,  3,  c.  vii. ;  also  vol.  iv.,  273, 
where  these  articles  are  printed  at  length,  1845.] 


66 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  11. 


which  he  might  judge  to  be  required."* 
This  first  deviation  from  integi'ity,  as  is  al- 
most always  the  case,  drew  after  it  many 
others,  and  began  that  discreditable  course 
of  temporizing  and  undue  compliance  to 
which  he  was  reduced  for  the  rest  of  Hen- 
ry's reign.  Cranmer's  abilities  were  not, 
perhaps,  of  a  high  order,  or,  at  least,  they 
were  unsuited  to  public  affairs  ;  but  his  prin- 
cipal defect  was  in  that  firmness  by  which 
men  of  more  ordinaiy  talents  may  insure 
respect.  Nothing  could  be  weaker  than 
his  conduct  in  the  usurpation  of  Lady  Jane, 
which  he  might  better  have  bold  ly  sustained, 
hke  Ridley,  as  a  step  necessary  for  the  con- 
servation of  Protestantism,  than  given  into 
against  his  conscience,  overpowered  by  the 
importunities  of  a  misguided  boy.  Had  the 
malignity  of  his  enemies  been  directed  rath- 
er against  his  reputation  than  his  life,  had 
he  been  permitted  to  survive  his  shame,  as 
a  prisoner  in  the  Tower,  it  must  have 
seemed  a  more  arduous  task  to  defend  the 
memorj-  of  Cranmer;  but  his  fame  has 
brightened  in  the  fire  that  consumed  him.f 
Those  who,  with  the  habits  of  thinking 
that  prevail  in  our  times,  cast  back  their  eyes 
on  the  reign  of  Edward  VI.,  will  gener- 

*  Strype's  Cranmer,  Appendix,  p.  9.  I  am  sor- 
ry to  find  a  respectable  writer  inclining  to  vindi- 
cate Cranmer  in  this  protestation,  which  Burnet 
admits  to  agree  better  with  the  maxims  of  the 
casuists  than  with  the  prelate's  sincerity :  Todd's 
Introduction  to  Cranmer's  Defense  of  the  True 
Doctrine  of  the  Sacrament  (1825),  p.  40.  It  is  of  no 
importance  to  inquire  whether  the  protest  were 
made  publicly  or  privately.  Nothing  can  possibly 
turn  upon  this.  It  was,  on  either  supposition,  un- 
known to  the  promisee,  the  pope  at  Home.  The 
question  is,  whether,  having  obtained  the  bulls  from 
Home  on  an  express  stipulation  that  he  should  take 
a  certain  oath,  he  had  a  right  to  offer  a  limitation, 
not  explauatorj",  but  utterly  inconsistent  with  it  ? 
We  are  sure  that  Cranmer's  views  and  intentions, 
which  he  very  soon  can-ied  into  effect,  were  ir- 
reconcilable with  any  sort  of  obedience  to  the  pope  ; 
and  if,  under  all  the  circumstances,  his  conduct  was 
justifiable,  there  would  be  an  end  of  all  promissory 
obligations  whatever. 

t  The  character  of  Cranmer  is  summed  up  ia  no 
unfair  manner  by  Mr.  C.  Butler,  Memoirs  of  English 
Catholics,  vol.  i.,  p.  139 ;  except  that  his  obtaining 
from  Amie  Boleyn  an  acknowledgment  of  her  sup- 
posed pre-contract  of  marriage,  having  proceeded 
from  motives  of  humanity,  ought  not  to  incur  much 
censure,  though  the  sentence  of  nullity  was  a  mere 
mockery  of  law.  Poor  Cranmer  was  compelled  to 
Bubscribe  not  less  than  six  recantations.  Strj-pe 
(iii.,  232)  had  the  integrity  to  publish  all  these, 
which  were  not  fully  known  before. 


I  ally  be  disposed  to  censure  the 

I  .  1      -n  ,      Hia  rriodera- 

I  precipitancy,  and  still  more  the  tion  in  m- 
exclusive  spirit,  of  our  piincipal  ^'"^''""S 

'  '  '  '        changes  not 

Reformers.  But  relatively  to  the  acceptable  to 
course  that  things  had  taken  in 
Germany,  and  to  the  feverish  zeal  of  that 
age,  the  moderation  of  Cranmer  and  Rid- 
ley, the  only  ecclesiastics  who  took  a  prom- 
inent share  in  these  measures,  was  very 
conspicuous,  and  tended  above  every  thing 

I  to  place  the  Anglican  Church  in  that  middle 
position  which  it  has  always  preserved  be- 
tween the  Roman  hierarchy  and  that  of 

;  other  Protestant  denominations.  It  is  man- 
ifest, from  the  history  of  the  Reformation 
in  Germany,  that  its  predisposing  cause  was 
the  covetous  and  aiTogant  charaicter  of  the 
superior  ecclesiastics,  founded  upon  vast 
temporal  authority  ;  a  yoke  long  borne  with 
impatience,  and  which  the  unanimous  adhe- 
rence of  the  prelates  to  Rome  in  the  period 
of  separation  gave  the  Lutheran  princes  a 
good  excuse  for  entirely  throwing  off.  Some 
of  the  more  temperate  Reformers,  as  Me- 
lanchthon,  would  have  admitted  a  limited  ju- 
risdiction of  the  episcopacy  ;  but,  in  genera), 
the  destruction  of  that  order,  such  as  it  then 
existed,  may  be  deemed  as  fundamented  a 
principle  of  the  new  discipline  as  any  theo- 
logical point  could  be  of  the  new  doctrine. 
But,  besides  that  the  subjection  of  ecclesi- 
astical to  civil  tribunals,  and  possibly  other 
causes,  had  rendered  the  superior  clergy  in 
England  less  obnoxious  than  in  Germany, 
there  was  this  important  difference  between 
the  two  countries,  that  several  bishops  from 
zealous  conviction,  many  more  from  pliabil- 
itj'  to  self-interest,  had  gone  along  with  the 
new-modelling  of  the  English  Church  by 
Henry  and  Edward,  so  that  it  was  perfect- 
ly easy  to  keep  up  that  form  of  government, 
in  the  regular  succession  which  had  usually 
been  deemed  essential,  though  the  foreign 
Reformers  had  neither  the  wish,  nor  possi- 
bly the  means,  to  presene  it.  Cranmer 
himself,  indeed,  during  the  reign  of  Henry, 
had  bent,  as  usual,  to  the  king's  despotic  hu- 
mor, and  favored  a  novel  theory  of  ecclesi- 
astical authority,  which  resolved  all  its  spir- 
itual as  well  as  temporal  powers  into  the 
roj'al  supremacy.  Accordingly,  at  the  ac- 
cession of  Edward,  he  himself,  and  several 
other  bishops,  took  out  commi.ssions  to  hold 
their  sees  during  pleasure.*    But  when  the 


Burnet,  ii.,  i. 


Reformation.] 


FROM  HENRY  VII. 


TO  GEORGE  II. 


67 


necessity  of  compliance  had  passed  by,  they 
showed  a  disposition  not  only  to  oppose  the 
continual  spoliation  of  Church  property,  but 
to  maintain  the  jurisdiction  which  the  canon 
law  had  conferred  upon  them.*  And  though, 
as  this  papal  code  did  not  appear  very  well 
adapted  to  a  Protestant  church,  a  new 
scheme  of  ecclesiastical  laws  was  drawn  up, 
which  the  king's  death  rendered  abortive, 
this  was  rather  calculated  to  strengthen  the 
hands  of  the  spiritual  courts  than  to  with- 
draw any  matter  from  their  cognizance. f 

*  There  are  two  curious  entries  in  the  Lords' 
Joum.,  14th  and  18th  of  Nov.,  1549,  which  point  out 
the  origin  of  tlie  new  code  of  ecclesiastical  law 
mentioned  in  the  next  note :  "  Hodie  quosti  snnt 
episcopi,  contemni  se  a  plebe,  audere  autem  nihil 
pro  potestate  su4  administrare,  eo  quod  per  publi- 
cas  quasdam  denuntiationes  quas  proclamationes 
vocant,  sublata  esset  peuitus  sua  jurisdictio,  adeo 
ut  neminem  judicio  sistere,  nullum  scelus  puuire, 
neniinem  ad  sedera  sacrani  cogere,  neque  caetera  id 
genus  raunia  ad  eos  pertinentia  exequi  auderent. 
Hffic  querela  ab  omnibus  pix)ceribus  non  sine  moe- 
rore  audita  est ;  et  ut  quam  citissim^  huic  malo 
Bubveuiretur,  injunctura  est  episcopis  ut  formulam 
aliquam  statuti  hkc  de  re  scriptam  traderent :  quee 
si  consilio  postea  praelecta  omnibus  ordinibus  pro- 
baretur,  pro  lege  omuibus  sententiis  sanciri  posset. 

"  18  Nov.  Hodie  lecta  est  billa  pro  jurisdictione 
episcopoi-um  et  alioram  ecclesiasticoruni,  quse  cum 
proceribus,  eo  quod  episcopi  nimis  sibi  arrogare 
vtierentur,  non  placeret,  visum  est  deligere  pru- 
dentes  aliquot  viros  utriusque  ordinis,  qui  habita 
matura  tants  rei  inter  se  deliberatione,  refen-ent 
tori  consilio  quid  pro  ratione  temporis  et  rei  ne- 
cessitate in  hac  causa  agi  expediret.''  Accord- 
ingly, the  Lords  appoint  the  Archbishop  of  Can- 
terbuiy,  the  Bisliops  of  Ely,  Durham,  and  Litch- 
field, Lords  Dorset,  Wharton,  and  Stafford,  with 
Chief-justice  Montague. 

t  It  had  been  enacted,  3  Edw.  6,  c.  11,  that 
thirty-two  commissioners,  half  clergy,  half  lay, 
should  be  appointed  to  draw  up  a  collection  of 
new  canons.  But  these,  according  to  Sti-ype,  ii., 
303  (though  I  do  not  find  it  in  the  act),  might  be 
reduced  to  eight,  without  presei'viug  the  equality 
of  orders;  and  of  those  nominated  in  Nov.,  3551, 
five  were  ecclesiastics,  three  laymen.  The  influ- 
ence of  the  former  shows  itself  in  the  collection, 
published  with  the  title  of  Refonnatio  Legum  Ec- 
clesiasticvim,  and  intended  as  a  complete  code  of 
Protestant  canon  law.  This  was  referred  for  re- 
visal  to  a  new  commission ;  but  the  king's  deatli 
ensued,  and  the  business  was  never  again  taken 
up.— Burnet,  ii.,  197.  Collier,  326.  The  Latin 
style  is  highly  praised ;  Cheke  and  Haddon,  the 
most  elegant  scholars  of  that  age,  having  been 
concerned  in  it.  This,  however,  is  of  small  im- 
portance. The  canons  are  founded  on  a  principle 
current  among  the  clergy,  that  a  rigorous  disci- 
pline, enforced  by  churcli  censures  and  the  aid  of 
the  civil  power,  is  the  best  safeguard  of  a  Chi-ist- 


The  policy,  or,  it  may  be,  the  prejudices 
of  Cranmer,  induced  him  also  to  retain  in 

ian  commonwealth  against  vice.  But  it  is  easy 
to  perceive  that  its  severity  would  never  have 
been  endured  in  this  country,  and  that  this  wag 
the  true  reason  why  it  was  laid  aside ;  not,  ac- 
cording to  the  improbable  refinement  witli  which 
Warburton  has  furnished  Kurd,  because  the  old 
canon  law  was  thought  more  favorable  to  the  pre- 
rogative of  the  crown.  Compare  Warburtou's 
Letters  to  Kurd,  p.  192,  with  the  latter's  Moral 
and  Political  Dialogues,  p.  308,  4th  edit. 

The  canons  trench  in  several  places  on  the 
known  province  of  the  common  law,  by  assigning 
specific  penalties  and  forfeitures  to  offenses,  as  in 
the  case  of  adultery ;.  and  though  it  is  true  that 
this  was  all  subject  to  the  conlinnation  of  Parlia- 
ment, yet  the  lawyers  would  look  with  their  usual 
jealousy  on  such  provisions  in  ecclesiastical  can- 
ons. But  the  great  sin  of  this  Protestant  legisla- 
tion is  its  extension  of  the  name  and  penalties  of 
heresy,  to  the  willful  denial  of  any  part  of  the  au- 
thorized Articles  of  Faith.  This  is  clear  from  the 
first  and  second  titles.  But  it  has  been  doubted 
whether  capital  punishments  for  this  offense  were 
intended  to  be  presei-ved.  Burnet,  always  favor- 
able to  the  Refonners,  asserts  that  they  were  laid 
aside.  Collier  and  Lingard,  whose  bias  is  the  oth- 
er way,  maintained  the  contrary'.  There  is,  it  ap- 
pears to  me,  some  difficulty  in  determining  this. 
That  all  persons  denying  any  one  of  the  articles 
might  he  turned  over  to  the  secular  power,  is  evi- 
dent. Yet  it  rather  seems  by  one  passage  in  the 
title,  de  judiciis  contra  hsereses,  c.  10,  that  infamy 
and  civil  disability  were  the  only  punishments  in- 
tended to  be  kept  up,  except  in  case  of  the  denial 
of  the  Christian  religion.  For  if  a  heretic  were, 
as  a  matter  of  course,  to  be  burned,  it  seems 
needless  to  provide,  as  in  this  chapter,  that  he 
should  be  incapable  of  being  a  witness,  or  of 
making  a  will.  Dr.  Lingard,  on  the  other  hand, 
says,  "  It  regulates  the  delivery  of  the  obstinate 
heretic  to  the  civil  magistrate,  that  he  may  suffer 
death  according  to  law."  The  words  to  which  he 
refers  are  these :  Cum  sic  penitus  insederit  er- 
ror, et  tam  alte  radices  egerit,  ut  nec  sententia 
quidem  excommunicationis  ad  veritatem  reus  in- 
flecti  possit,  turn  consumptis  omnibus  aliis  reme- 
diis,  ad  exti-eraum  ad  civiles  magistratus  ablege- 
tur  puniendus. — Id.,  tit.,  c.  4. 

It  is  generally  best,  where  the  words  are  at  all 
ambiguous,  to  give  the  reader  the  power  of  judg- 
ing for  himself  But  I  by  no  means  pretend  that 
Dr.  Lingard  is  mistaken.  On  the  contrary,  the 
language  of  this  passage  leads  to  a  strong  suspi- 
cion that  the  rigor  of  popish  persecution  was  in- 
tended to  remain,  especially  as  the  writ  de  haeret- 
ico  comburendo  was  in  force  by  law,  and  there  is 
no  hint  of  taking  it  away.  Yet  it  seems  mon- 
strous to  conceive  that  the  denial  of  predestina- 
tion (which,  by-the-way,  is  asserted  in  this  collec- 
tion, tit.  de  hajresibus,  c.  22,  with  a  shade  more  of 
Calvinism  than  in  the  Articles)  was  to  subject  any 
one  to  be  bui-ned  alive.  And.  on  the  other  hand, 
there  is  this  difficulty,  that  Arianism,  Pelagianism, 


68 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  II. 


the  Clim-ch  a  few  ceremonial  usages,  which 
the  Helvetic,  though  not  the  Lutheran,  Re- 
formers had  swept  away  ;  such  as  the  copes 
and  rochets  of  bishops,  and  the  surplice  of 
officiating  priests.  It  should  seem  incon- 
ceivable that  any  one  could  object  to  these 
vestments,  considered  in  themselves ;  far 
more,  if  they  could  answer  in  the  slightest 
degi'ee  the  end  of  conciliating  a  reluctant 
people.  But  this  motive,  unfortunately,  was 
often  disregarded  in  that  age  ;  and,  indeed, 
in  all  ages,  an  abhoirence  of  concession  and 
compromise  is  a  never-failing  characteristic 
of  religious  factions.    The  foreign  RefoiTn- 

popery,  Anabaptism,  are  all  pat  on  the  same  foot- 
ing; so  that,  if  we  deny  that  the  papist  or  free- 
willer  was  to  be  bunied,  we  must  deny  the  same 
of  the  anti-Trinitarian,  which  contradicts  the  prin- 
ciple and  practice  of  that  age.  Upon  the  whole.  I 
can  not  foi-m  a  decided  opinion  as  to  this  matter. 
Dr.  Lingard  does  not  hesitate  to  say,  "  Cranmer 
and  his  associates  perished  in  the  flames  wliicli 
they  had  prepared  to  kindle  for  the  destniction  of 
their  opponents." 

Upon  further  consideration,  I  incline  to  suspect 
that  the  temporal  punishment  of  heresy  was  in- 
tended to  be  fixed  by  act  of  Parliament ;  and 
probably  with  various  degrees,  which  will  ac- 
count for  the  indefinite  word  "  puniendus."  [A 
manuscript  of  the  Reformatio  Legum  in  the  Brit- 
ish Museum  (Harl.,  426)  has  the  following  clause 
after  the  word  puniendus:  "  Vel  ut  in  perpetuum 
pellatur  exilium,  vel  ad  aetemas  carceris  diprima- 
tur  tenebras,  vel  aUoqui  pro  magistratus  prudenti 
consideratione  plectendus,  ut  maxime  illius  con- 
version! expedire  ridentur." — Jenkins's  edition  of 
Craimier,  vol.  i.,  preface,  ex.  This  seems  to  prove 
that  capital  penalties  were  not  designed  by  the  orig- 
inal compilers  of  this  ecclesiastical  code.  1845.] 

The  language  of  Dr.  Lingard,  as  I  have  since 
observed,  about  "  suffering  death,"  is  taken  from 
Collier,  who  puts  exactly  the  same  construction 
on  the  canon. 

Before  I  quit  these  canons,  one  mistake  of  Dr. 
Lingard's  may  be  coiTected.  He  says  that  divor- 
ces were  allowed  by  them  not  only  for  adultery, 
but  cruelty,  desertion,  and  incompalibilily  of  tem- 
per. But  the  contrary  may  be  clearly  shown,  from 
tit.  de  mati-imonio,  c.  ]1,  and  tit.  de  divortiis,  c.  12. 
Divorce  was  allowed  for  something  more  tlian  in- 
compatibility of  temper;  namely,  capitalcs  inimi- 
citia;,  meaning,  as  I  conceive,  attempts  by  one 
paity  on  the  others  life.  In  this  respect,  their 
scheme  of  a  very  important  branch  of  social  law 
seems  far  better  than  our  own.  Notliing  can  be 
more  absurd  than  our  modem  privilegia,  our  acts 
of  Parliament  to  break  tlie  bond  between  an  adul- 
teress and  her  husband.  Nor  do  I  see  how  we 
can  justify  tlie  denial  of  redress  to  women  in  ev- 
ery case  of  adultery  and  desertion.  It  does  not 
follow  that  the  mairiage  tie  ought  to  be  dissolved 
as  easily  as  it  is  in  the  Lutheran  states  of  Ger- 
many. 


ers  then  in  England,  two  of  whom,  Bucer 
and  Peter  Martyr,  enjoyed  a  desei-ved  rep- 
utation, expressed  their  dissatisfaction  at 
seeing  these  habits  retained,  and  complain- 
ed, in  general,  of  the  backwardness  of  the 
English  Keformation.  Calvin  and  Bullin- 
ger  wrote  from  Switzerland  in  the  same 
strain.*  Nor  was  this  sentiment  by  any 
means  confined  to  strangers.  Hooper,  an 
eminent  divine,  having  been  elected  Bishop 
of  Gloucester,  refused  to  be  consecrated  in 
the  usual  dress.  It  marks,  almost  ludicrous- 
ly, the  spirit  of  those  times,  that,  instead  of 
permitting  him  to  decline  the  station,  the 
council  sent  him  to  prison  for  some  time, 
until  by  some  mutual  concessions  the  busi- 
ness was  adjusted. f  These  events  it  would 
hardly  be  worth  while  to  notice  in  such  a 
work  as  the  present,  if  they  had  not  beea 
the  prologue  to  a  long  and  serious  drama. 

It  is  certain  that  the  re-establishment  of 
popery  on  Mary's  accession  must  „ 
have  been  acceptable  to  a  large  sccuiion  un- 
part,  or,  perhaps,  to  the  majority, 
of  the  nation.  There  is  reiison,  however,  to 
believe  that  the  Reformed  doctrine  had 
made  a  real  progress  in  the  few  years  of 
her  brother's  reign.  The  counties  of  Nor- 
folk and  Suffolk,  which  placed  Mary  on  the 
throne  as  the  lawful  heir,  were  chiefly  Prot- 
estant, and  experienced  from  her  the  usual 
gratitude  and  good  faith  of  abigot.J  Noail- 
les  bears  witness,  in  many  of  his  dispatches, 
to  the  unwillingness  which  great  numbers 
of  the  people  displayed  to  endure  the  resto- 
ration of  popery,  and  to  the  queen's  excess- 
ive unpopularity,  even  before  her  maiTiage 
with  Philip  had  been  resolved  upon.§  As 
for  the  higher  classes,  they  partook  far  less 
than  their  inferiors  in  the  religious  zeal  of 
that  age.  Henry,  Edward,  Mary,  Eliza- 
beth, found  almost  an  equal  compliance  with 
their  varying  schemes  of  faith.  Yet  the 
larger  proportion  of  the  nobility  and  gentiy 
appear  to  have  preferred  the  Catholic  relig- 
ion. Several  peers  opposed  the  biUs  for 
reformation  under  Edward ;  and  others,  who 
had  gone  along  with  the  current,  became  ac- 

*  Stiype,  passim.  Burnet,  ii.,  154;  iii.,  Append., 
200.    Collier,  294,  303. 

t  Strj-pe,  Burnet.  The  former  is  the  more  ac- 
curate. 

X  Bumet,  237,  246.  3  Strj-pe,  10,  341.  No  part 
of  England  suffered  so  much  in  the  persecution. 

§  Ambassades  de  NoailleSj  vol.  ii.,  passim.  3 
Stn-pe,  100. 


Reforsiation.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


69 


tive  counselors  of  Mary.  Not  a  few  per- 
sons of  family  emigi-ated  in  the  latter  reign  ; 
but  with  the  exception  of  the  second  Earl 
of  Bedford,  who  suffered  a  short  imprison- 
ment on  account  of  religion,  the  Protestant 
martyrology  contains  no  confessor  of  supe- 
rior rank.*  The  same  accommodating  spir- 
it characterized,  upon  the  whole,  the  cler- 
gy, and  would  have  been  far  more  general  if 
a  considerable  number  had  not  availed  them- 
selves of  the  permission  to  marry  granted 
by  Edward,  which  led  to  their  expulsion 
from  their  cures  on  his  sister's  coming  to 
the  throne. f  Yet  it  was  not  the  temper  of 
Mary's  Parliaments,  whatever  pains  had 
been  taken  about  their  election,  to  second 
her  bigotry  in  surrendering  the  temporal 
fnaits  of  their  recent  schism.  The  bill  for 
restoring  first-fruits  and  impropriations  in 
the  queen's  hands  to  the  Church  passed  not 
*  Str)"pe,  iii.,  107.  He  reckons  the  emigrants 
at  BOO.  Life  of  Craiiraer,  314.  Of  these,  the  most 
illastrious  was  the  Duchess  of  Suffolk — not  the 
first  cousin  of  the  queen,  but,  as  has  been  sug- 
gested to  me,  the  sister  of  Charles  Brandon,  vfhose 
first  wife  was  sister  to  Henry  VIII.  In  the  Par- 
liament of  1555,  a  hill  sequestering  the  propeity 
of  "  the  Duchess  of  Suffolk  and  others,  contempt- 
uously gone  over  the  seas,"  was  rejected  by  the 
Commons  on  the  third  i-eading. — Journals,  6th 
Dec. 

It  must  not  be  understood  that  all  the  ai-istocra- 
cy  were  supple  hypocrites,  though  they  did  not 
expose  themselves  voluntarily  to  prosecution. 
Noailles  tells  us  that  the  Earls  of  Oxford  and 
Westmoreland,  and  Lord  Willoughby,  were  cen- 
sured by  the  council  fur  religion  ;  and  it  was 
thought  that  the  former  would  lose  his  title  (more 
probably  his  hereditary  office  of  chamberlain), 
which  would  be  conferred  on  the  Earl  of  Pem- 
broke, v.,  319.  Michele,  the  Venetian  ambassa- 
dor, in  his  Relazione  del  Stato  d'Inghiltcrra,  Lans- 
downe  MSS.,  840,  does  not  speak  favorably  of  the 
general  affection  toward  popeiy.  "  The  English 
ill  general,''  he  says,  "would  tuni  Jews  or  Turks  if 
their  sovereign  pleased  ;  but  the  restoration  of  the 
abbey  lauds  by  the  crown  keeps  alive  a  constant 
fear  among  those  who  possess  them." — Fol.  176. 
This  restitution  of  Church  lands  in  the  hands  of  the 
crown  cost  the  queen  £60,000  a  year  of  revenue. 

t  Parke  had  extravagantly  reckoned  the  number 
of  these  at  12,000,  which  Burnet  reduces  to  3000, 
vol.  iii.,  226.  But  upon  this  computation  they  form- 
ed a  verj'  considerable  body  on  the  Protestant  side. 
Burnet's  calculation,  however,  is  made  by  assuming 
the  ejected  ministers  of  the  diocese  of  Norwich  to 
have  been  in  the  ratio  of  the  whole,  which,  from  the 
eminent  Protestantism  of  that  district,  is  not  prob- 
able ;  and  Dr.  Lingard,  on  Wharton's  authority, 
who  has  taken  his  ratio  from  the  diocese  of  Canter- 
bmy,  thinks  they  did  not  amount  to  more  than 
about  1500. 


without  difficulty  ;  and  it  was  found  impos- 
sible to  obtain  a  repeal  of  the  act  of  suprem- 
acy without  the  pope's  explicit  confirmation 
of  the  abbey  lands  to  their  new  proprietors. 
Even  this  confirmation,  though  made  through 
the  legate  Cardinal  Pole,  by  virtue  of  a  full 
commission,  left  not  unreasonably  an  appre- 
hension that,  on  some  better  opportunity, 
the  imprescriptible  nature  of  Church  prop- 
erty might  be  urged  against  the  possessors.* 
With  these  selfish  considerations  others  of 
a  more  generous  nature  conspired  to  render 
the  old  religion  more  obnoxious  than  it  had 
been  at  the  queen's  accession.  Her  mar- 
riage with  Philip,  his  encroaching  disposi- 
tion, the  arbitrary  turn  of  his  counsels,  the 
insolence  imputed  to  the  Spaniards  who  ac- 
companied him,  the  unfortunate  loss  of  Ca- 
lais through  that  alliance,  while  it  thoroughly 
alienated  the  kingdom  from  Msiry,  created 
a  prejudice  against  the  religion  which  the 
Spanish  court  so  steadily  favored. f  So  vio- 
lent, indeed,  was  the  hatred  conceived  by 

*  Burnet,  ii.,  298;  iii.,  245.  But  see  Phillips's 
Life  of  Pole,  sect,  ix.,  contra  ;  and^Ridley's  answer 
to  this,  p.  272.  In  fact,  no  scheme  of  religion  would, 
on  the  whole,  have  been  so  acceptable  to  the  na- 
tion as  that  which  Henry  left  established,  consist- 
ing chiefly  of  what  was  called  Catholic  in  docti-ine, 
but  free  from  the  grosser  abuses  and  from  all  con- 
nection with  the  See  of  Rome.  Arbiti-ary  and  ca- 
pricious as  that  king  was,  he  carried  the  majority 
along  with  him,  as  I  believe,  in  all  great  points, 
both  as  to  what  he  renounced  and  what  he  retain- 
ed.   Michele  (Relazione,  &c.)  is  of  this  opinion. 

t  No  one  of  our  liistorians  has  been  so  severe  on 
Mary's  reign,  except  on  a  religious  account,  as 
Carte,  on  the  authority  of  the  letters  of  Noailles. 
Dr.  Lingard,  though  with  these  before  him,  has 
softened  and  suppressed,  till  this  queen  appears 
honest  and  even  amiable.  But,  admitting  that  the 
French  ambassador  had  a  temptation  to  exagger- 
ate the  faults  of  a  govenunent  wholly  devoted  to 
Spain,  it  is  manifest  that  Maiy's  reign  was  inglori- 
ous, her  capacity  narrow,  and  her  temper  sanguin- 
ary; that,  although  conscientious  in  some  respects, 
she  was  as  capable  of  dissimulation  as  her  sister, 
and  of  breach  of  faith  as  her  husband  ;  that  she  ob- 
stinately and  willfully  sacrificed  her  subject's  affec- 
tions and  interests  to  a  misplaced  and  discreditable 
attaclmient;  and  that  the  words  with  which  Carte 
has  concluded  the  character  of  this  unlamented 
sovereign,  though  little  pleasing  to  men  of  Dr. 
Lingard's  profession,  are  perfectly  just :  "Having 
reduced  the  nation  to  the  brink  of  ruin,  she  left  iti 
by  her  seasonable  decease,  to  be  restored  by  her 
admirable  successor  to  its  ancient  prosperity  and 
glory."  I  fully  admit,  at  the  same  time,  that  Dr. 
Lingard  has  proved  Elizabeth  to  have  been  as 
dangerous  a  prisoner  as  she  aftcnvard  found  the 
dueen  of  Scots. 


70 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  U. 


the  English  nation  against  Spain  during  the 
short  period  of  Philip's  marriage  with  their 
queen,  that  it  diverted  the  old  channel  of 
public  feelings,  and  almost  put  an  end  to 
that  dislike  and  jealousy  of  France  which 
had  so  long  existed.  For  at  least  a  centu- 
ry after  this  time  we  rarely  find  Ln  popular 
writers  any  expressions  of  hostilitj'  toward 
that  coimtiy,  tliough  their  national  manners, 
so  remote  from  our  own,  are  not  unfre- 
quently  the  object  of  ridicule.  The  preju- 
dices of  the  populace,  as  much  as  the  policy 
of  our  counselors,  were  far  more  directed 
against  Spain. 

But  what  had  the  greatest  efficacy  in  dis- 
Its  effect  gusting  the  English  with  Marj-'s 
Sie"  Prol-  system  of  faith,  was  the  ci-uelty 
estantism.  by  which  it  was  accompanied. 
Though  the  pri^y  council  were  in  fact  con- 
tinually m-ging  the  bishops  fonvard  in  this 
prosecution,*  the  latter  bore  the  chief  blame, 
and  the  abhorrence  entertained  for  them 
naturally  extended  to  the  docti'ine  they  pro- 
fessed. A  sort  of  instinctive  reasoning  told 
the  people,  what  the  learned  on  neither  side 
had  been  able  to  discover,  that  the  ti-uth  of 
a  religion  begins  to  be  very  suspicious  when 
it  stands  in  need  of  prisons  and  scaffolds  to 
eke  out  its  evidences;  and  as  the  English 
were  constitutionally  humane,  and  not  hard- 
ened by  continually  witnessing  the  infliction 
of  barbarous  punislmients,  there  arose  a  sj-m- 
patliy  for  men  suffering  torments  with  such 
meekness  and  patience,  which  the  populace 
of  some  other  nations  were  perhaps  less  apt 
to  display,  especiaUy  in  executions  on  the 
score  of  heresy. f    The  theologian,  indeed, 

*  Str}"pe,  ii.,  17.  Burnet,  iii.,  263.  and  Append., 
265,  where  there  is  a  letter  from  the  king  and  queen 
to  Bonner,  as  if  even  he  wanted  excitement  to 
prosecute  heretics.  The  number  who  suffered 
death  by  fire  in  this  reign  is  reckoned  by  Fox  at 
284,  by  Speed  at  277,  and  by  Lord  Burghley  at 
290. — Strype,  iii.,  473.  These  numbers  come  so 
near  to  each  other,  that  they  may  be  presumed, 
also,  to  approach  the  truth.  But  Carte,  on  the  au- 
thority of  one  of  Noailles's  letters,  thinks  many 
more  were  put  to  death  tlian  our  mart^Tologists  I 
have  discovered.  And  the  prefacer  to  Ridley's 
Treatise  de  Coen4  Domini,  supposed  to  be  Bishop 
Grindal,  saj  s  that  800  suffered  in  this  manner  for  ! 
religion.  Bumet,  ii.,  364.  I  incline,  however,  to 
the  lower  statements. 

t  Bumet  makes  a  very  just  observation  on  the 
craelties  of  this  period,  that  "  they  raised  that  hor- 
ror in  the  whole  nation,  that  there  seemis  ever  since 


and  the  philosopher  may  concur  in  deriding 
the  notion  that  either  sinceritj'  or  moral  rec- 
titude can  be  tlie  test  of  truth ;  yet  among 
the  various  species  of  authority  to  which 
recourse  had  been  had  to  supersede  or  to 
supply  the  deficiencies  of  argument,  I  know 
not  whether  any  be  more  reasonable,  and 
none,  certainly,  is  so  congenial  to  imsophis- 
ticated  minds.  Many  are  said  to  have  be- 
come Protestants  under  3Iaiy,  who,  at  her 
comiiig  to  the  throne,  had  retained  the  con- 
ti-aiy  persuasion.*  And  tlie  strongest  proof 
of  this  may  be  drawn  fi-om  the  acquiescence 
of  the  great  body  of  the  kingdom  in  the  re- 
establishment  of  Protestantism  by  Elizabeth, 
when  compared  with  the  seditions  and  dis- 
content on  that  account  under  Edwai-d. 
The  course  which  this  famous  princess 
steered  in  ecclesiastical  concerns  during  her 
long  reign,  will  form  the  subject  of  the  two 
ensuing  chapters. 

that  time  such  an  abhorrence  to  that  relision  to  be 
derived  down  from  father  to  son,  that  it  is  no  won- 
der an  aversion  so  deeply  rooted,  and  raised  upon 
such  grounds,  does  upon  every  new  provocation  or 
jealousy  of  returning  to  it  break  out  in  most  violent 
and  convulsive  sj-mptoms,"  p.  338.  "DeUcta  ma- 
jorum  inuneritus  luis,  Romane.  '  But  those  who 
would  diminish  this  aversion,  and  prevent  these 
con\-ulsive  symptoms,  will  do  better  by  avoiding  for 
the  future  either  such  panegyrics  on  Mary  and  her 
adWsers,  or  such  insidious  extenuations  of  her  per- 
secution as  we  have  lately  read,  and  which  do  not 
raise  a  favorable  impression  of  their  sincerit)-  in  the 
principles  of  toleration  to  which  they  profess  to 
have  been  converted. 

NoaiUes,  who,  though  an  enemy  to  Mary's  gov- 
ernment, must,  as  a  CathoUc,  be  reckoned  an  im- 
Euspicious  witness,  remarkably  confirms  the  ac- 
count given  by  Fox,  and  since  by  all  our  writers, 
of  the  death  of  Rogers,  the  proto-martyr.  and  its  ef- 
fect on  the  people.  "  Ce  jour  d'huy  a  este  faite  la 
confirmation  de  l  alliance  entre  le  pape  et  ce  roy- 
aume  par  un  sacrifice  publique  et  solemnel  d'un 
doctenr  predicant  nomme  Rogerus,  lequel  a  ete 
brule  tout  vif  pour  estre  Lutherien ;  mais  il  est 
mort  persistant  en  son  opinion.  A  quoy  le  plus 
grand  partie  de  ce  peuple  a  pris  tel  plaisir,  qn'ils 
n'ont  eu  crainte  du  luy  faire  plusieurs  acclamations 
pour  comforter  son  courage ;  et  meme  ses  enfans  v 
on  assiste,  le  consolant  de  telle  fa(;on  qu'U  semblait 
qu'ou  le  menait  aux  noces.'' — V.,  173. 

[The  execration  with  which  Mary's  bishops  were 
met  in  the  next  reign  is  attested  in  a  letter  of  Park- 
hurst  to  Conrad  Gesner:  "Jam  et  Deo  at  homini- 
bus  sunt  exosi,  nec  usquam  nisi  inriti  prorepunt, 
ne  forte  fiat  tumultus  in  populo.  Multi  coram  eos 
vooaut  camifices." — Zurich  Letters,  by  Parker  So- 
cietv-.  p.  18.  1845.] 

*  Strype,  iii.,  285. 


Eliz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  U. 


71 


CHAPTER  III. 

ON  THE  LAWS  OF  ELIZABETH'S  REIGN  RESPECTING  THE  ROMAN  CATHOLICS. 


Change  of  Religion  on  the  Clueen's  Accession.— 
Acts  pf  Supremacy  and  Uniformity. — Resti-aiut 
of  Roman  Catliolic  Worship  in  the  first  Years 
of  Elizabeth.— Statute  of  1562.— Speech  of  Lord 
Montague  against  it.  —  This  Act  not  fully  en- 
forced.— AppUcation  of  the  Emperor  in  behalf 
of  the  Enghsh  Catliolics.  — Persecution  of  this 
Body  in  the  ensuing  Period. — Uncertain  Suc- 
cession of  the  Crown  between  the  Families  of 
Scotland  and  Suftblk.— The  Clueen's  Unwilling- 
ness to  decide  this,  or  to  many. — Imprisonment 
of  Lady  Catliai-iue  Grey.— Marj-,  Q.ueen  of  Scot- 
land.— Combination  in  her  Favor. — Bull  of  Pius 
V. — Statutes  for  the  Clueen's  Securitj-.— Catli- 
olics more  rigorously  treated. — Refugees  in  the 
Netherlands.  — Their  Hostility  to  the  Govem- 
meut.— Fresh  Laws  against  the  CathoUc  Wor- 
ship.— Execution  of  Campion  and  Others. — De- 
fense of  the  aueeu  by  Burleigh.  — Increased 
Severity  of  the  Govenmient. — Maiy. — Plot  in 
her  Favor. — Her  Execution. — Remarks  upon  it. 
— Continued  Persecution  of  Roman  Catholics. — 
General  Observations. 

The  accession  of  Elizabeth,  gratifying  to 
the  whole  nation  on  account  of  the  late 
queen's  extreme  unpopularity',  infused  pe- 
culiar joy  into  the  hearts  of  all  well-wishers 
to  the  Reformation.  Child  of  that  famous 
man-iage  which  had  severed  the  connection 
of  England  with  the  Roman  See,  and  ti'ain- 
ed  betimes  in  the  learned  and  reasoning  dis- 
cipline of  Protestant  theology,  suspected 
and  oppressed  for  that  very  reason  by  a  sis- 
ter's jealousy,  and  scarcely  preseiTed  from 
the  death  which  at  one  time  threatened  her, 
there  was  every  gi'ound  to  be  confident  that, 
notwithstanding  her  forced  compliance  with 
the  Catholic  rites  during  the  late  reign,  her 
Change  of  re-  inclinations  had  continued  stead- 
ligmn  onthe  fast  to  the  opposite  side.*  Nor 

queen  8  ac-  ^  ^ 

cession.        was  she  long  in  manifesting  this 

*  Elizabeth  was  much  suspected  of  a  concern  in 
the  conspiracy  of  1.554,  which  was  more  extensive 
than  appeared  from  Wyatt's  insurrection,  and  had 
in  view  the  placing  her  on  the  throne,  with  the 
Earl  of  Devonshire  for  her  husband.  Wyatt,  in- 
deed, acquitted  her ;  but  as  he  said  as  much  for 
Devonshire,  who  is  proved  by  the  letters  of  NoaiUes 
to  have  been  engaged,  his  testimony  is  of  less  val- 
ue. Nothing,  however,  appears  in  these  letters,  I 
beheve,  to  criminate  Elizabeth.  Her  life  was 
saved,  against  the  advice  of  the  imperial  court,  and 
of  their  party  in  the  cabinet,  especially  Lord  Pa- 
get, by  the  influence  of  Gardiner,  according  to 
Dr.  Lingard,  writing  on  the  authority  of  llenard's 


disposition  sufficiently  to  alarm  one  party, 
though  not  entirely  to  sati.sfy  the  other. 
Her  great  prudence,  and  that  of  her  advis- 
ers, which  taught  her  to  move  slowly,  while 
the  temper  of  the  nation  was  still  uncertain, 
and  her  government  still  embaiTassed  with 
a  French  war  and  a  Spanish  alliance,  joined 
with  a  certaui  tendency  in  her  religious  sen- 
timents not  so  thoroughly  Protestant  as  had 
been  expected,  produced  some  complaints 
of  delay  from  the  ardent  Reformers  just  re- 
turned from  exile.  She  directed  Su"  Ed- 
ward Carne,  her  sister's  ambassador  at 
Rome,  to  notify  her  accession  to  Paul  IV. 
Several  Catholic  writers  have  laid  stress  on 
this  circumstance  as  indicative  of  a  desire  to 
remain  in  his  communion,  and  have  attrib- 
uted her  separation  from  it  to  his  aiTOgant 
reply,  commanding  her  to  lay  down  tlie  title 

dispatches.  Burnet,  who  had  no  access  to  that 
source  of  information,  imagines  Gardiner  to  have 
been  her  most  inveterate  enemy.  Slie  was  even 
released  from  prison  for  the  time,  thougli  soon  af- 
terward detained  again,  and  kept  in  custody,  as  is 
well  known,  for  the  rest  of  this  reign.  Her  inimi- 
table dissimulation  was  all  required  to  save  her  from 
the  penalries  of  heresy  and  treason.  It  appears  by 
tlie  memoir  of  the  Venetian  ambassador,  in  1557 
(Lansdowne  MSS.,  840),  as  well  as  from  the  letters 
of  Noailles,  that  iLiry  was  desirous  to  change  the 
succession,  and  would  have  done  so,  had  it  not  been 
for  PhiUp's  reluctance,  and  the  impracticability  of 
obtaining  the  consent  of  Parliament.  Though  her- 
self of  a  dissembling  character,  she  could  not  con- 
ceal the  hatred  she  bore  to  one  who  brought  back 
the  memoiy  of  her  mother's  and  her  own  WTongs, 
especially  when  she  saw  all  eyes  turned  toward 
the  successor,  and  felt  that  the  curse  of  her  own 
barrenness  was  to  fall  on  her  beloved  religion. 
Elizabeth  had  been  not  only  forced  to  have  a  chapel 
in  her  house,  and  to  give  all  exterior  signs  of  con- 
fonnity,  but  to  protest  on  oath  her  attacliment  to 
the  Catholic  faith  ;  though  Hmne,  who  always  loves 
a  popular  storv,  gives  credence  to  the  well-known 
verses  ascribed  to  her,  in  order  to  elude  a  declaration 
of  her  opinion  on  the  sacrament.  The  inquisitors 
of  that  ago  were  not  so  easily  turned  round  by  an 
equivocal  answer.  Yet  Elizabeth's  faith  was  con- 
stantly suspected.  "  Accresce  oltro  questo  I'odio," 
says  the  Venetian,  "  il  sapere  che  sia  aliena  dalla 
religione  presente,  per  essere  non  pur  nata,  ma  dot- 
ta  ed  aUevata  nell'  altra,  che  se  bene  con  la  este- 
riore  ha  mostrato,  e  mostra  di  essersi  ridotta,  viven- 
do  cattoli-camente,  pure  e  opinione  che  dissimuh  e 
nell'  iuteriore  la  ritenga  piii  che  mai." 


72 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  III. 


of  royaltj',  and  to  submit  her  pretensions  to 
his  decision.*  But  she  had  begun  to  make 
alterations,  though  not  very  essential,  in  the 
Church  service  before  the  pope's  behavior 
could  have  become  known  to  her ;  and  the 
bishops  must  have  been  well  aware  of  the 
course  she  designed  to  pursue,  when  they 
adopted  the  violent  and  impolitic  resolution 
of  refusing  to  officiate  at  her  coronation.f 

*  This  remarkable  fact,  which  runs  thronch  all 
domestic  and  foreign  histories,  has  been  disputed, 
and,  as  far  as  appears,  disproved  by  the  late  editor 
of  Dodd's  Church  Historj'  of  England,  vol.  iv.,  pref- 
ace, on  the  authority  of  Came's  own  letters  in  the 
State  Paper  Office.  It  is  at  least  hiirhly  probable, 
not  to  say  evident,  from  these,  that  Elizabeth  nev- 
er contemplated  so  much  intercourse  with  the  pope, 
even  as  a  temporal  sovereign,  or  to  notify  lier  ac- 
cession to  him ;  and  it  had  before  been  shown  by 
Strype,  that,  on  Dec.  1,  15o8,  an  order  was  dis- 
patched to  Came,  forbidding  him  to  proceed  in  an 
ecclesiastical  suit,  wherein,  as  English  ambassa- 
dor, he  had  been  engaged. — Sti-ype's  Amials,  i.,  34. 
Came,  on  his  own  soUcitation,  was  recalled,  Feb 
10 ;  though  the  pope  would  not  suffer  him,  nor, 
■when  he  saw  what  was  going  forward  at  Iiome, 
was  he  willing  to  return.  Mr.  Tieniey,  the  editor 
of  Dodd,  conceives  the  story  of  Paul  IV.'s  intem- 
perate language  to  have  been  coined  by  "  the  in- 
ventive powers  of  Paul  Sarpi,"  who  first  published 
it  in  his  History  of  the  Council  of  Trent  in  1619. 
From  him  Mr.  T.  supposes  Spondanus  and  Pallavi- 
cino  to  have  taken  it,  and  from  them  it  has  passed 
to  a  multitude  of  Catholic  as  well  as  Protestant  his- 
torians. It  may,  however,  seem  rather  doubtful 
whether  Spondanus  would  have  taken  this  simply 
on  the  authority  of  Sai-pi ;  and  we  may  perhaps 
conjecture  that  the  anecdote  had  been  already  in 
circulation,  even  if  it  had  never  appeared  in  print 
(a  negative  liard  to  establish),  before  the  publication 
of  die  History  of  the  Council  of  Trent.  Nor  is  it  im- 
probable that  Paul,  according  to  the  violence  of  his 
disposition,  had  uttered  some  such  language,  and 
even  to  Came  himself,  though  not,  as  the  story  rep- 
resents it,  in  reply  to  an  official  communication.  But 
it  is  chiefly  material  to  obser\-e,  that  EUzabeth  dis- 
played her  determination  to  keep  aloof  from  Rome 
in  the  very  begmuing  of  her  reign.  1^45. 

t  Elizabeth  ascended  the  throne  November  17, 
1558.  On  the  5th  of  December  Marj-  was  buried ; 
and  on  this  occasion.  White,  bishop  of  Winchester, 
in  preaching  her  funeral  sermon,  spoke  with  viru- 
lence against  the  Protestant  exiles,  and  expressed 
apprehension  of  their  return.  Burnet,  iii.,  272. 
Directions  to  read  part  of  the  service  in  EngUsh, 
and  forbidding  the  elevation  of  the  host,  were  issued 
prior  to  the  proclamation  of  December  27,  against 
innovations  without  authority.  The  great  seal  was 
taken  from  Archbishop  Heath  early  in  January, 
and  given  to  Sir  Nicholas  Bacon.  Parker  was 
pitched  upon  to  succeed  Pole  at  Canterbury  in  the  I 
preceding  month.  From  the  dates  of  these  and 
other  facts,  it  may  be  fairly  inferred  that  Elizabeth's  i 
rejulution  was  formed  independently  of  the  pope's 


Her  council  was  formed  of  a  verj-  few  Cath- 
olics, of  several  pliant  conformists  with  all 
changes,  and  of  some  known  fi-iends  to  the 
Protestant  interest.  But  Uvo  of  these,  Ce- 
cil and  Bacon,  were  so  much  higher  in  her 
confidence,  and  so  incomparably  superior  in 
talents  to  the  other  counselors,  that  it  was 
evident  which  way  she  must  incline.*  The 
Parliament  met  about  two  months  after  her 
accession.  The  creed  of  Parliament  from 
the  time  of  Henry  VHI.  had  been  always 
that  of  the  court;  whether  it  were  that 
elections  had  constantly  been  influenced,  as 
we  know  was  sometimes  the  case,  or  that 
men  of  adverse  principles,  yielding  to  the 
toiTent,  had  left  the  way  clear  to  the  parti- 
sans of  power.  This  first,  like  all  subse- 
quent Parliaments,  was  to  the  full  as  favor- 
able to  Protestantism  as  the  queen  could 
desire  :  the  first  fruits  of  benefices,  and, 
what  was  far  more  important,  the  suprem- 
acy in  ecclesiastical  affairs,  were  restored 
to  the  crown ;  the  laws  made  concerning 
religion  in  Edward's  time  were  re-enacted. 
These  acts  did  not  pa.ss  without  considera- 
ble opposition  among  the  lords ;  nine  tem- 
poral peei's,  besides  all  the  bishops,  liaving 
protested  against  the  Bill  of  Uniformity  es- 
tablishing the  Anglican  liturgy,  though  some 
pains  had  been  taken  to  soften  the  passages 
most  obnoxious  to  Catholics. f    But  the  act 


behavior  toward  Sir  Edward  Came ;  though  that 
might  probablj-  exasperate  her  against  the  adlier- 
euts  of  the  Roman  See,  and  make  their  religion  ap- 
pear more  inconsistent  with  their  civil  allegiance. 
If,  indeed,  the  refusal  of  the  bishops  to  officiate  at 
her  coronation  (Jan.  14, 1538-9)  were  founded  in  any 
degree  on  Paul  IV.'s  denial  ofher  title,  it  must  have 
seemed  in  that  age  within  a  hair's  breadtli  of  high 
treason.  But  it  more  probably  arose  from  her  or- 
der that  the  host  should  not  be  elevated,  which,  in 
ti'utli,  was  not  legally  to  be  justified. 

*  See  a  paper  by  Cecil  on  the  best  means  of  re- 
forming religion,  written  at  this  time  with  all  Ms 
cautious  wisdom,  in  Bumet,  or  in  Str\-pe's  Aunala 
of  the  Reformation,  or  in  the  Somers  Tracts. 

t  Pari.  Hist.,  vol.  i.,  p.  394.  In  the  reign  of  Ed- 
ward, a  prayer  had  been  inserted  in  the  liturgy  to 
deliver  us  "from  the  Bishop  of  Rome  and  all  his 
detestable  enormities."  This  was  now  stmck  out; 
and,  what  was  more  acceptable  to  the  nation,  the 
words  used  in  distributing  the  elements  were  so 
contrived,  by  blending  the  two  forms  successively 
adopted  under  Edward,  as  neitlier  to  offend  the 
popish  or  Lutheran,  nor  the  ZuingUan  communi- 
cant. A  rabric  directed  against  the  doctrine  of  the 
real  or  corporeal  presence  was  omitted.  This  was 
replaced  after  the  Restoration.  Bumet  owns  that 
the  greater  part  of  the  nation  still  adhered  to  tliis 


Eliz. — Catholics.] 


FROM  HENRY  Vn.  TO  GEORGE  II. 


73 


restoring  the  royal  supremacy  met  with  less 
resistance ;  whether  it  were  that  the  sj"s- 
tem  of  Henry  retained  its  hold  over  some 
minds,  or  that  it  did  not  encroach,  hke  the 
formei',  on  the  libertj'  of  conscience,  or  that 
men  not  over-scrupulous  were  satisfied  with  I 
the  interpretation  which  the  queen  caused 
to  be  put  upon  the  oath.  j 
•  Several  of  the  bishops  had  submitted  to 
the  Reformation  under  Edward  VI.  But 
they  had  acted,  in  general,  so  conspicuous 
a  part  in  the  late  restoration  of  poperj-,  that, 
even  amid  so  many  examples  of  false  pro- 
fession, shame  restiained  them  from  a  sec- 
ond apostasy.  Their  number  happened  not 
to  exceed  sixteen,  one  of  whom  was  pre- 
vailed on  to  conform  ;  while  the  rest,  refus- 
ing the  oath  of  supremacy,  were  deprived 
of  their  bishoprics  by  the  Court  of  Ecclesias- 
tical High  Commission.  In  the  summer  of 
1559,  the  queen  appointed  a  general  eccle- 
siastical visitation,  to  compel  the  observance 
of  the  Protestant  formularies.  It  appears 
from  their  reports  that  only  about  one  hun- 
di'ed  dignitaries  and  eighty  parochial  priests 
resigned  their  benefices,  or  were  deprived.*  i 
Men  eminent  for  their  zeal  in  the  Protestant  I 
cause,  and  most  of  them  exiles  during  the 
persecution,  occupied  the  vacant  sees.  And 
thus,  before  the  end  of  1559,  the  English 
Church,  so  long  contended  for  as  a  prize  by  | 
the  two  religions,  was  lost  forever  to  that , 
of  Rome. 

These  two  statutes,  commonly  denom- 
Acts  of  su-    'nated  the  acts  of  supremacy  and  | 
premacy  and  uniformity,  form  the  basis  of  that 
um  urmity.    j.ggt-j.jg(iyg  qq^q  Qf  la^ys,  deemed 

by  some  one  of  the  fundamental  bulwarks, 
by  others  the  reproach  of  our  Constitution, 
wliich  pressed  so  heavily  for  more  than  two 
centuries  upon  the  adherents  to  the  Ro- 

tenet,  though  it  was  not  the  opinion  of  the  rulers 
of  the  Church,  ii.,  390,  406. 

*  Burnet.  Strj-pe's  Annals,  169.  Pensions  were 
reserved  for  those  who  quitted  their  benefices  on 
account  of  religion. — Bumet,  ii.,  398.  This  was  a 
very  liberal  measure,  aud  at  the  same  time  a  politic 
check  on  their  conduct.  Lingard  thinks  the  num- 
ber must  have  been  much  greater ;  hut  the  visit- 
ors' reports  seem  the  best  authoritj'.  It  is,  how- 
ever, highly  probable  that  others  resigned  their 
preferments  afterward,  when  the  casuistry  of  their 
church  grew  more  scrupulous.  It  may  be  added, 
that  the  visitors  restored  the  married  clergy  who 
had  been  dispossessed  in  the  preceding  reign, 
which  would,  of  course,  considerably  augment  the 
number  of  sufferers  for  poperj-. 


mish  Church.  By  the  former  all  beneficed 
ecclesiastics,  and  all  laymen  holding  office 
under  the  crown,  were  obliged  to  take  the 
oath  of  supremacy,  renouncing  the  spiritual 
as  well  as  temporal  jurisdiction  of  every  for- 
eign prince  or  prelate,  on  pain  of  forfeiting 
their  office  or  benefice  :  and  it  was  render- 
ed highly  penal,  and  for  the  third  offense 
treasonable,  to  maintain  such  supremacy 
by  writing  or  advised  speaking.*  The  lat- 
ter statute  trenched  more  on  the  natural 

*  1  Eliz.,  c.  1.  The  oath  of  supremacy  was  ex- 
pressed as  follows  :  "  I,  A.  B.,  do  utterly  testify  and 
declare  that  the  queen's  highness  is  the  only  su- 
preme governor  of  this  realm,  and  all  otlier  her 
highnesB  s  dominions  and  conntiies,  as  well  in  aU 
spiritual  and  ecclesiastical  things  or  causes,  as  tem- 
poral ;  and  that  no  foreign  prince,  person,  prelate, 
state,  or  potentate,  hath  or  ought  to  have  any  juris- 
diction, power,  supei-iority,  pre-eminence,  or  author- 
ity, ecclesiastical  or  spiritual,  within  this  realm ; 
and  therefore  I  do  utterly  renounce  and  forsake  all 
foreign  jurisdictions,  powers,  superiorities,  and  au- 
thorities, and  do  promise  that  from  henceforth  I 
sliall  bear  faith  aud  true  allegiance  to  the  queen's 
highness,  her  heirs  and  lawful  successors,  and  to 
my  power  shall  assist  and  defend  aU  jurisdictions, 
pre-eminences,  pri\-ileges,  and  authorities,  granted 
or  belonging  to  the  queen's  highness,  her  heirs  and 
successors,  or  united  and  annexed  to  the  imperial 
crown  of  this  reahn." 

A  remarkable  passage  in  the  injunctions  to  the 
ecclesiastical  visitors  of  1539,  which  may  be  reck- 
oned in  the  natxire  of  a  contemporaneous  exposi- 
tion of  the  law,  restrains  the  royal  supremacy  es- 
tablished by  this  act,  and  asserted  in  the  above 
oath,  in  the  following  words :  "  Her  majesty  for- 
biddeth  all  manner  her  subjects  to  give  ear  or  credit 
to  such  perverse  and  malicious  persons,  which  most 
sinisterly  and  maliciously  labor  to  notify  to  her  lov- 
ing subjects,  how  by  words  of  the  said  oath  it  may 
be  collected,  that  the  kings  or  queens  of  this  realm, 
possessors  of  the  crown,  may  challenge  authority 
and  power  of  ministrj'  of  divine  senice  in  the 
church  ;  wherein  her  said  subjects  be  much  abused 
by  such  e\"il-disposed  persons.  For  certainh'  her 
majesty  neitlier  doth,  nor  ever  will,  challenge  any 
otlier  authoritj-  than  that  was  challenged  and  lately 
used  by  the  said  noble  kings  of  famous  memory, 
King  Henry  VIII.  and  King  Edward  VI.,  which 
is,  and  was  of  ancient  time,  due  to  the  imperial 
crown  of  this  realm  ;  that  is,  under  God  to  have  the 
sovereisnity  and  rule  over  all  manner  of  persons 
bom  within  these  her  realms,  dominions,  and  coun- 
tiies,  of  what  estate,  either  ecclesiastical  or  tem- 
poral, soever  they  be,  so  as  no  other  foreign  power 
shall  or  ought  to  have  anj'  superioritj-  over  them. 
And  if  any  person  that  hath  conceived  anj-  other 
sense  of  the  form  of  the  said  oath  shall  accept  the 
same  with  this  interpretation,  sense,  or  meaning, 
her  majesty  is  well  pleased  to  accept  everj'  such 
in  that  behalf,  as  her  good  and  obedient  subjects, 
aud  shall  acquit  them  of  all  manner  of  penalties 
contained  in  the  said  act,  against  such  as  shall  per- 


74 


CONSTITUTIONAL  HISTOaY  OF  ENGLAND 


[Chap.  in. 


rights  of  conscience;  prohibiting,  under  pain 
of  forfeiting  goods  and  chattels  for  the  first 
offense,  of  a  year's  imprisonment  for  the 
second,  and  of  imprisonment  during  hfe  for 
the  third,  the  use  by  a  minister,  whether 
beneficed  or  not,  of  any  but  the  establi.shed 
liturgy  ;  and  imposed  a  fine  of  one  shiUing 
on  all  who  should  absent  themselves  from 
church  on  Sundays  and  holydays.* 

This  act  operated  as  an  absolute  interdic- 
tion of  the  Catholic  rites,  how- 

Rpstraint  of  •        i        ,  ,  i     t  i 

R.miaii  Cath-  ever  privately  celebrated.  It  has 
n.'thefiTst''  fi'equently  been  asserted  that 
years  of  Eliz-  the  government  connived  at  the 
domestic  exercise  of  that  relig- 
ion dm'ing  these  first  years  of  Elizabeth's 
reign.  This  may  possibly  have  been  the 
case  with  respect  to  some  persons  of  very 
high  rank  whom  it  was  inexpedient  to  irri- 
tate. But  we  find  instances  of  severity  to- 
ward Catliolics,  even  in  that  early  period  ; 

emptorily  or  obstinately  refuse  to  take  the  same 
oatb." — 1  Soraers  Tracts,  edit.  Scott,  73. 

This  interpretation  was  afterward  triveu  in  one 
of  the  Thirty-uine  Articles,  which  having  been  con- 
finned  by  Parliament,  it  is  undoubtedly  to  be  reck- 
oned the  ti-ue  sense  of  the  oath.  Mr.  Butler,  in  his 
Memoirs  of  English  CathoHcs,  vol.  i..  p.  157,  enters 
into  a  discussion  of  the  question  whether  Roman 
Catholics  might  conscientiously  take  tlie  oath  of 
supremacy  in  this  sense.  It  appears  that  in  the 
seventeenth  century  some  contended  for  the  affirm- 
ative ;  and  this  seems  to  explain  the  fact,  that  sev- 
eral persons  of  that  persuasion,  besides  peers,  from 
whom  the  oath  was  not  exacted,  did  actually  hold 
ofBces  under  the  Stuarts,  and  even  enter  into  Pai"- 
liament,  and  that  the  Test  Act  and  declaration 
against  transubstantiation  were  thus  rendei'ed  nec- 
essary to  make  their  exclusion  certain.  Mr.  B.  de- 
cides against  taking  the  oath,  but  on  gi'ounds  by 
no  means  sufficient ;  and  oddly  overlooks  the  de- 
cisive objection,  that  it  denies  in  toto  the  jurisdic- 
tion and  ecclesiastical  authority  of  the  pope.  No 
writer,  as  far  as  my  slender  knowledsre  extends,  of 
the  GalUcau  or  German  school  of  discipline,  has 
gone  to  this  length;  certainly  not  Mr.  Butler  him- 
self, who  in  a  modern  publication,  Book  of  the  Ro- 
man Catholic  Church,  p.  120,  seems  to  consider 
even  the  appellant  jurisdiction  in  ecclesiastical 
causes  as  vested  in  the  Holy  See  by  divine  right. 

As  to  the  exposition  before  given  of  the  oath  of 
supremacy,  I  conceive  that  it  was  intended  not  only 
to  relieve  the  scruples  of  Catholics,  but  of  those 
who  had  imbibed  from  the  school  of  Calvin  an  ap- 
prehension of  what  is  sometimes,  though  rather 
improperly,  called  Erastianism — the  merging  of  all 
spiiitual  powers,  even  those  of  ordination  and  of 
preaching,  in  the  paramount  authoritj'  of  the  state, 
toward  which  the  despotism  of  Henry,  and  obse- 
quiousness of  Cranmer,  had  seemed  to  bring  the 
Church  of  England.  *  1  Eliz.,  c.  2. 


and  it  is  evident  that  their  solemn  rites  were 
only  performed  by  stealth,  and  at  much  haz- 
ard. Thus  Sir  Edward  Waldgrave  and  his 
lady  were  sent  to  the  Tower  in  1.5G1  for 
hearing  mass  and  having  a  priest  in  their 
house.  Many  others,  about  the  same  time, 
were  puni.shed  for  the  like  offense.*  Two 
bishops,  one  of  whom,  I  regret  to  say,  was 
Grindal,  write  to  the  council  in  1562  con- 
cerning a  priest  ajjprehended  in  a  lady's 
house,  that  neither  he  nor  the  servant 
would  be  sworn  to  answer  to  articles,  say- 
ing they  would  not  accuse  themselves ;  and, 
after  a  wise  remark  on  this,  that  "  papistry 
is  like  to  end  in  anabaptistry,"  proceed  to 
hint,  that  "  some  think  that  if.  this  priest 
might  be  put  to  some  kind  of  torment,  and 
so  driven  to  confess  what  he  knoweth,  he 
might  gain  the  queen's  majesty  a  good  mass 
of  money  by  the  masses  that  he  hath  said ; 
but  this  we  refer  to  your  lord.ship's  wis- 
dom."! This  commencement  of  persecu- 
tion induced  many  Catholics  to  fly  beyond 
sea,  and  gave  rise  to  those  reunions  of  dis- 
affected exiles,  which  never  ceased  to  en- 
danger the  throne  of  Elizabeth. 

It  can  not,  as  far  as  appears,  be  ti'uly  al- 
leged that  any  gi-eater  provocation  had  as 
yet  been  given  by  the  Catholics  than  that 
of  pertinaciously  continuing  to  believe  and 
worship  as  their  fathers  had  done  before 
them.  I  request  those  who  maj'  hesitate 
about  this  to  paj'  some  attention  to  the  or- 
der of  time  before  they  form  their  opinions. 
The  master  mover,  that  became  afterward 
so  busy,  had  not  yet  put  his  wires  into  ac- 
tion. Every  prudent  man  at  Rome  (and 
we  shall  not,  at  least,  deny  that  there  were 
such)  condemned  the  precipitate  and  inso- 
lent behavior  of  Paul  IV.  toward  Elizabeth, 
as  they  did  most  other  pai'ts  of  his  adminis- 
tration. Pius  IV.,  the  successor  of  that  in- 
judicious old  man,  aware  of  the  inestimable 
importance  of  reconciliation,  and  suspect- 
ing, probably,  that  the  queen's  turn  of  think- 
ing did  not  exclude  all  hope  of  it,  dispatch- 
ed a  nuncio  to  England,  with  an  invitation 
to  send  ambassadoi-s  to  the  Council  at  Trent, 


*  Str\-pe's  Annals,  i.,  233,  241. 

t  Haynes,  395.  The  penalty  for  causing  mass 
to  be  said,  by  the  Act  of  Uniformitj',  was  only  100 
marks  for  the  first  offense.  These  imprisonments 
were  probably  in  many  cases  illegal,  and  only  sus- 
tained by  the  arbitrary  power  of  the  High  Com- 
mission Court. 


El.iz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


75 


and  with  powers,  as  is  said,  to  confirm  the 
English  liturgy,  and  to  permit  double  com- 
munion ;  one  of  the  few  concessions  which 
the  more  indulgent  Romanists  of  that  age 
were  not  veiy  reluctant  to  make.*  But 
Elizabetli  had  taken  her  line  as  to  the  court 
of  Rome ;  the  nuncio  received  a  message  at 
Brussels  that  he  must  not  enter  the  king- 
dom ;  and  she  was  too  wise  to  countenance 
the  impartial  fatliers  of  Trent,  whose  labors 
had  nearly  drawn  to  a  close,  and  whose  de- 
cisions on  the  controverted  j)oints  it  had  nev- 
er been  very  difficult  to  foretell.  I  have 
not  found  that  Pius  IV.,  more  moderate 
than  most  other  pontiffs  of  the  sixteenth 
centurj',  took  any  measures  hostile  to  tlie 
temporal  government  of  this  realm  ;  but  the 
deprived  ecclesiastics  were  not  unfairly  anx- 
ious to  keep  alive  the  faith  of  their  former 
hearers,  and  to  prevent  them  from  sliding 
into  conformity,  through  indifference  and 
disuse  of  their  ancient  rites. f  The  means 
taken  were  chiefly  the  same  as  had  been 
adopted  against  themselves,  the  dispersion 
of  small  papers  either  in  a  serious  or  lively 
strain ;  but,  the  remarkable  position  in  which 
the  queen  was  placed  rendering  her  death 
a  most  important  contingency,  the  popish 
party  made  use  of  pretended  conjurations 
and  prophecies  of  that  event,  in  order  to 
unsettle  the  people's  minds,  and  dispose 
them  to  anticipate  another  reaction. J  Part- 
ly through  these  political  circumstances,  but 
far  more  from  the  hard  usage  they  experi- 
enced for  professing  their  religion,  there 
seems  to  have  been  an  increasing  restless- 
ness among  the  Catholics  about  1.5G2,  Avhich 
was  met  with  new  rigor  by  the  Parliament 
of  that  year.§ 

*  Sti-ype.  220. 

t  Claeslioiis  of  conscience  were  circniated,  with 
answers,  all  tending  to  sliow  the  unlawfulness  of 
conformity. — Strype,  228.  There  was  nothins:  more 
in  this  than  the  Catholic  clergy  were  bound  in  con- 
sistency with  their  principles  to  do,  though  it  seem- 
ed vei-y  atrocious  to  bigots.  Mr.  Butler  says,  that 
some  theologians  at  Trent  were  consulted  as  to  the 
lawfulness  of  occasional  confoniiity  to  the  Anglican 
rites,  who  pronounced  against  it. — Mem.  of  Cath- 
olics, i.,  171 

i  The  trick  of  conjuration  about  the  queen's  death 
began  very  early  in  her  reign  (fBtrype,  i.,  7),  and 
led  to  a  penal  statute  against  "  fond  and  fantastical 
prophecies." — .'>  Eliz.,  c.  1,5. 

§  I  know  not  how  to  charcre  the  Catholics  with 
the  conspiracy  of  tlie  two  Poles,  nephews  of  the 
cardinal,  and  some  others,  to  obtain  five  thousand 
troops  from  the  Duke  of  Guise,  and  proclaim  Maiy 


The  act  entitled  "  for  the  assurance  of 
tlie  queen's  royal  power  over  all  statute  of 
estates  and  subjects  within  her  do-  i^^^- 
minions,"  enacts,  with  an  iniquitous  and  san- 
guinary retrospect,  that  all  persons  who  had 
ever  taken  holy  orders  or  any  degree  in  the 
universities,  or  had  been  admitted  to  the 
practice  of  the  laws,  or  held  any  office  in 
their  execution,  .should  be  bound  to  take  the 
oath  of  supremacy,  when  tendered  to  them 
by  a  bishop,  or  by  commissioners  a[)pointed 
under  the  great  seal.  The  penalty  for  the 
first  refusal  of  this  oath  was  that  of  a  prae- 
munire ;  but  any  person  who,  after  the 
space  of  three  months  from  the  first  tender, 
should  again  refuse  it  when  in  like  manner 
tendered,  incurred  the  pains  of  high  trea- 
son. The  oath  of  supremacy  was  imposed 
by  the  statute  on  every  member  of  the 
House  of  Commons,  but  could  not  be  ten- 
dered to  a  peer;  tlie  queen  declaring  her 
full  confidence  in  those  hereditaiy  counsel- 
ors. Several  peers  of  great  weight  and 
dignity  were  still  Catholics.* 

This  harsh  statute  did  not  pass  without  op- 
position.   Two  speeches  against  ~     ,  , 

f  1  o  Sppprh  of 

it  have  been  preserved ;  one  by  Lord  Mimta- 
Lord  Montagu  in  the  House  of  ^" 
Lords,  the  other  by  Mr.  Atkinson  in  the 
Commons,  breathing  such  generous  abhor- 
rence of  persecution  as  some  erroneously 
imagine  to  have  been  unknown  to  that  age, 
because  we  rarely  meet  with  it  in  theolog- 
ical writings.  "  This  law,"  said  Lord  Mon- 
tagu, "  is  not  necessary,  forasmuch  as  the 
Catholics  of  this  realm  disturb  not,  nor  hin- 
der the  public  affiiirs  of  the  realms,  neither 
spiritual  nor  temporal.  They  dispute  not, 
they  preach  not,  they  disobey  not  the  queen ; 
they  cause  no  trouble  nor  tumults  among 
the  people ;  so  that  no  man  can  say  that 


queen.  This  seems,  however,  to  have  been  the 
immediate  provocation  for  the  statute  5  Eliz. ;  and 
it  may  be  thought  to  indicate  a  good  deal  of  dis- 
content in  that  party  upon  which  the  cons])irators 
relied.  But  as  Elizabeth  spared  the  lives  of  all 
who  were  arraigned,  and  we  know  no  details  of 
the  case,  it  may  be  doubted  whether  their  inten- 
tions were  altogether  so  criminal  as  was  charged. 
— Strype,  i.,  333.    Camden,  388  (in  Kennet). 

Strype  tells  us  (i.,  374)  of  resolutions  adopted 
against  the  queen  in  a  consistory  held  by  Pius  IV. 
in  1.563  ;  one  of  these  is  a  pardon  to  any  cook, 
brewer,  vintner,  or  other,  that  would  poison  her. 
But  this  is  so  unlikely,  and  so  little  in  that  pope's 
character,  that  it  makes  us  suspect  the  rest  as  false 
information  of  a  spy.  t  5  Eliz.,  c.  1. 


76 


COXSTITUTIONAL  HISTORY  OF  ENGLA>rD 


[Chap.  HL 


thereby  the  reahn  doth  receive  any  hurt  or 
damage  by  them.  They  have  brought  into 
the  realm  no  novelties  in  docti-ine  and  re- 
ligion. This  being  tnie  and  evident,  as  it 
is  indeed,  there  is  no  necessity  why  any 
new  law  should  be  made  against  them. 
And  where  there  is  no  sore  nor  gi'ief,  med- 
icines are  superfluous,  and  also  hurtful  and 
dangerous.  I  do  enti'eat,"  he  says  after- 
ward, "  whether  it  be  just  to  make  this  pe- 
nal statute  to  force  the  subjects  of  this  realm 
to  receive  and  believe  the  religion  of  Prot- 
estants on  pain  of  death.  This  I  say  to  be 
a  thing  most  unjust,  for  it  is  repugnant  to 
the  natural  liberty  of  men's  understanding : 
for  understanding  may  be  persuaded,  but  not 
forced."  And  further  on:  "It  is  an  easy 
thing  to  understand  that  a  thing  so  unjust, 
and  so  contrary  to  all  reason  and  liberty  of 
man,  can  not  be  put  in  execution  but  with 
great  incommodity  and  difficulty.  For  what 
man  is  there  so  without  courage  and  stom- 
ach, or  void  of  all  honor,  that  can  consent 
or  agree  to  receive  an  opinion  and  new  re- 
ligion by  force  and  compulsion,  or  will  swear 
that  he  thinketh  the  conti-aiy  to  what  he 
thinketh  ?  To  be  still,  or  dissemble,  may 
be  borne  and  suffered  for  a  time — to  keep 
his  reckoning  with  God  alone ;  but  to  be 
compelled  to  Ue  and  to  swear,  or  else  to  die 
therefor,  are  things  that  no  man  ought  to 
suffer  and  endure.  And  it  is  to  be  feared, 
rather  than  to  die,  they  will  seek  how  to 
defend  themselves  ;  whereby  should  ensue 
the  conti'ary  of  what  eveiy  good  prince  and 
well-advised  commonwealth  ought  to  seek 
and  pretend,  that  is,  to  keep  their  kingdom 
and  government  in  peace."* 

I  am  never  very  willing  to  admit  as  an 
Statute  of  apology  for  unjust  or  cruel  enact- 
15fi2  not  fill-  ments,  that  they  are  not  design- 
ly enforced.  generally  executed:  a 

pretext  often  insidious,  always  insecure,  and 

*  Strype,  Collier,  Parliament.  History.  The 
original  source  is  the  manuscript  coUecrions  of  Fox 
the  martyrologfist,  a  very  unsuspicious  authority; 
BO  that  there  seems  every  reason  to  consider  this 
speech,  as  well  as  Mr.  Atkinson's,  authentic.  The 
following  is  a  specimen  of  the  sort  of  answer  given 
to  these  arsruments :  "  They  say  it  touches  con- 
science, and  it  is  a  thing  wherein  a  man  ought  to 
have  a  scruple  ;  but  if  any  hath  a  conscience  in  it, 
these  fourj-ears'  space  might  have  settled  it.  Also, 
after  his  first  refusal,  he  hath  three  months'  respite 
for  conference  and  settling  of  his  conscience." — 
Strype,  270. 


tending  to  mask  the  approaches  of  arbitrary 
government.  But  it  is  certain  that  Elizabeth 
did  not  wish  this  act  to  be  enforced  in  its 
full  severity.  And  Archbishop  Parker,  by 
far  the  most  prudent  churchman  of  the 
time,  judging  some  of  the  bishops  too  little 
moderate  in  their  dealings  with  the  papists, 
warned  them  privately  to  use  great  caution 
in  tendering  the  oath  of  supremacy  accord- 
ing to  the  act,  and  never  to  do  so  the  second 
time,  on  which  the  penalty  of  treason  might 
attach,  without  his  previous  approbation.* 
The  temper  of  some  of  his  colleagues  was 
more  naiTow  and  vindictive.  Several  of  the 
deprived  prelates  had  been  detained  in  a 
'  sort  of  honorable  custody  in  the  palaces  of 
,  their  succes.sors.f  Bonner,  the  most  justly 
j  obnoxious  of  them  all,  was  confined  in  the 
Marshalsea.  Upon  the  occasion  of  this  new 
statute.  Horn,  bishop  of  Winchester,  indig- 
nant at  the  impunity  of  such  a  man,  pro- 
ceeded to  tender  him  the  oath  of  suprem- 
acy, with  an  evident  intention  of  driving  him 
to  high  treason.  Bonner,  however,  instead 
of  evading  this  attack,  intrepidly  denied  the 
other  to  be  a  lawful  bishop ;  and,  strange  as 
it  may  seem,  not  only  escaped  all  further 
molestation,  but  had  the  pleasure  of  seeing 
his  adversaries  reduced  to  pass  an  act  of 
Parliament,  declaring  the  present  bishops  to 
have  been  legally  consecrated.  J  This  stat- 
ute, and  especially  its  preamble,  might  lead 
a  hasty  reader  to  suspect  that  the  celebra- 
ted story  of  an  irregular  consecration  of  the 
first  Protestant  bishops  at  the  Nag's  Head 
Tavern  was  not  whoUy  undeserving  of  cred- 
it. That  tale,  however,  has  been  satisfac- 
torily refuted  ;  the  only  irregularity  which 
gave  rise  to  this  statute  consisted  in  the  use 
of  an  ordinal  which  had  not  been  legally  re- 
established. 

It  was  not  long  after  the  act  imposing  such 


*  Strype's  Life  of  Parker,  125. 

t  Strj-pe's  Annals,  149.  Tunstall  was  treated  in 
a  very  handsome  mamier  by  Parker,  whose  guest 
he  was.  But  Feckenham,  abbot  of  Westminster, 
met  with  rather  unkind  usage,  though  he  had  been 
active  in  saving  the  lives  of  Protestants  under 
Mary,  from  Bishops  Horn  and  Cox  (the  latter  of 
whom  seems  to  have  been  an  honest,  but  narrow- 
spirited  and  peevish  man),  and  at  last  was  sent  to 
Wisbeach  jail  for  refusing  the  oath  of  supremacy. 
— Strj-pe,  i.,  4o7;  ii.,  526.  Fuller's  Church  His- 
tory-, 178. 

t  S  Eliz.,  c.  1.  Eleven  peers  dissented,  all  noted 
Catholics,  except  the  Earl  of  Sussex. — Sttype,  i., 
492. 


Eliz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


77 


heavy  penalries  on  Catholic  priests 

Applicition  " ,.    .       ,  ,. 

of  the  em-  lor  reiusing  the  act  oi  supremacy, 
{lairof'the  ^^^^^  Emperor  Ferdinand  ad- 
English  dressed  two  letters  to  Elizabeth, 
a  lu  ICS.  interceding  for  the  adherents  to 
that  religion,  both  with  respect  to  those  new 
severities  to  which  they  might  become  lia- 
ble by  conscientiously  declining  that  oath, 
and  to  the  prohibition  of  tlie  free  exercise 
of  their  rites.  He  suggested  that  it  might 
be  reasonable  to  allow  them  the  use  of  one 
church  in  eveiy  city.  And  he  concluded 
with  an  expression,  which  might  possibly  be 
designed  to  intimate  that  his  own  conduct 
towai-d  the  Protestants  in  his  dominions 
would  be  influenced  by  her  concurrence  in 
Lis  request.*  Such  considerations  were  not 
without  great  importance.  The  Protestant 
religion  was  gaining  ground  in  Austi'ia, 
where  a  large  proportion  of  the  nobility  as 
well  as  citizens  had  for  some  years  earnestly 
claimed  its  public  toleration.  Ferdinand, 
prudent  and  averse  from  bigoted  counsels, 
and  for  every  reason  solicitous  to  heal  the 
wounds  which  religious  differences  had  made 
in  the  empire,  while  he  was  endeavoring, 
not  absolutely  without  hope  of  success,  to 
obtain  some  concessions  from  the  pope,  had 
shown  a  disposition  to  gi-ant  further  indul- 
gences to  his  Protestant  subjects.  His  son 
3Iaximjlian,  not  only  through  his  moderate 
temper,  but  some  real  inclination  toward  the 
new  doctrines,  bade  fair  to  carry  much  fur- 
ther the  liberal  policy  of  the  reigning  em- 
peror.f  It  was  consulting  veiy  little  the 
general  interests  of  Protestantism,  to  disgust 
pei-sons  so  capable  and  so  well  disposed  to 
befriend  it.  But  our  queen,  although  free 
from  the  fanatical  spirit  of  persecution  which 


*  Nobis  vero  factura  est  rem  adeo  gratam,  ut 
omnem  simns  datiiri  operam,  quo  possimus  earn 
rem  serenitati  vestrae  mutuis  benevolenti<e  et  fra- 
temi  aiiinii  studiis  cumulatissimfe  compensare.  See 
the  letter  in  tlie  additions  to  the  first  vohune  of 
Btrj  pe's  Annals,  prefixed  to  the  second,  p.  67.  It 
has  been  erroneously  referred  by  Camden,  whom 
many  have  followed,  to  the  year  1559,  but  bears 
date  24th  Sept.,  1563. 

t  For  the  dispositions  of  Ferdinand  and  Max- 
imilian toward  religious  toleration  in  Austria,  which 
indeed  for  a  time  existed,  see  F.  Paul,  Concile  de 
Trente  (par  Courayer), ii.,72, 197,  220,  .Vc.  Schmidt, 
Hist,  des  Allemands,  viii.,  120,  179,  «.Vc.  Flechier, 
Vie  de  Commendom,  388  ;  or  Coxe's  House  of  Ans- 
tria.  [To  these  we  may  now  add  Ranke's  excel- 
lent History  of  the  Popes  of  the  16th  and  17th 
centuries.] 


■  actuated  part  of  her  subjects,  was  too  deeply 
j  imbued  with  arbiti  aiy  principles  to  endure 
j  anj'  public  deviation  from  the  mode  of  wor- 
!  ship  she  should  prescribe  ;  and  it  must  per- 
I  haps  be  admitted,  that  experience  alone 
^  could  fully  demonstrate  the  safety  of  toler- 
ation, and  show  the  fallacy  of  apprehensions 
that  unprejudiced  men  might  have  enter- 
tained.   In  her  answer  to  Ferdinand,  the 
queen  declares  that  she  can  not  gi-ant  church- 
es to  those  who  disagree  from  her  religion, 
being  against  the  laws  of  her  Parliament, 
and  higlily  dangerous  to  the  state  of  lier 
kingdom ;  as  it  would  sow  various  opinions 
in  the  nation  to  distract  the  minds  of  honest 
men,  and  would  cherish  parties  and  factions 
that  might  disturb  the  present  ti'anquillity 
I  of  the  Commonwealth.    Yet  enough  had 
already  occurred  in  France  toJead  observ- 
ing men  to  suspect  that  severities  and  re- 
strictions are  by  no  means  an  infallible  spe- 
cific to  prevent  or  subdue  religious  factions. 

Camden  and  many  others  have  asserted 
that,  by  systematic  connivance,  the  Roman 
Catholics  enjoyed  a  pretty  free  use  of  their 
religion  for  the  first  foiu-teen  years  of  Eliza- 
beth's reign.  But  this  is  not  reconcilable  to 
many  passages  in  Strype's  collections.  We 
find  abundance  of  persons  harassed  for  re- 
cusancy, that  is,  for  not  attending  the  Prot- 
estant Church,  and  driven  to  insincere  prom- 
ises of  conformity.  Others  were  dragged 
before  ecclesiastical  commissioners  for  har- 
boring priests,  or  for  sending  money  to  those 
who  had  fled  beyond  sea.*  Students  of  the 
inns  of  comt,  where  popery  had  a  strong 
hold  at  this  time,  were  examined  in  the 
Star  Chamber  as  to  their  religion,  and  on 
not  giving  satisfactory  answers,  were  com- 
mitted to  the  Fleet,  t  The  Catholic  party 
were  not  always  scrupulous  about  the  usual 
artifices  of  an  oppressed  people,  meeting 
force  by  fraud,  and  concealing  their  heart- 
felt wishes  under  the  mask  of  ready  sub- 
mission, or  even  of  zealous  attachment.  A 
great  majority  both  of  clergy  and  laitj- yield- 
ed to  the  times  ;  and  of  these  temporizing 
conformists,  it  can  not  be  doubted  that  many 
lost  by  degrees  all  thought  of  returning  to 
their  ancient  fold.    But  others,  whUe  they 

*  Str\-pe,  513,  et  alibi. 

t  Strype,  522.  He  says  the  lawyers  in  most 
eminent  places  were  generally  favorers  of  popery, 
p.  269.  But  if  he  means  the  judges,  they  did  not 
Ions  continue  so. 


78 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  1X1. 


complied  with  exterior  ceremonies,  retained 
in  their  private  devotions  their  accustomed 
mode  of  worsliip.  It  is  an  admitted  fact, 
that  the  Catholics  generally  attended  the 
church  till  it  came  to  be  reckoned  a  dis- 
tinctive sign  of  their  having  renounced  their 
own  religion.  They  persuaded  themselves 
(and  the  English  priests,  uninstracted  and 
accustomed  to  a  temporizing  conduct,  did 
not  discourage  the  notion)  that  the  private 
observance  of  their  own  rites  would  excuse 
a  formal  obedience  to  the  civil  power.*  The 
Roman  scheme  of  worship,  though  it  at- 
taches more  importance  to  ceremonial  rites, 
has  one  remarkable  difference  from  the 
Protestant,  that  it  is  far  less  social ;  and, 
consequently,  the  prevention  of  its  open  ex- 
ercise has  far  less  tendency  to  weaken  men's 
religious  associations,  so  long  as  their  indi- 

*  Cum  regina  Maria  moreretur,  et  religio  in  An- 
glii  niataret,  post  episcopos  et  pra>latos  Cathol- 
icos  captos  et  fugatos,  populus  velut  ovium  gres 
sine  pastore  in  magnis  tenebris  et  caligine  anima- 
riim  suarum  oberravit.  Unde  etiam  factum  est 
multi  ut  Catholicorum  superstitioiiibus  impiis  dis- 
simulationibus  et  gravibus  jaramentis  contrasanctae 
sedis  apostolicoB  auctoritatem,  cum  admodum  par\  o 
aut  plane  nullo  conscientiarum  suaram  scrupolo 
assuescerent.  Frequentabant  ergo  hasreticorum 
synagogas,  intererant  eorum  concionibus,  atque  ad 
easdem  etiam  audiendas  filios  et  familiam  suam 
compellabant.  Videbatur  illis  ut  Catbolici  essent, 
sufficere  una  cum  haereticis  eorum  templa  non  adire, 
ferri  autem  posse  si  ante  vel  post  illos  eadem  in- 
trassent.  Communicabatur  de  sacrilega  Calvini 
coenft,  vel  secreto  et  clanculum  intra  privatos  pai'i- 
etes.  Missam  qui  audiverant,  ac  postea  Calviuia- 
nos  se  haberi  volebaut,  sic  se  de  proecepto  satisfe- 
cisse  existimabant.  Deferebantur  filii  Catbolico- 
rum  ad  baptisteria  liaereticorum,  ac  inter  illorum 
maims  matrimouia  conti'ahebant.  Atque  liaec  om- 
nia sine  omni  scrupulo  fiebant,  facta  propter  Ca- 
tholiconim  sacerdotum  ignorautiam,  qui  talia  vel  li- 
cere  credebant,  vel  timore  quodam  pnTspediti  dis- 
simulabant.  Nunc  autem  per  Dei  misericordiam 
omnes  Catliolici  iutelligunt,  ut  salveutur  non  satis 
esse  corde  fidem  Catholicam  credere,  sed  eandem 
etiam  ore  oportere  contiteri. —  Ribadueira  de  Scbis- 
mate,  p.  53.  See,  also,  Butler's  English  Catholics, 
vol.  iii.,  p.  156.  [There  is  nothing  in  this  statement 
of  the  fact  which  sen-es  to  countenance  the  very  un- 
fair misrepresentations  lately  given,  as  if  the  Roman 
Catholics  generally  had  acquiesced  in  the  Anglican 
worship,  beUeving  it  to  be  substantially  the  same 
as  their  own.  They  frequented  our  churches,  be- 
cause the  law  compelled  them  by  penalties  so  to 
do,  not  out  of  a  notion  that  very  little  change  had 
been  made  by  the  Reformation.  It  is  true,  of 
course,  that  many  became  real  Protestants  by  ha- 
bitual attendance  on  our  rites,  and  by  disuse  of  their 
own.  But  these  were  not  the  recusants  of  a  later 
period.  1845.] 


I  vidual  intercourse  with  a  priest,  its  essential 
1  requisite,  can  be  preserved.    Priests  there- 
j  fore  traveled  the  country  in  various  dis- 
j  guises,  to  keep  alive  a  flame  which  the  prac- 
j  tice  of  outsvard  conformity  was  calculated 
I  to  extinguish.     There  was  not  a  county 
j  throughout  England,  says  a  Catholic  histori- 
an, where  several  of  Maiy's  clergy  did  not 
j  reside,  and  were  commonly  called  the  old 
I  priests.    They  served  as  chaplains  in  pri- 
I  vate  families.*    By  stealth,  at  the  dead  of 
!  night,  in  private  chambers,  in  the  secret 
[  Im-king-places  of  an  ill-peopled  countiy,  with 
all  the  mystery  that  subdues  the  imagination, 
I  with  all  the  mutual  trust  that  invigorates 
j  constancy,  these  proscribed  ecclesiastics  cel- 
I  ebrated  their  solemn  rites,  more  impressive 
in  such  concealment  than  if  suiTounded  by 
all  their  fonner  splendor.    The  strong  pred- 
ilection, indeed,  of  mankind  for  mystery, 
t  which  has  probably  led  many  to  tamper  in 
political  conspiracies  without  much  further 
motive,  will  suffice  to  preserve  secret  asso- 
ciations, even  where  their  purposes  are  far 
less  interesting  than  those  of  religion.  Many 
of  these  itinerant  priests  assumed  the  char- 
acter of  Protestant  preachers ;  and  it  has 
been  said,  with  some  truth,  though  not,  prob- 
ably, without  exaggeration,  that,  under  the 
'  directions  of  their  crafty  court,  they  foraent- 
I  ed  the  division  then  springing  up,  and  min- 
!  gled  with  the  Anabaptists  and  other  secta- 
ries, in  the  hope  both  of  exciting  dislike  to 
the  Establishment,  and  of  instilling  their  o\vn 
tenets,  slightly  disguised,  into  the  minds  of 
unwary  enthusiasts. f 

It  is  my  thorough  conviction  that  the  per- 

*  Dodd's  Church  Hist.,  vol.  ii.,  p.  8. 

t  Thomas  Heath,  brother  to  the  late  Archbishop 
of  York,  was  seized  at  Rochester  about  1570,  well 
provided  with  Anabaptist  and  Arian  tracts  for  cir- 
culation.— Strype,  i.,  521.  For  other  instances,  see 
p.  281,  434.  Life  of  Parker,  244.  Nalson's  Collec- 
tions, vol.  i.,  Introduction,  p.  39,  &c.,  fi-om  a  pam- 
phlet written  also  by  Nalson,  entitled  Foxes  and 
Firebrands.  It  was  surmised  that  one  Heru^-  Nic- 
olas, cliief  of  a  set  of  fanatics  called  the  Family 
of  Love,  of  whom  we  read  a  great  deal  in  this 
reign,  and  who  sprouted  up  again  about  the  time 
of  Cromwell,  was  secretly  employed  bj-  the  popish 
partj'. — Strv"pe,  ii.,  37,  589,  595.  But  these  conjec- 
tures were  very  often  ill  founded,  and  possibly  so 
in  this  instance,  though  the  passages  quoted  by 
Strype  (589)  are  suspicious.  Brandt,  however 
(Hist,  of  Reformation  in  Low  Coimtries,  vol.  i., 
p.  105),  does  not  suspect  Nicolas  of  being  other 
than  a  fanatic.  His  sect  appeared  in  the  Nether- 
lands about  1535. 


Eliz. — Catliolics.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


79 


Persecution  secutioii,  for  it  can  obtain  no  brt- 
hcs'in  tiie'en-  tc''  name,*  carried  on  against  the 
suing  period.  English  CathoMcs,  however  it 
might  serve  to  delude  the  government  by 
producing  an  apparent  conformity,  could  not 
but  excite  a  s[)irit  of  disloyalty  in  many  ad- 
herents of  that  faith.  Nor  would  it  be  safe 
to  assert  that  a  more  conciliating  policy 
would  have  altogether  disanued  their  hos- 
tility, mucli  less  laid  at  rest  those  busy  hopes 
of  the  future,  which  the  peculiar  circum- 
stances of  Elizabeth's  reign  had  a  tendency 
to  produce.  This  remarkable  posture  of 
affairs  affected  all  her  civil,  and,  still  more, 
her  ecclesiastical  policy.  Her  own  title  to 
the  crown  depended  absolutely  on  a  Parlia- 
mentary recognition.  The  act  of  3.5  H.  8, 
c.  1,  had  settled  the  crown  upon  her,  and 
thus  far  resti-ained  the  previous  statute,  28 
H.  8,  c.  7,  which  had  empowered  her  father 
to  regulate  the  succession  at  his  pleasure. 
Besides  this  legislative  authority,  his  testa- 
ment had  bequeathed  the  kingdom  to  Eliza- 
beth after  her  sister  Mary,  and  the  common 
consent  of  the  nation  had  ratified  her  pos- 
session. But  the  Queen  of  Scots,  niece  of 
Henry  by  Margaret,  his  elder  sister,  had  a 
prior  right  to  the  throne  during  Elizabeth's 
life,  in  the  eyes  of  such  Catholics  as  prefer- 
red an  hereditary  to  a  Parliamentary  title, 
and  was  reckoned  by  the  far  gi-eater  part  of 
the  nation  its  presumptive  heir  after  her 
decease.    There  could,  indeed,  be  no  ques- 

*  "That  cliurcli  [of  England]  and  the  queen,  its 
re-founder,  are  clear  of  persecution,  as  regards  the 
Catholics.  No  church,  no  sect,  no  individual  even, 
had  yet  professed  tho  principle  of  toleration." — 
Southey's  Book  of  the  Church,  vol.  ii.,  p.  285.  If 
the  second  of  these  sentences  is  intended  as  a  proof 
of  the  first,  I  must  say  it  is  little  to  the  purpose. 
But  it  is  not  true  in  this  broad  way  of  assertion. 
Not  to  mention  Sir  Thomas  More's  Utopia,  the 
priuciide  of  toleration  had  been  avovi'ed  by  the 
Chancellor  I'Hopital,  and  many  others  in  France. 
I  mention  him  as  on  the  strongest  side  ;  for,  in 
fact,  the  weaker  liad  always  professed  the  gen- 
eral principle,  and  could  demand  toleration  from 
those  of  different  sentiments  on  no  other  plea. 
And  as  to  capital  inflictions  for  heresy,  which  Mr. 
S.  seems  chiefly  to  have  in  his  mind,  there  is  reason 
to  believe  that  many  Protestants  never  approved 
them.  Slcidan  intimates,  vol.  iii.,  p.  263,  that  Cal- 
vin incurred  odium  by  the  death  of  Servetus.  And 
Melanchthou  says  expressly  the  same  thing,  in  the 
letter  which  he  unfortunately  wrote  to  the  Reform- 
er of  Geneva,  declaring  his  own  approbation  of  the 
crime  ;  and  which  I  am  willing  to  ascribe  rather  to 
his  constitutional  fear  of  giving  offense  than  to  sin- 
cere conviction. 


tion  of  this,  had  the  succession  been  left  to 
its  natural  course.    But  Henry  uncertain 
had  exercised  the  power  with  succession  of 

*  trie  crown  be- 

which  his  Parliament,  in  too  serv-  iween  the 
ile  a  spirit,  yet  in  the  plenitude  scoii'andtnd 
of  its  sovereign  authority,  had  in-  SufToik. 
vested  him,  by  settling  the  succession  in  re- 
mainder upon  the  house  of  Suffolk,  descend- 
ants of  his  second  sister  Mary,  to  whom  he 
postponed  the  elder  line  of  Scotland.  Mary 
left  two  daughters,  Frances  and  Eleanor. 
The  former  became  wife  of  Grey,  marquis 
of  Dorset,  created  Duke  of  Sufifolk  by  Ed- 
ward, and  had  three  daughters  —  Jane, 
whose  fate  is  well  known,  Catharine,  and 
Mary.  Eleanor  Brandon,  by  her  union 
with  the  Earl  of  Cumberland,  had  a  daugh- 
ter, who  married  the  Earl  of  Derby.  At 
the  beginning  of  Elizabeth's  reign,  or,  rath- 
er, after  the  death  of  the  Duchess  of  Suf- 
folk, Lady  Catharine  Grey  was  by  statute 
law  the  presumptive  heiress  of  the  crown  ; 
but,  according  to  the  rules  of  hereditary  de- 
scent, which  the  bulk  of  mankind  do  not 
readily  permit  an  arbitrary  and  capricious 
enactment  to  disturb,  Maiy,  queen  of  Scots, 
gi'and-daugViter  of  Margaret,  was  the  indis- 
putable representative  of  her  royal  progen- 
itors, and  the  next  in  succession  to  Eliza- 
beth. 

This  reversion,  indeed,  after  a  youthful 
princess,  might  well  appear  rath- 

'  .  ,    ,  ,  .  Elizahetli's 

er  an  improbable  contingency,  unwiiiing- 
It  was  to  be  expected  that  a  fer-  ""s  to  decide 

the  sQcces- 

tile  marriage  would  defeat  all  sion,  or  to 
speculations  about  her  inherit- 
ance  ;  nor  had  Elizabeth  been  many  weeks 
on  the  throne,  before  this  began  to  occupy 
her  subjects'  minds.*  Among  several  who 
were  named,  two  very  soon  became  the 
prominent  candidates  for  her  favor,  the 
Archduke  Charles,  son  of  the  Emperor 
Ferdinand,  and  Lord  Robert  Dudley,  some 
time  after  created  Earl  of  Leicester ;  one 
recommended  by  his  dignity  and  allian- 
ces, the  other  by  her  own  evident  par- 
tiality. She  gave  at  the  outset  so  little 
encouragement  to  the  former  proposal, 
that  Leicester's  ambition  did  not  appear 
extravagant. f  But  her  ablest  counselors, 
who  knew  his  vices,  and  her  greatest  peers, 
who  thought  his  nobility  recent  and  ill  ac- 

*  The  address  of  the  House  of  Commons,  begging 
the  queen  to  marry,  was  on  Feb.  6,  15o9. 
t  Hayues,  233. 


80 


CONSTITUTIONAL  HISTOKY  OF  EXGLAXD 


[Chap.  III. 


quired,  deprecated  so  unworthy  a  connec- 
tion.* Few  will  pretend  to  explore  the 
labyrinths  of  Elizabeth's  heart;  ye  we  may 
almost  conclude  that  her  passion  for  this  fa- 
vorite kept  up  a  struggle  against  her  wis- 
dom for  tlie  first  seven  or  eight  yeais  of  her 
reign.  Meantime  she  still  continued  un- 
married ;  and  those  expressions  she  had  so 
early  used,  of  her  resolution  to  live  and  die 
a  virgin,  began  to  appear  less  like  coy  aflfec- 
tation  than  at  first.  Never  had  a  sovereign's 
man'iage  been  more  desirable  for  a  king- 
dom. Cecil,  aware  how  important  it  was 
that  the  queen  should  many,  but  dreading 
her  union  with  Leicester,  contrived,  about 
the  end  of  1564,  to  renew  the  ti-eaty  with 
the  Archduke  Charles. f  During  this  ne- 
gotiation, which  lasted  from  two  to  three 
years,  she  showed  not  a  little  of  that  eva- 
sive and  dissembling  coquetry  which  was  to 
be  more  fully  displayed  on  subsequent  oc- 
casions.t     Leicester  deemed  himself  so 

*  See  particularly  two  letters  in  the  Hardwicke 
State  Papers,  i.,  122  aud  163,  dated  in  October  and 
November,  1560,  which  show  the  alarm  excited  by 
the  queen's  ill-placed  partiality. 

t  Cecil's  earnestness  for  the  Austrian  marriage 
appears  plainly  in  Haynes,  430 ;  and  still  more  in 
a  reniai-kable  minute,  where  he  has  dravra  up,  in 
parallel  columns,  according  to  a  rather  fonnal  but 
perspicuous  method  he  much  used,  his  reasons  in 
favor  of  the  archduke,  and  against  the  Earl  of 
Leicester.  The  fonner  chiefly  relate  to  foreign  pol- 
itics, and  may  be  conjectured  by  those  acquainted 
with  histoiy.  The  latter  are  as  follows  :  1.  Nothing 
is  increased  by  marriage  of  him,  either  in  riches, 
estimation,  or  power.  2.  It  will  be  thought  that 
the  slanderous  speeches  of  the  queen  with  the  earl 
have  been  true.  3.  He  shall  study  nothing  but  to 
enhance  his  own  particular  friends  to  wealth,  to 
offices,  to  lands,  and  to  offend  others.  4.  He  is  in- 
famed  by  death  of  his  wife.  5.  He  is  far  in  debt. 
6.  He  is  likely  to  be  unkind,  and  jealous  of  the 
queen's  majesty. — Id.,  444.  These  suggestions, 
and  especially  the  second,  if  actually  laid  before 
the  queen,  show  the  jilainness  and  freedom  which 
this  irreat  statesman  ventured  to  use  toward  her. 
The  allusion  to  the  death  of  Leicester's  wife,  which 
had  occuiTed  in  a  very  suspicious  manner,  at  Cum- 
nor,  near  Oxford,  and  is  well  known  as  the  foun- 
dation of  the  novel  of  Kenilworth,  though  related 
there  with  gi-eat  anaclu-onism  aud  confusion  of  per- 
sons, may  be  frequently  met  with  in  contemporary 
documents.  By  the  above  quoted  letters  in  the 
Hardwicke  Papers,  it  appears  that  those  who  dis- 
liked Leicester  had  spoken  freely  of  this  report  to 
the  queen. 

i  Elizabeth  carried  her  dissimulation  so  far  as  to 
pi-opose  marriage  articles,  which  were  fonnally  laid 
before  the  imperial  ambassador.  These,  though 
copied  from  what  had  been  agreed  ou  Mary's  mar- 


much  interested  as  to  quarrel  with  those 
who  manifested  any  zeal  for  the  Austrian 
man-iage ;  but  his  mistress  gi-aduallj^  over- 
came her  misplaced  inclinations  ;  and  from 
the  time  when  that  connection  was  broken 
off,  liis  prospects  of  becoming  her  husband 
seemed  rapidly  to  have  vanished  awiiy.  The 
pretext  made  for  relinquishing  this  treaty 
with  the  archduke  was  Elizabeth's  constant 
refusal  to  tolerate  the  exercise  of  his  relig- 
ion ;  a  difficulty  which,  whether  real  or  os- 
tensible, recuiTed  in  all  her  subsequent  ne- 
gotiations of  a  similar  natm-e.* 

In  eveiy  Parliament  of  Elizabeth,  the 
House  of  Commons  was  zealously  attached 
to  the  Protestant  intei-est.  This,  as  well  as 
an  apprehension  of  disturbance  from  a  con- 
tested succession,  led  to  those  importunate 
solicitations  that  she  would  choose  a  hus- 
band, which  she  so  artfully  evaded.  A  de- 
termination so  contrary  to  her  apparent  in- 
terest, and  to  the  earnest  desire  of  her  peo- 
ple, may  give  some  countenance  to  the  sur- 
mises of  the  time,  that  she  was  restrained 
from  marriage  by  a  secret  consciousness 

riage  with  Philip,  now  seemed  highly  ridiculous, 
when  exacted  from  a  younger  brother  without  ter- 
ritories or  revenues.  Jura  et  leges  regni  conser- 
ventur,  neque  quicquam  mutetur  in  religione  aut 
in  statu  publico.  Offlcia  et  magistratus  exercean- 
tur  per  naturales.  Neque  regiua,  neque  liberi  sui 
educanlur  ex  regno  sine  consensu  regni,  &c. — 
Haynes,  438. 

Cecil  was  not  too  wise  a  man  to  give  some  credit 
to  astrology.  The  stars  were  consulted  abont  the 
queen's  marriage ;  and  those  veracious  oracles 
gave  response,  tliat  she  should  be  man-ied  in  the 
thirty-first  year  of  her  age  to  a  foreigner,  and  have 
one  son,  who  would  be  a  great  prince,  and  a 
daughter,  &c.,  &c. —StPipe,  ii.,  IG,  and  Appendix, 
4,  where  the  nonsense  may  be  read  at  full  length. 
Perhaps,  however,  the  wily  minister  was  no  dupe, 
but  meant  that  his  mistress  should  be.  [See,  as  to 
Elizabeth's  intentions  to  man-}-  at  this  time,  the 
extracts  from  dispatches  of  the  French  ambassa- 
dor, in  Raumer,  vol.  ii.,  p.  85.] 

*  The  council  appear,  in  general,  to  have  been 
as  resolute  against  tolerating  the  exercise  of  the 
Catholic  religion  in  any  husband  the  queen  might 
choose,  as  herself.  We  find,  however,  that  sever- 
al di\-ines  were  consulted  on  two  questions  :  1. 
Wliether  it  were  lawful  to  man-j-  a  papist.  2. 
Whether  the  queen  might  permit  mass  to  be  said. 
To  which  answers  were  given,  not  agreeing  with 
each  other. — Strj  pe.  ii.,  150,  and  Appendix,  31,  33. 
When  the  Earl  of  Worcester  was  sent  over  to 
Paris  in  1571,  as  proxy  for  tlie  queen,  who  Iiad  been 
made  sponsor  for  Charles  IX. 's  infant  daughter,  she 
would  not  permit  him,  though  himself  a  Catholic, 
to  be  present  at  the  mass  on  that  occasion,  ii.,  171. 


E LIZ.— Catholics.]  FROM  HENRY  VII.  TO  GEORGE  11. 


81 


that  it  was  unlikely  to  be  fruitful.*  Wheth- 
er these  conjectures  were  well  founded,  of 
which  I  know  no  evidence,  or  whether  the 
risk  of  e.xperiencing  that  ingratitude  which 
the  husbands  of  sovereign  princesses  have 
often  displayed,  and  of  which  one  glaring 
example  was  immediately  before  her  eyes, 
outweighed  in  her  judgment  that  of  remain- 
ing single,  or  whether  she  might  not  even 
apprehend  a  more  desperate  combination  of 
the  Catholic  party  at  home  and  abroad,  if 
the  birth  of  any  issue  from  her  should  shut 
out  their  hopes  of  Mary's  succession,  it  is 
difficult  for  us  to  decide. 

Though  the  queen's  marriage  were  the 
primaiy  object  of  these  addresses,  as  the 
most  probable  means  of  securing  an  undis- 
puted heir  to  the  crown,  yet  she  might  have 
satisfied  the  Parliament  in  some  degree  by 
limiting  the  succession  to  one  certain  line. 
But  it  seems  doubtful  whether  this  would 
have  answered  the  proposed  end.  If  she 
had  taken  a  firm  resolution  against  matrimo- 
ny, which,  unless  on  the  supposition  already 
hinted,  could  hardly  be  reconciled  with  a 
sincere  regard  for  her  people's  welfare,  it 
might  be  less  dangerous  to  leave  the  course 
of  events  to  regulate  her  inheritance. 
Though  all  parties  seem  to  have  conspired 
in  pressing  her  to  some  decisive  settlement 
on  this  subject,  it  would  not  have  been  easy 
to  content  the  two  factions,  who  looked  for 
a  successor  to  very  different  quarters. f  It 

*  "  The  people,"  Camden  say.%  "  cursed  Huic, 
the  queen's  physician,  as  having  dissuaded  the 
queen  from  marrying  on  account  of  some  impedi- 
ment and  defect  in  her."  Many  will  recollect  the 
allusion  to  this  in  Mary's  scandalous  letter  to  Eliz- 
abeth, wherein,  under  pretense  of  repeating  what 
the  Countess  of  Shrewsbury  had  said,  she  utters 
every  thing  that  female  spite  and  ungovernable 
malice  could  dictate.  But  in  the  long  and  confiden- 
tial coiTespoudence  of  Cecil,  Walsingham,  and  Sir 
Thomas  Smith,  about  the  queen's  marriage  with  the 
Dukeof  Anjou,  in  1571,  for  which  they  were  evident- 
ly most  anxious,  I  do  not  perceive  the  slightest  inti- 
mation that  the  prospect  of  her  bearing  children 
was  at  all  less  favorable  than  in  any  other  case. 
The  council  seem,  indeed,  in  the  subsequent  treaty 
with  the  other  Duke  of  Anjou,  in  1579,  when  she 
was  forty-six,  to  have  reckoned  on  something  rath- 
er beyond  the  usual  laws  of  nature  in  this  respect ; 
for  in  a  minute  by  Cecil  of  the  reasons  for  and 
against  this  marriage,  he  sets  down  the  probability 
of  issue  on  the  favorable  side.  "  By  mairying  witli 
Monsieur,  she  is  likely  to  have  children,  because  of 
his  youth  ;"  as  if  her  age  were  no  objection. 

t  Camden,  after  telling  us  that  the  queen's  dis- 
incliuation  to  maiTy  raised  great  clamors,  and  that 

F 


is  evident  that  any  confirmation  of  the  Suf- 
folk title  would  have  been  regarded  by  the 
Queen  of  Scots  and  her  numerous  partisans 
as  a  flagrant  injustice,  to  which  they  would 
not  submit  but  by  compulsion  ;  and,  on  the 
other  hand,  by  re-establishing  the  hereditaiy 
line,  Elizabeth  would  have  lost  her  check  on 
one  whom  she  had  reason  to  consider  as  a 
rival  and  competitor,  and  whose  influence 
was  already  alarmingly  extensive  among  her 
subjects. 

She  had,  however,  in  one  of  the  first  years 
of  her  reign,  without  any  better  imprison- 
motive  than  her  own  jealous  and  caulanne*^^ 
malignant  humor,  taken  a  step  Grey, 
not  only  harsh  and  arbitrary,  but  very  little 
consonant  to  policy,  which  had  almost  put  it 
out  of  her  power  to  defeat  the  Queen  of 
Scots'  succession.  Lady  Catharine  Grey, 
who  has  been  already  mentioned  as  next  in 

the  Earls  of  Pembroke  and  Leicester  had  professed 
their  opinion  that  she  ought  to  be  obliged  to  take 
a  husband,  or  that  a  successor  should  be  declared 
by  act  of  Parliament  even  against  her  will,  asserts 
some  time  after,  as  inconsistently  as  improperly, 
that  "very  few  but  malcontents  and  ti'aitors  ap- 
peared vei-y  solicitous  in  the  bushiess  of  a  success- 
or."—  P.  401  (in  Kennet's  Complete  Histoiy  of 
England,  vol.  ii.).  This,  however,  from  Camden's 
known  proneuess  to  flatter  James,  seems  to  indicate 
that  the  Suffolk  party  were  more  active  than  the 
Scots  upon  this  occasion.  Their  strength  lay  in  the 
House  of  Commons,  which  was  wholly  Protestant, 
and  rather  Puritan. 

At  the  end  of  Murden's  State  Papers  is  a  short 
journal  kept  by  Cecil,  containing  a  succinct  and 
authentic  summaiy  of  events  in  Elizabeth's  reign. 
I  extract  as  a  specimen  such  passages  as  bear  on 
the  present  subject. 

Oct.  6,  15C6.  Certain  lewd  bills  thrown  abroad 
against  the  queen's  majesty  for  not  assenting  to 
have  the  matter  of  succession  proved  in  Parliament; 
and  bills  also  to  charge  Sir  W.  Cecil,  the  secreta- 
ry,  with  the  occasion  thereof 

27.  Certam  lords,  viz.,  the  Earls  of  Pembroke 
and  Leicester,  were  excluded  the  presence-cham- 
ber for  furthering  the  proposition  of  the  succession 
to  be  declared  by  Parliament  without  the  queen's 
allowance. 

Nov.  12.  Mes.srs.  Bell  and  Monson  moved  ti'ouble 
in  the  Parliament  about  the  succession. 

14.  The  queen  had  before  her  thirty  lords  and 
thirty  commoners,  to  receive  her  answer  concern- 
ing their  petition  for  the  succession  and  for  mar- 
riage. Daltou  was  blamed  for  speaking  in  the 
Commons'  House. 

24.  Command  given  to  the  Parliament  not  to 
treat  of  the  succession. 

Nota :  in  this  Parliament  time  the  queen's  maj- 
esty did  remit  a  part  of  the  offer  of  a  subsidy  to  the 
Commons,  who  ottered  largely,  to  the  end  to  have 
had  the  succession  established. — P.  762. 


82 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  UL 


remainder  of  the  house  of  Suffolk,  proved 
with  child  by  a  private  marriage,  as  they 
both  alleged,  with  the  Earl  of  Hertford. 
The  queen,  always  envious  of  the  happiness 
of  lovers,  and  jealous  of  all  who  could  en- 
tertain any  hopes  of  the  succession,  threw 
them  both  into  the  Tower.  By  connivance 
of  their  keepers,  the  lady  bore  a  second 
child  during  this  imprisonment.  Upon  this, 
Elizabeth  caused  an  inquiiy  to  be  instituted 
before  a  commission  of  privy  counselors  and  | 
civilians,  wherein,  the  parties  being  unable  ' 
to  adduce  proof  of  their  marriage.  Archbish- 
op Parker  pronounced  that  their  cohabitation 
was  illegal,  and  that  they  should  be  cen- 
sured for  fornication.  He  was  to  be  pitied 
if  the  law  oMiged  him  to  utter  so  harsh  a 
sentence,  or  to  be  blamed  if  it  did  not. 
Even  had  the  man-iage  never  been  solem- 
nized, it  was  impossible  to  doubt  the  exist-  ' 
ence  of  a  contract,  which  both  were  stUl  de- 
sirous to  perform.  But  there  is  reason  to 
beUeve  that  there  had  been  an  actual  mar- 
riage, though  so  hasty  and  clandestine  that 
they  had  not  taken  precautions  to  secure 
evidence  of  it.  The  injured  lady  sunk  un- 
der this  hardship  and  indignity  ;*  but  the 
legitimacy  of  her  cliildren  was  acknowl- ! 
edged  by  general  consent,  and,  in  a  distant 
age,  by  a  legislative  declaration.  These 
proceedings  excited  much  dissatisfaction ; 
generous  minds  revolted  from  their  seven-  j 
ty,  and  many  lamented  to  see  the  reform-  \ 
ed  branch  of  the  royal  stock  thus  bruised 
by  the  queen's  unkind  and  impolitic  jealou- 

*  Catharine,  after  her  release  from  the  Tower, 
■was  placed  in  the  custody  of  her  uncle,  Lord  John 
Grey,  but  still  sufferin?  the  queen's  displeasure,  ' 
and  separated  from  her  husband.  .Several  interest- 
ing letters  from  her  and  her  uncle  to  Cecil  are  ^ 
among  the  Lansdowne  MSS.,  vol.  vi.    They  can  not  ^ 
be  read  without  indisiiatiou  at  Elizabeth's  unfeel- 
ing severity.    Sorrow  kiUed  this  poor  young  wom- 
an the  nest  year,  who  was  never  permitted  to  see  , 
■faer  husband  again. — Strype.  i.,  391.    The  Earl  of  [ 
Hertford  underwent  a  long  imprisonment,  and  con- 
tinued in  obscurity  during  Elizabeth's  reign,  but 
had  some  public  emploj-ments  under  her  successor. 
He  was  twice  afterward  married,  and  lived  to  a 
very  advanced  age.  not  dying  till  16-21,  near  sixty  j 
years  after  his  ill-stan-ed  and  ambitious  love.    It  is 
worth  while  to  read  the  epitaph  on  his  monument  ' 
in  the  southeast  aisle  of  Salisbury  Cathedral,  an 
affecting  testimony  to  the  purity  and  faithfulness  ^ 
of  an  attachment,  rendered  still  more  sacred  by 
misfortune  and  time.    Quo  desiderio  veteres  revo-  ; 
cavit  amores  !    I  shall  revert  to  the  question  of , 
this  marriage  in  a  subsequent  chapter.  J 


sy.*  Hales,  clerk  of  the  hanaper,  a  zeal- 
ous Protestant,  having  written  in  favor  of 
Lady  Catharine's  marriage,  and  of  her  ti- 
tle to  the  succession,  was  sent  to  the  Tow- 
er.f  The  Lord-keeper  Bacon  himself,  a 
known  friend  to  the  house  of  Suffolk,  being 
suspected  of  having  prompted  Hales  to 
^vrite  this  treatise,  lost  much  of  his  mis- 
tress's favor.  Even  Cecil,  though  he  had 
taken  a  share  in  prosecuting  Lady  Cath- 
arine, perhaps  in  some  degree  from  an  ap- 
prehension that  the  queen  might  remember 
he  had  once  joined  in  proclaiming  her  sis- 
ter Jane,  did  not  always  escape  the  same 
suspicion  ;t  and  it  is  probable  that  he  felt 
the  imprudence  of  entirely  discountenan- 
cing a  party  from  which  the  queen  and  re- 
ligion had  nothing  to  dread.  There  is  rea- 
son to  believe  that  the  house  of  Suffolk 
was  favored  in  Parliament ;  the  address  of 
the  Commons  in  1-363,  imploring  the  queen 
to  settle  the  succession,  contains  several  in- 
dications of  a  spirit  unfriendly  to  the  Scot- 
tish line  ;§  and  a  speech  is  extant,  said  to 
have  been  made  as  late  as  1751,  expressly 


*  Haynes,  396. 

t  Id.,  413.  Strype,  410.  Hales's  treatise  in  fa- 
vor of  the  authenticity  of  Henry's  will  is  among  the 
Harleian  MS."?.,  n.  537  and  55.5,  and  has  also  been 
printed  in  the  Appendix  to  Hereditary  Right  As- 
serted, fol.  1713. 

i  Camden,  p.  416,  ascribes  the  powerful  coali- 
tion formed  against  him  in  1569,  wherein  Norfolk 
and  Leicester  were  combined  with  all  the  Catholic 
peers,  to  his  predilection  for  the  house  of  Suffolk. 
But  it  was  more  probably  owing  to  their  knowledge 
of  his  integrity  and  attachment  to  his  sovereign, 
which  would  steadfastly  oppose  their  wicked  de- 
sign of  bringing  about  Norfolk's  marriage  with 
Mary,  as  well  as  to  their  jealousy  of  his  inflaence. 
Carte  reports,  on  the  authority  of  the  dispatches  of 
Fenelon,  the  French  ambassador,  that  they  intend- 
ed to  bring  him  to  account  for  breaking  off  the  an- 
cient league  with  the  house  of  Burgundy,  or,  in 
other  words,  for  maintaining  the  Protestant  inter- 
est.— Vol.  iii..  p.  483. 

A  papist  writer,  under  the  name  of  Andreas 
Philopater,  gives  an  account  of  this  confederacy 
against  Cecil  at  some  length.  Norfolk  and  Leices- 
ter belonged  to  it ;  and  the  object  was  to  defeat  the 
Suffolk  succession,  whicli  Cecil  and  Bacon  favored. 
Leicester  betrayed  his  associates  to  the  queen. 
It  had  been  intended  that  Norfolk  should  accuse 
the  two  counselors  before  the  Lords,  ea  ratione  ut 
e  senatu  regiaque  abreptos  ad  curiae  jauuas  in  cru- 
cem  agi  paeciperet,  eoque  perfecto  recte  deinceps 
ad  forum  progressus  esplicaret  populo  tum  hnjus 
facti  rationem,  tum  successionis  etiam  regnandi 
leiritimam  seriem,  si  quid  forte  reginsB  humanitus 
accideret.— P.  43.  §  D  Ewes,  81. 


Eliz.— Catbolics.]  FROM  HENRY  VII. 

vindicating  the  rival  pretension.*  If,  in- 
deed, we  consider  with  attention  the  stat- 
ute of  13  Eliz.,  c.  1,  which  renders  it 
treasonable  to  deny  that  the  sovereigns  of 
this  kingdom,  with  consent  of  Parliament, 
might  alter  the  line  of  succession,  it  will 
appear  little  short  of  a  confirmation  of  that 
title,  which  the  descendants  of  Maiy  Bran- 
don derived  from  a  Parliamentary  settle- 
ment. But  the  doubtful  birth  of  Lord 
Beauchamp  and  his  brother,  as  well  as  an 
ignoble  marriage,  which  Francis,  the  young- 
er sister  of  Lady  Catharine  Grey,  had 
thought  it  prudent  to  contract,  deprived 
this  party  of  all  political  consequence  much 
sooner,  as  I  conceive,  than  the  wisest  of 
Elizabeth's  advisers  could  have  desired; 
and  gave  rise  to  various  other  pretensions, 
which  failed  not  to  occupy  speculative  or 
intriguing  tempers  throughout  this  reign. 

We  may  well  avoid  the  tedious  and  in- 
Nfary,  queen  tricate  paths  of  Scottish  history, 
of  Scotland,  where  each  fact  must  be  sustain- 
ed by  a  controversial  discussion.  Every  one 
wUl  recollect  that  Maiy  Stuart's  retention 
of  the  arms  and  style  of  England  gave  the 
first,  and,  as  it  proved,  inexpiable  provoca- 
tion to  Elizabeth.  It  is  indeed  ti'ue  that 
she  was  queen  consort  of  France,  a  state 
lately  at  war  with  England,  and  that  if  the 
sovereigns  of  the  latter  countiy,  even  in 
peace,  would  persist  in  claiming  the  French 
throne,  they  could  hardly  complain  of  this 
retaliation.  But,  although  it  might  be  diffi- 
cult to  find  a  diplomatic  answer  to  this,  yet 
every  one  was  sensible  of  an  important  dif- 
ference between  a  title  retained  through 
vanity,  and  expressive  of  pretensions  long 
since  abandoned,  from  one  that  several  for- 
eign powers  were  prepared  to  recognise, 
and  a  great  part  of  the  nation  might,  per- 
haps, only  want  opportunity  to  support. f 

*  Strj-pe,  11,  Append.  This  speech  seems  to 
have  been  made  while  Catharine  Grey  was  living ; 
perhaps,  therefore,  it  was  in  a  former  Parliament, 
for  no  account  that  I  have  seen  represents  her  as 
haviu?  been  alive  so  late  as  1371. 

t  There  was  something  peculiar  in  Mary's  mode 
of  blazonry.  She  bore  Scotland  and  England  quar- 
,  terly.  the  former  being  first;  but  over  all  was  a 
half  scutcheon  of  pretense  with  the  arms  of  Eng- 
land, the  sinister  half  being  as  it  were  obscured,  in 
order  to  intimate  that  she  was  kept  out  of  her  right. 
— Strype,  vol.  i.,  p.  8. 

The  dispatches  of  Throckmorton,  the  English 
ambassador  in  France,  bear  continual  testimony  to 
the  insulting  and  hostile  manner  in  which  Francis 


TO  GEORGE  II.  '  §3 

If,  however,  after  the  death  of  Francis  II. 
had  set  the  Queen  of  Scots  free  from  aD  ad- 
verse connections,  she  had  with  more  read- 
iness and  apparent  sincerity  renounced  a 
pretension  which  could  not  be  made  compat- 
ible with  Elizabeth's  friendship,  she  might 
perhaps  have  escaped  some  of  the  conse- 
quences of  that  powerful  neighbor's  jeal- 
ousy. But  whether  it  were  that  female 
weakness  restrained  her  from  unequivocally 
abandoning  claims  which  she  deemed  well 
founded,  and  which  future  events  might  en- 
able her  to  realize  even  in  Elizabeth's  life- 
time, or  whether  she  fancied  that  to  drop 
the  arms  of  England  from  her  scutcheon 
would  look  like  a  dereliction  of  her  right 
of  succession,  no  satisfaction  was  fairly  giv- 
en on  this  point  to  the  English  court.  Eliz- 
abeth took  a  far  more  effective  revenge,  by 
inti'iguing  with  all  the  malcontents  of  Scot- 
land. But  while  she  was  endeavoring  to 
render  Mary's  throne  uncomfortable  and 
insecure,  she  did  not  employ  that  influence 
against  her  in  England  which  lay  more  fair- 
ly in  her  poM'er.  She  certainly  Avas  not 
unfavorable  to  the  Queen  of  Scots'  succes- 
sion, however  she  might  decline  compliance 
with  importunate  and  injudicious  solicita- 
tions to  declare  it.  She  threw  both  Hales  and 
one  Thornton  into  prison  for  writing  against 
that  title.  And  when  Mary's  secretary, 
Lethington,  urged  that  Henry's  testament, 

II.  and  his  queen  displayed  their  pretensions  to  our 
crown.  —  Forbes's  State  Papers,  vol.  i.,  passim. 
The  following  is  an  instance.  At  the  enti-ance  of 
the  king  and  queen  into  Chatellierault,  23d  Nov., 
1.539,  these  lines  formed  the  inscription  over  one 
of  the  gates : 

Gallia  perpetuis  pugna:tque  Britannia  bellis 

Glim  odio  inter  ee  dimicuere  pari. 
Nunc  Gallos  totoque  remolos  orbe  Britaoaos 

Unum  dos  MariK  cogit  impprium. 
Zr^o  pace  potes,  Francisce,  quod  omniljas  armia 

MiUe  patres  annis  non  potuere  tui. 

This  offensive  behavior  of  the  French  court  is  the 
apology  of  Elizabeth's  intiigues  during  the  same 
period  with  the  malcontents,  which  to  a  certain 
extent  can  not  be  denied  by  any  one  who  has  read 
the  collection  above  quoted  ;  though  I  do  not  think 
Dr.  Lingard  warranted  in  asserting  her  privity  to 
the  conspiracy  of  Amboise  as  a  proved  fact. 
Throckmorton  was  a  man  veiy  likely  to  exceed  Iiis 
instructions  ;  and  there  is  much  reason  to  believe 
that  he  did  so.  It  is  remarkable  that  no  modem 
French  writers  that  I  have  seen,  Anquetil,  Gamier, 
Lacretelle,  or  the  editors  of  the  General  Collection 
of  Memoirs,  seem  to  have  been  aware  of  Eliza- 
beth's secret  intrigues  with  the  King  of  Navarre 
and  other  Protestant  chiefs  in  1559,  which  these 
letters,  pablished  by  Forbes  in  1740,  demonstrate. 


84 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap,  IIL 


which  alone  stooJ  in  their  way,  should  be 
examined,  alleging  that  it  had  not  been  sign- 
ed by  the  king,  she  paid  no  attention  to  this 
imprudent  request.* 

The  circumstances  wherein  Mary  found 
herself  placed  on  her  airival  in  Scotland 
were  sufficiently  embarrassing  to  divert 
her  attention  from  any  regular  scheme 
against  Elizabeth,  though  she  may  some- 
times have  indulged  visionary  hopes ;  nor 
is  it  probable  that,  with  the  most  circum- 
spect management,  she  could  so  far  have 
mitigated  the  rancor  of  some,  or  checked 
the  ambition  of  others,  as  to  find  leisure  for 
hostile  intrigues.  But  her  imprudent  mar- 
riage with  Darnley,  and  the  far  gi-eater  er- 
rors of  her  subsequent  behavior,  by  lower- 
ing both  her  resources  and  reputation  as  far 
as  possible,  seemed  to  be  pledges  of  perfect 
security  from  that  quarter.  Yet  it  was  pre- 
cisely when  Mary  was  become  most  feeble 
and  helpless  that  Elizabeth's  apprehensions 
gi'ew  most  serious  and  well  founded. 

At  the  time  when  Mary,  escaped  from 
captivity,  threw  herself  on  the  protection  of 
a  related,  though  rival  queen,  three  courses 
lay  open  to  Elizabeth,  and  Avere  discussed 
in  her  councils.  To  restore  her  by  force 
of  arms,  or,  rather,  by  a  mediation  which 
would  certainly  have  been  eftectual,  to  the 
throne  which  she  had  compulsorily  abdica- 
ted, was  the  most  generous,  and  would,  per- 
haps, have  turned  out  the  most  judicious 
proceeding.  R-eigning  thus  with  tarnished 
honor  and  diminished  power,  she  must  have 
continually  depended  on  the  support  of  Eng- 
land, and  become  little  better  than  a  vassal 
of  its  sovereign.  Still  it  might  be  objected 
by  many  that  the  queen's  honor  was  con- 
cerned not  to  maintain  too  decidedly  the 
cause  of  one  accused  by  common  fame, 
and  even' by  evidence  that  had  already  been 
made  public,  of  adultery  and  the  assassina- 

*  Biimet,  i.,  Append.,  266.  Many  letters,  both 
of  Mary  herself  and  of  her  secretaiy,  the  famous 
Maitland  of  Lethington,  occur  in  Haynes's  State 
Papers  about  the  end  of  1561.  In  one  of  his  to 
Cecil,  he  urges,  in  answer  to  what  had  been  al- 
leged by  the  English  court,  that  a  collateral  suc- 
cessor had  never  been  declared  in  any  prince's 
lifetime  ;  that,  wliatever  reason  there  might  be  for 
that,  "  if  the  succession  had  remained  untouched 
according  to  the  law,  yet  where  by  a  limitation  men 
had  gone  about  to  prevent  the  providence  of  God, 
and  shift  one  into  the  place  due  to  another,  the  of- 
fended party  could  not  but  seek  the  redress  there- 
of.'—P.  373. 


tion  of  her  husband.  To  have  permitted 
her  retreat  into  France  would  have  shown 
an  impartial  neutrality ;  and  probably  that 
court  was  too  much  occupied  at  home  to 
have  aflforded  her  any  material  assistance. 
Yet  this  appeared  rather  dangerous ;  and 
policy  was  supposed,  as  frequently  hap- 
pens, to  indicate  a  measure  abs^jlutely  re- 
pugnant to  justice,  that  of  detaining  her  in 
perpetual  custody.*  Whether  this  policy 
had  no  other  fault  than  its  want  of  justice, 
may  reasonably  be  called  in  question. 

The  queen's  determination  neither  to 
marry  nor  limit  the  succession  had  inevita- 
bly turned  every  one's  thoughts  toward  the 
contingency  of  her  de.ith.  She  was  young, 
indeed,  but  had  been  dangerously  ill,  once 
in  1.562, f  and  again  in  1568.  Of  all  jxis- 
sible  competitors  for  the  throne, 

.  1,1  Combination 

Maiy  was  mcomparably  the  most  >n  favor  of 
powerful,  both  among  the  nobili-  ^^^^y- 
ty  and  the  people.  Besides  the  undivided 
attachment  of  all  who  retained  any  long- 
ings for  the  ancient  religion,  and  many 
such  were  to  be  found  at  Elizabeth's  court 
and  chapel,  she  had  the  strong-hold  of  he- 
reditaiy  right,  and  the  general  sentiment 
that  revolts  from  acknowledging  the  om- 
nipotency  of  a  servile  Parliament.  Cecil, 
whom  no  one  could  suspect  of  partiality 
toward  her,  admits,  in  a  remarkable  min- 
ute on  the  state  of  the  kingdom  in  1569, 
that  "  the  Queen  of  Scots'  strength  staud- 
eth  by  the  universal  opinion  of  the  world 
for  the  justice  of  her  title,  as  coming  of  the 
ancient  line."t  This  was,  no  doubt,  in 
some  degree  counteracted  by  a  sense  of 
the  danger  which  her  accession  would  oc- 
casion to  the  Protestant  Chiu'ch,  and  which, 
far  more  than  its  Parliamentary  title,  kept 
up  a  sort  of  party  for  the  house  of  Suflfolk. 

*  A  very  remarkable  letter  of  the  Earl  of  Sus- 
sex, Oct.  22,  156i?,  contains  these  words:  "I  think 
surely  no  end  can  be  made  good  for  England,  ex- 
cept the  person  of  the  Scottish  queen  be  detained, 
by  one  means  or  other,  in  England."  The  whole 
letter  manifests  the  spirit  of  Elizabeth's  advisers, 
and  does  no  great  credit  to  Sussex's  sense  of  jus- 
tice, but  a  great  deal  to  his  abihty.  Yet  he  after- 
ward became  an  advocate  for  the  Duke  of  Norfolk's 
marriage  with  Marj-. — Lodge's  Illustrations,  vol. 
ii.,  p.  4. 

t  Hume  and  Carte  say,  this  first  illness  was  the 
small-pox.  But  it  appears  by  a  letter  from  the 
queen  to  Lord  Shrewsbury,  Lodge,  279,  that  her 
attack  in  1571  was  suspected  to  be  that  disorder. 

t  HajTies,  580. 


Kliz.— CathoHcs.]  FROM  HENRY  VII.  TO  GEORGE  II. 


85 


The  crimes  imputed  to  her  did  not  imme- 
diately gain  credit  among  the  people ;  and 
some  of  higher  rank  were  too  experienced 
politicians  to  tm-n  aside  for  such  considera- 
tions. She  had  always  preserved  her  con- 
nections among  the  English  nobility,  of 
whom  many  were  Catholics,  and  others 
adverse  to  Cecil,  by  whose  counsels  the 
queen  had  been  principally  directed  in  all 
her  conduct  with  regard  to  Scotland  and  its 
sovereign.*  After  the  unfinished  process 
of  inquiry  to  which  Mary  submitted  at  York 
and  Hampton  Court,  when  the  charge  of 
participation  in  Darnley's  murder  had  been 
substantiated  by  evidence  at  least  that  she 
did  not  disprove,  and  the  whole  course  of 
which  proceedings  created  a  very  unfavor- 
able impression  both  in  E  ngland  and  on  the 
Continent,  no  time  was  to  be  lost  by  those 
who  considered  her  as  the  object  of  their 
dearest  hopes.  She  was  in  the  kingdom ; 
she  might,  by  a  bold  i-escue,  be  placed  at 
their  head  ;  eveiy  hour's  delay  increased 
the  danger  of  her  being  delivered  up  to  the 
rebel  Scots ;  and  doubtless  some  eager 
Protestants  had  already  begun  to  demand 
her  exclusion  by  an  absolute  decision  of  the 
Legislature. 

Elizabeth  must  have  laid  her  account,  if 
not  with  the  disaffection  of  the  Catholic  par- 
ty, yet  at  least  with  their  attachment  to  the 
Queen  of  Scots.  But  the  extensive  com- 
bination that  appeared,  in  1569,  to  bring 
about  by  force  the  Duke  of  Norfolk's  mar- 
riage with  that  princess,  might  well  startle 
her  cabinet.  In  this  combination,  West- 
moreland and  Northumberland,  avowed 
Catholics,  Pembroke  and  Arundel,  suspect- 
ed ones,  wei'e  mingled  with  Sussex  and 
even  Leicester,  unquestioned  Protestants. 
The  Duke  of  Norfolk  himself,  greater  and 
richer  than  any  English  subject,  had  gone 
such  lengths  in  this  conspiracy,  that  his  life 
became  the  just  forfeit  of  his  guilt  and  folly. 

*  In  a  conversation  which  Mai-y  had  with  one 
Rooksby,  a  spy  of  Cecil's,  about  the  spring  of  1566, 
she  imprudently  named  several  of  her  friends,  and 
of  others  whom  she  hoped  to  win,  sncli  as  the  Duke 
of  Norfolk,  the  Earls  of  Derby,  Northumberland, 
Westmoreland,  Cumberland,  Slirewsbuiy.  "  She 
had  tlie  better  hope  of  this,  for  that  she  thought 
them  all  to  be  of  the  old  reUgion,  whicli  she  meant 
to  restore  again  with  all  expedition,  and  tliereby 
win  the  hearts  of  the  common  people."  The  whole 
passage  is  worth  notice. — Haynes,  447.  See,  also, 
Melvill's  Memoirs,  for  the  disposition  of  an  English 
party  toward  Mary  iu  1556. 


It  is  almost  impossible  to  pity  this  unhappy 
man,  who,  lured  by  the  most  criminal  am- 
bition, after  proclaiming  the  Queen  of  Scots 
a  notorious  adulteress  and  murderer,  would 
have  compassed  a  union  with  her  at  the  haz- 
ard of  his  sovereign's  crown,  of  the  tranquil- 
lity and  even  independence  of  his  country, 
and  of  the  Reformed  religion.*  There  is 
abundant  proof  of  his  intrigues  with  the 
Duke  of  Alva,  who  had  engaged  to  invade 
the  kingdom.  His  trial  was  not,  indeed, 
conducted  in  a  mannar  that  we  can  approve 
(such  was  the  nature  of  state  proceedings 
in  that  age);  nor  can  it,  I  think,  bedenied 
that  it  formed  a  precedent  of  consti'uctive 
treason  not  easily  reconcilable  with  the  stat- 
ute ;  but  much  evidence  is  extant  that  his 
prosecutors  did  not  adduce  ;  and  no  one  fell 
by  a  sentence  more  amply  merited,  or  the 
execution  of  which  was  more  indispensable,  f 
Norfolk  was  the  dupe  throughout  all  this 
inti-igue  of  more  artful  men  ;  first  of  Mur- 
ray and  Lethington,  who  had  filled  his  mind 
with  ambitious  hopes,  and  afterward  of  Ital- 
ian agents  employed  by  Pius  V.  to  procure 
a  combination  of  the  Catholic  party.  Col- 
lateral to  Norfolk's  conspiracy,  but  doubtless 
connected  with  it,  was  that  of  the  noi-them 
Earls  of  Northumberland  and  Westmore- 
land, long  prepared,  and  perfectly  foreseen 
by  the  government,  of  which  the  ostensible 
and  manifest  aim  was  the  re-establishment 
of  popery. t  Pius  V.,  who  took  a 
far  more  active  part  than  his  prede-  ^'"^ 

*  Murden's  State  Papers,  134, 180.  Norfolk  was 
a  very  weak  man,  the  dupe  of  some  veiy  cunning 
ones.  We  may  observe  that  his  submission  to  the 
queen.  Id.,  153,  is  expressed  in  a  style  which  would 
now  be  thought  most  pusillanimous  in  a  man  of 
much  lower  station,  yet  he  died  with  great  intre- 
pidity. But  such  was  the  tone  of  those  times  ;  an 
exaggerated  hypocrisy  prevailed  in  every  thing. 

t  State  Trials,  i.,  957.  He  was  inten-ogated  by 
the  queen's  counsel  with  the  most  insidious  ques- 
tions. All  the  material  evidence  was  read  to  the 
Lords  from  written  depositions  of  witnesses  who 
might  have  been  called,  contrary  to  the  statute  of 
Edward  VI.  But  the  Burghley  Papers,  published 
by  Hayues  and  Murden,  contain  a  mass  of  docu- 
ments i-elative  to  this  conspiracy,  which  leave  no 
doubt  as  to  the  most  heinous  charge,  that  of  invit- 
ing the  Duke  of  Alva  to  invade  the  kingdom. 
There  is  reason  to  suspect  that  he  feigned  himself 
a  Catholic  in  order  to  secure  Alva's  assistance. — 
Murden,  p.  10. 

t  The  northei-n  counties  were  at  this  time  chiefly 
Catholic.  "  There  are  not,"  says  Sadler,  writing 
from  thence,  "ten  gentlemen  in  this  country  who 
do  favor  and  allow  of  her  majesty's  proceedings 


86 


CONSTITUTIONAL  HISTORY  OF  ENGLA^^D 


[Chap.  III. 


cesser  in  English  aflfairs,  and  had  secretly 
instigated  this  insurrection,  now  published 
his  celebrated  bull,  excommunicating  and 
deposing  Elizabeth,  in  order  to  second  the 
efforts  of  her  rebellious  subjects.*  This 
is,  perhaps,  with  the  exception  of  that  is- 
sued by  Sixtus  V.  against  Henry  IV.  of 
Fi-ance,  the  latest  blast  of  that  trumpet, 
which  had  thrilled  the  hearts  of  monarchs. 
Yet  there  was  nothing  in  the  sound  that 
bespoke  declining  vigor ;  even  the  illegiti- 
macy of  Elizabeth's  birth  is  scai'cely  alluded 
to  ;  and  the  pope  seems  to  have  chosen 
rather  to  ti-ead  the  path  of  his  predeces- 
soi's,  and  absolve  her  subjects  from  their 
allegiance,  as  the  just  and  necessary  pun- 
ishment of  her  heresy. 

Since  nothing  so  much  strengthens  any 
government  as  an  unsuccessful  endeavor  to 
subvert  it,  it  may  be  thought  that  the  com- 
plete failure  of  the  rebellion  under  the 
Earls  of  Northumberland  and  Westmore- 
land, with  the  detection  and  punishment 
of  the  Duke  of  Norfolk,  rendered  Eliza- 
beth's throne  more  secure.  But  those 
events  revealed  the  number  of  her  ene- 
mies, or  at  least  of  those  in  whom  no  con- 
fidence could  be  reposed.  The  rebellion, 
though  provided  against  by  the  ministry, 
and  headed  by  two  peers  of  gi-eat  family 
but  no  personal  weight,  had  not  only  as- 
sumed for  a  time  a  most  foi'midable  aspect 
in  the  north,  but  caused  many  to  waver  in 
other  parts  of  the  kingdom. f  Even  in 
Norfolk,  an  eminently  Protestant  county, 
there  was  a  slight  insurrection  in  1570,  out 
of  attachment  to  the  duke.  J  If  her  great- 
est subject  could  thus  be  led  asti-ay  from 
his  faith  and  loyalty,  if  others  not  less  near 

in  the  cause  of  religion." — Lingard,  vii.,  54.  It  was 
consequently  the  great  resort  of  the  priests  from 
the  Netherlands,  and  in  the  feeble  state  of  the 
Protestant  Church  there  wanted  sufficientministers 
to  stand  up  ia  its  defense. — Strj'pe,  i.,  509,  et  post ; 
ii.,  183.  Many  of  the  gentry,  indeed,  were  stiU  dis- 
affected in  other  parts  toward  the  new  religion. 
A  profession  of  conformity  was  required  in  1569 
from  all  justices  of  the  peace,  which  some  refused, 
and  others  made  against  their  consciences. — Id., 
i.,  567. 

*  Camden  has  quoted  a  long  passase  from  Hier- 
onymo  Catena's  Life  of  Pius  V.,  published  at  Rome, 
in  1558,  which  illustrates  the  evidence  to  the  same 
effect  contained  in  the  Burihley  Papers,  and  part- 
ly adduced  on  the  Duke  of  Norfolk's  trial. 

t  Strype,  i.,  546,  553,  556. 

t  Strype,  i.,  578.    Camden,  428.    Lodge,  ii.,  45. 


to  her  councils  could  unite  with  him  in 
measures  so  contrary  to  her  wishes  and 
interests,  on  whom  was  she  firmly  to  rely  ? 
Who,  especially,  could  be  trusted,  were 
she  to  be  snatched  away  from  the  world, 
for  the  maintenance  of  the  Protestant  es- 
tablishment under  a  yet  unknown  success- 
or ?  This  was  the  manifest  and  principal 
danger  that  her  counselors  had  to  dread. 
Her  own  great  reputation,  and  the  respect- 
ful attachment  of  her  people,  might  give 
reason  to  hope  that  no  machinations  would 
be  successful  against  her  crown  ;  but  let  us 
reflect  in  what  situation  the  kingdom  would 
have  been  left  by  her  death  in  a  sudden  ill- 
ness, such  as  she  had  more  than  once  ex- 
perienced in  earlier  years,  and  again  in 
1571.  "  You  must  think,"  Lord  Burleigh 
\\Tites  to  Walsingham,  on  that  occasion, 
"  such  a  matter  would  drive  me  to  the  end 
of  my  wits."  And  Sir  Thomas  Smith  ex- 
presses his  fears  in  equally  strong  language.* 
Such  statesmen  do  not  entertain  apprehen- 
sions Ughtly.  Whom,  in  truth,  could  her 
privy  council,  on  such  an  event,  have  re- 
solved to  proclaim  ?  The  house  of  Suf- 
folk, had  its  right  been  more  generally  rec- 
ognized than  it  was  (Lady  Catharine  being 
now  dead),  presented  no  undoubted  heir. 
The  young  king  of  Scotland,  an  alien  and 
an  infant,  could  only  have  reigned  through 
a  regency ;  and  it  might  have  been  diflficult 
to  have  selected  from  the  English  nobility 
a  fit  person  to  undertake  that  office,  or  at 
least  one  in  whose  elevation  the  rest  would 
have  acquiesced.  It  appears  most  probable 
that  the  numerous  and  powerful  faction  Avho 
had  promoted  Norfolk's  union  with  Mary 
would  have  conspired  again  to  remove  her 
from  her  prison  to  the  throne.  Of  such  a 
revolution,  the  disgrace  of  Cecil  and  Eliza- 
beth's wisest  ministers  must  have  been  the 
immediate  consequence  ;  and  it  is  probable 
that  the  restoration  of  the  Catholic  worship 
would  have  ensued.  These  apprehensions 
prompted  Cecil,  Walsingham,  and  Smith  to 
press  the  queen's  marriage  with  the  Duke 
of  Anjou  far  more  earnestly  than  W'ould 
otherwise  have  appeared  consistent  with 
her  interests.  A  union  with  any  member 
of  that  perfidious  comt  was  repugnant  to 
I  genuine  Protestant  sentiments.  But  the 
queen's  absolute  want  of  foreign  alliances. 


*  Strype,  ii.,  88.    Life  of  Smith,  152. 


Eliz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


87 


and  the  secret  hostility  both  of  France  and 
Spain,  impressed  Cecil  with  that  deep  sense 
of.  the  perils  of  the  time  which  his  private 
letters  so  strongly  bespeak.  A  ti'eaty  was 
believed  to  have  been  concluded  in  1567,  to 
which  the  two  last-mentioned  powers,  with 
the  Emperor  Maximilian  and  some  other 
Catholic  princes,  were  parties,  for  the  ex- 
tirpation of  the  Protestant  religion.*  No 
alliance  that  the  court  of  Charles  IX.  could 
have  formed  with  Elizabeth  was  likely  to 
have  diverted  it  from  pursuing  this  object ; 
and  it  may  have  been  fortunate  that  her 
own  insincerity  saved  her  from  being  the 
dupe  of  those  who  practiced  it  so  well. 
Walsingham  himself,  sagacious  as  he  was, 
fell  into  the  snares  of  that  den  of  treach- 
eiy,  giving  credit  to  the  young  king's  as- 
surances almost  on  the  veiy  eve  of  St.  Bar- 
tholomew.f 

The  bull  of  Pius  V.,  far  more  injurious 
in  its  consequences  to  those  it  was  designed 
to  serve  than  to  Elizabeth,  forms  a  leading 
epoch  in  the  history  of  our  English  Cath- 
olics. It  rested  upon  a  principle  never 
universally  acknowledged,  and  regarded 
with  much  jealousy  by  temporal  govern- 
ments, yet  maintained  in  all  countries  by 
many  whose  zeal  and  ability  rendered  them 
formidable  —  the  right  vested  in  the  su- 
preme pontift'  to  depose  kings  for  heinous 
crimes  against  the  Church.  One  Felton 
affixed  this  bull  to  the  gates  of  the  Bisho]) 
of  London's  palace,  and  suffered  death  for 
the  offense.  So  audacious  a  manifestation 
of  disloyalty  was  imputed,  with  little  jus- 
tice, to  the  Catholics  at  large,  but  miglit 
more  reasonably  lie  at  the  door  of  those 
active  insti-uments  of  Rome,  the  English 
refugee  priests  and  Jesuits  dispersed  over 
Flanders  and  lately  established  at  Douay, 
who  were  continually  passing  into  the  king- 
dom, not  only  to  keep  alive  the  precarious 
faith  of  the  laity,  but,  as  was  generally  sur- 

*  Strj-pe,  i.,  502.  I  do  not  give  any  credit  what- 
ever to  this  league,  as  printed  in  Strj'pe,  which 
fleems  to  have  been  fabricated  by  some  of  the 
queen' s  emissaries.  There  had  been,  not,  perhaps, 
a  treaty,  but  a  verbal  agjeement  between  France 
and  Spain  at  Bayonne  some  time  before,  but  its 
object  was  apparently  confined  to  the  suppression 
of  Protestantism  in  France  and  the  Netherlands. 
Had  they  succeeded,  however,  in  this,  the  next 
blow  would  have  been  struck  at  England.  It 
■eems  very  unlikely  that  Maximilian  was  concerned 
in  such  a  league.  t  Strj-pe,  vol.  ii. 


mised,  to  excite  them  against  their  sover- 
eign.*   This  produced  tlio  act  of 

,  „  „ ,.  '        ,  .  ,       p  Statutes  for 

13  Eliz.,  c.  2;  which,  alter  re-  tiie  queen's 
citing  these  mischiefs,  enacts  that  *'^<='"''^3'- 
all  persons  publishing  any  bull  from  Rome, 
or  absolving  and  reconciling  any  one  to  the 
Romish  Church,  or  being  so  reconciled, 
should  incur  the  penalties  of  high  treason ; 
and  such  as  brovight  into  the  realm  any 
crosses,  pictures,  or  superstitious  things 
consecrated  by  the  pope  or  under  his  au- 
thority, should  be  liable  to  a  praemunire. 
Those  who  should  conceal  or  connive  at 
the  offenders  were  to  be  held  guilty  of 
misprision  of  treason.  This  statute  ex- 
posed the  Catholic  priesthood,  and  in  great 
measure  the  laity,  to  the  continual  risk  of 
martyrdom ;  for  so  many  had  fallen  away 
from  their  faith  through  a  pliant  spirit  of 
conformity  with  the  times,  that  the  regular 
discipline  would  exact  their  absolution  and 
reconciliation  before  they  could  be  rein- 
stated in  the  church's  communion.  An- 
other act  of  the  same  session,  manifestly 
leveled  against  the  partisans  of  Mary,  and 
even  against  herself,  makes  it  high  treason 
to  affirm  that  the  queen  ought  not  to  enjoy 
the  crown,  but  some  other  person ;  or  to 
publish  that  she  is  a  heretic,  schismatic, 
tyrant,  infidel,  or  usurper  of  the  crown  ;  or 
to  claim  right  to  the  crown,  or  to  usurp  the 
same  during  the  queen's  life  ;  or  to  affirm 
that  the  laws  and  statutes  do  not  bind  the 
right  of  the  crown,  and  the  descent,  limita- 
tion, inheritance,  or  governance  thereof. 
And  whosoever  should,  during  the  queen's 
life,  by  any  book  or  work  written  or  print- 
ed, expressly  affirm,  before  the  same  had 
been  established  by  Parliament,  that  any 
one  particular  person  was  or  ought  to  be 
heir  and  successor  to  the  queen,  except  the 
same  be  the  natural  issue  of  her  body,  or 
should  print  or  utter  any  such  book  or 
writing,  was  for  the  first  offense  to  be  im- 
prisoned a  year  and  to  forfeit  half  his  goods, 

*  The  college  of  Douay  for  English  refugee 
priests  was  established  in  or  1569. — Lingard, 
374,  Strj-pe  seems,  but  I  believe  through  inadver- 
tence, to  put  this  event  several  years  later. — An- 
nals, ii.,  630.  It  was  dissolved  by  Requesens, 
while  governor  of  Flanders,  but  revived  at  Rheims 
in  1575,  under  the  protection  of  the  Cardinal  of  Lor- 
rain,  and  returned  to  Douay  in  1593.  Similar  col- 
leges were  founded  at  Rome  in  1579,  at  Valladolid 
in  1589,  at  St.  Omer  in  1596,  and  at  Louvain  in 
1606. 


88 


CONSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  in. 


and  for  the  second  to  incur  the  penalties  of 
a  praemunire.* 

It  is  impossible  to  misunderstand  the 
chief  aim  of  this  statute.  But  the  House 
of  Commons,  in  which  the  zealous  Protes- 
tants, or,  as  they  were  now  rather  denom- 
inated, Puritans,  had  a  predominant  influ- 
ence, were  not  content  with  these  demon- 
sti'ations  against  the  unfortunate  captive. 
Fear,  as  often  happens,  excited  a  san- 
guinary spirit  among  them  ;  they  address- 
ed the  queen  upon  what  they  called  the 
great  cause,  that  is,  the  business  of  the 
Queen  of  Scots,  presenting  by  their  com- 
mittee reasons  gathered  out  of  the  civil 
law  to  prove  that  "  it  standeth  not  only 
with  justice,  but  also  with  the  queen's 
majesty's  honor  and  safety,  to  proceed 
criminally  against  the  pretended  Scottish 
queen. "f  Elizabeth,  who  really  could  not 
dislike  these  symptoms  of  hati-ed  toward 
her  rival,  took  the  opportunity  of  simu- 
lating more  humanity  than  the  Commons; 
and  when  they  sent  a  bill  to  the  Upper 
House  attainting  Mary  of  treason,  checked 
its  com'se  by  proroguing  the  Parliament. 
Her  backwardness  to  concur  in  any  meas- 
ures for  securing  the  kingdom,  as  far  as  in 
her  lay,  from  those  calamities  which  her 
decease  might  occasion,  could  not  but  dis- 
please Lord  Burleigh.  "  All  that  we  la- 
bored for,"  he  writes  to  Walsingham  in 
1572,  "and  had  with  full  consent  brought 
to  fashion — I  mean  a  law  to  make  the  Scot- 
tish queen  unable  and  unworthy  of  succes- 
sion to  the  crown — was  by  her  majestj' 
neither  assented  to  nor  rejected,  but  de- 
ferred." Some  of  those  about  her,  he 
hints,  made  herself  her  own  enemy,  by 
persuading  her  not  to  countenance  these 
proceedings  in  Parliament. t  I  do  not  think 
it  admits  of  much  question  that,  at  this 
juncture,  the  civil  and  religious  institutions 
of  England  would  have  been  rendered  more 

*  13  Eliz.,  c.  1.  This  act  was  made  at  fii'st  ret- 
rospective, so  as  to  affect  every  one  who  had  at 
any  time  denied  the  queen's  title.  A  member  ob- 
jected to  this  in  debate  "  as  a  precedent  most  per- 
ilous." But  Sir  Francis  Knollys,  Mr.  Norton,  and 
others,  defended  it. — -B'Ewes,  162.  It  seems  to 
have  been  amended  by  the  Lords.  So  little  notion 
had  men  of  obsei-ving  the  first  principles  of  equity 
toward  their  enemies  !  There  is  much  reason  from 
the  debate  to  suspect  that  the  ex  post  facto  words 
were  leveled  at  Mary. 

t  Stn-pe,  ii..  133.   D'Ewes,  207. 

t  Strype,  ii.,  133. 


secure  by  Mary's  exclusion  from  the  throne, 
which,  indeed,  after  all  that  had  occurred, 
she  could  not  be  endured  to  fill  without  na- 
tional dishonor.  But  the  violent  measures 
suggested  against  her  life  were  hardly,  un- 
der all  the  circumstances  of  her  case,  to  be 
reconciled  with  justice,  even  admitting  her 
privity  to  the  northern  rebellion  and  to  the 
projected  invasion  by  the  Duke  of  Alva. 
These,  however,  were  not  approved  mere- 
ly by  an  eager  party  in  the  Commons  : 
Archbishop  Parker  does  not  scruple  to 
write  about  her  to  Cecil :  "  If  that  only 
[one]  desperate  person  were  taken  away, 
as  by  justice  soon  it  might  te,  the  queen's 
majesty's  good  subjects  would  be  in  better 
hope,  and  the  papists'  daily  expectatioQ 
vanquished."*  And  Walsingham,  during 
his  embassy  at  Paris,  desires  that  "  the 
queen  should  see  how  much  they  (the  pa- 
pists) built  upon  the  possibility  of  that  dan- 
gerous woman's  coming  to  the  crown  of 
England,  whose  life  was  a  step  to  her  maj- 
esty's death:"  adding,  that  "she  Avas  bound 
for  her  own  safetj'  and  that  of  her  subjects 
to  add  to  God's  providence  her  own  policy, 
so  far  as  might  stand  with  justice."! 

We  can  not  wonder  to  read  that  these 
new  statutes  increased  the  dis-  Catholics 
satisfaction  of  the  Roman  Cath-  """^  ''"T 
olics,  who  perceived  a  systematic  ed- 
determination  to  extirpate  their  religion. 
Governments  ought  always  to  remember 
that  the  intimidation  of  a  few  disaffected 
persons  is  dearly  bought  by  alienating  any 
large  portion  of  the  community. t  Many 
retu-ed  to  foreign  countries,  and  receiving 
for  their  maintenance  pensions  from  the 
court  of  Spain,  became  unhappy  iu-stru- 
ments  of  its  ambitious  enterprises.  Tnose 
who  remained  at  home  could  hardly  think 
their  oppression  much  mitigated  by  the 
precarious  indulgences  which  Elizabeth's 
caprice,  or,  rather,  the  fluctuation  of  dif- 
ferent paities  in  her  councils,  sometimes 
extended  to  them.  The  queen,  indeed,  so 
far  as  we  can  penetrate  her  dissimulation, 
seems  to  have  been  really  averse  to  ex- 
treme rigor  against  her  Catholic  subjects; 
and  her  greatest  minister,  as  we  shall  more 

*  Life  of  Parker,  354. 
t  Strj-pe's  Aimals,  ii.,  48. 

t  Murden's  Papers,  p.  43,  contain  proofs  of  the 
increased  discontent  among  the  Catholics  in  conse- 
quence of  the  penal  laws. 


Eliz.— Catholics.] 


FROM  HENRY  VII.  TO  GEORGK  11. 


89 


fully  see  aftei-\vard,  was  at  this  time  in  the 
same  sentiments.  But  such  of  her  ad- 
visers as  leaned  toward  the  Puritan  fac- 
tion, and  too  many  of  the  Anglican  clergy, 
whether  Puritan  or  not,  thought  no  meas- 
ure of  charity  or  compassion  should  be  ex- 
tended to  them.  With  the  divines  they 
were  idolaters ;  with  the  council  they  were 
a  dangerous  and  disaffected  pai'ty ;  with  the 
judges  they  were  refractory  transgressors 
of  statutes ;  on  eveiy  side  they  were  ob- 
noxious and  oppressed.  A  few  aged  men 
having  been  set  at  liberty,  Sampson,  the 
famous  Puritan,  himself  a  sufferer  for  con- 
science' sake,  wrote  a  letter  of  remon- 
sti-ance  to  Lord  Burleigh.  He  urged  in 
this  that  they  should  be  compelled  to  hear 
sermons,  though  he  would  not  at  first  oblige 
them  to  communicate.*  A  bill  having  been 
introduced  in  the  session  of  1.571,  imposing 
a  penalty  for  not  receiving  the  communion, 
it  was  objected  that  consciences  ought  not 
to  be  forced.  But  Mr.  Strickland  entirely 
denied  this  principle,  and  quoted  authori- 
ties against  it.f  Even  Parker,  by  no  means 
tainted  with  Puritan  bigotry,  and  who  had 
been  reckoned  moderate  in  his  proceedings 
toward  Catholics,  complained  of  what  he 
called  "  a  Machiavel  government ;"  that  is, 

*  Stiype,  ii.,  330.  See,  too,  in  vol.  iii.,  Appendix, 
68,  a  series  of  petitions  intended  to  be  offered  to 
tlie  queen  and  Parliament  about  1.583.  These 
came  from  the  Puritanical  mint,  and  show  the 
dread  that  party  entertained  of  Mary's  succession, 
and  of  a  relapse  into  popery.  It  is  urged  in  these, 
that  no  toleration  should  be  granted  to  the  popish 
worship  in  private  houses.  Kor,  in  fact,  had  they 
much  cause  to  complain  that  it  was  so.  Knox's 
famous  intolerance  is  well  known.  "  One  mass," 
he  declared  in  preaching  against  Mary's  private 
chapel  at  Holyrood  House,  "  was  more  fearful  unto 
him  than  if  ten  thousand  amied  enemies  were 
landed  in  any  part  of  the  realm,  on  purpose  to  sup- 
press the  whole  religion."^ — M  Crie  s  Life  of  Knox, 
vul.  ii.,  p.  24.  In  a  conversation  with  Maitland,  he 
asserted  most  explicitly  the  duty  of  putting  idola- 
ters to  death. — Id.,  p.  120.  Nothuig  can  be  more 
sanguinary  than  the  Reformei-'s  spirit  in  this  re- 
markable interview.  St.  Dominic  could  not  have 
surpassed  him.  It  is  strange  to  see  men,  profess- 
ing all  the  while  our  modem  creed  of  charity  and 
toleration,  extol  these  sanguinaiy  spirits  of  the  six- 
teenth century.  The  English  Puritans,  though  I 
can  not  cite  any  passages  so  strong  as  the  forego- 
ing, were  much  the  bitterest  enemies  of  the  Cath- 
olics. When  we  read  a  letter  from  any  one,  such 
as  Mr.  Topcliffe,  very  fierce  against  the  latter,  we 
may  expect  to  find  him  put  in  a  word  in  favor  of 
silenced  ministers. 

t  D'Ewes,  161,  177. 


of  the  queen's  lenity  in  not  absolutely  root- 
ing them  out.* 

This  indulgence,  however,  shown  by 
Elizabeth,  the  topic  of  reproach  in  those 
times,  and  sometimes  of  boast  in  our  own, 
never  extended  to  any  positive  toleration, 
nor  even  to  any  general  connivance  at  the 
Romish  worship  in  its  most  private  exer- 
cise. She  published  a  declaration  in  1570, 
that  she  did  not  intend  to  sift  men's  con- 
sciences, provided  they  observed  her  laws 
by  coming  to  chvu-ch;  which,  as  she  well 
knew,  the  strict  Catholics  deemed  incon- 
sistent with  their  integrity. f  Nor  did  the 
government  always  abstain  from  an  inquisi- 
tion into  men's  private  thoughts.  The 
Inns  of  Court  were  more  than  once  puri- 
fied of  popery  by  examining  their  mem- 
bers on  articles  of  faith.  Gentlemen  of 
good  families  in  the  country  were  harass- 
ed in  the  same  manner.f  One  Sir  Rich- 
ard Shelley,  who  had  long  acted  as  a  sort 
of  spy  for  Cecil  on  the  Continent,  and 
given  much  useful  information,  requested 
only  leave  to  enjoy  his  religion  without 
hinderance ;  but  the  queen  did  not  accede 
to  this  without  much  reluctance  and  de- 
lay.§  She  had,  indeed,  assigned  no  other 
ostensible  pretext  for  breaking  oft"  her  own 
treaty  of  marriage  with  the  Archduke 
Charles,  and  subsequently  with  the  Dukes 
of  Anjou  and  Alencon,  than  her  determi- 
nation not  to  sufler  the  mass  to  be  cele- 
brated even  in  her  husband's  private  chap- 
el. It  is  worthy  to  be  repeatedly  incul- 
cated on  the  reader,  since  so  false  a  color 
has  been  often  employed  to  disguise  the 
ecclesiastical  tyranny  of  this  reign,  that  the 
most  clandestine  exercise  of  the  Romish 
worship  was  severely  punished.  Thus  we 
read  in  the  life  of  Whitgift,  that  on  infor- 
mation given  that  some  ladies  and  others 
heard  mass  in  the  house  of  one  Edwards 
by  night,  in  the  county  of  Denbigh,  he 
being  then  bishop  of  Worcester  and  vice- 
president  of  Wales,  was  directed  to  make 
inquiry  into  the  facts ;  and  finally  was  in- 
structed to  commit  Edwards  to  close  pris- 
on ;  and  as  for  another  person  implicated, 

*  Strj-pe's  Life  of  Parker,  354. 

t  Stiype's  Annals,  i.,  582.  Honest  old  Strype, 
who  thinks  church  and  state  never  in  the  wrong, 
calls  this  "  a  notable  piece  of  favor." 

t  Strype's  Annals,  ii.,  110,  408. 

5  Id.,  iii.,  127. 


90 


CONSTITUTIOXAL  HISTOKY  OF  ENGLAND 


[Chap.  m. 


named  Morlce,  "  if  he  rem.iined  obstinate, 
he  might  cause  some  kind  of  torture  to  be 
used  upon  him  ;  and  the  like  order  they 
prayed  him  to  use  with  the  others."*  But 
this  is  one  of  many  instances,  the  events  of 
every  day,  forgotten  on  tlie  morrow,  and 
of  wliich  no  general  historian  takes  account. 
Nothing  but  the  minute  and  patient  dili- 
gence of  such  a  compiler  as  Stiype,  who 
thinks  no  fact  below  his  regard,  could  have 
preserved  this  from  oblivion,  f 

*  Life  of  Whitgift,  93.  See,  too,  p.  99,  and  An- 
nals of  Reformation,  ii.,  631,  &c. ;  also  Holingshed, 
ann.  1574,  ad  init. 

t  An  almost  incredible  specimen  of  ungracious 
behavior  toward  a  Roman  Catholic  gentleman  is 
mentioned  in  a  letter  of  Topclitfe,  a  man  whose 
daily  occupation  was  to  hunt  out  and  molest  men 
for  poperj'.  "  The  next  good  news,  but  in  account 
the  highest,  her  majesty  hath  served  God  with  great 
zeal  and  comfortable  examples  ;  for  by  her  council 
two  notorious  papists,  young  Rockwood,  the  mas- 
ter of  Euston  Hall,  where  her  majesty  did  lie  upon 
Sunday  now  a  fortnight,  and  one  Downes,  a  gen- 
tleman, were  both  committed,  the  one  to  the  town 
prison  at  Norwich,  the  other  to  the  county  prison 
there,  for  obstinate  papistrj- ;  and  seven  more  gen- 
tlemen of  worship  were  committed  to  several  hous- 
es iu  Noi-wich  as  prisoners  ;  two  of  the  Lovels,  an- 
other Downes,  one  Beuiugfield,  one  Parrj-,  and  two 
others  not  worth  memorj'  for  badness  of  belief. 

"  This  Rockwood  is  a  papist  of  kind  [family] 
newly  crept  out  of  his.late  wardship.  Her  majes- 
ty, by  some  means  I  know  not,  was  lodged  at  his 
bouse,  Euston,  far  unmee'.  for  her  highness  ;  nev- 
ertheless, the  gentleman  brought  into  her  presence 
by  like  device,  her  majesty  gave  him  ordiuarj- 
thaulis  for  his  bad  house,  and  her  fair  hand  to  kiss ; 
but  my  lord  chamberlain,  nobly  and  gi'avely  under- 
standing that  Rockwood  was  excommunicated  for 
papistry,  called  him  before  him,  demanded  of  him 
bow  he  durst  presume  to  attempt  her  royal  pres- 
ence, he,  unfit  to  accompany  any  Christian  person  ; 
forthwith  said  he  was  fitter  for  a  pair  of  stocks, 
commanded  him  out  of  the  court,  and  j-et  to  attend 
her  council's  pleasure  at  Norwich  he  was  commit- 
ted. And  to  dissyffer  [sic]  the  gentleman  to  the 
full,  a  piece  of  plate  being  missed  in  the  court,  and 
*  searched  for  in  his  hay-house,  in  the  hay-rick,  such 
an  image  of  Oar  Lady  was  there  found,  as  for 
greatness,  for  gayness,  and  workmanship,  I  did 
never  see  a  match ;  and  after  a  sort  of  country 
dances  ended,  in  her  majestj''s  sieht  the  idol  was 
Bet  behind  the  people  who  avoided ;  she  rather 
geemed  a  beast  raised  upon  a  sudden  from  bell  by 
conjuring,  than  the  picture  for  whom  it  had  been 
so  often  and  so  long  abused.  Her  majesty  com- 
manded it  to  the  fire,  which  in  her  sight  by  the 
countrj-  folks  was  quickly  done  to  her  content,  and 
unspeakable  joy  of  every  one  but  some  one  or  two 
who  had  sucked  of  the  idol's  poisoned  mUk. 

"  Shortly  after,  a  great  sort  of  good  preachers, 
who  had  been  long  commanded  to  sUence  for  a 


It  will  not  surprise  those  who  have  ob- 
served the  effect  of  all  persecution  for  mat- 
ters of  opinion  upon  the  human  mind,  that 
during  this  period  the  Romish  paity  con- 
tinued such  in  numbers  and  in  zeal  as  to 
give  the  most  lively  alarm  to  Elizabeth's 
administration.  One  cause  of  this  was  be- 
yond doubt  the  connivance  of  justices  of 
the  peace,  a  great  many  of  whom  were  se- 
cretly attached  to  the  same  interest,  though 
it  was  not  easy  to  exclude  them  from  the 
commission,  on  account  of  their  wealth  and 
respectability.*  The  facility  with  which 
Catholic  rites  can  be  performed  in  secret,  as 
before  obsei-ved,  was  a  still  more  important 
circumstance.    Nor  did  the  vol- 

.,  1  ,-  1     1  ■    T-i.        Refueees  in 

untary  exiles  established  in  i  Ian-  the  Nether- 
ders  remit  their  diligence  in  fill-  l!"".' r.^!?*" 

o  hostility  to 

ing  the  kingdom  with  emissaries,  the  govem- 
The  object  of  many  at  least 


little  niceness,  were  licensed,  and  again  com- 
manded to  preach;  a  greater  and  more  universal 
joy  to  the  countries,  and  the  most  of  the  court,  than 
the  disgrace  of  the  papists ;  and  the  gentlemen  of 
those  parts,  being  great  and  hot  Protestants,  al- 
most before  by  pohcy  discredited  and  disgraced, 
were  greatly  countenanced. 

"  I  was  so  happy  lately,  among  other  good  graces, 
that  her  majesty  did  teU  me  of  sundry  lewd  papist 
beasts  that  have  resorted  to  Buxton,"  &c. — Lodge, 
ii.,  188,  30  Aug.,  1578. 

This  TopclifFe  was  the  most  implacable  perse- 
cutor of  his  age.  In  a  letter  to  Lord  Burleigh, 
Strj"pe,  iv.,  39,  he  urges  him  to  imprison  all  the 
principal  recusants,  and  especially  women,  "  the 
farther  off  from  their  own  family  and  friends  the 
better."  The  whole  letter  is  curious,  as  a  speci- 
men of  the  prevalent  spirit,  especial]}-  among  the 
Puritans,  whom  TopcUlfe  favored.  Instances  of 
the  ill  treatment  experienced  by  respectable  fam- 
ilies (the  Fitzberberts  and  Foljambes),  and  even 
aged  ladies,  without  any  other  provocation  than 
their  recusance-,  may  be  found  in  Lodge,  ii.,  372, 
462 ;  iii.,  22.  [See,  also,  Dodd's  Church  Historj', 
vol.  iii.,  passim,  with  the  additional  facts  contrib- 
uted by  the  last  editor.]  But  those  farthest  re- 
moved from  Puritanism  partook  sometimes  of  the 
same  tyraimous  spirit.  Aylmer,  bishop  of  Lon- 
don, renowned  for  his  persecution  of  non  conform- 
ists,  is  said  by  Rishton  de  Schismate,  p.  319,  to 
have  sent  a  young  Cathohc  lady  to  be  whipped  in 
Bridewell  for  refusing  to  conform.  If  the  author- 
itj-  is  suspicious  (and  yet  I  do  not  perceive  that 
Rishton  is  a  liar  like  Sanders),  the  fact  is  rendered 
hardly  improbable  by  Aylmer's  harsh  character. 

*  Strj-pe's  Life  of  Smith,  171.  Annals,  ii.,  631, 
636 ;  iii.,  479  ;  and  Append.,  170.  The  last  refer- 
ence is  to  a  list  of  magistrates  sent  up  by  the 
bishops  from  each  diocese,  with  their  characters. 
Several  of  these,  but  the  wives  of  many  more, 
were  inclined  to  popery. 


Eliz. — Catliolics.] 


FROM  HEJIRY  VII.  TO  GEORGE  II. 


91 


among  them,  it  can  not  for  a  moment  be 
doubted,  from  the  era  of  the  bull  of  Pius 
v.,  if  not  earlier,  was  nothing  less  than  to 
subvert  the  queen's  throne.  They  were 
closely  united  with  the  court  of  Spain, 
•which  had  passed  from  the  character  of 
an  ally  and  pretended  friend,  to  that  of  a 
cold  and  jealous  neighbor,  and  at  length  of 
an  implacable  adversary.  Though  no  war 
had  been  declared  between  Elizabeth  and 
Philip,  neither  party  had  scrupled  to  enter 
into  leagues  with  tlie  disaffected  subjects 
of  the  otlier.  Such  sworn  vassals  of  Rome 
and  Spain  as  an  Allen  or  a  Persons  were 
just  objects  of  the  English  government's  dis- 
trust :  it  is  the  extension  of  that  jealousy  to 
the  peaceful  and  loyal  which  we  stigmatize 
as  oppressive,  and  even  as  impolitic* 

In  concert  with  the  directing  powers  of 
Fresh  laws  the  Vatican  and  Escurial,  the  ref- 
^athuhc''°  ugees  redoubled  their  exertions 
worship,    about  the  year  1580.    Mary  was 

*  Allen's  Admonition  to  the  Nobility  and  People 
of  England,  written  in  1588,  to  promote  the  suc- 
cess of  the  Armada,  is  full  of  gross  lies  against  the 
queen.  See  an  analysis  of  it  in  Lingard,  note 
B.  B.  Mr.  Butler  fully  acknowledges,  what,  in- 
deed, the  whole  tenor  of  historical  documents  for 
this  reign  confimis,  that  Allen  and  Persons  were 
actively  engaged  in  endeavoring  to  dethrone  Eliz- 
abeth by  means  of  a  Spanish  force.  But  it  must, 
I  think,  be  candidly  confessed  by  Protestants,  that 
tliey  had  very  little  influence  over  the  superior 
Catholic  laity.  And  an  argument  may  be  drawn 
from  hence  against  those  who  conceive  the  polit- 
ical conduct  of  Catholics  to  be  entirely  swayed  by 
their  priests,  when  even  in  the  sixteenth  centmy 
the  eftbrts  of  these  able  men,  united  with  the  head 
of  their  church,  could  produce  so  little  effect. 
Strype  owns  that  Allen's  book  gave  ofifense  to 
many  Catholics,  iii.,  560.  Life  of  Whitgift,  505. 
One  Wright,  of  Douay,  answered  a  case  of  con- 
science, whether  Catholics  might  take  up  arms  to 
assist  the  King  of  Spain  against  the  queen,  in  the 
negative.  —  Id.,  251.  Ajmals,  565.  This  man, 
tliough  a  known  Loyalist,  and  actually  in  the  em- 
ploj-ment  of  the  ministry,  was  aftei  ward  kept  in  a 
disagreeable  sort  of  confinement  in  the  Dean  of 
Westminster's  liouse,  of  which  he  complains  with 
much  reason. — Birch's  Memoirs,  vol.  ii.,  p.  71,  et 
ahbi.  Though  it  does  not  fall  within  the  province 
of  a  writer  on  the  Constitution  to  enlarge  on  Eliz- 
abeth's foreign  policy,  I  must  obsen'e,  in  conse- 
quence of  the  labored  attempts  of  Dr.  Liugard  to 
represent  it  as  perfectly  Machiavelian,  and  with- 
out any  motive  but  wanton  malignity,  that,  with 
respect  to  France  and  Spain,  and  even  Scotland, 
it  was  strictly  defensive,  and  justified  by  the  law 
of  self  preservation  ;  though,  in  some  of  the  means 
employed,  she  did  not  always  adhere  more  scru- 
pulously to  good  faith  than  her  enemies. 


now  wearing  out  her  3'ears  in  hopeless  cap- 
tivity ;  her  son,  though  they  did  not  lose 
hope  of  him,  had  received  a  strictly  Prot- 
estant education  ;  while  a  new  generation 
had  grown  up  in  England,  rather  inclined 
to  diverge  more  widely  from  the  ancient 
religion  than  to  suffer  its  restoration.  Such 
were  they  who  formed  the  House  of  Com- 
mons that  met  in  1581,  discontented  with 
the  severities  used  against  the  Puritans, 
but  ready  to  go  beyond  any  measures  that 
the  court  might  propose  to  subdue  and  ex- 
tirpate popery.  Here  an  act  was  passed, 
which,  after  repeating  the  former  provis- 
ions that  had  made  it  high  treason  to  rec- 
oncile any  of  her  majesty's  subjects,  or  to 
be  reconciled  to  the  Church  of  Rome,  im- 
poses a  penalty  of  c£20  a  month  on  all  per- 
sons absenting  themselves  from  church,  un- 
less they  shall  hear  the  English  service  at 
home :  such  as  could  not  pay  the  same 
within  three  months  after  judgment,  were 
to  be  imprisoned  until  they  should  conform. 
The  queen,  by  a  subsequent  act,  had  the 
power  of  seizing  two  thirds  of  the  party's 
land,  and  all  his  goods,  for  default  of  pay- 
ment.* These  grievous  penalties  on  recu- 
sancy, as  the  willful  absence  of  Catholics 
from  church  came  now  to  be  denominated, 
were  doubtless  founded  on  the  extreme  dififi- 
culty  of  proving  an  actual  celebration  of  their 
own  rites.  But  they  established  a  persecu- 
tion which  fell  not  at  all  short  in  principle  of 
that  for  which  the  Inquisition  had  become  so 
odious.  Nor  were  tlie  statutes  merely  de- 
signed for  terror's  sake,  to  keep  a  check 
over  the  disaffected,  as  some  would  pretend  : 
they  were  executed  in  the  most  sweeping 
and  indiscriminating  mahner,  unless  perhaps 
a  few  families  of  high  rank  might  enjoy  a 
connivance. f 

It  had  certainly  been  the  desu-e  of  Eliz- 
abeth to  abstain  from  capital  pun- 
ishments  on  the  score  of  religion,  of  Campian 
The  first  instance  of  a  priest  suf-  """^ 
fering  death  by  her  statutes  was  in  1577, 
when  one  Mayne  was  hanged  at  Launces- 
ton,  without  any  charge  against  him  except 
his  religion,  and  a  gentleman  who  had  har- 
bored him  was  sentenced  to  imprisonment 
for  Ufe.J    In  the  next  year,  if  we  may 

*  23  Eliz.,  c.  1,  and  29  Eliz.,  c.  6. 
t  Strj-pe's  Whitgift,  p.  117,  and  other  authorities, 
passim. 

t  Camden.    Lingard.    Two  others  suffered  at 


92 


COXSTITUTIONAL  HISTORY  OF  EXGLAXD 


[Chap.  III. 


ti-ust  the  zealous  CtTtholic  writers,  Thomas 
Sherwood,  a  boy  of  fourteen  years,  was  ex- 
ecuted for  refusing  to  deny  the  temporal 
power  of  the  pope,  when  urged  by  his 
judges.*  But  in  1581,  several  seminary 
priests  from  Flanders  having  been  arrested, 
whose  projects  were  supposed  (perhaps  not 
whoUj-  without  foundation)  to  be  very  in- 
consistent with  their  allegiance,  it  was  un- 
happily deemed  necessary  to  hold  out  some 
more  conspicuous  examples  of  rigor.  Of 
those  brought  to  trial,  the  most  eminent 
was  Campian,  formerly  a  Protestant,  but 
long  known  as  the  boast  of  Douay  for  his 
learning  and  virtups.f  This  man,  so  justly 
respected,  was  put  to  the  rack,  and  revealed 
through  torture  the  names  of  some  Catho- 
lic gentlemen  with  whom  he  had  convers- 
ed.J  He  appears  to  have  been  indicted 
along  with  several  other  priests,  not  on  the 
recent  statutes,  but  on  that  of  25  Edw.  III., 
for  compassing  and  imagining  the  queen's 
death.  Nothing  that  I  have  read  affords 
the  slightest  proof  of  Campian's  concern  in 
ti^easonable  practices,  though  his  connec- 
tions, and  profession  as  a  Jesuit,  render  it 
by  no  means  unlikely.  If  we  may  confide 
in  the  published  ti'ial,  the  prosecution  was 
as  unfairly  conducted,  and  supported  by  as 
slender  evidence,  as  any,  perhaps,  which 
can  be  found  in  our  books. §  But  as  this 
account,  wherein  Campian's  language  is 
full  of  a  dignified  eloquence,  rather  seems 
to  have  been  compiled  by  a  partial  hand,  its 
faithfulness  may  not  be  above  suspicion. 
For  the  same  reason,  I  hesitate  to  admit 
his  alleged  declarations  at  the  place  of  exe- 
cution, where,  as  well  as  at  his  trial,  he  is 
represented  to  have  expressly  acknowledg- 

Tybum  not  long  aftenvard  for  the  same  offense. — 
Holingrshed,  344.  See  in  Butler's  Mem.  of  Catho- 
lics, vol.  iii.,  p.  382,  an  affecting  naiTative,  from 
Dodd's  Church  History,  of  the  sufferirigs  of  Mr. 
Tregian  and  his  family,  the  gentleman  whose 
chaplain  Maj"ne  had  been.  I  see  no  cause  to 
doubt  its  truth. 

*  Ribadeneira,  Continuatio  Sanderi  et  Rishtoui 
de  Schismate  Auglicano,  p.  111.  Philopater,  p. 
247.  This  circumstance  of  Sherwood's  age  is  not 
mentioned  by  Stowe,  nor  does  Dr.  Liugard  advert 
to  it.  No  woman  was  put  to  death  under  the  pe- 
nal code,  so  far  as  I  remember,  which  of  itself  dis- 
tinguishes the  persecution  from  that  of  Marj-,  and 
of  the  house  of  Austria  in  Spain  and  the  Nether- 
lands, t  Strj-pe's  Parker,  375. 

i  Strype's  Annals,  ii.,  614. 

§  State  Trials,  i.,  1050 ;  from  the  Phoenix  Bri- 
tannicus. 


ed  Elizabeth,  and  to  have  prayed  for  her 
as  his  queen  de  facto  and  dejure.  For  this 
was  one  of  the  questions  propounded  to 
him  before  his  trial,  which  he  refused  to  an- 
swer, in  such  a  manner  as  betrayed  his  way 
of  thinking.  Most  of  those  interrogated 
at  the  same  time,  on  being  pressed  wheth- 
er the  queen  was  their  lawful  sovereign 
whom  they  were  bound  to  obey,  notwith- 
standing any  sentence  of  deprivation  thiit 
the  pope  might  pronounce,  endeavored, 
like  Campian,  to  evade  the  snare.  A  few, 
who  unequivocally  disclaimed  the  deposing 
power  of  the  Roman  See,  were  pardoned.* 
It  is  more  honorable  to  Campian's  memory 
that  we  should  reject  these  pretended  dec- 
larations, than  imagine  him  to  have  made 
them  at  the  expense  of  his  consistency  and 
integrity.  For  the  pope's  right  to  deprive 
kings  of  their  crowns  was  in  that  age  the 
common  creed  of  the  Jesuits,  to  whose  or- 
der Campian  belonged  ;  and  the  Continent 
was  full  of  writings  published  by  the  Eng- 
lish exiles,  by  Sanders,  Bristow,  Persons, 
and  Allen,  against  Elizabeth's  unlawful 
usurpation  of  the  throne.  But  many  avail- 
ed themselves  of  what  was  called  an  expla- 
nation of  the  bull  of  Pius  V.,  given  by  his 
successor  Gregoiy  XIII. ;  namely,  that 
the  bull  should  be  considered  as  always  in 
force  against  Elizabeth  and  the  heretics, 
but  should  only  be  binding  on  Catholics 
when  due  execution  of  it  could  be  had.f 

*  State  Trials,  i.,  1078.  Butler's  English  Cath- 
olics, i.,  184,  244.  Lingard,  vii.,  182;  whose  re- 
marks are  just  and  candid.  A  tract,  of  which  I 
have  only  seen  an  Italian  translation,  printed  at 
Macerata  in  1585,  entitled  Historia  del  glorioso 
martirio  di  diciotto  sacerdoti  e  un  secolare,  fatti 
morire  in  InghUterra  per  la  confessione  e  difen- 
sione  della  fede  cattolica,  by  no  means  asserts 
that  he  acknowledged  Eli2abetli  to  be  queen  de 
jure,  but  rather  that  he  refused  to  give  an  opinion 
as  to  her  right.  He  prayed,  however,  for  her  as 
a  queen.  "  lo  ho  pregato,  e  prego  per  lei.  All' 
ora  il  Signor  Howardo  li  domando  per  qual  regina 
egli  pregasse,  se  per  Elisabetta  ?  Al  quale  ris- 
pose.  Si,  per  Elisabetta.''  Mr.  Butler  quotes  this 
ti'act  in  English. 

The  tiials  and  deaths  of  Campian  and  his  asso- 
ciates are  told  in  the  continuation  of  Holingshed, 
with  a  savageness  and  bigotry  which,  I  am  very 
sure,  no  scribe  for  the  Inquisition  could  have  sur- 
passed, p.  456.  But  it  is  plain,  even  from  this  ac- 
count, that  Campian  owned  Elizabeth  as  queen. 
See  particularly  p.  448,  for  the  insulring  manner 
in  which  this  writer  describes  the  pious  fortitude 
of  these  butchered  ecclesiastics. 

t  Strj-pe,  ii.,  637.    Butler's  Eng.  Catholics,  i.. 


Eliz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


93 


This  was  designed  to  satisfy  the  conscien- 
ces of  some  papists  in  submitting  to  her 
government,  and  talcing  the  oath  of  allegi- 
tince.  But  in  thus  granting  a  permission  to 
dissemble,  in  hope  of  better  opportunity  for 
revolt,  this  interpretation  was  not  likely  to 
tranquilize  her  council,  or  conciliate  them 
toward  the  Romish  party.  The  distinc- 
tion, however,  between  a  king  by  possession 
and  one  by  right,  was  neither  heard  for  the 
fii-st  nor  the  last  time  in  the  reign  of  Eliza- 
beth. It  is  the  lot  of  eveiy  government 
that  is  not  founded  on  the  popular  opinion 
of  legitimacy,  to  receive  only  a  precarious 
allegiance.  Subject  to  this  reservation, 
which  was  pretty  generally  known,  it  does 
not  appear  that  the  priests  or  other  Roman 
Catholics,  examined  at  various  times  dur- 
ing this  reign,  are  more  chargeable  with 

196.  The  Earl  of  Southampton  asked  Mary's  am- 
bassador, Bishop  Lesley,  whether,  after  the  bull, 
be  coiUd  in  conscience  obey  Elizabeth.  Lesley 
answered  that,  as  long  as  she  was  the  stronger, 
he  ought  to  obey  her. — Murden,  p.  30.  The  writer 
quoted  before  by  the  name  of  Andreas  Philopater 
(Persons,  translated  by  Cresswell,  according  to 
Mr.  Butler,  voL  iii.,  p.  236),  after  justifying  at 
length  the  resistance  of  the  League  to  Henry  IV., 
adds  the  following  remarkable  paragi'aph :  "  Hinc 
etiam  infert  uuiversa  theologonim  et  jurisconsul- 
^rum  schola,  et  est  ceituiu  et  de  fide,  quemcun- 
que  principem  Christianum,  si  a  religione  Catholi- 
ca  manifeste  deflexerit,  et  alios  avocare  voluerit, 
exciderc  statim  omni  potestate  et  dignitate,  ex 
ipsa  vi  juris  tum  divim  tum  humani,  hocque  ante 
omncm  sententiam  supremi  pastoris  ac  judicis 
contra  ipsum  prolatum ;  et  subditos  quoscunque 
liberos  esse  ab  omni  jurainenti  obligatione,  quod 
ei  de  obedientia  tanquam  principi  legitimo  prsesti- 
tissent,  posseque  et  debere  (si  vires  habeant)  isti- 
nsmodi  homiuem,  tanquam  apostatam,  ha;reticum, 
ac  Christi  domiui  desertorem,  et  iniraicum  reipub- 
licoe  suie,  hostemque  ex  honiinum  Christianoi-um 
dominatu  ejicere,  ne  alios  inficiat,  vel  suo  exem- 
plo  aut  imperio  a  fide  avertat,"  p.  149.  He  quotes 
four  authorities  for  this  in  the  margin,  from  the 
works  of  divines  or  canonists. 

This  broad  duty,  however,  of  expelling  a  heretic 
sovereign,  he  qualifies  by  two  conditions  :  first, 
that  the  subjects  should  have  the  power,  "ut  vires 
habeant  idoneas  ad  hoc  subditi ;"  secondly,  that 
the  heresy  be  undeniable.  There  can,  in  tnith,  be 
no  doubt  that  the  allegiance  professed  to  the  queen 
by  the  seminary  priests  and  Jesuits,  and,  as  far  as 
their  influence  extended,  by  all  Catholics,  was 
with  this  reservation— till  they  should  be  sti-ong 
enough  to  throw  it  oif.  See  the  same  tract,  p. 
229.  But,  after  all,  when  we  come  fairly  to  con- 
sider it,  is  not  this  the  case  with  every  disaffected 
party  in  every  state  ?  a  good  reason  for  watchful- 
ness, but  none  for  extemiination. 


insincerity  or  dissimulation  than  accused 
persons  generally  are. 

The  public  executions,  numerous  as  they 
were,  scarcely  form  the  most  odious  part 
of  this  persecution.  The  common  law  of 
England  has  always  abhorred  the  accursed 
mysteries  of  a  prison-house,  and  neither 
admits  of  torture  to  extort  confession,  nor 
of  any  penal  infliction  not  warranted  by  a 
judicial  sentence.  But  this  law,  though 
still  sacred  in  the  courts  of  justice,  was  set 
aside  by  the  privy  council  under  the  Tudor 
line.  The  rack  seldom  stood  idle  in  the 
Tower  for  all  the  latter  part  of  Elizabeth's 
reign.*  To  those  who  remember  the  an- 
nals of  their  country,  that  dark  and  gloomy 
pile  affords  associations  not  quite  so  numer- 
ous and  recent  as  the  Bastile  once  did,  yet 
enough  to  excite  our  hatred  and  horror. 
But,  standing  as  it  does  in  such  striking  con- 
trast to  the  fresh  and  flourisliing  construc- 
tions of  modern  wealth,  the  proofs  and  the 
rewards  of  civil  and  religious  liberty,  it  seems 
like  a  captive  tyrant,  reserved  to  grace  the 
triumph  of  a  victorious  republic,  and  should 
teach  us  to  reflect  in  thankfulness  how 
highly  we  have  been  elevated  in  virtue  and 
happiness  above  our  forefathers. 

Such  excessive  severities  vmder  the  pre- 
text of  treason,  but  sustained  by  veiy  little 
evidence  of  any  other  offense  than  the  ex- 
ercise of  the  Catholic  ministry,  excited  in- 
dignation throughout  a  great  part  of  Europe. 
The  queen  was  held  forth  in  ))amphlets, 
dispersed  every  where  from  Rome  and 
Douay,  not  only  as  a  usurper  and  hei-etic, 
but  a  tyrant  more  ferocious  than  any  lieath- 
en  persecutor,  for  inadequate  parallels  to 
whom  they  ransacked  all  former  history. f 

'  Rishton  and  Ribadeneira.  See  in  Lingard, 
note  U,  a  specification  of  the  different  kinds  of 
torture  used  in  this  reign. 

The  government  did  not  pretend  to  deny  the 
employment  of  torture.  But  the  Puritans,  eager 
as  they  were  to  exert  the  utmost  severity  of  the 
law  against  the  pi-ofessors  of  the  old  religion,  had 
more  regard  to  civil  liberty  than  to  approve  such 
a  violation  of  it.  Heal,  clerk  of  the  council,  wrote, 
about  1585,  a  vehement  book  against  the  ecclesi- 
astical system,  from  which  Whitgift  picks  out  va- 
rious enormous  propositions,  as  he  thinks  them; 
one  of  which  is,  "  that  lie  condemns,  without  ex- 
ception of  any  cause,  racking  of  grievous  offend- 
ers, as  being  cruel,  barbarous,  contrai-y  to  law,  and 
unto  the  liberty  of  English  subjects." — Strype's 
Whitgift,  p.  212. 

t  The  persecution  of  Catholics  in  England  was 
made  use  of  as  an  argument  against  permitting 


94 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  HI. 


These  exaggerations,  coming  from  the  very 
precincts  of  the  Inquisition,  required  the 
unblushing  forehead  of  bigotry ;  but  the 
charge  of  cruelty  stood  on  too  many  facts 
to  bo  passed  over,  and  it  was  thought  expe- 
dient to  repel  it  by  two  remarkable  pam- 
phlets, both  ascribed  to  the  pen  of  Lord 
f       f    Burleigh.    One  of  these,  enti- 

Defense  ot  *  ' 

iiiequecnby  tied,  "  The  Execution  of  Justice 
Burleigh.  England  for  Maintenance  of 

public  and  private  Peace,"  appears  to  have 
been  published  in  1583.  It  contains  an 
elaborate  justification  of  the  late  prosecu- 
tions for  treason,  as  no  way  connected 
with  religious  tenets,  but  gi'ounded  on  the 
ancient  laws  for  protection  of  the  queen's 
person  and  government  from  conspiracy.  It 

Henry  IV.  to  reign  in  France,  as  appears  by  the 
title  of  a  tract  published  in  1586 :  Avertissement 
des  CathoUques  Anglois  aux  Francois  Catho- 
liques,  du  danger  oil  ils  sent  de  perdre  leur  re- 
ligion, et  d'experimenter,  comme  en  Angleterre, 
la  cruaute  des  ministres,  s'ils  recoivent  a  la  cou- 
ronne  un  roy  qui  soil  heretique.  It  is  in  the  Brit- 
ish Museum. 

One  of  the  attacks  on  Elizabeth  deserves  some 
notice,  as  it  has  lately  been  revived.  In  the  stat- 
ute 13  EHz.,  an  expression  is  used,  "her  majesty, 
and  the  natural  issue  of  her  body,"  instead  of  the 
more  common  legal  phrase,  "lawful  issue."  This, 
probably,  was  adopted  by  the  queen  out  of  pru- 
dery, as  if  the  usual  term  implied  the  possibiUty 
of  her  having  unlawful  issue.  But  the  papistical 
libelers,  followed  by  an  absurd  advocate  of  Mary 
in  later  times,  put  the  most  absurd  interpretation 
on  the  word  "natural,"  as  if  it  was  meant  to  se- 
cure the  succession  for  some  imagiuaiy  bastards 
by  Leicester.  And  Dr.  Lingard  is  not  ashamed 
to  insinuate  the  same  suspicion,  vol.  viii.,  p.  81, 
note.  Surely  what  was  congenial  to  the  dark  ma- 
lignity of  Persons,  and  the  blind  phrensy  of  Whit- 
aker,  does  not  become  the  good  sense,  I  can  not 
say  the  candor,  of  this  writer. 

It  is  true  that  some,  not  prejudiced  against 
Elizabeth,  have  doubted  whether  "Cupid's  fiery 
dart"  was  as  elfectually  "  quenched  in  the  chaste 
beams  of  the  watery  moon"  as  her  poet  intimates. 
This  I  must  leave  to  the  reader's  judgment.  She 
certainly  went  strange  lengths  of  indelicacy.  But, 
if  she  might  sacrifice  herself  to  the  dueen  of  Cni- 
dus  and  Paphos,  she  was  unmercifully  severe  to 
those  about  her,  of  both  sexes,  who  showed  any 
inclination  to  that  worship,  though  under  the  es- 
cort of  Hj-men.  Miss  Aikin,  in  her  well-written 
and  interesting  Memoirs  of  the  Court  of  EUza- 
beth,  has  collected  several  instances  from  Har- 
rington and  Birch.  It  is  by  no  means  trae,  as  Dr. 
Lingard  asserts,  on  the  authority  of  one  Faimt,  an 
austere  Puritan,  that  her  court  was  dissolute,  com- 
paratively, at  least,  with  the  general  character  of 
courts ;  though  neither  was  it  so  virtuous  as  the 
enthusiasts  of  the  Elizabethan  period  suppose. 


is  alleged  that  a  vast  number  of  Catholics, 
whether  of  the  laity  or  priesthood,  among 
whom  the  deprived  bishops  are  particularly 
enumerated,  had  lived  unmolested  on  the 
score  of  their  faith,  because  they  paid  duo 
temporal  allegiance  to  their  sovereign.  Nor 
were  any  indicted  for  treason  but  such  as 
obstinately  maintained  the  pope's  bull  de- 
priving the  queen  of  her  crown.  And  even 
of  these  offenders,  as  many  as  after  con- 
demnation would  renounce  their  traitorous 
principles,  had  been  permitted  to  live  ;  such 
was  her  majesty's  unwillingness,  it  is  as- 
serted, to  have  any  blood  spilled  without 
this  just  and  urgent  cause  proceeding  from 
themselves.  But  that  any  matter  of  opin- 
ion, not  proved  to  have  ripened  into  an  overt 
act,  and  extorted  only,  or  rather  conject- 
ured, through  a  compulsive  inquiry,  could 
sustain  in  law  or  justice  a  conviction  for 
high  treason,  is  what  the  author  of  this 
pamphlet  has  not  rendered  manifest.* 

A  second  and  much  shorter  paper  bears 
for  title,  "  A  Declaration  of  the  favorable 
dealing  of  her  majesty's  Commissioners, 
appointed  for  the  examination  of  certain 
traitors,  and  of  tortures  unjustly  reported 
to  be  done  upon  them  for  matter  of  relig- 
ion." Its  scope  was  to  palliate  the  impu- 
tation of  excessive  cruelty  with  which  Eu- 
rope was  then  resounding.  Those  who  re- 
vere the  memoiy  of  Lord  Burleigh  must 
blush  for  this  pitiful  apology.  "  It  is  af- 
firmed for  truth,"  he  says,  "  that  the  forms 
of  torture  in  their  severity  or  rigor  of  exe- 
cution have  not  been  such  and  in  such  man- 
ner perfoiTned,  as  the  slanderers  and  sedi- 
tious libelers  have  published.  And  that 
even  the  principal  offender,  Campian  him- 
self, who  was  sent  and  came  from  Rome, 
and  continued  here  in  sundry  corners  of 
the  realm,  having  secretly  wandered  in  the 
greater  part  of  the  shires  of  England  in  a 
disguised  suit,  to  the  intent  to  make  spe- 
cial preparation  of  treasons,  was  never  so 
racked  but  that  he  was  perfectly  able  to 

*  Somers  Tracts,  i.,  189.  Strj-pe,  iii.,  205,  265, 
480.  Strjpe  says  that  he  had  seen  the  manu- 
script of  this  tract  in  Lord  Burleigh's  hand- writ- 
ing. It  was  answered  by  Cardinal  Allen,  to 
whom  a  reply  was  made  by  poor  Stubbe,  after  he 
had  lost  his  right  hand.  An  Italian  translation  of 
the  Execution  of  Justice  was  published  at  Lon- 
don in  1584.  This  shows  how  anxious  the  queen 
was  to  repel  the  charges  of  cruelty,  wliich  she 
must  have  felt  to  be  not  wholly  unfounded. 


Eliz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


95 


walk  and  to  write,  and  did  presently  Avrite 
and  subscribe  all  his  confessions.  The 
queen's  servants,  the  wai'ders,  whose  of- 
fice and  act  it  is  to  handle  the  rack,  were 
ever  by  those  that  attended  the  examina- 
tions specially  charged  to  use  it  in  so  char- 
itable a  manner  as  such  a  thing  might  be. 
None  of  those  who  were  at  any  time  put  to 
the  rack,"  he  proceeds  to  assert,  "  wei-e 
asked,  during  their  torture,  any  question  as 
to  points  of  doctrine  ;  but  merely  concern- 
ing their  plots  and  conspiracies,  and  the 
persons  with  whom  they  had  had  dealings, 
and  what  was  their  own  opinion  as  to  the 
•pope's  right  to  deprive  the  queen  of  her 
crown.  Nor  was  any  one  so  racked  until 
it  was  rendered  evidently  probable,  by  for- 
mer detections  or  confessions,  that  he  was 
guilty  ;  nor  was  the  torture  ever  employed 
to  wring  out  confessions  at  random,  nor  un- 
less the  party  had  first  refused  to  declare 
the  ti'Uth  at  the  queen's  commandment." 
Such  miserable  excuses  serve  only  to  min- 
gle contempt  with  our  detestation.*  But  it  is 
due  to  Elizabeth  to  obsei-ve,  that  she  order- 
ed the  torture  to  be  disused ;  and  upon  a 
subsequent  occasion,  the  quartering  of  some 
concerned  in  Babington's  conspiracy  having 
been  executed  with  unusual  cruelty,  gave 
directions  that  the  rest  should  not  be  taken 
down  from  the  gallows  until  they  were 
dead.f 

I  should  be  reluctant,  but  for  the  consent 
of  several  authorities,  to  ascribe  thi.s  little 
tract  to  Lord  Burleigh,  for  his  honor's  sake. 
But  we  may  quote  with  more  satisfaction  a 
memorial  addressed  by  him  to  the  queen 
about  the  same  year,  1583,  full  not  only 
of.,  sagacious,  but  just  and  tolerant  advice. 

Considering,"  he  says,  "  that  the  urging 
of.  the  oath  of  supremacy  must  needs,  in 
some  degree,  beget  despair,  since  in  the 
taking  of  it,  he  [the  papist]  nmst  either 
think  he  doth  an  unlawful  act,  as  without' 
the  special  grace  of  God  he  can  not  think 
otherwise,  or  else,  by  refusing  it,  must  be- 
come a  ti'aitoi',  which  before  some  hurt 
done  seemeth  hard  ;  I  humbly  submit  this 
to  your  excellent  consideration,  whether, 
with  as  much  security  of  your  majesty's 
person  and  state,  and  more  satisfaction  for 
them,  it  were  not  better  to  leave  the  oath 
to  this  sense,  that  whosoever  would  not 

*  Somers  Tracts,  p.  209. 
t  State  Trials,  i.,  1160. 


bear  arms  against  all  foreign  princes,  and 
namely  the  pope,  that  sliould  any  way  in- 
vade your  majesty's  dominions,  he  should  be 
a  traitor.  For  hereof  this  commodity  will 
ensue,  that  those  papists,  as  I  think  most 
papists  would,  that  should  take  this  oath, 
would  be  divided  from  the  gi-eat  mutual 
confidence  which  is  now  between  the  pope 
and  them,  by  reason  of  their  afflictions  for 
him  ;  and  such  priests  as  would  refuse  that 
oath  then,  no  tongue  could  say  for  shame 
that  they  suffer  for  religion,  if  they  did 
suffer. 

"But  here  it  may  be  objected,  they  would 
dissemble  and  equivocate  with  this  oath, 
and  that  the  pope  would  dispense  with 
them  in  that  case.  Even  so  may  they  with 
the  present  oath  both  dissemble  and  equiv- 
ocate, and  also  have  the  pope's  dispensation 
for  the  present  oath  as  well  as  for  the  oth- 
er. But  this  is  certain,  that  whomsoever 
the  conscience,  or  fear  of  breaking  an  oath, 
doth  bind,  him  would  that  oath  bind.  And 
that  they  make  conscience  of  an  oath,  the 
ti'ouble,  losses,  and  disgraces  that  they  suf- 
fer for  refusing  the  same  do  sufficiently  tes- 
tify ;  and  you  know  that  the  perjuiy  of  ei- 
ther oath  is  equal." 

These  sentiments  are  not  such  as  bigoted 
theologians  were  then,  or  have  been  since, 
accustomed  to  entertain.  "  I  account,"  he 
says  afterward,  "  that  putting  to  death  does 
no  ways  lessen  them,  since  we  find  by  ex- 
perience that  it  worketh  no  such  effect,  but, 
like  hydra's  heads,  uj)on  cutting  oft'  one, 
seven  gi-ow  up,  persecution  being  account- 
ed as  the  badge  of  the  Church  ;  and  there- 
fore they  should  never  have  the  honor  to 
take  any  pretense  of  martyrdom  in  Eng- 
land, where  the  fullness  of  blood  and  great- 
ness of  heart  is  such  that  they  will  even  for 
shameful  things  go  bravely  to  death  ;  much 
more,  when  they  think  themselves  to  climb 
heaven,  and  this  vice  of  obstinacy  seems  to 
the  common  people  a  divine  constancy  ;  so 
that,  for  my  part,  I  wish  no  lessening  of 
their  number  but  by  preaching  and  by  ed- 
ucation of  the  younger  under  schoolmas- 
ters." And  hence  the  means  he  recom- 
mends for  keeping  down  popery,  after  the 
encouragement  of  diligent  preachers  and 
schoolmasters,  are,  "  the  taking  order  that, 
from  the  highest  counselor  to  the  lowest 
constable,  none  shall  have  any  charge  or 
office  but  such  as  will  really  pray  and  com- 


96 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  III. 


munic.'ite  in  their  congregation  according  to 
the  doctriue  received  generally  into  this 
realm ;"'  and  next,  the  protection  of  tenants 
against  their  popish  landlords,  "  that  they 
be  not  put  out  of  their  living  for  embracing 
the  estal)lished  religion."  "  This,"  he  says, 
"  would  greatly  bind  the  commons'  hearts 
imto  you,  in  whom,  indeed,  consisteth  the 
power  and  strength  of  your  realm  ;  and  it 
■will  make  them  less,  or  nothing  at  all,  de- 
pend on  their  landlords.  And,  although 
there  may  hereby  grow  some  wrong,  which 
the  tenants  upon  that  confidence  may  offer 
to  their  landlords,  yet  those  wrongs  are 
very  easily,  even  with  one  wink  of  your 
majesty's,  redressed ;  and  are  nothing  com- 
parable to  the  danger  of  having  many  thou- 
sands depending  on  the  adverse  partj'."* 
The  strictness  used  with  recusants, 
which  much  increased  from  1579 

Increased  se- 
verity of  the  or  I08O,  had  the  usual  conse- 
govermnent.  qugn^e  of  persecution,  that  of 
midtiplying  hypocrites.  For,  in  fact,  if 
men  will  once  bring  themselves  to  comply, 
to  take  all  oaths,  to  practice  all  conformity, 
to  oppose  simulation  and  dissimulation  to 
arbitraiy  inquiries,  it  is  hardly  possible  that 
any  government  should  not  be  baffled. 
Fraud  becomes  an  over-match  for  power. 
The  real  danger  meanwhile,  the  internal 
disaffection,  remains  as  before,  or  is  aggi-a- 
vated.  The  laws  enacted  against  poperj' 
were  precisely  calculated  to  produce  tliis 
i-esult.  Many  indeed,  especiallj-  of  the  fe- 
male sex,  whose  religion,  lying  commonly 
more  in  sentiment  than  reason,  is  less  duc- 
tile to  the  sophisms  of  wordly  wisdom, 
stood  out  and  endured  the  penalties.  But 
the  oath  of  supremacy  was  not  refused,  the 
worship  of  the  Church  was  fi-equented,  by 
multitudes  who  secretly  repined  for  a 
change ;  and  the  council,  whose  fear  of 
open  enmity  had  prompted  their  first  se- 
verities, were  led  on  by  the  fear  of  dissem- 
bled resentment  to  devise  3'et  further  meas- 
ures of  the  same  kind.  Hence,  in  1584,  a 
law  was  enacted,  enjoining  all  Jesuits,  sem- 
inaiy  priests,  and  other  priests,  whether 
ordained  within  or  without  the  kingdom,  to 
depart  from  it  within  forty  days,  on  pain  of 
being  adjudged  traitors.  The  penaltj-  of 
fine  and  imprisonment  at  the  queen's  pleas- 
ure was  inflicted  on  such  as,  knowing  any 
priest  to  be  within  the  realm,  should  not 
"  *  Somers  Tracts,  164.  1 


discover  it  to  a  magistrate.  This  seemed 
to  fill  up  the  measure  of  persecution,  and 
to  render  the  longer  preservation  of  this 
obnoxious  religion  absofutely  impracticable. 
Some  of  its  adherents  presented  a  petition 
against  this  bill,  praj-ing  that  they  might 
not  be  suspected  of  disloyalty  on  account  of 
refraining  from  the  public  worship,  which 
they  did  to  avoid  sin  ;  and  that  their  priests 
might  not  be  banished  from  the  kingdom.* 
And  they  all  very  justly  complained  of  this 
determined  oppression.  The  queen,  with- 
out any  fault  of  theirs,  they  alleged,  had 
been  alienated  by  the  artifices  of  Leice.ster 
and  Walsingham.  Snares  were  laid  to  in- 
volve them  unawares  in  the  guilt  of  treason ; 
their  steps  were  watched  by  spies ;  and  it 
was  become  intolerable  to  continue  in  Eng- 
land. Camden  indeed  asserts  that  counter- 
feit letters  were  privately  sent  in  the  name 
of  the  Queen  of  Scots  or  of  the  exiles,  and 
left  in  papists'  houses. f  A  general  inqui- 
sition seems  to  have  been  made  about  this 
time;  but  whether  it  was  founded  on  suffi- 
cient grounds  of  previous  suspicion,  we  can 
not  absolutely  determine.  The  Earl  of 
Northumberland,  brother  of  him  who  had 
been  executed  for  the  rebellion  of  1570,  and 
the  Earl  of  Arundel,  son  of  the  unfortunate 
Duke  of  Norfolk,  were  committed  to  the 
Tower,  where  the  former  put  an  end  to  his 
own  life  (for  we  can  not  charge  the  govern- 
ment Avith  an  unproved  murder) ;  and  the 
second,  after  being  condemned  for  a  ti-aitor- 
ous  coiTespondence  with  the  queen's  ene- 
mies, died  in  that  custody.    But  whether  or 

*  Strj-pe,  iii.,  298.  Shelley,  thoagh  notoriously 
loyal  and  frequently  employed  by  Burleieli,  was 
taken  up  and  examined  before  the  cooncil  for  pre- 
paring this  petition. 

t  P.  591.  Proofs  of  the  text  are  too  numerous 
for  quotation,  and  occur  continuallj-  to  a  reader  of 
Strype's  2d  and  3d  volumes.  In  vol.  iii..  Append, 
158,  we  have  a  letter  to  the  queen  from  one  An- 
tony T\"rrel,  a  priest,  who  seems  to  have  acted  as 
an  informer,  wherein  he  declares  all  his  accusa- 
tions of  Catholics  to  be  false.  This  man  had  for- 
merly professed  himself  a  Protestant,  and  return- 
ed afterward  to  the  same  religion ;  so  that  his  ve- 
racity may  be  dubious.  So,  a  Uttle  further  on,  we 
find  in  the  same  collection,  p.  250,  a  letter  from 
one  Bermet,  a  priest,  to  Lord  Arundel.  lamenting 
the  false  accusations  he  had  given  in  against  liim, 
and  craving  pardon.  It  is  always  possible,  as  I 
have  just  hinted,  that  these  retractations  may  be 
more  false  than  the  charges.  But  ministers  who 
employ  spies,  without  the  utmost  distrust  of  their 
information,  are  sore  to  become  their  dupes,  and 
end  by  the  most  violent  injustice  and  tyranny. 


Eliz. — Catholics.] 


FROM  HENRY  VH.  TO  GEORGE  II. 


97 


no  some  conspiracies  (I  mean  more  active 
than  usual,  for  there  -was  one  pei-petual  con- 
spiracy of  Rome  and  Spain  during  most  of 
the  queen's  reign)  had  preceded  these  se- 
vere and  unfair  methods  by  which  her  rain- 
istiy  counteracted  them,  it  was  not  long  be- 
fore schemes,  more  formidable  than  ever, 
were  put  in  action  against  her  life.  As  the 
whole  body  of  Catholics  was  imtated  and 
alarmed  by  the  laws  of  proscription  against 
their  clergj-,  and  by  the  heavy  penalties  on 
recusancy,  which,  as  they  alleged,  showed 
a  manifest  purpose  to  reduce  them  to  pov- 
erty,* so  some  desperate  men  saw  no  surer 
means  to  rescue  their  cause  than  the  queen's 
assassination.  One  Somerville,  half  a  luna- 
tic, and  Parrj',  a  man  who,  long  employed 
as  a  spy  upon  the  papists,  had  learned  to 
serve  with  sincerity  those  he  was  sent  to 
betray,  were  the  first  who  suffered  death 
for  unconnected  plots  against  Elizabeth's 
life.f    More  deep-laid  machinations  were 

*  The  rich  Catholics  compounded  for  tlieir  recu- 
sancy by  aniiHal  pajmeuts,  which  were  of  some 
consideration  in  the  queen's  rather  scanty  reve- 
nue. A  list  of  such  recusants,  and  of  the  annual 
fines  paid  by  them  in  1.594.  is  published  in  Strj-pe, 
iv.,  197  ;  but  is  plainly  very  imperfect.  The  total 
was  £3323  Is.  lOd.  A  few  paid  as  much  as  £140 
per  annum.  The  average  seems,  however,  to  have 
been  about  £20. — Vol.  iii..  Append.,  153  ;  see,  also, 
p.  258.  Probably  these  compositions,  though  op- 
pressive, were  not  quite  so  serious  as  the  Catho- 
lics pretended. 

t  Parrj-  seems  to  have  been  privately  reconciled 
to  the  Church  of  Rome  about  1580,  after  which  he 
continued  to  correspond  with  Cecil,  but  generally 
recommendine;  some  Catholics  to  mercy.  He  says, 
in  one  letter,  that  a  book  printed  at  Rome,  De 
Persecutione  Anglicana,  had  raised  a  barbarous 
opinion  of  our  cruelty,  and  tliat  he  could  wish  that 
in  those  cases  it  might  please  her  majesty  to  par- 
don the  dismembering  and  drawing. — Strype,  iii., 
260.  He  sat  afterward  in  the  Parliament  of  1584, 
taking,  of  course,  the  oath  of  supremacy,  where  he 
alone  opposed  the  act  against  Catholic  priests.— 
Pari.  Hist.,  822.  Whether  he  were  actually  guUtj' 
of  plotting  against  the  queen's  life  (for  this  part  of 
his  treason  he  denied  at  the  scaffold),  I  can  not 
say ;  but  his  speech  there  made  contained  some 
very  good  ad%-ice  to  her.  The  niiuistiy  garbled 
this  before  its  publication  in  Holingshed  and  other 
books ;  but  Strj  pe  has  preser\  ed  a  genuine  copy, 
vol.  iii.,  Append.,  102.  It  is  plain  that  Parrj-  died 
a  Catholic,  though  some  late  writers  of  that  com- 
manion  have  tried  to  disclaim  him.  Dr.  Lingard, 
it  may  be  added,  admits  that  there  were  many 
schemes  to  assassinate  Elizabeth,  though  he  will 
not  confess  any  particular  instance.  "  There  ex- 
ist," he  says,  "  in  the  archives  at  Simancas,  sev- 
eral notices  of  such  offers." — P.  384. 

G 


carried  on  by  several  Catholic  laymen  at 
home  and  abroad,  among  whom  a  brother 
of  Lord  Paget  was  the  most  prominent.* 
These  had  in  view  two  objects,  the  deliver- 
ance of  Mary,  and  the  death  of  her  enemy. 
Some,  perhaps,  who  were  engaged  in  the 
former  project,  did  not  give  countenance  to 
the  latter.  But  few,  if  any,  ministers  have 
been  better  served  by  their  spies  than  Cecil 
and  Walsingham.    It  is  sm-prising  to  see 


•  It  might  be  inferred  from  some  authorities  that 
the  Catholics  had  become  in  a  great  degree  disaf- 
fected to  the  queen  about  1584,  in  consequence  of 
the  extreme  rigor  practiced  against  them.  In  a 
memoir  of  one  Crichton,  a  Scots  Jesuit,  intended 
to  show  the  easiness  of  invading  England,  he  says, 
that  "  all  the  Catholics,  without  exception,  favor 
the  enterprise  ;  first,  for  the  sake  of  the  restitution 
of  the  Catholic  faith ;  secondly,  for  the  right  and 
interest  which  the  dueen  of  Scots  has  to  the  king- 
dom, and  to  deliver  her  out  of  prison ;  thirdly,  for 
the  great  trouble  and  miserj-  they  endured  more 
and  more,  being  kept  out  of  all  emploj-ments,  and 
dishonored  in  their  own  countries,  and  treated 
with  great  injustice  and  partiality  when  they 
have  need  to  recur  to  law  ;  and  also  for  the  execu- 
tion of  the  laws  touching  the  confiscation  of  their 
goods  in  such  sort  as  in  so  short  time  would  re- 
duce the  Catholics  to  extreme  povertj'." — Strj^pe, 
iii.,  415.  And  in  the  report  of  the  E  arl  of  Northum- 
berland's treasons,  laid  before  the  Star  Chamber, 
we  read  that  '  Throckmorton  said,  that  the  bottom 
of  this  enterprise,  which  was  not  to  be  known  to 
many,  was.  that  if  a  toleration  of  religion  might  not 
be  obtained  without  alteration  of  the  government, 
that  then  the  government  should  be  altered,  and 
the  queen  removed." — Somers  Tracts,  vol.  i.,  p. 
206.  Further  proofs  that  the  rigor  used  toward 
the  Catholics  was  the  great  means  of  promoting 
Philip's  designs,  occur  in  Birch's  Memoirs  of  Eliz- 
abeth, i.,  82,  et  alibi. 

We  have  also  a  letter  from  Persons  in  England 
to  Allen  in  1386,  giving  a  good  account  of  the  zeal 
of  the  Catholics,  though  a  verj'  bad  one  of  their 
condition  through  severe  imprisonment  and  other 
ill  ti-eatinent. — Strj-pe,  iii.,  412,  and  Append.,  151. 
Rishton  and  Ribadeneira  hear  testimony  that  the 
persecution  had  rendered  the  laity  more  zealous 
and  sincere. — De  Schismate,  1.  iii..  320,  and  1.  iv.,  53. 

Yet  to  all  this  we  may  oppose  their  good  con- 
duct in  the  year  of  the  Spanish  Armada,  and  in 
general  during  the  queen's  reign ;  which  proves 
that  the  loyalty  of  the  main  body  was  more  firm 
than  their  readers  wished,  or  their  enemies  be- 
lieved. However,  if  any  of  my  readers  should  in- 
chne  to  suspect  that  there  was  more  disposition 
among  this  part  of  the  commimitj'  to  throw  off 
their  allegiance  to  the  queen  altogether  than  I 
have  admitted,  he  may  possibly  be  in  the  right; 
and  I  shall  not  impugn  his  opinion,  provided  he 
concurs  in  attributing  the  whole,  or  nearly  the 
whole,  of  this  disafTection  to  her  unjust  aggres- 
sions on  the  liberty-  of  conscience. 


98 


CONSTITUTIONAL  HISTOllY  OF  ENGLAND 


[Chap.  Ill 


how  eveiy  letter  seems  to  have  been  inter- 
cepted, every  thread  of  these  conspiracies 
unraveled,  eveiy  secret  revealed  to  these 
wise  counselors  of  the  queen.  They  saw 
that  while  one  lived  whom  so  many  deemed 
the  presumptive  heir,  and  from  whose  suc- 
cession they  anticipated,  at  least  in  possibil- 
ity, an  entire  reversal  of  all  that  had  been 
wrought  for  thirty  years,  the  queen  was  as 
a  mark  for  the  pistol  or  dagger  of  every 
zealot.  And  fortunate,  no  question,  they 
thought  it,  that  the  detection  of  Babington's 
conspiracy  enabled  them  with  truth,  or  a 
semblance  of  truth,  to  impute  a  participa- 
tion in  that  crime  to  the  most  dangerous  en- 
emy whom,  for  their  mistress,  their  relig- 
ion, or  themselves,  they  had  to  apprehend. 

Mary  had  now  consumed  the  best  years 
^  of  her  life  in  custody,  and,  though  still 
the  perpetual  object  of  the  queen's 
vigilance,  had  perhaps  gi-adually  become 
somewhat  less  formidable  to  the  Protestant 
interest.  Whether  she  would  have  ascend- 
ed the  throne  if  Elizabeth  had  died  during 
the  latter  years  of  her  imprisonment,  must 
appear  very  doubtful,  when  we  consider 
the  increasing  sti'ength  of  the  Puritans,  the 
antipathy  of  the  nation  to  Spain,  the  pre- 
vaihng  opinion  of  her  consent  to  Darnley's 
murder,  and  the  obvious  expedient  of  ti'eat- 
ing  her  son,  now  advancing  to  manhood,  as 
tlie  representative  of  her  claim.  The  new 
projects  imputed  to  her  friends  even  against 
the  queen's  life,  exasperated  the  hatred  of 
the  Protestants  against  Mary.  An  associ- 
ation was  formed  in  1584,  the  members  of 
which  bound  themselves  by  oath  "  to  with- 
stand and  pursue,  as  well  by  force  of  arms 
as  by  all  other  means  of  revenge,  all  manner 
of  persons,  of  whatsoever  state  they  shall 
be,  and  their  abettors,  that  shall  attempt  any 
act,  or  counsel  or  consent  to  any  thing  that 
shall  tend  to  the  harm  of  her  majesty's  roy- 
al person  ;  and  never  to  desist  from  all  man- 
ner of  forcible  pursuit  against  such  persons, 
to  the  utter  extermination  of  them,  their 
counselors,  aiders,  and  abettors.  And  if 
any  such  wicked  attempt  against  her  most 
royal  person  shall  be  taken  in  hand  or  pro- 
eui-ed,  whereby  any  that  have,  may,  or  shall 
pretend  title  to  come  to  this  crown  by  the 
untimely  death  of  her  majesty  so  wickedly 
procured  (which  God  of  his  mercy  forbid  !), 
diat  the  same  may  be  avenged,  we  do  not 
only  bind  ourselves  both  jointly  and  sever- 


ally never  to  allow,  accept,  or  favor  any  such 
pretended  successor,  by  whom  or  for  whom 
any  such  detestable  act  shall  be  attempted 
or  committed,  as  unworthy  of  all  govern- 
ment in  any  Christian  realm  or  civil  state, 
but  do  also  further  vow  and  promise,  as  we 
are  most  bound,  and  that  in  the  presence  of 
the  eternal  and  everlasting  God,  to  prosecute 
such  person  or  persons  to  death,  with  our 
joint  and  particular  forces,  and  to  act  the 
utmost  revenge  upon  them  that  by  any 
means  wo  or  any  of  us  can  devise  and  do, 
or  cause  to  be  devised  and  done  for  their 
utter  overthrow  and  extirpation."* 

The  pledge  given  by  this  voluntaiy  asso- 
ciation received  the  sanction  of  Parliament 
in  an  act  "  for  the  security  of  the  queen's 
person,  and  continuance  of  the  realm  in 
peace."  This  statute  enacts  that,  if  any  in- 
vasion or  rebellion  should  be  made  by  or  for 
any  person  pretending  title  to  the  crown 
after  her  majesty's  decease,  or  if  any  thing 
be  confessed  or  imagined  tending  to  the  hurt 
of  her  person  w-ith  the  privity  of  any  such 
person,  a  number  of  peers,  privy  counsel- 
ors, and  judges,  to  be  commissioned  by  the 
queen,  should  examine  and  give  judgment 
on  such  offenses,  and  all  circumstances  re- 
lating thereto ;  after  which  judgment  all 
persons  against  whom  it  should  be  published 
should  be  disabled  forever  to  make  anj^  such 
claim. f  I  omit  some  further  provisions  to 
the  same  effect,  for  the  sake  of  brevity. 
But  we  may  remark  that  this  statute  dif- 
fers from  the  associators'  engagement,  in 
omitting  the  outrageous  threat  of  pursuing 
to  death  any  person,  whether  privy  or  not 
to  the  design,  on  Avhose  behalf  an  attempt 
against  the  queen's  life  should  be  made. 
The  main  intention  of  the  statute  was  to 
procure,  in  the  event  of  any  rebellious  move- 
ments, what  the  queen's  counselors  had  long 
ardently  desired  to  obtain  from  her,  an  ab- 
solute exclusion  of  Mary  from  the  succes- 
sion. But  if  the  scheme  of  assassination, 
devised  by  some  of  her  despei-ate  partisans, 
had  taken  effect,  however  questionable  might 
be  her  concern  in  it,  I  have  little  doubt  that 
the  rage  of  the  nation  would,  with  or  with- 
out some  process  of  law,  have  instantly 
avenged  it  in  her  blood.  This  was,  in  the 
language  of  Parliament,  their  great  cause ; 
an  expression  which,  though  it  may  have 
an  ultimate  reference  to  the  general  inter- 
*  f  tate  Trials,  i.,  Il(i2.  t  27  Eliz.,  c.  i. 


Eliz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


99 


est  of  religion,  is  never  applied,  so  far  as  1 
remember,  but  to  the  punishment  of  Mary, 
which  they  hail  demanded  in  1572,  and  now 
clamored  for  in  1586.  The  addresses  of 
both  houses  to  the  queen,  to  carry  the  sen- 
tence passed  by  the  commissioners  into  ef- 
fect, her  evasive  answers  and  feigned  reluct- 
ance, as  well  as  the  strange  sceoes  of  hy- 
pocrisy which  she  acted  afterward,  are  well- 
known  matters  of  history,  upon  which  it  is 
unnecessary  to  dwell.  No  one  will  be  found 
to  excuse  the  hollow  affectation  of  Eliza- 
Execution  heth;  but  the  famous  sentence  that 
of  Mary,  brought  Mary  to  the  scaffold,  though 
it  has  certainly  left  in  popular  opinion  a  dark- 
er stain  on  the  queen's  memory  than  any 
other  ti'ansaction  of  her  hfe,  if  not  capable 
of  complete  vindication,  has  at  least  encount- 
ered a  disproportionod  censure. 

It  is,  of  course,  essential  to  any  kind  of 
Remarks  apology  for  Elizabeth  in  this  mat- 
opon  it.  tgj.^  tj^at  Mary  shoiild  have  been  as- 
senting to  a  conspiracy  against  her  life  ;  for 
it  could  be  no  real  crime  to  endeavor  at  her 
own  deliverance ;  nor,  under  the  circum- 
stances of  so  long  and  so  unjust  a  detention, 
would  even  a  conspiracy  Jigainst  the  aggress- 
or's power  afibrd  a  moral  justification  for 
her  death.  But  though  the  proceedings 
against  her  are  by  no  means  exempt  from 
the  shameful  breach  of  legal  rules,  almost 
universal  in  trials  for  high  treason  during 
tliat  reign  (the  witnesses  not  having  been 
examined  in  open  court),  yet  the  deposi- 
tions of  her  two  secretaries,  joined  to  the 
confessions  of  Babington  and  other  conspir- 
ators, form  a  body  of  evidence,  not,  indeed, 
UTesistibly  convincing,  but  far  stronger  than 
we  find  in  many  instances  where  condem- 
nation has  ensued.  And  Hume  has  alleged 
sufficient  reasons  for  believing  its  truth,  de- 
rived from  the  gi-eat  probability  of  her  con- 
curring in  any  scheme  against  her  oppress- 
or from  the  certainty  of  her  long  correspond- 
ence with  the  conspirators  (who,  I  may  add, 
had  not  made  any  difficulty  of  hinting  to  her 
their  designs  against  the  queen's  life*),  and 

*  In  Murden's  State  Papers  we  have  abundant 
evidence  of  Mary'fi  acquaintance  witli  the  plots 
going  forward  in  1583  and  1586  against  Elizabeth's 
government,  if  not  with  those  for  her  assassination. 
But  Thomas  Morgan,  one  of  the  most  active  con- 
spirators, writes  to  her,  9th  July,  1586 :  "  There  be 
some  good  members  that  attend  opportunity  to  do 
the  Clueen  of  England  a  piece  of  service,  which  I 
trust  will  quiet  many  things,  if  it  shall  please  God 


from  the  deep  guilt  that  the  falsehood  of  the 
charge  must  inevitably  attach  to  Sir  Fran- 
cis Walsingham.*  Those,  at  least,  who 
can  not  accpfit  the  Queen  of  Scots  of  her 
husband's  murder,  will  hardly  imagine  tliat 
she  would  scruple  to  concur  in  a  crime  so 
much  more  capable  of  extenuation,  and  so 
much  more  essential  to  her  interests.  But 
as  the  proofs  are  not  perliaps  complete,  we 
must  hypothetically  assume  her  guilt,  in  or- 
der to  set  this  famous  problem  in  the  casu- 
istry of  public  law  upon  its  proper  footing. 

It  has  been  said  so  often,  that  few,  per- 
haps, wait  to  reflect  whether  it  has  been 
said  with  reason,  that  Mary,  as  an  inde- 
pendent sovereign,  was  not  amenable  to  any 
English  jurisdiction.  This,  however,  does 
not  appear  unquestionable.  By  one  of  those 
principles  of  law  which  may  be  called  nat- 
ural, as  forming  the  basis  of  a  just  and  ra- 
tional jurisprudence,  every  independent  gov- 
ernment is  supreme  within  its  own  terri- 
toiy.  Strangers,  voluntarily  resident  within 
a  state,  owe  a  temporary  allegiance  to  its 
sovereign,  and  are  amenable  to  the  juris- 
to  lay  his  assistance  to  the  cause,  for  the  wliich  I 
pray  daily,"  p.  530.  In  her  answer  to  this  letter, 
she  does  not  advert  to  this  hint,  but  mentions  Bab- 
ington as  in  correspondence  with  her.  At  her  trial 
she  denied  all  communication  with  him.  [In  a 
letter  from  Persons  to  a  Spanish  nobleman  in  1597, 
it  is  said  that  Mary  had  reproved  the  Duke  of 
Guise  and  Archbishop  of  Glasgow  for  omitting  to 
supply  a  sum  of  money  to  a  young  English  gentle- 
man who  had  promised  to  murder  Elizabeth.  This, 
however,  rests  only  on  Persons's  authority. — Dodd's 
Church  History  of  Catholics,  by  Tiemey :  the  edi- 
tor gives  the  letter  from  a  manuscript  in  his  own 
possession.    Vol.  iii.,  Append,  lix.,  1845.] 

*  It  may  probably  be  answered  to  this,  that  if 
the  letter  signed  by  Walsingham  as  well  as  Dav- 
ison to  Sir  Amias  Paulet,  urging  him  "  to  find  out 
some  way  to  shorten  the  life  of  the  Scots  queen," 
be  genuine,  which  can  not,  perhaps,  be  justly 
questioned  (though  it  is  so  in  tlie  Biog.  Brit.,  art. 
Walsingham,  note  O),  it  will  be  difficult  to  give 
him  credit  for  any  scrupulousness  with  respect  to 
Mary.  But,  without  entirely  justifying  this  letter, 
it  is  proper  to  remark,  what  the  Marian  party 
clioose  to  overlook,  that  it  was  written  after  tlie 
sentence,  during  the  queen's  odious  scenes  of 
grimace,  when  some  might  argue,  though  errone- 
ously, that,  a  legal  trial  having  passed,  the  foi-mal 
method  of  putting  the  prisoner  to  death  might,  in 
so  peculiar  a  case,  be  dispensed  with.  This  was 
EHzabeth's  own  wish,  in  order  to  save  her  repu- 
tation, and  enable  her  to  throw  the  obloquy  on  her 
servants  ;  which,  by  Paulet's  pradence  and  honor 
in  refusing  to  obey  her,  by  privately  murdering  hia 
prisoner,  she  was  reduced  to  do  in  a  very  bungling 
anil  scandalous  manner. 


100 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap,  III 


diction  of  its  ti-ibunals;  and  this  principle, 
which  is  perfectly  conformable  to  natural 
law,  has  been  extended  by  positive  usage 
even  to  those  who  are  detained  in  it  by 
force.  Instances  have  occurred  very  re- 
cently in  England,  when  prisoners  of  war 
have  suff  ered  death  for  criminal  offenses ; 
and,  if  some  have  doubted  the  propriety  of 
canying  such  sentences  into  effect,  where 
a  penalty  of  unusual  severity  has  been  in- 
flicted by  our  municipal  law,  few,  I  believe, 
would  dispute  the  fitness  of  punishing  a 
prisoner  of  war  for  willful  murder,  in  such 
a  manner  as  the  general  practice  of  civil  so- 
cieties and  the  prevailing  sentiments  of  man- 
kind agi'ee  to  point  out.  It  is  certainly  tnie 
that  an  exception  to  this  rule,  incorporated 
with  the  positive  law  of  nations,  and  estab- 
lished, no  doubt,  before  the  age  of  Elizabeth, 
has  rendered  the  ambassadors  of  sovereign 
princes  exempt,  in  all  ordinary  cases  at  least, 
from  criminal  process.  Whether,  however, 
an  ambassador  may  not  be  brought  to  pun- 
ishment for  such  a  flagi-ant  abuse  of  the  con- 
fidence which  is  implied  by  receiving  him, 
as  a  conspiracy  against  the  life  itself  of  the 
prince  at  whose  court  he  resides,  has  been 
doubted  by  those  \^Titers  who  are  most  in- 
clined to  respect  the  privileges  with  which 
courtesy  and  convenience  have  invested 
him.*  A  sovereign,  during  a  temporaiy 
residence  in  the  territories  of  another,  must 
of  course  possess  as  extensive  an  immunity 
as  his  representative  ;  but  that  he  might, 
in  such  circumstances,  frame  plots  for  the 
prince's  assassination  with  impunity,  seems 
to  take  for  gi-anted  some  principle  that  I  do 
not  apprehend. 

But,  whatever  be  the  privilege  of  inviola- 

*  (luestions  were  put  to  civilians  bj-  the  queen's 
order  in  1570,  concerning  the  extent  of  Lesley, 
bishop  of  Ross's  privilege  as  Marj-'s  ambassador. 
— Murden  Papers,  p.  18.  Somers  Tracts,  i.,  166. 
They  answered,  first,  that  an  ambassador  that 
raises  rebellion  against  the  prince  to  whom  be  is 
sent,  by  the  law  of  nations,  and  the  civil  law  of  the 
Romans,  has  forfeited  the  pri\'ileges  of  an  ambas- 
sador, and  is  liable  to  punishment ;  secondly,  that 
if  a  prince  be  lawfully  deposed  from  his  public  au- 
thorit}-,  and  another  substituted  in  his  stead,  the 
agent  of  such  a  prince  can  not  challenge  the  privi- 
leses  of  an  ambassador,  since  none  but  absolute 
princes,  and  such  as  enjoy  a  royal  prerogative,  can 
constitute  ambassadors.  These  questions  are  so 
far  curious,  that  they  show  the  jus  gentium  to  have 
been  already  reckoned  a  matter  of  science,  in  which 
a  particular  class  of  lawyers  was  conversant. 


bility  attached  to  sovereigns,  it  must,  on  ev- 
ery rational  ground,  be  confined  to  those 
who  enjoy  and  exercise  dominion  in  some 
independent  ten-itory.  An  abdicated  or  de- 
throned monarch  may  preser^'e  his  title  by 
the  courtesy  of  other  states,  but  can  not 
rank  with  sovereigns  in  the  tribunals  where 
public  law  is  administered.  I  should  be 
rather  sui-prised  to  hear  any  one  assert  that 
the  Parliament  of  Paris  was  incompetent  to 
try  Christina  for  the  murder  of  Monaldes- 
chi ;  and  though  we  must  admit  that  Ma- 
ry's resignation  of  her  crown  was  compul- 
sory, and  retracted  on  the  first  occasion,  yet 
after  a  twenty  years'  loss  of  possession, 
when  not  one  of  her  former  subjects  avow- 
ed allegiance  to  her,  when  the  King  of  Scot- 
land had  been  so  long  acknowledged  by  Eng- 
land and  bj"  all  Europe,  is  it  possible  to  con- 
sider her  £ks  more  than  a  titular  queen,  di- 
vested of  every  substantial  right  to  which 
a  sovereign  tribunal  could  have  regard  ?  She 
was  styled  accordingly,  in  the  indictment, 
"  Mai-y,  daughter  and  heic  of  James  the 
Fifth,  late  King  of  Scots,  otherwise  called 
Majy ,  Queen  of  Scots,  dowager  of  France." 
We  read,  even,  that  some  lawyers  would 
have  had  her  tried  by  a  jury  of  the  county 
of  Stafford  rather  than  tlie  special  commis- 
sion, which  Elizabeth  noticed  as  a  strange 
indignity.  The  commission,  however,  was 
perfectly  legal  under  the  recent  statute.* 

But  while  we  can  hardly  pronounce  Ma- 
ry's execution  to  have  been  so  wholly  ini- 
quitous and  unwarrantable  as  it  has  been 
represented,  it  may  be  admitted  that  a  more 
generous  nature  than  that  of  Elizabeth 
would  not  have  exacted  the  law's  fuU  pen- 
alty. The  Queen  of  Scots'  detention  in 
England  was  in  violation  of  all  natural,  pub- 
lic, and  municipal  law,  and  if  reasons  of 
state  policy  or  precedents  from  the  custom 
of  princes  are  allowed  to  extenuate  this  in- 
justice, it  is  to  be  asked  whether  such  reas- 
ons and  such  precedents  might  not  palliate 
the  crime  of  assassination  imputed  to  her. 
Some  might  perhaps  allege,  as  was  so  fre- 
quently urged  at  the  time,  that  if  her  life 
could  be  taken  with  justice,  it  could  not  be 
spared  in  prudence ;  and  that  Elizabeth's 
higher  duty  to  preserve  her  people  from 
the  risks  of  civil  commotion  must  silence 


*  Str\-pe,  360,  362.  Civilians  were  consulted 
about  the  legality  of  trying  Mary.  Idem,  Append., 
138. 


Eliz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  U. 


101 


eveiy  feeling  that  could  plead  for  mercy. 
Of  this  necessity  different  judgments  may 
perhaps  be  formed ;  it  is  evident  that  Ma- 
ry's death  extinguished  the  best  hope  of  po- 
pery in  England  ;  but  the  relative  force  of 
the  two  religions  was  gi-eatly  changed  since 
Norfolk's  conspiracy  ;  and  it  appears  to  me 
that  an  act  of  Parliament  explicitly  cutting 
lier  oft"  from  the  crown,  and  at  the  same 
time  entailing  it  on  her  son,  would  have  af- 
forded a  very  reasonable  prospect  of  secur- 
ing the  succession  against  all  serious  dis- 
turbance. But  this  neither  suited  the  in- 
clination of  Elizabeth,  nor  of  some  among 
those  who  surrounded  her. 

As  the  Catholics  endured  without  any 
Continued  Open  munuuring  the  execution 
Sf  Roman  "  ^^r  on  whom  their  fond  hopes 
Catholics,  had  SO  long  rested,  so  for  the  re- 
mainder of  the  queen's  reign  they  by  no 
means  appear,  when  considered  as  a  body, 
to  have  furnished  any  specious  pretexts  for 
severity.  In  that  memorable  year,  when 
the  dark  cloud  gathered  around  our  coasts, 
when  Europe  stood  by  in  fearful  suspense, 
to  behold  what  should  be  the  result  of  that 
great  cast  in  the  game  of  human  politics, 
what  the  craft  of  Rome,  the  power  of  Phil- 
ip, the  genius  of  Farnese,  could  achieve 
against  the  island-queen  with  her  Drakes 
and  Cecils — in  that  agony  of  the  Protestant 
faith  and  English  name,  they  stood  the  trial 
of  their  spirits  without  swerving  from  their 
allegiance.  It  was  then  that  the  Catholics 
in  eveiy  county  repaired  to  the  standard 
of  the  lord-lieutcnant,  imploring  that  they 
might  not  be  susjjected  of  bartering  the  na- 
tional independence  for  their  religion  itself 
It  was  then  that  the  venerable  Lord  Mon- 
tague brought  a  troop  of  horse  to  the  queen 
at  Tilbury,  commanded  by  himself,  his  son, 
and  grand-son.*    It  would  have  been  a  sign 

*  Butler's  English  Catholics,  i.,  2.i9.  Hume. 
This  is  strongly  continued  by  a  letter  printed  not 
loni»  after,  and  republished  in  the  Harleian  Mis- 
cellany, vol.  i.,  p.  142,  with  the  name  of  one  Leigh, 
El  seminary  priest,  but  probably  the  work  of  some 
Protestant.  He  says,  "  for  contributions  of  money, 
and  for  all  other  warlike  actions,  there  was  no  dif- 
ference between  the  Catholic  and  the  heretic. 
But  in  this  case  [of  the  Armada]  to  withstand  the 
threatened  conquest,  yea,  to  defend  the  person  of 
the  queen,  there  appeared  such  a  sympathy,  con- 
course, and  consent  of  all  sorts  of  persona,  without 
respect  of  religion,  as  they  all  appeared  to  be 
ready  to  fight  against  all  strangers,  as  it  were  with 
one  heart  and  one  body."    Notwithstanding;  this, 


of  gratitude  if  the  laws  depriving  them  of 
the  free  exercise  of  their  religion  had  been, 
if  not  repealed,  yet  suffered  to  sleep,  after 
these  proofs  of  loyalty.  But  the  execution 
of  priests  and  of  other  Catholics  became,  oa 
the  contrary,  more  frequent,  and  the  fines 
for  recusancy  exacted  as  rigorously  as  be- 
fore.* A  statute  was  enacted,  restraining 
popish  recusants,  a  distinctive  name  now 
first  imposed  by  law,  to  particular  places  of 
residence,  and  subjecting  them  to  other 
vexatious  provisions. f  All  persons  were 
forbidden  by  proclamation  to  harbor  any  of 
whose  conformity  they  were  not  assured. f 
Some  indulgence  was  doubtless  shown  dur- 
ing all  Elizabeth's  reign  to  particular  per- 
sons, and  it  was  not  unusual  to  release 
priests  from  confinement ;  but  such  preca- 
rious and  irregular  connivance  gave  more 
scandal  to  the  Puritans  than  comfort  to  the 
opposite  party. 

The  Catholic  martyrs  under  Elizabeth 
amount  to  no  inconsiderable  num-  General  oh- 
ber.  Dodd  reckons  them  at  191 ;  servaiions. 
Milner  has  raised  the  list  to  204.  Fifteen 
of  these,  according  to  him,  suffered  for  de- 
nying the  queen's  supremacy,  126  for  exer- 
cising their  ministry,  and  the  rest  for  being 
reconciled  to  the  Romish  Church.  Many 
others  died  of  hardships  in  prison,  and  many 
were  deprived  of  their  property.§  There 

I  am  far  from  thinking  that  it  would  have  been 
safe  to  place  the  Catholics,  generally  speaking,  in 
command.  Sir  William  Stanley's  recent  treach- 
ery in  giving  up  Deventer  to  the  Spaniards  made 
it  unreasonable  for  them  to  complain  of  exclusion 
from  trust.  Nor  do  I  know  that  they  did  so.  But 
trust  and  toleration  are  two  different  things.  And 
even  with  respect  to  the  fonner,  I  believe  it  far 
better  to  leave  the  matter  in  the  hands  of  the  ex- 
ecutive government,  which  will  not  readily  suffer 
itself  to  be  betrayed,  than  to  proscribe,  as  we  have 
done,  whole  bodies  by  a  legislative  exclusion. 
Whenever,  indeed,  the  government  itself  is  not  to 
be  ti-usted,  there  arises  a  new  condition  of  the 
problem. 

*  Strype,  vols.  iii.  and  iv.,  passim.  Life  of 
Whitgift,  401,  505.  Murden,  067.  Birch's  Me- 
moirs of  Elizabeth,  Lingard,  &c.  One  hundred 
and  ten  Catholics  suffered  death  between  1588  and 
1603.— Lingard,  513.  t  33  Eliz.,  c.  2. 

t  Camden,  .566.  Strype,  iv.,  56.  This  was  the 
declaration  of  October,  1.591,  which  Andreas  Phi- 
lopater  answered.  Ribadeneira  also  inveighs 
against  it.  According  to  them,  its  publication  was 
delayed  till  after  the  death  of  Hatton,  when  the 
persecuting  part  of  the  queen's  council  gained  the 
ascendency. 

$  Butler,  178.    In  Coke's  famous  speech  in  open- 


102 


CONSTITUTIONAL  HISTORY  OF  ENGLAJfD 


[Chap.  III. 


seems,  nevertheless,  to  be  good  reason  for 
doubting  whether  any  one  who  was  execu- 
ted might  not  have  saved  his  life  by  explic- 
itly denying  the  pope's  power  to  depose  the 
queen.  It  was  constantly  maintained  by  her 
ministers  that  no  one  had  been  executed  for 
his  religion.  This  would  be  an  odious  and 
hypocritical  subterfuge,  if  it  rested  on  the 
letter  of  these  statutes,  which  adjudge  the 
mere  manifestation  of  a  belief  in  the  Roman 
Catholic  religion,  under  certain  circumstan- 
ces, to  be  an  act  of  ti-eason.  But  both  Lord 
Burleigh,  in  his  Execution  of  Justice,  and 
Walsingham,  in  a  letter  published  by  Bur- 
net,* positively  assert  the  contrary ;  and  I 
am  not  aware  that  their  assei-tion  has  been 
disproved.  This  certainly  furnishes  a  dis- 
tinction between  the  persecution  under  Eliz- 
abeth (which,  unjust  as  it  was  in  its  opera- 
tion, yet  as  far  as  it  extended  to  capital  in-  j 
flictions,  had  in  view  the  security  of  the  gov-  [ 
emment),  and  that  which  the  Protestants 
had  sustained  in  her  sister's  reign,  springing 
from  mere  bigotiy  and  vindictive  rancor,  and 
not  even  shielding  itself  at  the  time  with 
those  shallow  pretexts  of  policy  which  it  has 
of  late  been  attempted  to  set  up  in  its  exten- 
uation. But  that  which  renders  these  con-  , 
demnations  of  popish  priests  so  iniquitous, 
is,  that  the  belief  in,  or,  rather,  the  refusal 


ing  the  case  of  the  Powder  Plot,  he  says  that  not 
more  than  thirty  priests  and  five  receivers  had 
been  executed  in  the  vrhole  of  the  queen's  reiffn, 
and  for  reUgion  not  any  one. — State  Trials,  ii.,  179. 

Dr.  Lingard  says  of  those  vrho  were  executed 
between  1588  and  the  queen's  death,  "  The  butch- 
ery, with  a  few  exceptions,  was  performed  on  the 
victim  while  he  was  in  full  possession  of  his 
senses."— Vol.  viii.,  p.  356.  I  should  be  glad  to 
think  that  the  few  exceptions  were  the  other  way. 
Much  would  depend  on  the  humanity  of  the  sher- 
iff, which  one  might  hope  to  be  stronger  in  an 
English  gentleman  than  his  zeal  against  popen,-. 
But  I  can  not  help  acknowledging  that  there  is 
reason  to  believe  the  disgusting  cruelties  of  the  le- 
gal sentence  to  have  been  frequently  inflicted.  In 
an  anonymous  memorial  among  Lord  Burleigh's 
papers,  written  about  158C,  it  is  recommended  that 
priests  persisting  in  their  treasonable  opinion 
should  be  hanged,  "  and  the  manner  of  drawing 
and  quartering  forborne." — Strj'pe,  iii.,  620.  This 
seems  to  imply  that  it  had  been  usually  practiced 
on  the  living.  And  Lord  Bacon,  in  his  observa- 
tions on  a  libel  written  against  Lord  Burleigh  in 
1592,  does  not  deny  the  "bowelings"  of  Catholics, 
but  makes  a  sort  of  apology  for  it,  as  "  less  cruel 
than  the  wheel  or  forcipation,  or  even  simple 
burning." — Bacon's  Works,  vol.  i.,  p.  534 

*  Burnet,  ii.,  418. 


to  disclaim,  a  speculative  tenet,  dangerous, 
indeed,  and  incompatible  with  loyalty,  but 
not  coupled  with  any  overt  act,  was  con- 
strued into  treason ;  nor  can  any  one  afiect 
to  justify  these  sentences  who  is  not  pre- 
pared to  maintain  that  a  refusal  of  the  oath 
of  abjuration,  while  the  pretensions  of  the 
liouse  of  Stuart  subsisted,  might  lawfully 
or  justly  have  incurred  the  same  penalty.* 
An  apology  was  always  deduced  for  these 
measures,  whether  of  resti'iction  or  punish- 
ment, adopted  against  all  adherents  to  the 
Roman  Church,  from  the  restless  activity  of 
that  new  militia  which  the  Holy  See  had 
lately  organized.  The  mendicant  orders 
established  in  the  thirteenth  century  had 
lent  former  popes  a  powerful  aid  toward 
subjecting  both  the  laity  and  the  secular 
priesthood,  by  their  superior  learning  and 

*  "  Though  no  papists  were  in  this  reign  put  to 
death  purely  on  account  of  their  religion,  as  num- 
berless Protestants  had  been  in  the  woful  days  of 
Q,ueen  Marj-,  yet  many  were  executed  for  treason.  ' 
— Churton's  Life  of  Nowell,  p.  147.  Mr.  Soutbey, 
whose  abandonment  of  the  oppressed  side  I  sin- 
cerely regret,  holds  the  same  language  ;  and  a  lat- 
er writer,  Mr.  Towuseud,  in  his  Accusations  of 
History  against  the  Church  of  Rome,  has  labored 
to  defend  the  capital,  as  well  as  other,  pmiish- 
ments  of  Catholics  under  Elizabeth,  on  the  same 
pretense  of  their  treason. 

Treason,  by  the  law  of  England,  and  according 
to  the  common  use  of  language,  is  the  crime  of  re- 
bellion or  conspiracy  against  the  government.  If 
a  statute  is  made,  by  which  the  celebration  of  cer- 
tain religious  rites  is  subjected  to  the  same  penal- 
ties as  rebellion  or  conspiracy,  would  any  man,  free 
from  prejudice,  and  not  designing  to  impose  upon 
the  uninformed,  speak  of  persons  convicted  on  such 
a  statute  as  guilty  of  treason,  without  expressing 
in  what  sense  he  uses  the  words,  or  deny  that 
they  were  as  truly  punished  for  their  religion  as  if 
they  had  been  convicted  of  heresy  ?  A  man  is 
punished  for  religion  when  he  incurs  a  penalty  for 
its  profession  or  exercise,  to  which  he  was  not  lia- 
ble on  any  other  account. 

This  is  appUcable  to  the  great  majority  of  capi- 
tal convictions  on  this  score  under  Elizabeth.  The 
persons  convicted  could  not  be  traitors  in  any  fair 
sense  of  the  word,  because  they  were  not  charged 
with  any  thuig  properly  denominated  treason.  It 
certainly  appears  that  Campian  and  some  other 
jjriests  about  the  same  time  were  indicted  on  the 
statute  of  Edward  III.  for  compassing  the  queen's 
death,  or  intending  to  depose  her.  But  the  only 
evidence,  so  far  as  we  know  or  have  reason  to  sus- 
pect, that  could  be  brought  against  them,  was  their 
own  admission,  at  least  by  refusing  to  adjure  it. 
of  the  pope's  power  to  depose  heretical  princes.  I 
suppose  it  is  unnecessary  to  prove  that,  without 
some  overt  act  to  show  a  design  of  acting  upon 
1  tliis  principle,  it  could  not  fall  within  the  statute. 


Eliz. — Catholics.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


103 


ability,  their  emulous  zeal,  their  systematic 
concert,  their  implicit  obedience.  But  in 
all  these  requisites  for  good  and  faithful  jan- 
izaries of  the  Church,  they  were  far  excell- 
ed by  the  new  order  of  Ignatius  Loyola. 
Rome,  I  believe,  found  in  their  services 
what  has  stayed  her  fall.  They  conti'ibu- 
ted  in  a  veiy  material  degree  to  check  the 
tide  of  the  Reformation.  Subtle  alike  and 
intrepid,  pliant  in  their  direction,  unshaken 
in  their  aim,  the  sworn,  implacable,  unscru- 
pulous enemies  of  Protestant  governments, 
the  Jesuits  were  the  legitimate  object  of 
jealousy  and  restraint.  As  every  member 
of  that  society  enters  into  an  engagement 
of  absolute,  unhesitating  obedience  to  its  su- 
perior, no  one  could  justly  complain  that  lie 
was  presumed  capable  at  least  of  commit- 
ting any  crimes  that  the  policy  of  his  mon- 
arch might  enjoin.  But  if  the  Jesuits,  by 
their  abilities  and  busy  spirit  of  intiigue, 
promoted  the  interests  of  Rome,  they  rais- 
ed up  enemies  by  the  same  means  to  them- 
selves within  the  bosom  of  the  Church,  and 
became  little  less  obnoxious  to  the  secular 
clergy,  and  to  a  gi-eat  proportion  of  the 
iaity,  than  to  the  Protestants  whom  they 
were  commissioned  to  oppose.  Their  in- 
termeddling character  was  shown  in  the 
very  prisons  occupied  by  Catholic  recu- 
sants, where  a  schism  broke  out  between 
the  two  parties,  and  the  secular  priests 
loudly  complained  of  their  usurping  asso- 
ciates.* This  was  manifestly  connected 
with  the  great  problem  of  allegiance  to  the 
queen,  which  the  one  side  being  always 
ready  to  pay,  did  not  relish  the  sharp  usage 
it  endured  on  account  of  the  other's  disaf- 
fection. The  council,  indeed,  gave  some 
signs  of  attending  to  this  distinction,  by  a 
proclamation  issued  in  1602,  ordering  all 
priests  to  depart  from  the  kingdom,  unless 
they  should  come  in  and  acknowledge  their 

*  Watson's  duodlibets.  Trae  relation  of  the 
faction  begun  at  Wisbech,  1601.  These  tracts 
contain  rather  an  uninteresting  account  of  the 
squabbles  in  Wisbech  Castle  among  the  prison- 
ers, but  cast  heavy  reproaches  on  the  Jesuits,  as 
the  "fire  brands  of  all  sedition,  seeking  by  right  or 
wrong  simply  or  absolutely  the  monarchy  of  all 
England,  enemies  to  all  secular  priests,  and  the 
causes  of  all  the  discord  in  the  English  nation." — 
P.  74.  I  have  seen  several  other  pamphlets  of  the 
time  relating  to  this  difference.  Some  account  of 
it  may  be  found  in  Camden,  648,  and  Strype,  iv., 
194,  as  well  as  in  the  Catholic  historians  Dodd  and 
Lingard. 


j  allegiance,  with  whom  the  queen  would 
take  further  order.*  Thirteen  priests  came 
forward  on  this,  with  a  declaration  of  alle- 
giance as  full  as  could  be  devised.  Some 
of  the  jnore  violent  papists  blamed  them 
for  this ;  and  the  Louvain  divines  concur- 
red in  the  censure. f  There  were  now  two 
parties  among  the  English  Catholics;  and 
those  who,  goaded  by  the  sense  of  long  per- 
secution, and  inflamed  by  obstinate  bigotry, 
regarded  every  heretical  government  as  un- 
lawful or  unworthy  of  obedience,  used  ev- 
eiy  machination  to  deter  the  rest  from  giv- 
ing any  test  of  their  loyalty.  These  were 
the  more  busy,  but  by  much  the  less  nu- 
merous class ;  and  their  influence  was  main- 
ly derived  from  the  laws  of  severity,  which 
they  had  braved  or  endured  with  fortitude. 
It  is  equally  candid  and  reasonable  to  be- 
lieve that,  if  a  fair  and  legal  toleration,  or 
even  a  general  connivance  at  the  exercise 
of  their  worship,  had  been  conceded  in  the 
first  part  of  Elizabeth's  reign,  she  would 
have  spared  herself  those  perpetual  terrors 
of  rebellion  which  occupied  all  her  later 
years.  Rome  would  not,  indeed,  have 
been  appeased,  and  some  desperate  fanatic 
might  have  sought  her  life  ;  but  the  English 
Catholics  collectively  would  have  repaid  her 
protection  by  an  attachment  which  even 
her  rigor  seems  not  wholly  to  have  prevent- 
ed. 

It  is  not  to  be  imagined  that  an  entire  ima- 
nimity  prevailed  in  the  councils  of  this  reign 
as  to  the  best  mode  of  dealing  with  the  ad- 
herents of  Rome.  Those  temporary  conniv- 
ances or  remissions  of  punishment,  which, 
though  to  our  present  view  they  hardly 
lighten  the  shadows  of  this  persecution,  ex- 
cited loud  complaints  from  bigoted  men, 
were  owing  to  the  queen's  personal  humor, 
or  the  influence  of  some  advisers  more  lib- 
eral than  the  rest.  Elizabeth  herself  seems 
always  to  have  inclined  rather  to  indulgence 
than  extreme  severity.  Sir  Christopher 
Hatton,  for  some  years  her  chief  favorite, 
incuiTed  odium  for  his  lenity  toward  pa- 
pists, and  was,  in  their  own  opinion,  secret- 
ly inclined  to  them,  t  Whitgift  found  enough 

*  Rymer,  xv.,  473,  488. 

t  Butler's  Engl.  Catholics,  p.  261. 

t  E.ibadeneira  says,  that  Hatton,  "  animo  Cathol- 
icus,  nihil  perinde  quam  innocentcm  illorum  sau- 
guinem  adeo  cradeliter  perfumii  dolebat."  He 
prevented  Cecil  from  promulgating  a  more  atro- 
cious edict  than  any  other,  which  was  published 


104 


CONSTITUTIONAL  HISTORY  OF  ENGI^AND 


[Chap.  la 


to  do  with  an  opposite  party.  And  that  too 
noble  and  high-minded  spirit,  so  ill  fitted  for 
a  servile  and  dissembling  court,  the  Earl  of 
Essex,  was  the  consistent  friend  of  religious 
liberty,  whether  the  Catholic  or  the  Puri- 
tan were  to  enjoy  it.  But  those  counselors, 
on  the  other  hand,  who  favored  the  more 
precise  Refonners,  and  looked  coldly  on  the 
Established  Chuixh,  never  failed  to  dem- 
onstrate their  Protestantism  by  Excessive 
harshness  toward  the  old  religion's  adhe- 
rents. That  bold  bad  man,  whose  favor  is 
the  gi-eat  reproiich  of  Elizabeth's  reign,  the 
Earl  of  Leicester,  and  the  sagacious,  dis- 
interested, inexorable  Walsingham,  were 
deemed  the  chief  advisers  of  sanguinaiy 
punishments.  But,  after  their  deaths,  the 
Catholics  were  mortified  to  discover  that 
Lord  Burleigh,  from  whom  they  had  hoped 
for  more  moderation,  persisted  in  the  same 
severities  ;  contrary,  I  think,  to  the  princi- 
ples he  had  himself  laid  down  in  the  paper 
fi'om  which  I  have  above  made  some  ex- 
tracts.* 

The  restraints  and  penalties  by  which  civil 
governments  have  at  various  times  thought 
it  expedient  to  limit  the  religious  liberties 
of  their  subjects,  may  be  aiTanged  in  some- 
thing like  the  following  scale.  The  first 
and  slightest  degree  is  the  requisition  of  a 
test  of  conformity  to  the  established  religion, 
as  the  condition  of  exercising  offices  of  civil 
tnast.  The  next  step  is  to  restrain  the  free 
promulgation  of  opinions,  especially  through 
the  press.  All  prohibitions  of  the  open  ex- 
ercise of  religious  worship  appear  to  form  a 
third,  and  more  severe,  class  of  restrictive 
laws.  They  become  yet  more  rigorous, 
when  they  afford  no  indulgence  to  the  most 
private  and  secret  acts  of  devotion  or  ex- 
pressions of  opinion.  Finally,  the  last  stage 
of  persecution  is  to  enforce  by  legal  penal- 
ties a  conformity  to  the  Established  Chm*ch, 
or  an  abjuration  of  hetei'odox  tenets. 

after  his  death  in  1591. — De  Schismate  Anglic,  c. 
9.  This  must  have  been  the  proclamation  of  29th 
Nov.,  1591,  forbidding  all  persons  to  harbor  any  one 
of  whose  conformity  they  should  not  be  well  as- 
sured. *  Birch,  i.,  84. 


The  first  degree  in  this  classification,  or 
the  exclusion  of  dissidents  from  trust  and 
power,  though  it  be  always  incumbent  on 
those  who  maintain  it  to  prove  its  necessi- 
ty, may,  under  certain  rare  circumstances, 
be  conducive  to  the  political  well-being  of  a 
state,  and  can  then  only  be  reckoned  an  en- 
croachment on  the  principles  of  toleration 
when  it  ceases  to  jn-oduce  a  public  benefit 
sufficient  to  compensate  for  the  privation  it 
occasions  to  its  objects.  Such  was  the  Eng- 
lish Test  Act  during  the  interval  between 
1672  and  1688.  But,  in  my  judgment,  the 
instances  which  the  history  of  mankind  af- 
fords, where  even  these  restrictions  have 
been  really  consonant  to  the  soundest  poli- 
cy, are  by  no  means  numerous.  Cases  may 
also  be  imagined  where  the  fi'ee  discussion 
of  controverted  doctrines  might,  for  a  time 
at  least,  be  subjected  to  some  limitation  for 
the  sake  of  public  tranquillity.  I  can  scarce- 
ly conceive  the  necessilj'  of  restraining  an 
open  exercise  of  religious  rites  in  any  case 
except  that  of  glaring  immorality.  In  no 
possible  case  can  it  be  justifiable  for  the 
temporal  power  to  intermeddle  with  the 
private  devotions  or  doctrines  of  any  man ; 
but  least  of  all  can  it  cany  its  inquisition 
into  the  heart's  recesses,  and  bend  the  re- 
luctant conscience  to  an  insincere  profession 
of  truth,  or  extort  from  it  an  acknowledg- 
ment of  error,  for  the  purpose  of  inflicting 
punishment.  The  statutes  of  Elizabeth's 
reign  comprehend  every  one  of  these  pro- 
gressive degrees  of  restraint  and  persecu- 
tion. And  it  is  nmch  to  be  regretted  that 
any  writers  worthy  of  respect  should,  either 
through  undue  prejudice  against  an  adverse 
religion,  or  through  timid  acquiescence  in 
whatever  has  been  enacted,  have  offered 
for  this  odious  code  the  false  pretext  of  po- 
litical necessity.  That  necessity,  I  am  per- 
suaded, can  never  be  made  out :  the  statutes 
were,  in  many  instances,  absolutely  unjust; 
in  others,  not  demanded  by  circumstances; 
in  almost  all,  prompted  by  religious  bigotry, 
by  excessive  apprehension,  or  by  the  ar- 
bitrary spirit  with  which  our  government 
was  administered  under  Elizabeth. 


Enz.— Puritans  ]  FROM  HENRY  VU.  TO  GEORGE  U. 


105 


CHAPTER  IV. 


ON  THE  LAWS  OF  ELIZABETH'S  REIGN  RESPECTING  PROTESTANT  NON  CON- 
FORMISTS. 


Orisjin  of  the  Differences  among  the  English  Prot 
estants. — Rehgious  Inclinations  of  the  Ciueen. 
— Unwillingness  of  Many  to  comply  with  the 
established  Ceremonies.  —  Conformity  enforced 
by  the  Archbishop. — Against  the  Disposition  of 
Others.— A  more  determined  Opposition,  about 
1.570,  led  by  Cartwright. — Dangerous  Nature  of 
his  Tenets.  —  Puritans  supported  in  the  Com 
mons,  and  in  some  Measure  by  the  Council. — 
Prophesyings. — Archbishops  Grindal  and  Whit 
gift. — Conduct  of  the  Latter  in  enforcing  Con- 
formity.— High  Commission  Court. — Lord  Bur 
leigh  averse  to  Severity. — Puritan  Libels. — 
Attempt  to  set  up  a  Presbyterian  System.— 
House  of  Commons  averse  to  Episcopal  Au- 
thority.—  Independents  liable  to  severe  Laws 
—  Hooker's  Ecclesiastical  Polity.  —  Its  Charac 
ter. — .Spoliation  of  Churcli  Revenues.— General 
Remarks.  —  Letter  of  Walsingham  in  Defense 
of  the  dueen's  Govermnent. 

The  two  statutes  enacted  in  the  first 
^  year  of  Elizabeth,  commouly  called 

the  acts  of  supremacy  and  uniform- 
ity, are  the  main  links  of  the  Anglican 
Church  with  the  temporal  Constitution,  and 
establish  the  subordination  and  dependency 
of  the  former;  the  first  abrogating  all  juris- 
diction and  legislative  power  of  ecclesias- 
tical rulers,  except  under  the  authority  of 
the  crown  ;  and  the  second  prohibiting  all 
changes  of  rites  and  discipline  without  the 
approbation  of  Parliament.  It  was  the  con- 
stant policy  of  this  queen  to  maintain  her  ec- 
clesiastical prerogative  and  the  laws  she  had 
enacted.  But  in  following  up  this  principle 
she  found  herself  involved  in  many  troubles, 
and  had  to  contend  with  a  religious  party, 
quite  opposite  to  the  Romish,  less  danger- 
ous, indeed,  and  inimical  to  her  government, 
but  full  as  vexatious  and  determined. 

I  have  in  another  place  slightly  mention- 
Origin  of  the  fhe  differences  that  began  to 
differences     spring  up  under  Edward  VI.  be- 

among  the  i 

EnghshProt-  tween  the  moderate  Reformers 
estants.  .^^j^^^  established  the  new  Angli- 
can Church,  and  those  who  accused  them  of 
proceeding  with  too  much  forbearance  in 
casting  oft'  superstitions  and  abuses.  These 
diversities  of  opinion  were  not  without 
some  relation  to  those  which  distinguished 
the  two  great  families  of  Protestantism  in 


Europe.   Luther,  intent  on  his  own  system 
of  dogmatic  theology,  had  shown  much  in- 
dirt'erence  about  retrenching  exterior  cere- 
monies, and  had  even  favored,  especially  in 
the  first  years  of  his  preaching,  that  spe- 
cious worship  which  some  ardent  Reform- 
ers were  eager  to  reduce  to  simplicity.* 
Crucifixes  and  images,  tapers  and  priestly 
vestments,  even  for  a  time  the  elevation  of 
the  host  and  the  Latin  mass-book,  contin- 
ued in  the  Lutheran  churches,  while  the 
disciples  of  Zuingle  and  Calvui  were  care- 
fully eradicating  them  as  popish  idolatry 
and  superstition.    Cranmer  and  Ridley,  the 
founders  of  the  English  Reformation,  justly 
deeming  themselves  independent  of  any 
foreign  master,  adopted  a  middle  course  be- 
tween the  Lutheran  and  Calvinistic  ritual. 
The  general  tendency,  however,  of  Protes- 
tants, even  in  the  reign  of  Edward  VI.,  Avas 
toward  the  simpler  forms ;  whether  through 
the  influence  of  those  foreign  divines  who 
co-operated  in  our  Reformation,  or  because 
it  was  natural  in  the  heat  of  religious  ani- 
mosity to  recede  as  far  as  possible,  especial- 
ly in  such  exterior  distinctions,  from  the 
opposite  denomination.    The  death  of  Ed- 
ward seems  to  have  prevented  a  further 
approach  to  the  scheme  of  Geneva  in  om* 
ceremonies,  and  perhaps  in  our  church  gov- 
ernment.   During  the  persecution  of  Ma- 
ry's reign,  the  most  eminent  Protestant 
clergymen  took  refuge  in  various  cities  of 
Germany  and  Switzerland.     They  were 
received  by  the  Calvinists  with  hospitality 
and  fraternal  kindness,  while  the  Lutheran 
divines,  a  narrow-minded  and  intolerant  fac- 
tion, both  neglected  and  insulted  them.f 
Divisions  soon   arose   among  themselves 
about  the  use  of  the  English  service,  in 
which  a  pretty  considerable  party  was  dis- 
posed to  make  alterations.    The  chief  scene 
of  these  disturbances  was  Frankfort,  where 
Knox,  the  famous  reformer  of  Scotland, 
headed  the  innovators  ;  while  Cox,  an  emi- 
nent divine,  much  concerned  in  the  estab- 


Slcidan,  Hist,  de  la  Riitormation,  par  Couray- 
er,  ii.,  74.  t  Strype's  Cranmer,  354 


106 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IV. 


lishment  of  Edsvard  VI.,  and  aftei-ward 
Bishop  of  Ely,  stood  up  foi-  the  original  lit- 
urgy. Cox  succeeded  (not  quite  fairly,  if 
we  may  rely  on  the  only  narrative  we  pos- 
sess) in  driving  his  opponents  from  the  city  ; 
but  these  disagreements  were  by  no  means 
healed,  when  the  accession  of  Elizabeth 
recalled  both  parties  to  their  own  country, 
neither  of  them  veiy  likely  to  display  more 
mutual  charity  in  their  prosperous  hour 
than  they  had  been  able  to  exercise  in  a 
common  persecution.* 

The  first  mortification  these  exiles  endur- 
ed on  their  return  was  to  find  a  more  dila- 
toiy  advance  toward  public  reformation  of 
religion,  and  more  of  what  they  deemed 
lukewarmness,  than  their  sanguine  zeal  had 
anticipated.  Most  part  of  this  delay  was  ow- 
ing to  the  greater  prudence  of  the  queen's 
counselors,  who  felt  the  pulse  of  the  nation 
before  they  ventured  on  such  essential 
■or  changes.     But  there  was  yet 

Religious  in-  ^  *' 

ciinatioiis  of  another  obstacle,  on  which  the 
the  queen.  J^efoniiers  had  not  reckoned: 
Elizabeth,  though  resolute  against  submit- 
ting to  the  papal  supremacj',  was  not  so 
averse  to  all  the  tenets  abjured  by  Protes- 
tants, and  loved  also  a  more  splendid  worship 
than  had  prevailed  in  her  brother's  reign, 
while  many  of  those  returned  from  the 
Continent  were  intent  on  copying  a  still 
simpler  model.  She  reproved  a  divine  who 
preached  against  the  real  presence,  and  is 
even  said  to  have  used  prayers  to  the  Vir- 
gin.f    But  her  great  struggle  with  the  Re- 

*  These  transactions  have  been  perpetuated  by 
a  tract,  entitled  Discourse  of  the  troubles  at  Frank- 
fort, first  published  in  157.5,  and  reprinted  in  the 
weU-known  collection,  entitled  The  Phoenix.  It  is 
fairly  and  temperately  written,  though  with  an 
avowed  bias  toward  the  Puritan  paitj'.  Whatev- 
er we  read  in  any  historian  on  the  subject,  is  de- 
rived from  tliis  authority ;  but  the  refraction  is  of 
course  very  different  through  the  pages  of  Collier 
and  of  Neal. 

t  Strype's  Annals,  ii.,  1.  There  was  a  Lutlier- 
an  party  at  the  beginning  of  her  reign,  to  wliich  the 
queen  may  be  said  to  have  inclined,  not  altogether 
from  religion,  but  from  policy. — Id.,  i.,  53.  Her 
situation  was  very  hazardous  ;  and  in  order  to  con- 
nect herself  with  sincere  allies,  she  had  thoughts 
of  joining  the  Smalcaldic  league  of  the  German 
princes,  whose  bigotry  would  admit  none  but 
members  of  tlie  Augsbuvg  Confession.  Jewell's 
letters  to  Peter  Martyr,  in  the  appendix  to  Bur- 
net's third  volume,  and  lately  published  more  ac- 
curately, with  many  of  other  refoi-mers,  by  the 
Parker  Society  [1845],  throw  considerable  light  on 


formers  was  about  images,  and  particularly 
the  ciTicifix,  which  she  retained,  with  light- 
ed tapers  before  it,  in  her  chapel,  though 
in  the  injunctions  to  the  ecclesiastical  visit- 
ors of  1559,  they  are  directed  to  have  them 
taken  away  from  churches.*  This  conces- 
sion she  must  have  made  very  reluctantly, 
for  we  find  proofs  the  next  year  of  her  in- 
clination to  restore  them ;  and  the  question 
of  their  lawfulness  was  debated,  as  Jewell 
writes  word  to  Peter  Martyr,  by  himself 
and  Grindal  on  one  side,  against  Parker 
and  Cox,  who  had  been  persuaded  to  argue 
in  their  favor,  f  But  the  strenuous  opposi- 
tion of  men  so  distinguished  as  Jewell,  San- 
dys, and  Grindal,  of  whom  the  first  declared 
his  intention  of  resigning  his  bishopric  in 
case  this  return  toward  superstition  should 
be  made,  compelled  Ebzabeth  to  relinquish 
her  project.t  The  crucifix  was  even  for  a 
time  removed  from  her  own  chapel,  but  re- 
placed about  1570. § 

the  first  two  years  of  Elizabeth's  reign,  and  show 
that  famous  prelate  to  have  been  what  afterward 
would  have  been  called  a  Precisian,  or  Puritan. 
He  even  approved  a  scruple  Elizabeth  entertained 
about  her  title  of  head  of  the  Church,  as  apper- 
taining only  to  Christ.  But  the  um-easonableness 
of  the  discontented  party,  and  the  natm-al  tenden- 
cy of  a  man  who  has  joined  the  side  of  power  to 
deal  severely  with  those  he  has  left,  made  him  af- 
tei'ward  their  enemy. 

*  Roods  and  relics  accordingly  were  broken  to 
pieces  and  burned  throughout  the  kingdom,  of 
which  Collier  makes  loud  complaint.  This,  Strype 
says,  gave  much  otfense  to  the  Cathohcs ;  and  it 
was  not  the  most  obvious  method  of  inducing  them 
to  conform. 

t  Burnet,  iii.,  App.,  290.    Strype's  Parker,  46. 

t  Q.uantum  auguror,  non  scribam  ad  te  posthac 
episcopus.  Eo  enim  jam  res  pei-venit,  ut  aut 
cruces  argentcs  et  stannea?,  quas  uos  ubiqne  con- 
fregimus,  restituenda;  sint,  aut  episcopatus  relin- 
quendi. — Bumet,  294.  I  conceive  that  by  cruce$ 
we  are  to  understand  crucifixes,  not  mere  crosses, 
though  I  do  not  find  the  word,  even  in  Du  Cange, 
used  in  the  former  sense.  Sandys  writes,  that  he 
had  nearly  been  deprived  for  expressing  himself 
wannly  against  images. — Id.,  296.  Other  proofs 
of  the  text  may  be  found  in  the  same  collection, 
as  well  a.s  in  Stiype's  Annals,  and  his  Life  of  Par- 
ker. Even  Parker  seems,  on  one  occasion,  to  have 
expected  the  queen  to  make  such  a  retrograde 
movement  in  religion  as  would  compel  them  all  to 
disobey  her. — Life  of  Parker,  Appendix,  29 ;  a 
very  remarkable  letter. 

$  Strype's  Parker,  310.  The  archbishop  seems 
to  disapprove  this  as  inexpedient,  but  rather  cold- 
ly ;  he  was  far  from  sharing  the  usual  opinions  on 
this  subject.  A  Puritan  pamphleteer  took  the  lib- 
erty to  name  the  queen's  chapel  as  "  the  pattern 


Ei.iz. — ruritans.] 


fhom  henry  VII.  to  george  ii. 


10^ 


Tliere  was,  however,  one  other  subject 
of  dispute  between  the  old  and  new  relig- 
ions, upon  which  her  mnjesty  could  not  be 
brought  to  adopt  the  Protestant  side  of  the 
question.  This  was  the  marriage  of  the 
clergy,  to  which  she  expressed  so  great  an 
aversion,  that  she  would  never  consent  to 
repeal  the  statute  of  her  sister's  reign 
against  it.*  Accordingly,  the  bishops  and 
clergj',  though  they  married  by  connivance, 
or,  rather,  by  an  ungracious  permission, f 
saw,  with  very  just  dissatisfaction,  their 
children  treated  by  the  law  as  the  olispring 
of  concubinage. t    This  continued,  in  legal 

and  precedent  of  all  superstiton." — Strype's  An- 
nals, i.,  471.  *  Burnet,  ii.,  395. 

t  One  of  the  injunctions  to  the  visitors  of  1559, 
reciting  the  offense  and  slander  to  the  Church  that 
had  arisen  by  lack  of  discreet  and  sober  beliavior 
in  many  ministers,  both  in  choosinq:  of  tlieir  vi^ives, 
and  in  livini?  with  them,  directs  that  no  priest  or 
deacon  shall  marry  vvfithout  the  allowance  of  the 
bishops,  and  two  justices  of  the  peace,  dwelling 
near  the  woman's  abode,  nor  without  the  consent 
of  her  parents  or  kinsfolk,  or,  for  want  of  these,  of 
her  master  or  mistress,  on  pain  of  not  being  per- 
mitted to  exercise  the  ministry,  or  hold  any  bene- 
fice ;  and  that  the  man'iages  of  bishops  should  be 
approved  by  the  metropolitan,  and  also  by  com- 
missioners appointed  by  tlie  queen.  —  Soraers 
Tracts,  i.,  65.  Burnet,  ii.,  398.  It  is  reasonable  to 
suppose,  that  when  a  host  of  low  bred  and  illitci'- 
ate  priests  were  at  once  released  from  the  obliga- 
tion to  celibacy,  many  of  tliem  would  abuse  their 
liberty  improvidently,  or  even  scandalously;  and 
this  probably  had  increased  Elizabeth's  prejudice 
against  clerical  mati'imony.  But  I  do  not  suppose 
that  this  injunction  was  ever  much  regarded. 
Some  time  afterwai-d  (Aug.,  1561)  she  put  forth 
another  extraordinary  injunction,  that  no  member 
of  a  college  or  cathedral  should  have  his  wife  liv- 
ing within  its  precincts,  under  pain  of  forfeiting  all 
his  preferments.  Cecil  sent  this  to  Parker,  telling 
him,  at  the  same  time,  that  it  was  with  great  dif- 
ficulty he  had  prevented  the  queen  from  altogether 
forbidding  the  marriage  of  priests.— Life  of  P.,  107. 
And  the  archbishop  himself  says,  in  the  letter  above 
mentioned,  "  I  was  in  a  hoiTor  to  liear  such  words 
to  come  from  her  mild  nature  and  Christiauly 
learned  conscience,  as  she  spake  conccniing  God's 
holy  ordinance  and  institution  of  matrimony." 

t  Sandys  writes  to  Parker,  April,  1559,  "  The 
queen's  majesty  will  wink  at  it,  but  not  stahlish  it 
by  law,  which  is  nothing  else  but  to  bastard  our 
children."  And  decisive  proofs  are  brought  by 
Strype,  that  the  marriages  of  the  clergy  were  not 
held  legal,  in  the  first  part,  at  least,  of  the  queen's 
reign.  Elizabeth  herself,  after  having  been  sumpt- 
uously entertained  by  the  archbishop  at  Lambeth, 
took  leave  of  Mrs.  Parker  with  the  following  cour- 
tesy :  "  Madam  (the  style  of  a  mairied  lady)  I  may 
not  call  you  ;  mistress  (the  appellation  at  that  time 
of  an  unmarried  woman)  I  am  loth  to  call  you ;  but, 


Strictness,  till  the  first  year  of  James,  when 
the  statute  of  Mary  was  explicitly  repeal- 
ed ;  though  I  can  not  help  suspecting  thai 
clerical  marriages  had  been  tacitly  recog- 
nized, even  in  courts  of  justice,  long  before 
that  time.  Yet  it  appears  less  ])robab!e  to 
derive  Elizabeth's  prejudice  in  this  respect 
from  any  deference  to  the  Roman  discipline, 
than  from  that  strange  dislike  to  the  most 
lawful  union  between  the  sexes,  which 
formed  one  of  the  singularities  of  her  char- 
acter. 

Such  a  reluctance  as  the  queen  displayed 
to  return  in  eveiy  point  even  to  the  system 
established  under  Edward,  was  no  slight  dis- 
appointment to  those  who  thought  that  too 
little  had  been  etlected  by  it.  They  had 
beheld  at  Zurich  and  Geneva  the  simplest, 
and,  as  they  conceived,  the  purest  form  of 
worship.  They  wore  persuaded  that  the 
vestments  still  worn  by  llie  clergy,  as  in  the 
days  of  popery,  though  in  themselves  indif- 
ferent, led  to  erroneous  notions  among  the 
people,  and  kept  alive  a  recollection  of 
former  superstitions,  which  would  render 
their  return  to  them  more  easy  in  the  event 
of  another  jiolitical  revolution.*  They  dis- 
liked some  other  ceremonies  for  the  same 
reason.  These  objections  were  by  no  means 
conliued,  as  is  perpetually  insinuated,  to  a 
few  discontented  persons.  Except  Arch- 
bishoj)  Parker,  who  had  remained  in  Eng- 
land dm'ing  the  late  reign,  and  Cox,  bishop 
of  Ely,  who  had  taken  a  strong  part  at 
Frankfort  against  innovation,  all  the  most 
eminent  churchmen,  such  as  Jewell,  Grin- 
dal,  Sandys,  Nowell,  were  in  favor  of  leav- 
ing oir  the  surplice  and  what  were  called 
the  popish  ceremonies. f    Whether  their 

however,  I  thank  you  for  your  good  cheer."  This 
lady  is  styled,  in  deeds  made  while  her  husband 
was  archbishop,  Parker,  alias  Harlcston,  which 
was  her  maiden  name.  And  she  dying  before  her 
husband,  her  brother  is  called  her  heir-at-law, 
though  she  left  cliildren.  But  the  archbishop  pro- 
cured letters  of  legitimation,  in  order  to  render 
them  capable  of  inheritance. — Life  of  Parker,  p. 
511.  Others  did  the  same. — Annals,  i.,  8.  Yet 
such  letters  were,  I  conceive,  beyond  the  queen's 
power  to  gi'aut,  and  could  not  have  obtained  any 
regard  in  a  court  of  law. 

In  the  diocese  of  Bangor  it  was  usual  for  the 
clergy,  some  years  after  Elizabeth's  accession,  to 
yay  the  bishop  for  a  license  to  keep  a  concubine. — 
Strype's  Parker,  203.  *  Burnet,  iii.,  305. 

t  Jewell's  letters  to  BulUnger,  in  Burnet,  are 
full  of  proofs  of  his  dissatisfaction  ;  and  those  who 


108 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IV 


objections  are  to  be  deemed  nan-ow  and 
frivolous  or  otherwise,  it  is  inconsistent  with 
veracity  to  dissemble  that  the  queen  alone 
was  the  cause  of  retaining  those  obsei-vances 
to  which  the  gi-eat  separation  from  the  An- 
glican establishment  is  ascribed.  Had  her 
influence  been  withdrawn,  surplices  and 
square  caps  would  have  lost  their  steadiest 
friend,  and  several  other  little  accommoda-  ; 
tions  to  the  prevalent  dispositions  of  Protes-  j 
tants  would  have  taken  place.  Of  this  it  1 
seems  impossible  to  doubt  when  we  read 
the  proceedings  of  the  convocation  in  1562, 
when  a  proposition  to  abolish  most  of  the 
usages  deemed  objectionable  was  lost  only 
by  a  vote,  the  numbers  being  59  to  58.* 

In  thus  restiaining  the  ardent  zeal  of 
Reformation,  Elizabeth  may  not  have  been 
guided  merely  by  her  own  prejudices,  with- 
out far  higher  motives  of  prudence  and  even 
of  equity.  It  is  difficult  to  pronounce  in 
what  proportion  the  two  conflicting  religions 
were  blended  on  her  coming  to  the  throne. 
The  Reformed  occupied  most  large  towns, 
and  were,  no  doubt,  a  more  active  and  pow- 
erful body  than  their  opponents.  Nor  did 
the  ecclesiastical  visitors  of  1559  complain 
of  any  resistance,  or  even  unwillingness, 
among  the  people. f    Still  the  Romish  paitj' 

feel  any  doubts  may  easily  satisfy  themselves  from 
the  same  collectiou,  and  from  Strj  pe  as  to  the  oth- 
ers. The  cun-eut  opinion,  that  these  scruples  were 
imbibed  during  the  banishment  of  our  Reform- 
ers, must  be  received  with  great  allowance.  The 
dislike  to  some  parts  of  the  Anglican  ritual  had  be- 
gun at  home  ;  it  had  broken  out  at  Frankfort ;  it  is 
displayed  in  all  the  early  documents  of  Elizabeth's 
reign  by  the  English  divines,  far  more  warmly  than 
by  their  Swiss  coiTespondeuts.  Grindal,  when 
first  named  to  the  see  of  London,  had  his  scruples 
about  wearing  the  episcopal  habits  removed  by 
Peter  Martjr.— Strj-pe's  Grindal,  29. 

*  It  was  proposed  on  this  occasion  to  abolish  all 
saints'  days,  to  omit  the  cross  in  baptism,  to  leave 
kneeling  at  the  communion  to  the  ordinarj  's  dis- 
cretion, to  take  away  organs,  and  one  or  two  more 
of  the  ceremonies  then  chiefly  in  dispute. — Burnet, 
iii.,  303,  and  Append.,  319.  Strj-pe,  i.,  297,  299. 
Nowell  voted  in  the  minority.  It  can  hardly  be 
going  too  far  to  suppose  that  some  of  the  majority 
were  attached  to  the  old  religion. 

t  Jewell,  one  of  these  visitors,  writes  afterward 
to  MartjT,  "  Invenimus  ubique  animos  multitudinis 
satis  prepenses  ad  religionem  ;  ibi  etiam,  ubi  om- 
nia putabantur  fore  difficUlima  Si  quid  erat  ob- 

Btinatte  malitiae,  id  totum  erat  in  presbyteris,  illis 
proesertim,  qui  aliquando  stetissent  a  nostra  sen- 
tentia." — Burnet,  iii..  Append.,  289.  The  common 
people  in  London  and  elsewhere,  Strype  says, 
took  an  active  part  in  demolishing  images;  the 


was  exti'emely  numerous  :  it  comprehended 
the  far  greater  portion  of  the  beneficed  cler- 

pleasure  of  destruction,  I  suppose,  mingling  with 
their  abhorrence  of  idolatrj-.  And  during  the  con- 
ferences held  in  Westminster  Abbey,  Jan.,  15.59, 
between  the  Catholic  and  Protestant  divines,  the 
populace,  who  had  been  admitted  as  spectators, 
testified  such  disapprobation  of  the  former,  that 
they  made  it  a  pretext  of  breaking  off  the  argu- 
ment. There  was,  indeed,  such  a  tendency  to  an- 
ticipate the  government  in  reformation,  as  neces- 
sitated a  proclamation,  Dec.  28,  1558,  silencing 
preachers  on  both  sides. 

Mr.  Butler  says,  from  several  circumstances  it  is 
evident  that  a  great  majority  of  the  nation  then  in- 
clined to  the  Roman  Catholic  religion. — Mem.  of 
Eng.  Catholics,  i.,  146.  But  his  proofs  of  this  are 
extremely  weak.  The  attachment  he  supposes  to 
have  existed  in  the  laity  toward  their  pastors  may 
well  be  doubted  ;  it  could  not  be  founded  on  the 
natural  grounds  of  esteem ;  and  if  Rishton,  the 
continuator  of  Sanders  de  Schismate,  whom  he 
quotes,  says  that  one  third  of  the  nation  was  Prot- 
estant, we  may  surely  double  the  calculation  of  so 
determined  a  papist.  As  to  the  influence  which 
Mr.  B.  alleges  the  court  to  have  employed  in  elec- 
tions for  EUzabeth's  first  Parliament,  the  argument 
would  equally  prove  that  the  majority  was  Protes- 
tant under  Mary,  since  she  had  recourse  to  the 
same  means.  The  whole  tenor  of  historical  docu- 
ments in  Elizabeth's  reign  proves  that  the  Catho- 
lics soon  became  a  minority,  and  still  more  among 
the  common  people  than  the  gentry.  The  north 
of  England,  where  their  strength  lay,  was  in  ev- 
ery respect  the  least  important  part  of  the  king- 
dom. Even  according  to  Dr.  Lingard,  who  thinks 
fit  to  claim  half  the  nation  as  CathoUc  in  tlie  mid- 
I  die  of  this  reign,  the  number  of  recusants  certified 
to  the  council  under  23  Eliz.,  c.  1,  amounted  only 
to  fifty  thousand  ;  and,  if  we  can  trust  the  authori- 
ty of  other  lists,  they  were  much  fewer  before  the 
accession  of  James.  This  writer,  I  may  observe 
in  passing,  has,  through  haste  and  thoughtlessness, 
misstated  a  passage  he  cites  from  Murden's  State 
Papers,  p.  605,  and  confounded  the  persons  sus- 
pected for  religion  in  the  city  of  London,  about  the 
time  of  the  Armada,  with  the  whole  number  of 
:  men  fit  for  arms  ;  thus  making  the  former  amount 
to  seventeen  thousand  and  eighty-three. 

Mr.  Butler  has  taken  up  so  paradoxical  a  notion 
on  this  subject,  that  he  Uterally  maintains  the 
Catholics  to  have  been  at  least  one  half  of  the  peo- 
ple at  the  epoch  of  the  Gunpowder  Plot. — Vol.  i., 
p.  295.  We  should  be  glad  to  know  at  what  time 
he  supposes  the  grand  apostacy  to  have  been  con- 
summated. Cardinal  Bentivoglio  gives  a  very 
different  account,  reckoning  the  real  CathoUcs, 
such  as  did  not  make  profession  of  heresy,  at  only 
a  thirtieth  part  of  the  whole,  though  he  supposes 
that  four  fifths  might  become  such,  from  secret  in- 
clination or  general  indifference,  if  it  were  once 
established. — Opere  di  Bentivoglio,  p.  83,  edit. 
Paris,  1645.  But  I  presume  neither  Mr.  Butler 
nor  Dr.  Lingard  would  own  these  adinphorisls. 
The  latter  writer,  on  the  other  hand,  reckons 


Eliz. — Puritans.] 


FROM  HENRY  VII.  TO  GEORGK  U. 


109 


g3',  and  all  those  who,  having  no  turn  for 
controversy,  clung  with  piou.s  reverence  to 
the  rites  and  worship  of  their  earliest  asso- 
ciations. It  might  be  thought,  perhaps,  not 
very  repugnant  to  wisdom  or  to  charity, 
that  such  persons  should  be  won  over  to  the 
Reformed  faith  by  retaining  a  few  indiffer- 
ent usages,  which  gratified  their  eyes,  and 
took  off  the  impression,  so  unpleasant  to 
simple  minds,  of  religious  innovation.  It 
might  be  urged  that,  should  even  somewhat 
more  of  superstition  remain  a  while  than  ra- 
tional men  would  approve,  the  mischief 
would  be  far  less  than  to  drive  the  people 
back  into  the  arms  of  popery,  or  to  expose 
them  to  the  natural  consequences  of  de- 
stroying at  once  all  old  landmarks  of  rever- 
ence— a  dangerous  fanaticism,  or  a  careless 
irreligion.  I  know  not  in  what  degi-ee  these 
considerations  had  weight  with  Elizabeth, 
but  they  were  such  as  it  well  became  her 
to  entertain. 

We  live,  however,  too  far  from  the  period 
of  her  accession  to  pass  an  unqualified  decis- 
ion on  the  coui-se  of  policy  Avhich  it  was  best 
for  the  queen  to  pursue.  The  difficulties 
of  effecting  a  compromise  between  two  in- 
tolerant and  exclusive  sects  were  perhaps 
insuperable.  In  maintaining  or  altering  a 
rehgious  establishment,  it  may  be  reckoned 
the  general  duty  of  governments  to  respect 
the  wishes  of  the  majority.  But  it  is  also 
a  rule  of  human  policy  to  favor  the  more 
efficient  and  determined,  which  may  not  al- 
ways be  the  more  numerous  party.  I  am 
far  from  being  convinced  that  it  would  not 
have  been  practicable,  by  receding  a  httle 
from  that  uniformity  which  governors  de- 
light to  prescribe,  to  have  jialliated  in  a  great 
measure,  if  not  put  an  end  for  a  time,  to  the 
discontent  that  so  soon  endangered  the  new 
establishment.     The  frivolous  usages,  to 

the  Hugeunots  of  France,  soon  after  1560,  at  only 
one  hundredth  part  of  the  nation,  quoting  for  this 
Casteluau,  a  useful  memoir  %VTiter,  but  no  author- 
ity on  a  matter  of  calculation.  The  stem  spiiit  of 
Coliini,  atrox  animus  Catonis,  rising  above  all 
misfortune,  and  unconquerable,  except  by  the 
darkest  treachery,  is  sulBciently  admirable  with- 
out reducing  his  party  to  so  miserable  a  fraction. 
The  Calvinists  at  this  time  are  reckoned  by  some 
at  one  fourth,  but  more  frequently  at  one  tenth,  of 
the  French  nation.  Even  in  the  beginning  of  the 
next  century,  when  proscription  and  massacre, 
lukewannness  and  self-interest,  had  thimied  their 
ranks,  they  are  estimated  by  Beutivoglio  [ubi  su- 
pra) at  one  fifteenth. 


which  so  many  fi-ivolous  objections  were 
raised,  such  as  the  tippet  and  surplice,  the 
sign  of  the  cross  in  baptism,  the  ring  in  mat- 
rimony, the  posture  of  kneeling  at  the  com- 
munion, might  liave  been  left  to  private  dis- 
cretion, not  possibly  without  some  incon- 
venience, but  with  less,  as  I  conceive,  than 
resulted  from  rendering  their  observance 
indispensable.  Nor  should  we  allow  our- 
selves to  be  turned  aside  by  the  common 
reply  that  no  concessions  of  this  kind  would 
have  ultimately  prevented  the  disunion  of 
the  Church  upon  more  essential  differences 
than  these  litigated  ceremonies,  since  the 
science  of  policy,  like  that  of  medicine, 
must  content  itself  with  devising  remedies 
for  iiTimediate  danger,  and  can  at  best  only 
retard  the  progress  of  that  intrinsic  decay 
which  seems  to  be  the  law  of  all  things  hu- 
man, and  through  which  every  institution 
of  man,  like  his  earthly  frame,  must  one 
day  crumble  into  ruin. 

The  repugnance  felt  by  a  large  part  of 
the  Protestant  clergy  to  the  cer- 

•  1        1.1     T-ii-     1     1  Unwillincr- 

emonies  with  which  Elizabeth  nessofmany 
would  not  consent  to  dispense,  ':?"'.?}'>' 

'  '  with  the  es- 

showed  itself  in  irregular  trans-  taWished 

c  ^\  'c  ceremonies. 

gressions  ot  the  unitormity  pre- 
scribed by  statute.  Some  continued  to 
wear  the  habits,  others  laid  them  aside  ; 
the  communicants  received  the  sacrament 
sitting,  or  standing,  or  kneeling,  according  to 
the  minister's  taste ;  some  baptized  in  the 
font,  others  in  a  basin  ;  some  with  the  sign 
of  the  cross,  others  without  it.  The  people 
in  London  and  other  towns,  siding  chiefly 
with  the  malcontents,  insulted  such  of  the 
clergy  as  obseiTed  the  prescribed  order.* 
Many  of  the  bishops  readily  connived  at 
deviations  from  ceremonies  which  they  dis- 
approved. Some,  who  felt  httle  objection 
to  their  use,  wei-e  against  imposing  them  as 
necessary. f  And  this  opinion,  which  led 
to  very  momentous  inferences,  began  so 
much  to  prevail,  that  we  soon  find  the  ob- 
jections to  conformity  more  grounded  on 
the  unlawfulness  of  compulsory  regulations 
in  the  Church  prescribed  by  the  civil 
power,  than  on  any  special  impropriety  in 


*  Strj-pe's  Parker,  152,  153.  CoUier,  508.  In 
the  Lansdowne  Collection,  vol.  viii.,  47,  is  a  let- 
ter from  Parker,  Apr.,  1565,  complaining  of  Turner, 
dean  of  Wells,  for  having  made  a  man  do  penance 
for  adulteiy  in  a  square  cap. 

t  Strype's  Parker,  157,  173. 


110 


CONSTITUTIONAL  HISTORY  OF  ENG^LAND 


[Chap.  IV. 


the  usages  them.selve.s.  But  this  principle, 
which  perhaps  the  scrupulous  party  did  not 
yet  very  fully  avow,  was  altogether  incom- 
patible with  the  supremacy  vested  in  the 
queen,  of  which  fairest  flower  of  her  prerog- 
ative she  wfis  abundantly  tenacious.  One 
thing  was  evident,  that  the  Puritan  mal- 
contents were  growing  eveiy  day  more  nu- 
merous, more  determined,  and  more  likely 
to  win  over  the  generality  of  those  who  sin- 
cerely favored  the  Protestant  cause.  There 
were  but  two  lines  to  be  taken  :  either  to  re- 
lax and  modify  the  regulations  which  gave 
offense,  or  to  enforce  a  more  punctual  ob- 
servation of  them.  It  seems  to  me  far  more 
probable  that  the  former  course  would  have 
prevented  a  great  deal  of  that  mischief  which 
the  second  manifestly  aggravated.  For  in 
this  early  stage  the  advocate  of  a  simpler 
ritual  had  by  no  means  assumed  the  shape 
of  an  imbodied  faction,  whom  concessions, 
it  must  be  owned,  are  not  apt  to  satisfy, 
but  numbered  the  most  learned  and  distin- 
guished portion  of  the  hierarchy.  Parker 
stood  nearly  alone  on  the  other  side,  but 
alone  more  than  an  equipoise  in  the  balance, 
through  his  high  station,  his  judgment  in 
matters  of  policy,  and  his  knowledge  of  the 
queen's  disposition.  He  had  possibly  reas- 
on to  apprehend  that  Elizabeth,  irritated  by 
the  prevalent  humor  for  alteration,  might 
burst  entirely  away  from  the  Protestant 
side,  or  sti-etch  her  supremacy  to  reduce 
the  Church  into  a  slavish  subjection  to  her 
caprice.*  This  might  induce  a  man  of  his 
sagacity,  who  took  a  far  wider  view  of  civil 
affairs  than  his  brethren,  to  exert  himself 
according  to  her  peremptory  command  for 
universal  conformity.  But  it  is  not  easy  to 
reconcile  the  whole  of  his  conduct  to  this 
supposition ;  and  in  the  copious  memorials 
of  Stiype,  we  find  the  archbishop  rather 
exciting  the  queen  to  rigorous  measures 
against  the  Puritans  than  standing  in  need 
of  her  admonition. f 

*  This  apprehension  of  Elizabeth's  taking  a 
dis^st  to  Protestanti.sm  is  intimated  in  a  letter 
of  Bishop  Cox,  Strype's  Parker,  229. 

t  Parker  sometimes  declares  himself  willing  to 
see  some  indulgence  as  to  the  habits  and  other 
matters ;  but  the  queen's  commands  being  per- 
emptor}',  he  had  thought  it  his  duty  to  obey  them, 
though  forewarning  her  that  the  Puritan  ministers 
would  not  give  way,  225,  227.  This,  however,  is 
not  consistent  with  other  passages,  where  he  ap- 
pears to  importune  the  queen  to  proceed.  Her 


The  unsettled  state  of  exterior  religion 
which  has  been  mentioned  last-  Conformity 
ed  till  1565.    In  the  beginnins;  of  e"f"f'=ed 

,  .  °  "         the  arcll- 

tliat  year  a  determination  was  bishop 
taken  by  the  queen,  or  rather, 
perhaps,  the  archbishop,  to  put  "f  "thers. 
a  stop  to  all  irregularities  in  the  public  serv- 
ice. He  set  forth  a  book  called  Advertise- 
ments, containing  orders  and  regulations  for 
the  discipline  of  the  clergy.  This  modest  ti- 
tle was  taken  in  consequence  of  the  queen's 
withholding  her  sanction  of  its  appearance 
through  Leicester's  influence.*  The  pri- 
mate's next  step  was  to  summon  before  the 
ecclesiastical  commi.ssion  Sampson,  dean  of 
Christ  Church,  and  Humphrey,  president 
of  Magdalen  College,  Oxford,  men  of  signal 
non-conformity,  but  at  the  same  time  of 
such  eminent  reputation,  that,  when  the 
law  took  its  course  against  them,  no  other 
ofi^nder  could  hope  for  indulgence.  On  re- 
fusing to  wear  the  customaiy  habits,  Samp- 
son was  deprived  of  his  deaneiy,  but  the 
other  seems  to  have  been  tolerated. f  This 
instance  of  severity,  as  commonly  happens, 
rather  irritated  than  intimidated  the  Puritan 
clergy,  aware  of  their  numbers,  their  pop- 
ularity, and  their  powerful  friends,  but 
above  all  sustained  by  their  own  sincerity 
and  earnestness.  Parker  had  taken  his  res- 
olution to  proceed  in  the  vigorous  course 
he  had  begun.  He  obtained  from  the 
queen  a  proclamation,  peremptorily  requir- 
ing a  conformity  in  the  use  of  the  clerical 
vestments  and  other  matters  of  discii)line. 
The  London  ministers,  summoned  before 
himself  and  their  bishop  Grindal,  who  did 
not  very  willingly  co-operate  with  his  met- 
ropolitan, were  called  upon  for  a  promise 
to  comply  with  the  legal  ceremonies,  which 
thirty-seven  out  of  ninety-eight  refused  to 

wavering  conduct,  partly  owing  to  caprice,  partly 
to  insincerity,  was  naturally  vexatious  to  a  man 
of  his  firm  and  ardent  temper.  Possibly  he  might 
dissemble  a  little  iu  writing  to  Cecil,  who  was 
against  driving  the  Puiitaus  to  exti'emities.  Bat, 
on  the  review  of  his  whole  behavior,  he  must  be 
reckoned,  and  always  has  been  reckoned,  the  most 
severe  disciplinarian  of  Elizabeth's  first  Iiierarchy, 
though  more  violent  men  came  afterward. 

*  Shype's  Annals,  41C.  Life  of  Parker,  159. 
Some  years  after,  these  advertisements  obtained 
the  queen's  sanction,  and  got  the  name  of  Articles 
and  Ordinances. — Id.,  160. 

t  Strype's  Annals,  416,  430.  Life  of  Parker,  134. 
Sampson  had  refused  a  bishopric  on  account  of 
these  ceremonies. — Burnet,  iii.,  292. 


Eliz. — Puritans.] 


mOM  HENRY  VII.  TO  GEORGE  II. 


Ill 


make.  They  were,  in  consequence,  sus- 
pended from  their  ministiy,  and  their  livings 
put  in  sequestration.  But  these,  unfortu- 
nately, as  was  the  case  in  all  this  reign,  were 
the  most  conspicuous  both  for  their  gener- 
al character  and  for  their  talent  in  preach- 
ing.* 

Whatever  deviations  from  uniformity  ex- 
isted within  the  pale  of  the  Anglican  Church, 
no  attempt  had  hitherto  been  made  to  form 
separate  assemblies  ;  nor  could  it  be  deem- 
ed necessary,  while  so  much  indulgence 
had  been  conceded  to  the  scrupulous  clergj'. 
But  they  were  now  reduced  to  determine 
whether  the  imposition  of  those  rites  they 
disliked  would  justify,  or  render  necessary, 
an  abandonment  of  their  ministry.  The 
bishops  of  that  school  had  so  far  overcome 
their  repugnance  as  not  only  to  observe  the 
ceremonies  of  the  Church,  but,  in  some  in- 
stances, to  employ  compulsion  toward  oth- 
ers, f  A  more  unexceptionable,  because 
more  disinterested,  judgment  was  pronoun- 
ced by  some  of  the  Swiss  Reformers,  to 
whom  our  own  paid  great  respect— Beza, 
Gualter,  and  Bullinger;  who,  while  they 
regretted  the  continuance  of  a  few  super- 
fluous rites,  and  still  more  the  severity  used 
toward  good  men,  dissuaded  their  friends 
from  deserting  their  vocation  on  that  ac- 
count. Several  of  the  most  respectable 
opponents  of  the  ceremonies  were  equally 
adverse  to  any  open  schism. t  But  the  ani- 
mosities springing  from  heated  zeal,  and 
the  smart  of  what  seemed  oppression,  would 

*  Life  of  Parker,  214.  Sti-ype  says,  p.  223,  that 
the  suspended  ministers  preached  again  after  a 
little  time  by  comuvance. 

t  Jewell  is  said  to  have  become  strict  in  enfor- 
cing the  use  of  the  surplice. — Annals,  421. 

t  Strype's  Annals,  i.,  423  ;  ii.,  316.  Life  of  Par- 
ker, 243,  348.  Bumet,  iii.,  310,  32.5,  337.  Bishops 
Grindal  and  Horn  vrrote  to  Zurich,  saying  plainly, 
it  was  not  their  fault  that  the  habits  were  not  laid 
aside,  with  the  cross  in  baptism,  the  use  of  or- 
gans, baptism  by  women,  &c.,  p.  314.  This  last 
usage  was  much  inveighed  against  by  the  Calvin- 
ists,  because  it  involved  a  theological  tenet  differ- 
ing from  their  own,  as  to  the  necessity  of  baptism. 
In  Strype's  Aimals,  501,  we  have  the  form  of  an 
oath  taken  by  all  midwives,  to  exercise  their  call- 
ing without  sorcery  or  superstition,  and  to  baptize 
with  the  proper  words.  It  was  abolished  by 
James  I. 

Beza  was  more  dissatisfied  than  the  Helvetic 
divines  with  the  state  of  the  English  Church — An- 
nals, i.,  462.  Collier,  503 — but  dissuaded  the  Pu- 
ritans from  separation,  and  advised  them  rather  to 
comply  with  the  ceremonies. — Id.,  511. 


not  suffer  the  English  Puritans  generally 
to  acquiesce  in  such  temperate  counsels. 
They  began  to  form  separate  conventicles 
in  London,  not  ostentatiously,  indeed,  but  of 
course  without  the  possibility  of  eluding  no- 
tice. It  was  doubtless  worthy  of  much  con- 
sideration, whether  an  established  church- 
government  could  wink  at  the  systematic 
disregard  of  its  discipline  by  those  who 
were  subject  to  its  jurisdiction  and  partook 
of  its  revenues.  And  yet  there  were  many 
important  considerations  derived  from  the 
posture  of  religion  and  of  the  stale,  which 
might  induce  cool-headed  men  to  doubt  the 
expediency  of  too  much  straitening  the 
reins.  But  there  are  few,  I  trust,  who  can 
hesitate  to  admit  that  the  Puritan  clergy, 
after  being  excluded  from  their  benefices, 
might  still  claim  from  a  just  government  a 
peaceful  toleration  of  their  particular  wor- 
ship. This  it  was  vain  to  expect  from  the 
queen's  arbitrary  spirit,  the  imperious  hu- 
inor  of  Parker,  and  that  total  disregard  of 
the  rights  of  conscience  which  was  common 
to  all  parties  in  the  sixteenth  century.  The 
first  instance  of  actual  punishment  inflicted 
on  Protestant  dissenters  was  in  June,  1567, 
when  a  company  of  more  than  one  hundred 
were  seized  during  their  religious  exercises 
at  Plummer's  Hall,  which  they  had  hired 
on  pretense  of  a  wedding,  and  fourteen  or 
fifteen  of  them  were  sent  to  prison.*  They 
behaved  on  their  examination  with  a  rude- 
ness as  well  as  self-sufficiency,  that  had  al- 
ready begun  to  characterize  the  Puritan  fac- 
tion. But  this  can  not  excuse  the  fatal  er- 
ror of  molesting  men  for  the  exercise  of 
their  own  religion. 

These  coercive  proceedings  of  the  arch- 
bishop wei-e  feebly  seconded,  or  directly 
thwarted,  by  most  leading  men  both  in 
Church  and  State.  Grindal  and  Sandys, 
successively  bishops  of  London  and  arch- 
bishops of  York,  were  naturally  reckoned 
at  this  time  somewhat  favorable  to  the  non- 
conforming ministers,  whose  scru])les  they 
had  partaken.  Parkhurst  and  Pilkington, 
bishops  of  Norwich  and  Durham,  were 
openly  on  their  side.f  They  had  still  more 
effectual  support  in  the  queen's  council. 
The  Earl  of  Leicester,  who  possessed  more 

*  Strype's  Life  of  Parker,  242.  Life  of  Grindal, 
114. 

t  Buniet,  iii.,  316.  Strj-pe's  Parker,  155,  et 
I  alibi. 


I 


112 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  IV, 


power  than  any  one  to  sway  her  wavering 
and  capricious  temper,  the  Earls  of  Bed- 
ford, Huntingdon,  and  Wanvick,  regarded 
as  the  steadiest  Protestants  among  the  ar- 
istocracy, the  wise  and  grave  Lord-lieeper 
Bacon,  the  sagacious  Walsingham,  the  ex- 
perienced Sadler,  the  zealous  KnoUj'S,  con- 
sidered these  ohjects  of  Parkers  severity 
either  as  demanding  a  purer  worship  than 
had  been  established  in  the  Church,  or  at 
least  as  worthy  by  their  virtues  and  services 
of  more  indulgent  treatment.*  Cecil  him- 
self, though  on  intimate  terms  with  the 
archbishop,  and  concumng  generally  in  his 
measures,  was  not  far  removed  from  the 
latter  way  of  thinking,  if  his  natural  caution 
and  extreme  dread  at  this  juncture  of  losing 
the  queen's  favor  had  permitted  him  more 
unequivocally  to  express  it.  Those  whose 
judgment  did  not  incline  them  toward  the 
Puritan  notions,  respected  the  scruples  of 
men  in  whom  the  Reformed  religion  could 
so  implicitly  confide.  They  had  regard 
also  to  the  condition  of  the  Church.  The 
far  gi-eater  part  of  its  benefices  were  sup- 
plied by  conformists  of  veiy  doubtful  sincer- 
ity, who  would  resume  their  mass-books 
with  more  alacrity  than  they  had  cast  them 
aside. f  Such  a  deficiency  of  Protestant 
clergy  had  been  experienced  at  the  queen's 
accession,  that  for  several  years  it  was  a 
common  practice  to  appoint  laymen,  usual- 
ly mechanics,  to  read  the  service  in  vacant 
churches. t    These  were  not  always  whol- 


*  Id.,  226.  The  Church  had  bat  two  or  three 
friends,  Strj  pe  says,  in  the  council  about  ]572,  of 
vrliom  Cecil  was  the  chief. — Id.,  388. 

t  Burnet  says,  on  tlie  authoritj-  of  the  visitors' 
reports,  that  out  of  9400  beneficed  clercrymen,  not 
more  than  about  200  refused  to  conform.  This 
caused  for  some  years  just  apprehensions  of  the 
danger  into  which  rehgion  was  brought  by  their 
retaining  their  affections  to  the  old  superstition; 
"so  that,"  he  proceeds,  "if  Q.ueen  EUzabeth  had 
not  lived  so  long  as  she  did,  till  aU  that  generation 
was  dead,  and  a  new  set  of  men  better  educated 
and  principled  were  grown  up  and  put  in  their 
rooms  ;  and  if  a  prince  of  another  religion  had  suc- 
ceeded before  that  time,  they  had  probably  turn- 
ed about  again  to  the  old  superstition  as  nimbly 
as  they  had  done  before  in  Q.ueen  Mary's  days." 
— Vol.  ii.,  p.  401.  It  would  be  easy  to  multiply 
testimonies  out  of  Strype,  to  the  papist  inclinations 
of  a  great  part  of  the  clergy  in  the  first  part  of 
this  reign.  They  are  said  to  have  been  sunk  in 
superstition  and  looseness  of  li^'ing. — Annals,  i.,  1G6. 

X  Strjpe's  Annals,  138,  177.  CoUier,  436,  46.5. 
This  seems  to  show  that  more  churches  were 
empty  by  the  desertion  of  popish  incumbents  than 


ly  illiterate ;  or  if  they  were,  it  was  no  more 
than  might  be  said  of  the  popi.sh  clergy,  the 
vast  majority  of  whom  were  destitute  of  all 
useful  knowledge,  and  could  read  little  Lat- 
in.* Of  the  two  universities,  Oxford  had 
become  so  strongly  attached  to  the  Romish 
side  during  the  late  reign,  that,  after  the 
desertion  or  expulsion  of  the  most  zealous 
of  that  party  had  almost  emptied  several 
colleges,  it  still  for  many  years  abounded 
with  adherents  to  the  old  religion. f  But 


the  foregoing  note  would  lead  ns  to  suppose.  I 
believe  that  many  went  off  to  foreign  parts  from 
time  to  time,  who  had  complied  in  1559 ;  and  oth- 
ers were  pot  out  of  their  Uvings.  The  Roman 
Catholic  writers  make  out  a  longer  Ust  than  Bur- 
net's calculation  allows. 

It  appears  from  an  account  sent  in  to  the  privy 
council  by  Parkhurst,  bishop  of  Norwich,  in  1562, 
that  in  his  diocese  more  than  one  third  of  the  ben- 
efices were  vacant. — Annals,  i.,  323.  But  in  Ely, 
out  of  152  cures,  only  52  were  served  in  1560. — L. 
of  Parker,  72. 

*  Parker  wrote  in  1561  to  the  bishops  of  big 
province,  enjoining  them  to  send  him  certificates 
of  the  names  and  qualities  of  all  their  clergy ;  one 
column,  in  the  form  of  certificate,  was  for  learning: 
"And  this,"  Str\-pe  says,  "was  commonly  set 
down ;  Latine  aliqua  verba  intelligit,  Latine  ntctm- 
que  inteUigit,  Latine  pauca  intelligit,"  Icc.  Some- 
rimes,  however,  we  find  doctus. — L.  of  Parker,  95. 
But  if  the  clergy  could  not  read  the  language  in 
which  their  very  prayers  were  composed,  what 
other  learning  or  knowledge  could  they  have  ? 
Certainly  none  ;  and  even  those  who  had  gone  far 
enough  to  study  the  school  logic  and  divinity,  do 
not  deserve  a  much  higher  place  than  the  wholly 
oninstructed.  The  Greek  tongue  was  never  gen- 
erally taught  in  the  universities  or  pubUc  schools 
rill  the  Reformarion,  and  perhaps  not  so  soon. 

Since  this  note  was  written,  a  letter  of  Gibson 
has  been  published  in  Pepys's  Memoirs,  vol.  ii.,  p. 
154,  meurioning  a  catalogue  he  had  found  of  the 
clergy  in  the  archdeaconrj-  of  Middlesex,  A.D.  1563, 
with  their  qualifications  annexed.  Three  only  are 
described  as  docri  Larine  et  Graece  ;  twelve  are 
called  docri  simply;  nine.  Latine  docri:  thirtj-one, 
Latine  mediocriterinteUigentes  :  forty-two,  Latine 
perperam,  ntcunque  aliquid,  pauca  verba,  kc,  ia- 
teUigentes  ;  seventeen  are  non  docri  or  indocti. 
If  this  was  the  case  in  London,  what  can  we  think 
of  more  remote  parts  ? 

t  In  the  struggle  made  for  popery  at  the  queen's 
accession,  the  Lower  House  of  Convocarion  sent 
up  to  the  bishops  five  articles  of  faith,  all  strongly 
Roman  Catholic.  These  had  previously  been 
transmitted  to  the  two  Lniversiries,  and  returned 
with  the  hands  of  the  greater  part  of  the  doctors 
to  the  first  four.  The  fifth  they  scrupled,  as  trench- 
ing too  much  on  the  queen's  temporal  power. — 
Burnet,  ii.,  388  ;  iii.,  269. 

Strj-pe  says,  the  Uuiversiries  were  so  addicted 
to  poperj-,  that  for  some  years  few  educated  in 
them  were  ordained. — Life  of  Grindal,  p.  50.  And 


Eliz. — Puritans.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


113 


at  Cambridge,  which  had  been  equally  pop-  i 
ish  at  the  queen's  accession,  the  opposite 
faction  soon  acquired  the  ascendant.  The 
younger  students,  imbibing  ardently  the  : 
new  creed  of  ecclesiastical  liberty,  and  ex- 
cited by  Puritan  sermons,  began  to  throw 
off  their  surplices,  and  to  commit  other 
breaches  of  discipline,  from  which  it  might  I 
be  infened  that  the  generation  to  come 
would  not  bo  less  apt  for  innovation  than 
the  present.* 
'Wood's  Autiquitics  of  the  Uuiversity  of  Oxford 
contain  many  proofs  of  its  attachment  to  the  old 
religion.  In  Exeter  College,  as  late  as  1578,  there 
were  not  above  four  Protestants  out  of  eighty,  "  all 
the  rest  secret  or  open  Roman  afi'ectiouaries." 
These  chiefly  came  from  the  West,  "  where  po- 
pery greatly  prevailed,  and  the  gentiy  were  bred 
up  in  that  religion." — Strj-pe's  Aimals,  ii.,  539. 
But  aftenvard,  Wood  complains,  "  througli  the  in- 
fluence of  Humphrey  and  Reynolds  (the  latter  of 
whom  became  divinity  lectui-er  on  Secretary  Wal- 
Bingham's  foundation  in  1586),  the  disposition  of 
the  times,  and  the  long  continuance  of  the  Earl  of 
Leicester,  the  principal  patron  of  the  Puritanical 
faction,  in  the  place  of  Chancellor  of  Oxford,  the 
face  of  the  University  was  so  much  altered  that 
there  was  little  to  be  seen  in  it  of  the  Church  of 
England,  according  to  the  principles  and  positions 
upon  which  it  was  first  reformed." — Hist,  of  Ox- 
ford, vol.  ii.,  p.  228.  Previously,  however,  to  this 
change  toward  Puritanism,  the  University  had 
not  been  Anglican,  but  popish ;  which  Wood  liked 
much  better  than  the  hrst,  and  ueai-ly  as  well  as 
the  second. 

A  letter  from  the  University  of  Oxford  to  Eliza- 
beth on  her  accession  (Heame's  edition  of  Roper's 
Life  of  More,  p.  173)  shows  the  accommodating  char- 
acter of  these  academies.  They  extol  Mary  as  an 
excellent  queen,  but  are  consoled  by  the  thought 
of  her  excellent  successor.  One  sentence  is  curi- 
ous :  "  Cum  patri,fralri,  sorori,  nihil  fuerit  repub- 
lica.  carius,  rcligione  optatius,  vera  gloria  dulcius ; 
cum  in  hac  familia  ha;  laudes  floraeriut,  vehe- 
menter  confidimus,  &c.,  quae  ejusdem  stirpis  sis, 
easdem  cupidissime  prosccuturam."  It  was  a  sin- 
gular train  of  complaisance  to  praise  Henry's,  Ed- 
ward's, and  Mary's  religious  sentiments  in  the 
same  breath ;  but  the  queen  might  at  least  learn 
this  from  it,  that  whether  she  fixed  on  one  of  their 
creed^  or  devised  a  new  one  for  herself,  she  was 
sure  of  the  acquiescence  of  this  ancient  and  learn- 
ed body.  A  preceding  letter  to  Cardinal  Pole,  in 
which  the  times  of  Henry  and  Edward  are  treated 
more  cavalierly,  seems  by  the  style,  whicli  is  very 
elegant,  to  have  been  the  production  of  the  same 
pen. 

*  The  fellows  and  scholars  of  St.  John's  College, 
to  the  number  of  three  hundi-ed,  threw  off  their 
hoods  and  surplices  in  156.5,  without  any  opposi- 
tion from  their  master,  till  Cecil,  as  Chancellor  of 
the  University,  took  up  the  matter,  and  insisted  on 
their  conformity  to  the  established  regulations. 
This  gave  much  dissatisfaction  to  the  University ; 

H 


The  first  period  in  the  history  of  Pui'i- 
tanism  includes  the  time  from  the 

_    .     ,     .       A  more  ue- 

queen  s  accession  to  1570,  during  tennmed 
which  the  retention  of  supersti-  ^{',[,'ut"i'5°7"y 
tioiis  ceremonies  in  the  Church  leUhyCart- 
had  been  the  sole  avowed  ground 
of  complaint.  But  when  these  obnoxious 
rites  came  to  be  enforced  with  unsparing 
rigor,  and  even  those  who  voluntarily  re- 
nounced the  temporal  advantages  of  the 
establishment  were  hunted  from  their  pri- 
vate conventicles,  they  began  to  consider 
the  national  system  of  ecclesiastical  regimen 
as  itself  in  fault,  and  to  transfer  to  the  insti- 
tution of  episcopacy  that  dislike  they  felt  for 
some  of  the  prelates.  The  ostensible  found- 
er of  this  new  school  (though  probably  its 
tenets  were  by  no  means  new  to  many  of 
the  sect)  was  Thomas  Cartwright,  the  Lady 
Margaret's  professor  of  divinity  at  Cam- 
bridge. He  began,  about  1570,  to  inculcate 
the  unla^vfulness  of  any  form  of  church- 
government  except  what  the  apostles  had 
instituted,  namely,  the  Presbyterian.  A 
deserved  reputation  for  virtue,  learning,  and 
acuteness,  an  ardent  zeal,  an  inflexible  self- 
confidence,  a  vigorous,  mde,  and  arrogant 
style,  marked  him  as  the  formidable  leader 
of  a  religious  faction.*  In  1572  he  pub- 
lished his  celebrated  Admonition  to  the  Par- 
liament, calling  on  that  assembly  to  reform 
the  various  abuses  subsisting  in  the  „ 

^  Dangerous 

Church.    In  this  ti'eatise,  such  a  nature  of 

,      J         ••if  ,.•  J-      his  tenets. 

hardy  spirit  oi  innovation  was  dis- 
played, and  schemes  of  ecclesiastical  pol- 
icy so  novel  and  extraordinary  were  devel- 
oped, that  it  made  a  most  important  epoch 
in  the  contest,  and  rendered  its  termination 
far  more  improbable.  The  hour  for  liber- 
al concessions  had  been  suffered  to  pass 


not  only  the  more  intemperate  part)%  but  many 
heads  of  colleges  and  grave  men,  among  wliom  we 
arc  rather  surprised  to  find  the  name  of  Whitgift, 
interceding  with  their  cliancellor  for  some  mitiga- 
tion as  to  these  unpalatable  obsei-vances. — Strj  pe's 
Annals,  i.,  441.  Life  of  Parker,  194.  Cambridge 
had,  however,  her  Catholics,  as  Oxford  had  her 
Puritans,  of  whom  Dr.  Caius,  founder  of  the  col- 
lege that  bears  his  name,  was  among  the  most  re- 
markable.— Id.,  200.  The  chancellors  of  Oxford 
and  Cambridge,  Leicester  and  Cecil,  kept  a  very 
strict  hand  over  them,  especially  the  latter,  who 
seems  to  iiave  acted  as  paramount  visitor  over  ev- 
ei^y  college,  making  them  reverse  any  act  which 
he  disapproved. — Sti-ypc,  passim. 

"  Strype's  Annals,  i..  583.  Life  of  Parker,  312, 
347.    Life  of  Whitgift,  27. 


114 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IV. 


away ;  the  archbishop's  intolerant  temper 
had  taught  men  to  question  the  authority 
that  oppressed  them,  till  the  battle  was  no 
longer  to  be  fought  for  a  tippet  and  a  sur- 
plice, but  for  the  whole  ecclesiastical  hie- 
rarchy, interwoven  as  it  was  with  the  tem- 
poral constitution  of  England. 

It  had  been  the  first  measure  adopted  in 
throwing  off  the  j'oke  of  Rome  to  invest  the 
sovereign  with  an  absolute  control  over  the 
Anglican  Church,  so  that  no  part  of  its  co- 
ercive discipline  could  be  exercised  but  by 
his  authority,  nor  any  laws  enacted  for  its 
governance  without  his  sanction.    This  su- 
premacy, indeed,  both  Henry  VIII.  and 
Edward  VI.  had  carried  so  far,  that  the 
bishops  were  reduced  jilmost  to  the  rank 
of  temporal  officers,  taking  out  commissions 
to  rule  their  dioceses  during  the  king's 
pleasure  ;  and  Cranmer  had  prostrated  at 
tlie  feet  of  Heniy  those  spiritual  functions 
which  have  usually  been  reckoned  inherent 
in  the  order  of  clergy.   Elizabeth  took  some 
pains  to  soften,  and  almost  explain  away  her 
supremacy,  in  order  to  conciliate  the  Cath- 
ohcs,  while,  by  means  of  the  High  Com- 
mission Court,  established  by  statute  in  the 
first  year  of  her  reign,  she  was  practically 
asserting  it  with  no  little  despotism.  But 
the  avowed  opponents  of  this  prerogative 
were  hitherto  chiefly  those  who  looked  to 
Rome  for  another  head  of  their  Church. 
The  disciples  of  Cartwright  now  learned  to 
claim  an  ecclesiastical  independence,  as  un- 
constrained as  any  that  the  Romish  priest- 
hood in  the  darkest  ages  had  usm-ped. 
"  No  civil  magistrate  in  councils  or  assem- 
blies for  church  matters,"  he  says  in  his 
Admonition,  "can  either  be  chief  modera- 
tor, over-ruler,  judge,  or  determiner  ;  nor 
has  he  such  authority  as  that,  without  his 
consent,  it  should  not  be  lawful  for  ecclesi- 
astical persons  to  make  any  church  orders 
or  ceremonies.    Church  matters  ought  or- 
dinarily to  be  handled  by  church  officers. 
The  principal  direction  of  them  is  by  God's 
ordinance  committed  to  the  ministers  of  the 
Church  and  to  the  ecclesiastical  governors. 
As  these  meddle  not  with  the  making  civil 
laws,  so  the  civil  magistrate  ought  not  to 
ordain  ceremonies,  or  determine  controver- 
sies in  the  Church,  as  long  as  they  do  not 
inti-ench  upon  his  temporal  authority.  'Tis 
tlie  prince's  province  to  protect  and  defend 
the  councils  of  his  clergy,  to  keep  the  peace, 


to  see  their  decrees  executed,  and  to  pun- 
ish the  contemners  of  them  ;  but  to  exercise 
no  spiritual  jurisdiction."*  "  It  must  be 
remembered,"  he  says  in  another  place, 
"  that  civil  magistrates  must  govern  the 
Church  according  to  the  rules  of  God  pre- 
scribed in  his  Word,  and  that  as  they  are 
nurses,  so  they  be  servants  unto  the 
Church ;  and  as  they  rule  in  the  Church, 
so  they  must  remember  to  submit  them- 
selves unto  the  Church,  to  submit  their 
j  sceptres,  to  throw  down  their  crowns  be- 
fore  the  Church,  yea,  as  the  prophet  speak- 
I  eth,  to  lick  the  dust  off  the  feet  of  the 
Church. "f  It  is  diflficult  to  believe  that  I 
am  transcribing  the  words  of  a  Protestant 
I  writer,  so  much  does  this  peissage  call  to 
mind  the  tones  of  infatuated  arrogance 
which  had  been  heard  from  the  lips  of 
Gregoiy  VII.  and  of  those  who  trod  in  his 
footsteps. t 

The  strength  of  the  Protestant  party  bad 
been  derived,  both  in  Germany  and  in  Eng- 
land, far  less  from  their  superiority  in  argu- 
ment, however  decisive  this  might  be,  thaa 
from  that  desire  which  all  classes,  and  espe- 

*  Cartwright's  Admonition,  quoted  in  Neal'g 
Hist,  of  Puritans,  i.,  88. 

t  Madox's  Vindication  of  Church  of  England 
acrainst  Neal,  p.  122.  This  writer  quotes  several 
verj-  extravagant  passages  from  Cartwright,  which 
go  to  prove  irresistibly  tliat  he  would  have  made 
CO  compromise  short  of  the  overthrow  of  the  Es- 
tabUshed  Church,  p.  Ill,  kc.  "As  to  you,  dear 
brethren,"  he  said,  in  a  Puritan  tract  of  1570, 
"  whom  God  hath  called  into  the  brunt  of  the  bat- 
tie,  the  Lord  keep  you  constant,  that  ye  j-ield  nei- 
ther to  toleration,  neither  to  any  other  subtle  per- 
suasions of  dispensations  and  licenses,  which  were 
to  fortify  their  Romish  practices ;  but,  as  you  fight 
the  Lord's  fight,  be  valiant.  ' — Madox,  p.  287. 

}  These  principles  had  already  been  broached 
by  those  who  called  Calvin  master ;  he  had  him- 
self become  a  sort  of  prophet-king  at  Geneva.  And 
Collier  quotes  passages  fi-om  Knox's  Second  Blast, 
inconsistent  with  any  government,  except  one 
slavishlj"  subser\  ient  to  the  Church. — P.  444.  The 
non-juring  historian  holds  out  the  hand  of  fellow- 
ship to  the  Puritans  he  abhors,  when  they  preach 
up  ecclesiastical  independence.  Collier  liked  the 
royal  supremacy  as  Uttle  as  Cartwright;  and  in 
giving  an  account  of  Banci-oft  s  attack  on  the  non- 
conformists for  denying  it,  enters  upon  a  long  dis- 
cussion in  favor  of  an  absolute  emancipation  from 
the  control  of  laymen. — P.  610.  He  does  not  even 
approve  the  determination  of  the  judges  in  Caw- 
drey's,  case  (5  Coke's  Reports),  tliough  against  the 
non-conformists,  as  proceeding  on  a  wrong  princi- 
!  pie  of  setting  up  the  State  above  the  Church. — P. 
I  634. 


Eliz— ruritans.]  FROM  HENRY  VII.  TO  GEORGE  II. 


115 


cially  the  higher,  had  long  experienced  to 
emancipate  themselves  from  the  thraldom 
of  ecclesiastical  jurisdiction.  For  it  is  ever 
found  that  the  generality  of  mankind  do  not 
so  much  as  give  a  hearing  to  novel  systems 
in  religion,  till  they  have  imbibed,  from 
some  cause  or  other,  a  secret  distaste  to 
that  in  which  they  have  been  educated. 
It  was,  therefore,  rather  alarming  to  such 
as  had  an  acquaintance  with  ecclesiastical 
history,  and  knew  the  encroachments  for- 
merly made  by  the  hierarchy  throughout 
Europe — encroachments  perfectly  distin- 
guishable from  those  of  the  Roman  See,  to 
perceive  the  same  pretensions  urged,  and 
the  same  ambition  and  arrogance  at  work, 
which  had  imposed  a  yoke  on  the  necks 
of  their  fathers.  With  whatever  plausibil- 
ity it  might  be  maintained  that  a  connection 
with  temporal  magistrates  could  only  cor- 
rupt the  purity  and  shackle  the  liberties  of 
a  Christian  church,  this  argument  was  not 
for  them  to  urge  who  called  on  those  mag- 
istrates to  do  the  Church's  bidding,  to  en- 
force its  decrees,  to  punish  its  refractory 
members  ;  and  while  they  disdained  to  ac- 
cept the  prince's  co-operation  as  their  ally, 
claimed  his  service  as  their  minister.  The 
Protestant  dissenters  since  the  Revolution, 
who  have  almost  unanimously,  and,  I  doubt 
not,  sincerely,  declared  their  averseness  to 
any  religious  establishment,  especially  as 
accompanied  with  coercive  power,  even  in 
favor  of  their  own  sect,  are  by  no  means 
chargeable  with  these  errors  of  the  early 
Puritans.  But  the  scope  of  Cartwright's 
declaration  was  not  to  obtain  a  toleration  for 
dissent — not  even,  by  abolishing  the  whole 
ecclesiastical  polity,  to  place  the  different 
professions  of  religion  on  an  equal  footing — 
but  to  substitute  his  own  model  of  govern- 
ment, the  one,  exclusive,  unappealable  stand- 
ard of  obedience,  with  all  the  endowments, 
so  far  as  applicable  to  its  frame,  of  the  pres- 
ent church,  and  with  all  the  support  to  its 
discipline  that  the  civil  power  could  afford.* 

"  The  school  of  Cartwright  were  as  little  dispos- 
ed as  the  Episcopalians  to  see  tlie  laity  fatten  on 
Church  property.  Bancroft,  in  his  famous  sermon 
preached  at  Paul's  Cross  in  1588  (p.  24),  divides  the 
Puritans  into  the  clergy  factions  and  the  lay  factions. 
The  former,  he  says,  contend  and  lay  it  down  in 
tlieir  supplication  to  Parliament  in  158.5,  that  things 
once  dedicated  to  a  sacred  use  ought  so  to  remain 
forever,  and  not  to  be  converted  to  any  private  use. 
The  lay,  on  the  contrary,  think  it  enough  for  the 


We  are  not,  however,  to  conclude  that 
every  one,  or  even  the  majority,  of  those 
who  might  be  counted  on  the  Puritan  side 
in  Elizabeth's  reign,  would  have  subscribed 
to  these  extravagant  sentences  of  Cart- 
wright,  or  desired  to  take  away  the  legal 
supremacy  of  the  crown.*  That  party  ac- 
quired strength  by  the  prevailing  hatred  and 
dread  of  popery,  and  by  the  disgust  which 
the  bishops  had  been  unfortunate  enough  to 
excite.  If  the  language  which  I  have  quot- 
ed from  the  Puritans  breathed  a  sphit  of 
ecclesiastical  usurpation  that  might  one  day 
become  dangerous,  many  were  of  opinion 
that  a  spirit  not  less  mischievous  in  the 
present  hieraixhy,  under  the  mask  of  the 
queen's  authority,  was  actually  manifesting 
itself  in  deeds  of  oppression.  The  upper 
ranks  among  the  laity,  setting  aside  court- 
iers, and  such  as  took  little  interest  in  the 
dispute,  were  chiefly  divided  between  those 
attached  to  the  ancient  Church  and  those 
who  wished  for  further  alterations  in  the 
new.  I  conceive  the  Church  of  England 
party,  that  is,  the  party  adverse  to  any  spe- 
cies of  ecclesiastical  change,  to  have  been 
the  least  numerous  of  the  three  during  this 
reign  ;  still  excepting,  as  I  have  said,  the 
neutrals,  who  commonly  make  a  numerical 
majority,  and  are  counted  along  with  the 
dominant  religion. f    But  by  the  act  of  the 

clergy  to  fare  as  the  apostles  did.  Cartwright  did 
not  spare  those  who  longed  to  pull  down  bishop- 
rics for  the  sake  of  plundering  them,  and  charged 
those  who  held  impropriations  with  sin.  Bancroft 
takes  delight  in  quoting  his  bitter  phrases  from 
the  Ecclesiastical  Discipline. 

*  The  old  friends  and  protectors  of  our  Reform- 
ers at  Zurich,  BuUinger  and  Gualter,  however  they 
had  favored  the  principles  of  the  first  nou-confonn- 
ists,  write  in  strong  disapprobation  of  the  innova- 
tors of  157-1. — Strype's  Annals,  ii.,  316.  And  Fox, 
the  martyrologist,  a  refuser  to  confoi-m,  speaks,  in 
a  remarkable  letter  quoted  by  Fuller  in  his  Church 
History,  p.  107,  of  factiosa  ilia  Puritanorum  capita, 
saying  that  he  is  totus  ab  iis  alienus,  and  unwill- 
ing perbacchari  in  episcopos.  The  same  is  true 
of  Bernard  Gilpin,  who  disliked  some  of  the  cere- 
monies, and  bad  subscribed  the  Articles  with  a 
reservation,  "so  far  as  agreeable  to  the  Word  of 
God ;"  but  was  wholly  opposed  to  the  new  reform 
of  Church  discipline. — Carletou's  Life  of  Gilpin, 
and  Wordsworth's  Ecclesiastical  Biography,  vol. 
iv.    Neal  has  not  reported  the  matter  faithfully. 

t  "  The  Puritan,"  says  Persons  the  Jesuit  in  1594, 
"is  more  generally  favored  throughout  the  realm 
with  all  those  which  are  not  of  the  Roman  relig- 
ion than  is  tlie  Protestant,  upon  a  certain  general 
persuasion  that  his  profession  is  the  more  perfect, 


116 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap,  TV. 


fifth  of  Elizabeth,  Roman  Catholics  were 
excluded  from  the  House  of  Commons;  or, 
if  some  that  way  aff  ected  might  occasional- 
ly creep  into  it,  yet  the  tenor  of  penal  laws 
impending  over  their  heads  would  make 
them  extremelj'  cautious  of  betraying  their 
sentiments.  This  continbuted,  with  the 
prevalent  tone  of  public  opinion,  to  tlu'ow 
such  a  weight  into  the  Pm-itanical  scale  in 
the  Commons,  as  it  required  all  the  queen's 
energy  to  counterbalance. 

In  the  Parliament  that  met  in  Apiil,  1571, 
Puritans  a  few  days  only  after  the  com- 
i^n^hrcom-  mencemeut  of  the  session,  Mr. 
mons,  Strickland,  "  a  gi'ave  and  ancient 
man  of  gi'eat  zeal,"  as  the  reporter  styles 
him,  began  the  attack  by  a  long  but  appa- 
rently temperate  speech  on  the  abuses  of 
the  Church,  tending  only  to  the  retrench- 
ment of  a  few  superstitions,  as  they  were 
thought,  in  the  Liturgy,  and  to  some  re- 
forms in  the  disposition  of  benefices.  He 
proceeded  to  bring  in  a  bill  for  the  refonna- 
tion  of  the  Common  Prayer,  which  was 
read  a  first  time.   Abuses  in  respect  to  ben- 

especially  in  great  towns,  where  preachers  have 
made  more  impression  in  the  artificers  and  burgh- 
ers than  in  the  couuti-y  people.  And  among  the 
Protestants  themselves,  all  those  that  were  less  in- 
terested in  ecclesiastical  livings,  or  other  prefer- 
ments depending  on  the  State,  are  more  affected 
coimiionly  to  the  Puritans,  or  easily  are  to  be  in- 
duced to  pass  that  way  for  the  same  reason." — 
Doleman  s  Conference  about  the  next  Succession 
to  the  Crown  of  England,  p.  242.  And  again : 
"  The  Puritan  party  at  home,  in  England,  is  thought 
to  be  most  vigorous  of  any  other,  that  is  to  saj-, 
most  ardent,  quick,  bold,  resolute,  and  to  have  a 
great  part  of  the  best  captains  and  soldiers  on  their 
side,  which  is  a  point  of  no  small  moment." — P. 
244.  I  do  not  quote  these  passages  out  of  trust  in 
Father  Persons,  but  because  they  coincide  with 
much  besides  that  has  occurred  to  me  in  reading, 
and  especially  with  the  Parliamentarj-  proceedings 
of  this  reign.  The  following  observation  will  con- 
firm (what  may  startle  some  readers  I,  that  the  Pu- 
ritans, or  at  least  those  who  rather  favored  them, 
had  a  majority  among  the  Protestant  gentrj'  in 
the  queen's  days.  It  is  agreed  on  all  hands,  and 
is  quite  manifest,  that  they  predominated  in  the 
House  of  Commons ;  but  that  house  was  composed, 
as  it  has  ever  been,  of  the  principal  landed  pro- 
prietors, and  as  much  represented  the  general  wish 
of  the  community  when  it  demanded  a  further  re- 
form in  religious  matters,  as  on  any  other  subject. 
One  would  imagine,  by  the  manner  in  which  some 
express  themselves,  that  the  discontented  were  a 
small  faction,  who  by  some  unaccountable  means, 
in  despite  of  the  government  and  the  nation,  form- 
ed a  majority  of  all  Parliaments  under  Elizabeth 
and  her  two  successors. 


I  efices  appear  to  have  been  a  copious  theme 
of  scandal.  The  power  of  dispensation, 
which  had  occasioned  so  much  clamor  in 
former  ages,  instead  of  being  abolished,  or 
even  reduced  into  bounds  at  the  Reforma- 
tion, had  been  transferred  entire  from  the 
pope  to  the  king  and  archbishop  ;  and  after 
the  Council  of  Trent  had  effected  such  con- 
siderable reforms  in  the  Catholic  discipline, 

'  it  seemed  a  sort  of  reproach  to  the  Protes- 

I  tant  Church  of  England,  that  she  retained 
all  the  dispensations,  the  exemptions,  the 

1  pluralities,  which  had  been  deemed  the  pe- 
culiar corruptions  of  the  worst  times  of  po- 
pery.* In  the  reign  of  Edward  VI.,  as  I 
have  already  mentioned,  the  canon  law  be- 
ing naturally  obnoxious  from  its  origin  and 
character,  a  commission  was  appointed  to 
draw  up  a  code  of  ecclesiastical  laws.  This 

■  was  accordingly  compiled,  but  never  obtain- 
ed the  sanction  of  Parliament ;  and  though 
some  attempts  were  made,  and  especially 
in  the  Commons  at  this  very  time,  to  bring 
it  again  before  the  Legislature,  our  ecclesi- 
astical tribunals  have  been  always  compelled 
to  borrow  a  gi-eat  part  of  their  principles 
from  the  canon  law,  one  important  conse- 
quence of  which  maj'  be  mentioned  by  way 

I  of  illustration — that  they  are  incompetent 
to  grant  a  divorce  from  the  bond  of  marriage 
in  cases  of  adulteiy,  as  had  been  provided  in 
the  reformation  of  ecclesiastical  laws  com- 
piled under  Edward  VI.  A  disorderly  state 
of  the  Church,  arising  partly  from  the  want 
of  any  fixed  niles  of  discipline,  partly  from 
the  negligence  of  some  bishops,  and  simony 
of  others,  but,  above  all,  from  the  rude  state 
of  manners  and  general  ignorance  of  the 
clergy,  is  the  common  theme  of  complaint 
in  this  period,  and  aggi'avated  the  increasing 
disaff"ection  toward  the  prelacy.  A  bill  was 
brought  into  the  Commons  to  take  away 
the  giauting  of  licenses  and  dispensations 
by  the  Ai-chbishop  of  Canterbuiy,  but  the 

*  Burnet,  iii.,  335.    Pluralities  are  still  the  great 

'  abuse  of  the  Church  of  England;  and  the  rules  on 
this  head  are  so  complicated  and  unreasonable, 

*  that  scarce  any  one  can  remember  them.  It  would 
be  diiEcult  to  prove  that,  with  a  view  to  the  inter- 
ests of  reUgion  amiong  the  people,  or  of  the  clergy 
themselves,  taken  as  a  body,  any  pluralities  of 
benefices  with  cure  of  souls  ought  to  remain,  ex- 
cept of  small  contiguous  parishes.  But  with  a 
view  to  the  interests  of  some  hundred  well-con- 

I  nected  ecclesiastics,  the  difficiiltj'  is  none  at  all. 

I  [1827.]    The  case  is  now  far  from  the  same.  1845. 


Eliz.— Paritaiis.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


117 


queen's  interference  put  a  stop  to  this  meas- 
nre.* 

The  House  of  Comnnons  gave  in  this  ses- 
sion a  more  forcible  proof  of  its  temper  in 
ecclesiastical  concerns.  The  Ai'ticles  of  the 
English  Church,  originally  drawn  up  under 
Edward  VI.,  after  having  undergone  some 
alteration,  were  finally  reduced  to  their  pres- 
ent form  by  the  convocation  of  15C2.  But 
it  seems  to  have  been  thought  necessaiy 
that  they  should  have  the  sanction  of  Par- 
liament, in  order  to  make  them  binding  on 
the  clergy.  Of  these  articles  the  far  great- 
er portion  relate  to  matters  of  faith,  concern- 
ing wliich  no  difference  of  opinion  had  as 
yet  appeared.  Some  few,  however,  declare 
the  lawfulness  of  the  established  form  of 
consecrating  bishops  and  priests,  the  su- 
premacy of  the  crown,  and  the  power  of 
the  Church  to  order  rites  and  ceremonies. 
These  involved  the  main  questions  at  is- 
sue ;  and  the  Puritan  opposition  was  sti'ong 
enough  to  withhold  the  approbation  of  the 
Legislature  from  this  part  of  the  national 
symbol.  The  act  of  13  Eliz.,  c.  12,  accord- 
ingly enacts,  that  every  pi-iest  or  minister 
shall  subscribe  to  all  the  articles  of  religion 
which  only  concern  the  confession  of  the 
true  Christian  faith,  and  the  docti'ine  of  the 
sacraments,  comprised  in  a  book  entitled 
•'Articles  whereupon  it  was  agreed,"  &c. 
That  the  word  onlij  was  inserted  for  the 
sake  of  excluding  the  articles  which  estab- 
lished Church  authority  and  the  actual  dis- 
cipline, is  evident  from  a  remarkable  con- 
versation which  Mr.  Wentworth,  the  most 
distinguished  asserter  of  civil  liberty  in  this 
reign,  relates  himself  in  a  subsequent  ses- 
sion (that  of  1575)  to  have  held  on  the  sub- 
ject with  Archbishop  Parker.  "  I  was," 
he  says,  "  among  others,  the  last  Parlia- 
ment sent  for  unto  the  Archbishop  of  Can- 
terbury, for  the  articles  of  religion  that  then 
passed  this  House.  He  asked  us,  '  Why 
we  did  put  out  of  the  book  the  articles  for 
the  Homilies,  Consecration  of  Bishops,  and 
such  like  V  '  Surely,  sir,'  said  I,  '  because 
we  were  so  occupied  in  other  matters  that 
we  had  no  time  to  examine  them  how  they 
agreed  with  the  Word  of  God.'  'What!' 
said  he,  'surely  you  mistake  the  matter; 
you  will  refer  yourselves  wholly  to  us  thei-e- 
in !'   '  No  ;  by  the  faith  I  bear  to  God,'  said 

*  D'EweSip.  156.   Parliament.  Hist.,  i.,  733,  &c. 


I,  '  we  will  pass  nothing  before  wo  under- 
stand what  it  is ;  for  that  were  but  to  make 
you  popes  :  make  you  popes  who  list,'  said 
I,  '  for  we  will  make  you  none.'  And  sure, 
Mr.  Speaker,  the  speech  seemed  to  me  to 
be  a  pope-like  speech,  and  I  fear  least  our 
bishops  do  attribute  this  of  the  pope's  can- 
ons unto  themselves ;  Papa  non  protest  er- 
rare."*  The  intrepid  assertion  of  the  right 
of  private  judgment  on  one  side,  and  the 
pretension  to  something  like  infallibility  on 
the  other,  which  have  been  for  more  than 
two  centuries  since  so  incessantly  repeated, 
are  here  curiously  brought  into  contrast. 
As  to  the  reservation  itself,  obliquely  insin- 
uated rather  than  expressed  in  this  statute, 
it  proved  of  little  practical  importance,  the 
bishops  having  always  exacted  a  subscrip- 
tion to  the  whole  Thuty-nine  Articles. f 

*  D'Ewes,  p.  239.  Pari.  Hist.,  790.  Btiypes 
Life  of  Parker,  39-4. 

Ill  a  debate  between  Cardinal  Carvajal,  and 
Rockisane,  the  famous  Calixtiu  Archbishop  of 
PragTie,  at  the  Council  of  Basle,  the  foiTuer  said  he 
would  reduce  the  whole  argument  to  two  sylla- 
bles, Crede.  The  latter  replied  he  would  do  the 
same,  and  confine  himself  to  two  others,  Proba. 
L'Enfant  makes  a  very  just  observation  on  this  : 
"  Si  la  gravite  de  I'histoire  le  pennettoit,  on  diroit 
avec  le  comique ;  C'est  tout  comme  ici.  II  y  a 
long  tems  que  le  premier  de  ces  mots  est  le  lan- 
gage  de  ce  qu'on  appelle  I'Eglise,  et  que  le  se- 
cond est  le  langage  de  ce  qu'on  appelle  I'hirisie." — 
Coucile  de  Basle,  p.  193. 

t  Several  ministers  were  deprived  in  1572  for 
refusing  to  subscribe  the  Articles. — Strype,  ii.,  186. 
Unless  these  were  papists,  which  indeed  is  possi- 
ble, their  objection  must  have  been  to  the  articles 
touching  discipline,  for  the  Puritans  liked  the  rest 
very  well.  [The  famous  dispute  about  the  first 
clause  of  the  20th  article,  which  was  idly  alleged 
by  the  Puritans  to  have  been  interpolated  by  Laud, 
is  settled,  conclusively  enough,  in  Cardwell's  Syn- 
odalia,  vol.  i.,  p.  38,  53.  The  questions  are,  1. 
Whether  this  clause  was  fonnally  accepted  by 
convocation,  and,  2.  Whether  it  was  confirmed  by 
Parliament.  It  is  not  found  in  the  manuscript,  be- 
ing a  rough  draught  of  the  Articles,  bequeathed  by 
Parker  to  Corpus  Christi  College,  Cambridge, 
signed  by  all  the  convocation  of  1562 :  which,  not- 
withstanding the  interlineations,  must  be  taken  as 
a  final  document,  so  far  as  their  intentions  prevail- 
ed. Nor  is  it  found  in  the  first  English  edition, 
that  of  1563.  It  is  found,  however,  in  a  Latin  edi- 
tion of  the  same  year,  of  which  one  copy  exists  in 
the  Bodleian  library,  which  belonged  to  Selden, 
and  is  said  to  have  been  obtained  by  him  from 
Laud's  library,  though  I  am  not  aware  how  this  is 
proved.  To  this  copy  is  appended  a  parchment, 
with  the  signatures  of  the  Lower  House  of  Con- 
vocation in  1571,  "  but  not  in  such  a  maimer,"  says 
Dr.  C,  "  as  to  prove  that  it  originally  belonged  to 


118 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IV. 


It  was  not  to  be  expected  that  the  haughty 
spirit  of  Parker,  which  had  refused  to  spare 
the  honest  sci-uples  of  Sampson  and  Cover- 
dale,  would  abate  of  its  rigor  toward  the 
daring  paradoxes  of  Cartwright.  His  dis- 
ciples, in  truth,  from  dissatisfied  subjects  of 
the  C'hurch,  were  become  her  downright 
rebels,  with  whom  it  was  hardly  practica- 
ble to  make  any  compromise  that  would 
avoid  a  schism,  except  by  sacrificing  the 
splendor  and  jurisdiction  of  an  established  hi- 
erarchy. The  archbishop  continued,  there- 
fore, to  hai'ass  the  Puritan  ministers,  sup- 
pressing their  books,  silencing  them  in 
churches,  prosecuting  them  in  private  meet- 

the  book."  This  would,  of  course,  destroy  its  im- 
portance ia  evidence  ;  but  I  most  freely  avow,  that 
my  own  impression  on  inspection  was  different, 
though  it  is  very  possible  that  I  was  deceived.  It 
seems  certainly  strange  that  the  Lower  House  of 
Convocation  should  have  thus  attested  a  single 
copy  of  a  printed  book. 

The  supposition  of  Dr.  Lamb,  dean  of  Bristol, 
which  Dr.  Cardwell  seems  to  adopt,  is,  that  the 
queen,  by  lier  own  authority,  caused  this  clause  to 
be  inserted  after  the  dissolution  of  the  Convocation, 
and  probably>to  be  entered  on  the  register  of  that 
assembly,  to  which  Laud  refers,  in  his  speech  in 
the  Star  Chamber,  1637,  but  which  was  buiued  in 
the  fire  of  London.  We  may  conjecture  that  Par- 
ker had  urged  the  adoption  of  it  upon  the  Convoca- 
tion without  success,  and  had  therefore  recourse  to 
the  supremacy  of  his  sovereign.  But,  according  to 
any  principles  which  have  been  recognized  in  the 
Church  of  England,  the  arbitrary  nature  of  that  ec- 
clesiastical supremacy,  so  as  to  enact  laws  with- 
out consent  either  of  convocation  or  of  Parliament, 
can  not  be  admitted ;  and  this  famous  clause  may 
be  said  to  have  wanted  legal  authority  as  a  cou- 
Btitution  of  the  Church. 

But  there  seems  no  doubt  that  it  wanted  still 
more  the  confirmation  of  the  temporal  Legislature. 
The  statute  establishing  the  Articles  (13  EHz.,  c. 
12)  refers  to  "  a  book  imprinted,  intituled  Articles, 
whereupon  it  was  agreed  by  the  archbishops  and 
bishops  of  both  provinces,  &c.,"  following  the  title 
of  the  English  edition  of  1.563,  the  only  one  which 
then  existed,  besides  the  Latin  of  the  same  year. 
And  from  this  we  may  infer  that  the  Commons 
either  knew  of  no  such  clauses,  or  did  not  mean  to 
confirm  it,  which  is  consonant  to  the  temper  they 
showed  on  this  subject,  as  may  be  seen  in  the  text. 

In  a  great  majority  of  editions  subsequent  to 
1571,  the  clause  was  inserted ;  and  it  had  doubt- 
less obtained  universal  reception  long  before  Laud. 
The  Act  of  Uniformity,  13  &  14  Car.  2,  c.  4,  mere- 
ly refers  to  13  Eliz.,  and  leaves  the  legal  operation 
as  before. 

It  is  only  to  be  added,  that  the  clause  contains 
little  that  need  alarm  any  one,  being  in  one  part 
no  more  than  the  34th  article,  and  in  the  other,  be- 
ing sufficiently  secured  from  misintei-pretation  by 
the  context,  as  well  as  by  other  articles.  [1845.] 


ings.*  Sandys  and  Giindal,  the  moderate 
reformers  of  our  spiritual  aristocracy,  not 
only  withdrew  their  countenance  from  a 
party  who  aimed  at  improvement  by  sub- 
version, but  fell,  according  to  the  unhappy 
temper  of  their  age,  into  courses  of  undue 
severity.  Not  merely  the  preachers,  to 
whom,  as  regular  ministers,  the  rules  of 
canonical  obedience  might  apply,  but  plain 
citizens,  for  listening  to  their  sermons,  were 
dragged  before  the  High  Commission,  and 
imjn-isoned  upon  any  refusal  to  conform.f 
Strange  that  these  prelates  should  not  have 
remembered  their  own  magnanimous  read- 
iness to  encounter  suffering  for  conscience' 
sake  in  the  days  of  Marj-,  or  should  have 
fondly  aiTogated  to  their  particular  church 
that  elastic  force  of  resolution,  which  dis- 
dains to  acknowledge  tyrannous  power  with- 
in the  sanctuary  of  the  soul,  and  belongs  to 
the  martyrs  of  eveiy  opinion  without  attest- 
ing the  truth  of  any  ! 

The  Puritans,  meanwhile,  had  not  lost 
all  their  friends  in  the  council, 

,        ,    .    1     T  ,  some 

though  It  had  become  more  dim-  measure  by 
cult  to  protect  them.  One  pow-  ""^ 
eiful  reason  undoubtedly  operated  on  Wal- 
singham  and  other  ministers  of  Elizabeth's 
court  against  crushing  their  party,  namely, 
the  precariousness  of  the  queen's  life,  and 
the  unsettled  prospects  of  succession.  They 
had  already  seen  in  the  Duke  of  Norfolk's 
conspiracy  that  more  than  half  the  superior 
nobUity  had  committed  themselves  to  sup- 
port the  title  of  the  Queen  of  Scots.  That 
title  was  sacred  to  all  who  professed  the 
Catholic  religion,  and  respectable  to  a  large 
proportion  of  the  rest.  But  deeming,  as 
they  did,  that  queen  a  convicted  adulteress 
and  murderer,  the  determined  enemy  of 
their  faitli,  and  conscious  that  she  could 
never  forgive  those  who  had  counseled  her 
detention  and  sought  her  death,  it  would 
have  been  unworthy  of  their  prudence  and 
magnanimity  to  have  gone  as  sheep  to  the 

*  Neal,  187.  Strj-pe's  Parker,  3-25.  Parker 
wrote  to  Lord  Burleigh  (June,  1573),  exciting  the 
council  to  proceed  against  some  of  those  men  who 
had  been  called  before  the  Star  Chamber.  "  He 
knew  them,"  he  said,  "  to  be  cowards" — a  very 
great  mistake — "  and  if  they  of  the  priN-y  council 
gave  over,  they  would  hinder  her  majesty's  gov- 
enmient  more  than  they  were  aware,  and  much 
abate  the  estimation  of  their  own  authorities,"  &c. 
— Id.,  p.  421.  Cartwright's  Admonition  was  now 
prohibited  to  be  sold.— Ibid.  t  Neal,  210. 


Eliz.— Puritana.] 


FROM  HEXIIY  VII.  TO  GEOEGE  H. 


119 


slaughter,  and  risked  tlie  desti'uction  of 
Protestantism  under  a  second  Mary,  if  the 
inti'igues  of  ambitious  men,  the  pusillanimi- 
ty of  the  nmltitude,  and  the  specious  pre- 
text of  hereditary  right,  should  favor  her 
claims  on  a  demise  of  the  crown.  They 
would  have  failed,  perhaps,  in  attempting 
to  resist  them  ;  but  upon  resistance  I  make 
no  question  that  they  had  resolved.  In  so 
awful  a  crisis,  to  what  could  they  better 
look  than  to  the  stern,  inti'epid,  uncompro- 
mising spirit  of  Puritanism  ;  congenial  to 
that  of  the  Scottish  Reformers,  by  whose 
aid  the  lords  of  the  congregation  had  over- 
thrown the  ancient  rehgion  in  despite  of  the 
regent  Mary  of  Guise  ?  Of  conforming 
churclimen,  in  general,  they  might  well  be 
doubtful,  after  tlie  oscillations  of  the  three 
preceding  reigns ;  but  every  abhorror  of  cer- 
emonies, every  rejecter  of  prelatical  author- 
ity, might  be  trusted  as  Protestant  to  the 
heart's  core,  whose  sword  would  be  as  ready 
as  his  tongue  to  withstand  idolatry.  Nor 
had  the  Puritans  admitted,  even  in  theory, 
those  extravagant  notions  of  passive  obedi- 
ence which  the  Church  of  England  had 
thought  fit  to  mingle  with  her  homilies. 
While  the  victory  was  yet  so  uncertain, 
while  contingencies  so  incalculable  might 
renew  the  struggle,  all  politic  friends  of 
the  Reformation  would  be  anxious  not  to 
strengthen  the  enemy  by  disunion  in  their 
own  camp.  Thus  Sir  Francis  Walsingham, 
who  had  been  against  enforcing  the  obnox- 
ious habits,  used  his  influence  with  the  scru- 
pulous not  to  separate  from  the  Church  on 
account  of  them ;  and  again,  when  the  schism 
had  already  ensued,  thwarted,  as  far  as  his 
credit  in  the  council  extended,  that  harsh 
intolerance  of  the  bishops  which  aggravated 
its  mischiefs.* 

We  should  reason  in  as  confined  a  man- 
ner as  the  Puritans  themselves,  by  looking 
only  at  the  captious  frivolousness  of  their 
scruples,  and  treating  their  sect  either  as 
wholly  contemptible  or  as  absolutely  mis- 
chievous. We  do  injustice  to  these  wise 
counselors  of  the  maiden  queen  when  we 
condemn— I  do  not  mean  on  the  maxims 
only  of  toleration,  but  of  civil  prudence — 
their  unwillingness  to  crush  the  non-con- 
forming clergy  by  an  undeviating  rigor.  It 
may  justly  be  said  that,  in  a  religious  sense, 
it  was  a  greater  good  to  possess  a  well- 
*  Strype's  Annals,  1.,  433. 


instructed  pious  clergy,  able  to  contend 
against  popery,  than  it  was  an  evil  to  let 
some  prejudices  against  mere  ceremonies 
gain  a  head.  The  old  religion  was  by  no 
means,  for  at  least  the  first  half  of  Eliza- 
beth's reign,  gone  out  of  the  minds  of  the 
people.  The  lurking  priests  had  gi-eat  ad- 
vantages from  the  attractive  nature  of  their 
faith,  and  some,  no  doubt,  from  its  persecu- 
tion. A  middle  system,  like  the  Anglican, 
though  it  was  more  likely  to  produce  exte- 
rior conformity,  and  for  that  reason  was,  I 
think,  judiciously  introduced  at  the  outset, 
did  not  afford  such  a  security  against  re- 
lapse, nor  draw  over  the  heart  so  thorough- 
ly, as  one  which  admitted  of  no  compro- 
mise. Thus  the  sign  of  the  cross  in  bap- 
tism, one  of  the  principal  topics  of  objection, 
may  well  seem  in  itself  a  very  innocent  and 
decorous  ceremony.  But  if  the  perpetual 
use  of  that  sign  is  one  of  the  most  striking 
superstitions  in  the  Church  of  Rome,  it 
might  be  urged  in  behalf  of  the  Puritans, 
that  the  people  were  less  likely  to  treat  it 
with  contempt,  when  they  saw  its  continu- 
ance, even  in  one  instance,  so  sti-iclly  insist- 
ed upon.  1  do  not  pretend  to  say  that  this 
reasoning  is  right,  but  that  it  is  at  least 
plausible,  and  that  we  must  go  back  and 
place  ourselves,  as  far  as  we  can,  in  those 
times,  before  we  determine  upon  the  whole 
of  this  controversy  in  its  manifold  bearings. 
The  gi'eat  object  of  Elizabeth's  ministers,  it 
must  be  kept  in  mind,  was  the  preservation 
of  the  Protestant  religion,  to  which  all  cer- 
emonies of  the  Church,  and  even  its  form 
of  discipline,  were  subordinate.  An  indif- 
ferent passiveness  among  the  people,  an 
humble  trust  in  authority,  however  desira- 
ble in  the  eyes  of  churchmen,  was  not  the 
temper  which  would  have  kept  out  the 
right  heir  from  the  throne,  or  quelled  the 
generous  ardor  of  the  Catholic  gentry  on 
the  queen's  decease. 

A  matter  veiy  much  connected  with  the 
present  subject  will  illustrate  the  Prophcsy- 
different  schemes  of  ecclesiastical  '"ss- 
policy  pursued  by  the  two  parties  that  di- 
vided Elizabeth's  council.  The  clergy  in 
several  dioceses  set  up,  with  encourage- 
ment from  their  superiors,  a  certain  relig- 
ious exercise,  called  prophesyings.  They 
met  at  appointed  times  to  expound  and  dis- 
cuss together  particular  texts  of  Scripture, 
under  the  presidency  of  a  moderator,  ap- 


120 


COXSTITUTIONAL  HISTOllY  OF  ENGLAND 


[Chap.  IV. 


pointed  by  the  bishop,  who  finished  by  re- 
peating the  substance  of  tlieir  debate,  with 
his  own  doteriiiiniition  upon  it.    These  dis- 
cussions were  in  public  ;  and  it  was  con- 
tended that  tliis  sifting  of  the  grounds  of 
their  faith,  and   habitual  argumentation, 
would  both  tend  to  edify  the  people,  very 
little  acquainted  as  yet  with  their  religion, 
and  supply  in  some  degree  the  deficien- 
cies of  learning  among  the  pastors  them- 
selves.   These  deficiencies  were  indeed 
glaring;  and  it  is  not  unlikely  that  the 
prophesyings  might  have  had  a  salutary  ef- 
fect, if  it  had  been  possible  to  exclude  the 
pi-evailing  spirit  of  the  age.    It  must,  how- 
ever, be  evident  to  any  one  who  had  expe- 
rience of  mankind,  that  the  precise  clergy, 
armed  not  only  with  popular  topics,  but 
with  an  intrinsic  superiority  of  learning  and 
ability  to  support  them,  would  wield  these 
assemblies  at  their  pleasure,  whatever  might 
be  the  regulations  devised  for  tlieir  control. 
The  queen  entirely  disliked  them,  and  di- 
rected Parker  to  put  them  down.  He 
wrote  accordingly  to  Parkhurst,  bishop  of 
Norwich,  for  that  purpose.    The  bishop 
was  unwilling  to  comply.    And  some  privy- 
counselors  interfered  by  a  letter,  enjoining 
him  not  to  hinder  those  exercises,  so  long  as 
nothing  conhary  to  the  Church  was  taught 
tlierein.    This  letter  was  signed  by  Sir 
Thomas  Smith,  Sir  Walter  Mildmay,  Bish- 
op Sandys,  and  Sir  Francis  KnoUys.  It 
was,  in  effect,  to  reverse  what  the  arch- 
bishop had  done.    Parker,  however,  who 
was  not  easily  daunted,  wrote  again  to 
Pai'khurst,  that,  understanding  he  had  re- 
ceived instructions  in  opposition  to  the 
queen's  orders  and  his  own,  he  desired  to 
be  informed  what  they  were.    This  seems 
to  have  checked  the  counselors,  for  we  find 
tliat  the  prohesyings  were  now  put  down.* 
Though  many  will  be  of  ojiinion  that 
Parker  took  a  statesmanlike  view  of  the 
interests  of  the  Church  of  England  in  dis- 
couraging these  exercises,  they  were  gen- 
erally regarded  as  so  conducive  to  instruc- 
tion that  he  seems  to  have  stood  almost 
alone  in  his  opposition  to  them.  Sandys's 
name  appears  to  the  above-mentioned  letter 
of  the  council  to  Parkhurst.   Cox,  also,  was 
inclined  to  favor  the  prophesyings ; 
Grindal.        Grindal,  who  in  1575  succeeded 

*  Strype's  Annals,  ii.,  219,  322.    Life  of  Parker, 
461. 


Parker  in  the  see  of  Canterbury,  bore  the 
whole  brunt  o^the  queen's  displeasure  rath- 
er than  obey  her  commands  on  this  subject. 
He  conceived  that,  by  establishing  strict 
rules  with  respect  to  the  direction  of  those 
assemblies,  the  abuses,  which  had  already 
appeared,  of  disorderly  debate,  and  attacks 
on  the  disci()line  of  the  Church,  might  be 
got  rid  of  without  entirely  abolishing  the 
exercise.  The  queen  would  hear  of  no 
middle  course,  and  insisted  both  that  the 
prophesyings  should  be  discontinued,  and 
that  fewer  licenses  for  preaching  should  be 
granted.  For  no  parish  priest  could  with- 
out a  license  preach  any  discourse  except 
the  regular  homilies ;  and  this  was  one  of 
the  points  of  contention  with  the  Puritans.* 
Grindal  steadily  refused  to  comply  with  this 
injunction,  and  was,  in  consequence,  se- 

*  [In  one  of  the  canons,  enacted  by  Convocation 
in  1571,  and  on  which  rather  an  undue  stress  has 
been  laid  in  late  conti-oversies,  we  find  a  restraint 
laid  on  the  teaching  of  the  clerg-y  in  their  Bermons, 
who  were  enjoined  to  preach  nothing  but  what 
was  agreeable  to  Scripture,  and  had  been  collect- 
ed out  of  Scripture  by  the  Catholic  fathers  and  an- 
cient bishops.  Imprimis  videbunt  coucionatores, 
ne  <iuid  miquam  doceant  pro  coucione,  quod  a  pop- 
ulo  religiose  teucri  ct  credi  velint,  nisi  quod  con 
sentaneum  sit  doctrinae  veteris  aut  novi  testamenti, 
quodque  ex  illii  ipsa  doctrina  Catholici  patres  et 
veteres  episcopi  coUegeiint.  Tliis  appears  to  have 
been  directed,  in  the  first  place,  against  those  who 
made  use  of  scholastic  authorities,  and  the  doctors 
of  the  last  four  or  five  ages,  to  wliom  the  Church  « 
of  Rome  was  fond  of  appealing ;  and,  secondly, 
against  those  who,  with  Uttle  learning  or  judgment, 
set  up  their  own  interpretations  of  Scrijjture. 
Against  both  those  it  seemed  wise  to  guaid,  by 
directing  preachers  to  the  early  fathers,  whose  au- 
thority was  at  least  better  than  that  of  Romish 
schoolmen  or  modern  sciolists.  It  is  to  be  remem- 
bered, that  the  exegetical  part  of  di\'inity  was  not 
in  the  state  in  which  it  is  at  present.  Most  of  the 
writers  to  whom  a  modem  preacher  has  recourse 
were  unborn.  But  that  the  contemporai-y  Refoi-m- 
ers  were  not  held  in  low  estimation  as  guides  in 
scriptural  interpretation,  appears  by  the  injunction 
given  some  years  afterward  that  every  clergjman 
should  provide  himself  witli  a  copy  of  BuUinger's 
Decades.  The  authorit)'  given  in  the  above  canon 
to  the  fathers  was  certainly  not  a  presumptive 
one ;  and,  such  as  it  was,  it  was  given  to  each  in- 
dividually, not  to  the  whole  body,  on  any  notion  of 
what  has  been  called  Catholic  consent,  since  how 
was  a  poor  English  preacher  to  ascertain  tliis  ? 
The  real  question  as  to  the  authority  of  the  fathers 
in  our  Church  is  not  whether  they  ai-e  not  copious- 
ly quoted,  but  whether  our  theologians  surrender- 
ed their  own  opinion,  or  that  of  their  side,  in  def- 
erence to  such  authority  when  it  made  against 
,  them.  1845.] 


Eliz— Pu  itans.] 

questered  fi'om  the  exercise  of  his  jurisdic- 
tion for  the  space  of  about  five  years,  till, 
on  his  making  a  kind  of  submission,  the  se- 
questration was  taken  off  not  long  before 
his  death.  The  queen,  by  circular  letters 
to  the  bishops,  coramnnded  them  to  put  an 
end  to  the  prophesyings,  which  were  never 
afterward  renewed.* 

Whitgift,  bishop  of  Worcester,  a  person 
of  a  very  opposite  disposition,  was 
promoted,  m  1583,  to  the  pnmacy, 
on  Grindal's  decease.  He  had  distinguish- 
ed himself  some  years  before  by  an  answer 
to  Cartwright's  Admonition,  written  with 
much  ability,  but  not  falling  short  of  the 
work  it  undertook  to  confute  in  rudeness 
and  asperity. f  It  is  seldom  good  policy  to 
confer  sucVi  eminent  stations  in  the  Church 
on  the  gladiators  of  theological  controvei'sy, 
who,  from  vanity  and  resentment,  as  well  as 
the  course  of  their  studies,  will  always  be 
prone  to  exaggerate  the  importance  of  the 
disputes  wherein  they  have  be^en  engaged, 
and  to  turn  whatever  authority  the  laws  or 
the  influence  of  their  place  may  give  them 
against  their  adversaries.  This  was  fully 
illustrated  by  the  conduct  of  Archbisliop 
Whitgift,  whose  elevation  the  wisest  of 
Elizabeth's  counselors  had  ample  reason  to 
,  .  regret.    In  a  few  months  after 

His  conduct 

ill  enforcing  his  promotion,  he  gave  an  earnest 
conformity.  ^j^^  j-igoi-  he  had  determined  to 
adopt,  by  promulgating  articles  for  the  ob- 
servance of  discipline.  One  of  these  pro- 
hibited all  preaching,  reading,  or  catechising 

*  Strype's  Life  of  Grindal,  S>19,  230,  272.  The 
archbishop's  letter  to  the  queen,  declaring  his  un- 
willingness to  obey  her  requisition,  is  in  a  far 
bolder  strain  than  the  prelates  were  wont  to  use 
in  this  reign,  and  perhaps  contributed  to  the  sever- 
ity she  showed  toward  him.  Grindal  was  a  very- 
honest,  conscientious  man,  but  too  little  of  a  court- 
ier or  statesman  for  the  place  he  filled.  He  was 
on  the  point  of  resigning  the  archbishopric  when 
he  died ;  there  had  at  one  time  been  some  thoughts 
of  depriving  him. 

t  Sti-ype's  Whitgift,  27,  et  alibi.  He  did  not 
disdain  to  reflect  on  Cartwriglit  for  his  poverty,  the 
consequence  of  a  scrupulous  adiierence  to  his  prin- 
ciples. But  the  controversial  writers  of  evei-y 
side  in  the  sixteenth  century  display  a  -want  of 
decency  and  humanity  which  even  our  anonymous 
libclers  have  hardly  matched.  Whitgift  was  not 
of  much  learning,  if  it  be  true,  as  the  editors  of  the 
Biographia  Britaimica  intimate,  that  he  had  no  ac- 
quaintance with  the  Greek  language.  This  must 
seem  strange  to  those  who  have  an  exaggerated 
notion  of  the  scholarship  of  that  age. 


121 

in  private  houses,  whereto  any  not  of  the 
same  family  should  resort,  "  seeing  the  same 
was  never  permitted  as  lawful  imder  any 
Christian  magistrate."  But  that  which  ex- 
cited the  loudest  complaints  was  the  sub- 
scription to  three  points,  the  queen's  su- 
premacy, the  lawfulness  of  the  Common 
Prayer  and  Ordinary  Service,  and  the  truth 
of  the  whole  Thirty-nine  Articles,  exacted 
from  every  minister  of  the  Church.*  These, 
indeed,  were  so  far  from  novelties,  that  it 
might  seem  rather  supererogatory  to  de- 
mand them  (if,  in  fact,  the  law  required  sub- 
scription to  all  the  articles) ;  yet  it  is  highly 
probable  that  many  had  hitherto  eluded  the 
legal  subscriptions,  and  that  others  had  con- 
ceived their  scruples  after  having  conformed 
to  the  prescribed  order.  The  archbishop's 
peremptory  requisition  passed,  perhaps  just- 
ly, for  an  illegal  stretch  of  power,  f  It  en- 
countered the  resistance  of  men  pertina- 
ciously attached  to  their  own  tenets,  and 
ready  to  suffer  the  privations  of  poverty 
rather  than  yield  a  simulated  obedience. 
To  suffer,  however,  in  silence,  has  at  no 
time  been  a  virtue  with  our  Protestant  dis- 
senters. The  kingdom  resounded  with  the 
clamor  of  those  who  were  suspended  or  de- 
prived of  their  benefices,  and  of  their  nu- 
merous abettors. t    They  appealed  from 

,  *  Shype's  Whitgift,  115. 

t  Neal,  2G6.  Birch's  Memoirs  of  Elizabeth,  vol. 
i.,  p.  42,  47,  &c. 

t  According  to  a  paper  in  the  appendix  to 
Strype's  Life  of  Whitgift,  p.  60,  the  number  of 
conformable  ministers  in  eleven  dioceses,  not  in- 
cluding those  of  London  and  Norwich,  the  strong- 
holds of  Puritanism,  was  786,  that  of  non-compliers, 
49.  But  Neal  says  that  233  ministers  were  sus- 
pended in  only  six  counties,  64  of  whom  in  Nor- 
folk, 60  in  Suffolk,  38  in  Essex,  p.  268.  The  Puri- 
tans foi-med  so  much  the  more  learned  and  diligent 
part  of  the  clergy,  that  a  great  scarcity  of  preach- 
ers was  experienced  throughout  this  reign,  in  con- 
sequence of  silencing'  so  many  of  the  former.  Thus 
in  Cornwall,  about  the  year  1578,  out  of  140  clergy- 
men, not  one  was  capable  of  preaching. — Neal,  p. 
245.  And,  in  general,  the  number  of  those  who 
could  not  preach,  but  only  read  the  seii'ice,  was  to 
the  others  nearly  as  four  to  one,  the  preachers  being 
a  majority  only  in  London. — Id.,  p.  320. 

This  may  be  deemed  by  some  an  instance  of 
Neal's  prejudice.  But  that  historian  is  not  so  ill- 
informed  as  they  suppose  ;  and  the  fact  is  hig/ily 
probable.  Let  it  be  remembered  that  there  exist- 
ed few  books  of  divinity  in  English  ;  that  all  books 
were,  comparatively  to  tlie  value  of  money,  far 
dearer  than  at  present;  that  the  majority  of  the 
clergy  were  nearly  illiterate,  and  many  of  them 
addicted  to  dmnlienness  and  low  vices  ;  above  all, 


FROM  HENRY  VII.  TO  GEORGE  II. 


122 


COXSTITUTIOXAL  HISTORY  OF  ENGLAJTD 


[Chap.  IV. 


the  archbishop  to  the  privy  council.  The 
gently  of  Kent  and  other  counties  strongly 
interposed  in  their  behalf.  They  had  pow- 
erful friends  at  court,  especially  Knollys, 
who  wrote  a  warm  letter  to  the  archliish- 
op.*  But,  secure  of  the  queen's  support, 
who  wiis  now  chieflj'  under  the  influence 
of  Sir  Christopher  Hatton,  a  decided  ene- 
my to  the  Puritans,  Whitgift  relented  not 
a  jot  of  his  resolution,  and  went  far  greater 
lengths  than  Parker  had  ever  ventured,  or 
perhaps  had  desired,  to  proceed. 

The  Act  of  Supremacy,  Avhile  it  restored 
„.  ,  „      all  ecclesiastical  jurisdiction  to  the 

High  Com-  •' 

mission      crown,  empowered  the  queen  to 
Court.       execute  it  by  commissioners  ap- 
pointed under  the  great  seal,  in  such  man- 
ner and  for  such  time  as  she  should  direct ; 
whose  power  should  extend  to  visit,  coiTect, 
and  amend  all  heresies,  schisms,  abuses,  and 
offenses  whatever,  which  fall  under  the  cog- 
nizance and  are  subject  to  the  correction 
of  spiritual  authority.    Several  temporarj" 
commissions  had  sat  under  this  act,  with 
continually  augmented  powers,  before  that 
appointed  in  1583,  wherein  the  jurisdiction 
of  this  anomalous  court  almost  reached  its 
zenith.    It  consisted  of  forty-four  commis- 
sioners, twelve  of  whom  were  bishops,  many 
more  privy-counselors,  and  the  rest  either 
clergj'men  or  civilians.    This  commission, 
after  reciting  the  Acts  of  Supremacy,  Uni- 
formitj-,  and  two  others,  directs  them  to  in- 
quLi'e  from  time  to  time,  as  well  by  the  oaths 
of  twelve  good  and  lawful  men,  as  by  wit- 
nesses and  all  other  means  they  can  devise, 
of  all  offenses,  contempts,  or  misdemeanors 
done  and  committed  contrary  to  the  tenor 
of  the  said  several  acts  and  statutes  ;  and 
also  to  inquire  of  all  heretical  opinions,  se- 
ditious books,  contempts,  conspiracies,  false 
rumors  or  talks,  slanderous  words  and  say- 
ings, &c.,  contrary  to  the  aforesaid  laws. 
Power  is  given  to  any  three  commission- 
ers, of  whom  one  must  be  a  bishop,  to  pun- 
ish all  persons  absent  from  church,  accord- 
ing to  the  Act  of  Uniformity,  or  to  visit  and 
reform  heresies  and  schisms  according  to 
law ;  to  deprive  all  beneficed  persons  hold- 


ing any  doctrine  contrary  to  the  Thirty-nine 
Articles;  to  punish  incests,  adulteries,  and 
all  offenses  of  the  kind  :  to  examine  all  sus- 
pected persons  on  their  oaths,  and  to  pun- 
ish all  who  should  refuse  to  appear  or  to 
obey  their  orders,  by  spiritual  censure,  or 
by  discretionary  fine  or  imprisonment;  to 
alter  and  amend  the  statutes  of  colleges,  ca- 
thedrals, schools,  and  other  foundations,  and 
to  tender  the  oath  of  supremacy  according 
to  the  act  of  Parliament.* 

Master  of  such  tremendous  machinery, 
the  archbishop  proceeded  to  call  into  action 
one  of  its  powers,  contained  for  the  first 
time  in  the  present  commission,  by  tender- 
ing what  was  technically  styled  the  oath  ex 
officio  to  such  of  the  clergy  as  were  sur- 
mised to  harbor  a  spirit  of  Puritanical  disaf- 
fection. This  procedure,  which  was  whol- 
ly founded  on  the  canon  law,  consisted  in  a 
series  of  interrogations,  so  comprehensive 
as  to  embrace  the  whole  scope  of  clerical 
uniformitj-,  yet  so  precise  and  minute  as  to 
leave  no  room  for  evasion,  to  which  the  sus- 
pected party  was  bound  to  answer  upon 
oath.f  So  repugnant  was  this  to  the  rules 
I  of  our  English  law  and  to  the  principles  of 
I  natural  equity,  that  no  species  of  ecclesias- 
tical tyranny  seems  to  have  excit-  ,    ,  _ 

•'         •'  Lord  Bar- 

ed so  much  indignation.    Lord  leigh  averse 

Burleigh,  who,  though  at  first  ^"  ^"^"'y- 

rather  friendly  to  Whitgift,  was  soon  dis- 


that  they  had  no  means  of  supplying  their  deficien- 
cies by  preaching  the  discourses  of  others ;  and  we 
shall  see  little  caose  for  doubting  Neal's  state- 
ment, though  founded  on  a  Paritan  document. 

*  Life  of  Whitgift,  137,  et  alibi.  Annals,  ill., 
183. 


*  Neal,  274.    Strj-pe's  Annals,  iii.,  180. 

The  germ  of  the  High  Commission  Court  seems 
to  have  been  a  commission  granted  by  Mary  (Feb., 
1547 J  to  certain  bishops  and  others  to  inquire  after 
all  heresies,  punish  persons  misbehaving  at  church, 
and  such  as  refused  to  come  thither,  either  by 
means  of  presentments  by  witness,  or  any  other 
politic  way  they  could  devise  ;  with  full  power  to 
proceed  as  their  discretions  and  consciences  should 
direct  them,  and  to  use  all  such  means  as  they  could 
invent  for  the  searching  of  the  premises,  to  call 
witnesses,  and  force  them  to  make  oath  of  such 
things  as  might  discover  what  they  sought  after. — 
Burnet,  ii.,  347.  But  the  primary  model  was  the 
Inquisition  itself. 

It  was  questioned  whether  the  power  of  depri- 
vation for  not  reading  the  Common  Prayer,  granted 
to  the  high  commissioners,  were  legal,  the  Act  of 
Uniformity  having  annexed  a  much  smaller  penal- 
ty. Bat  it  was  held  by  the  judges  in  the  case  of 
Cawdrey  (5  Coke's  Reports),  that  the  act  did  not 
take  away  the  ecclesiastical  jurisdiction  and  su- 
premacy which  had  ever  appertained  to  the  crown, 
and  by  virtue  of  which  it  might  erect  courts  with 
as  full  spiritual  jurisdiction  as  the  archbishops  and 
bishops  exercised. 

t  Strj-pe's  Whitgift,  135  ;  and  Appendix,  49. 


Euz. — Puritans.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


123 


gusted  by  his  intolerant  and  arbitraiy  behav- 
ior, wrote  in  strong  terms  of  remonstrance 
against  these  articles  of  examination,  as  "so 
cm-iously  penned,  so  full  of  brunches  and 
circumstances,  as  he  thought  the  inquisitors 
of  Spain  used  not  so  many  questions  to  com- 
prehend and  to  trap  their  preys."  The  pri- 
mate replied  by  alleging  reasons  in  behalf 
of  the  mode  of  examination,  but  very  friv- 
olous, and  such  as  a  man  determined  to  per- 
severe in  an  unwarrantable  course  of  action 
may  commonly  find.*  They  had  little  ef- 
fect on  the  calm  and  sagacious  mind  of  the 
treasurer,  who  continued  to  express  his  dis- 
satisfaction, both  individually  and  as  one  of 
the  privy  council. f  But  the  extensive  ju- 
risdiction improvidently  granted  to  the  ec- 
clesiastical commissioners,  and  which  the 
queen  was  not  at  all  likely  to  recall,  placed 
Whitgift  beyond  the  control  of  the  tempo- 
ral administration. 

The  archbishop,  however,  did  not  stand 
alone  in  this  impracticable  endeavor  to  over- 
come the  stubborn  sectaries  by  dint  of  hard 
usage.  Several  other  bishops  were  en- 
gaged in  the  same  uncharitable  course,  J  but 
especially  Aylmer  of  London,  who  has  left 
a  worse  name  in  this  respect  than  any  pre- 
late of  Elizabeth's  reign. §  The  violence 
of  Aylmer's  temper  was  not  redeemed  by 
many  virtues ;  it  is  impossible  to  exoner- 
ate his  character  from  the  imputations  of 
covetousness  and  of  plundering  the  revenues 
of  his  see  ;  faults  very  prevalent  among  the 
bishops  of  that  period.  The  privy  council 
wrote  sometimes  to  expostulate  with  Ayl- 
mer, in  a  tone  which  could  hardly  have  been 
employed  toward  a  man  in  his  station  who 
had  not  forfeited  the  general  esteem.  Thus, 
upon  occasion  of  one  Benison,  whom  he  had 
imprisoned  witliout  cause,  we  find  a  letter 
signed  by  Burleigh,  Leicester,  Walsing- 
ham,  and  even  Hatton,  besides  several  oth- 
ers, urging  the  bishop  to  give  the  man  a  sum 
of  money,  since  he  would  recover  damages 
at  law,  which  might  hurt  his  lordship's  cred- 

*  Strype's  Whitgift,  157,  IGO. 

t  Id.,  163,  166,  et  alibi.  Birch's  Memoirs,  i.,  62. 
There  was  said  to  be  a  scheme  on  foot,  about  1590, 
to  make  all  persous  in  office  subscribe  a  declara- 
tion that  episcopacy  was  lawful  by  the  word  of 
God,  wliich  Burleigh  prevented. 

i  Neal,  3-25,  385. 

j  Id.,  290.  Strype's  Life  of  Aylmer,  p.  59,  &c. 
His  biographer  is  here,  as  in  all  his  writings,  too 
partial  to  condemn,  but  too  honest  to  conceal. 


it.  Aylmer,  however,  who  was  of  a  stout 
disposition,  especially  when  his  purse  was 
interested,  objected  strongly  to  this  sugges- 
tion, offering  rather  to  confer  on  Benison  a 
small  living,  or  to  let  him  take  his  action  at 
law.  The  result  does  not  appear;  but  prob- 
ably the  bisliop  did  not  yield.*  lie  had 
worse  success  in  an  information  laid  against 
him  for  felling  his  woods,  which  ended  not 
only  in  an  injunction,  but  a  sharp  reprimand 
from  Cecil  in  the  Star  Chamber. f 

What  Lord  Burleigh  thought  of  these 
proceedings  may  be  seen  in  the  memorial 
to  the  queen  on  matters  of  religion  and  state, 
from  which  I  have,  in  the  last  chapter, 
made  an  extract,  to  show  the  tolerance  of 
his  disposition  with  respect  to  Catholics. 
Protesting  that  he  was  not  in  the  least  ad- 
dicted to  the  preciser  sort  of  preachers,  he 
declares  himself  "  bold  to  think  that  the 
bishops,  in  these  dangerous  times,  take  a 
very  ill  and  unadvised  course  in  driving  them 
from  their  cures ;"  first,  because  it  must 
discredit  the  reputation  of  her  majesty's 
power,  when  foreign  princes  should  per- 
ceive that  even  among  her  Protestant  sub- 
jects, in  whom  consisted  all  her  force, 
strength,  and  power,  there  was  so  gi-eat  a 
heart-burning  and  division;  and,  secondly, 
"because,"  he  says,  "though  they  were 
over-squeamish  and  nice  in  their  opinions, 
and  more  scrupulous  than  they  need,  yet, 
with  their  careful  catechising  and  diligent 
preaching,  they  bring  forth  that  fruit  which 
your  most  excellent  majesty  is  to  desire  and 
wish,  namelj',  the  lessening  and  diminishing 
the  papistical  numbers."t  But  this  great 
minister's  knowledge  of  the  queen's  tem- 
per, and  excessive  anxiety  to  retain  her  fa- 
vor, made  him  sometimes  fearful  to  act  ac- 
cording to  his  own  judgment.  "  It  is  well 
known,"  Lord  Bacon  says  of  him,  in  a  treat- 
ise published  in  1591,  "that  as  to  her  maj- 
esty, there  was  never  a  counselor  of  his 


*  Neal,  294. 

t  Strype's  Aylmer,  71.  When  he  grew  old,  and 
reflected  that  a  large  sura  of  money  would  be  due 
from  his  family  for  dilapidations  of  the  palace  at 
Fulham,  &c.,  lie  literally  proposed  to  sell  his  bish- 
opric to  Bancroft. — Id.,  169.  The  other,  however, 
waited  for  his  death,  and  had  above  £4000  award- 
ed to  him ;  but  the  crafty  old  man  having  laid  out 
his  money  in  land,  this  sum  was  never  paid.  Ban- 
croft tried  to  get  an  act  of  Parliament  in  order  to 
render  the  real  estate  liable,  but  without  success, 
page  194.  J  Somers  Tracts,  i.,  166. 


I 


124 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  IV. 


lordship's  long  continuance  that  was  so  ap- 
pliable  to  her  majesty's  princely  resolutions, 
endeavoring  always  after  faitliful  proposi- 
tions and  remonsti'ances,  and  these  in  the 
best  words  and  the  most  gi-ateful  manner,  to 
rest  upon  such  conclusions  as  her  majesty 
in  her  own  wisdom  determineth,  and  them 
to  execute  to  the  best ;  so  far  hath  he  been 
from  contestation,  or  drawing  her  majesty 
into  any  of  his  own  courses."*  Statesmen 
who  betray  this  unfortunate  infinnity  of 
clinging  too  fondly  to  power,  become  the 
slaves  of  the  princes  they  serve.  Burleigh 
used  to  complain  of  the  harshness  with 
which  the  queen  treated  him.f  And 
though,  more  lucky  than  most  of  his  class, 
he  kept  the  white  staff'  of  treasurer  down  to 
his  death,  he  was  reduced  in  his  latter  years 
to  court  a  rising  favorite  more  submissive- 
ly than  became  his  own  dignity. t  From 
such  a  disposition  we  could  not  expect  any 
decided  resistance  to  those  measures  of  se- 
verity toward  the  Puritans  which  fell  in  so 
entirely  with  EUzabeth's  temper. 

There  is  no  middle  course,  in  dealing 
with  reUgious  sectaries,  between  the  perse- 
cution that  exterminates  and  the  toleration 
that  satisfies.  They  were  wise  in  their 
generation,  the  Loaisas  and  Valdes  of  Spain, 
who  kindled  the  fires  of  the  Inquisition  and 
quenched  the  rising  spirit  of  Protestantism 
in  the  blood  of  a  Seso  and  a  Cazalla.  But, 
sustained  by  the  favoring  voice  of  his  associ- 
ates, and  still  more  by  that  firm  persuasion 
which  bigots  never  know  how  to  appreciate 
in  their  adversaries,  a  Pmitan  minister  set 
at  naught  the  vexatious  and  aiTogant  tribu- 
nal before  which  he  was  summoned.  Exas- 
perated, not  overawed,  the  sectaries  threw 
off  what  little  respect  they  had  hitherto 
paid  to  the  hierarchy.  They  had  learned, 
in  the  earlier  controversies  of  the  Reforma- 
tion, the  use,  or,  more  truly,  the  abuse,  of 
that  powerful  lever  of  human  bosoms,  the 
press.  He  who  in  Saxony  had  sounded  the 
first  trumpet-peal  against  the  battlements 
of  Rome,  had  often  turned  aside  from  his 
graver  labors  to  excite  the  nide  passions  of 
the  populace  by  low  ribaldiy  and  exaggera- 


*  Bacon's  Works,  i.,  532. 
t  Birch's  Memoirs,  ii.,  146. 

i  Id.  ib.  Burleigh  does  not  shine  mach  in  these 
memoirs  ;  hat  most  of  the  letters  they  contain  are 
from  the  two  Bacons,  then  engaged  in  the  Essex 
faction,  though  nephews  of  the  treasurer. 


ted  invective  ;  nor  had  the  English  reform- 
ers ever  scnipled  to  win  pro.selytes  by  the 
same  arts.  What  had  been  accounted  holy 
zeal  in  the  mitred  Bale  and  martyred  Lati- 
mer, might  plead  some  apology  from  exam- 
ple in  the  aggi-ieved  Puritan.  Pamphlets, 
chiefly  anonymous,  were  rapidly  cir-  Pontan 
culated  throughout  the  kingdom,  in- 
veighing  against  the  prelacy.  Of  these  li- 
bels the  most  famous  went  under  the  name 
of  Martin  Mar-prelate,  a  vizored  knight  of 
those  lists,  behind  whose  shield  a  host  of 
sturdy  Puritans  were  supposed  to  fight. 
These  were  printed  at  a  movable  press, 
shifted  to  diflferent  parts  of  the  countrj'  as 
the  pursuit  grew  hot,  and  contained  little 
serious  argument,  but  the  unwarrantable 
invectives  of  angry  men,  who  stuck  at  no 
calumny  to  blacken  their  enemies  *  If 
these  insults  upon  authority  are  apt  some- 
times to  shock  us  even  now,  when  long 
usage  has  rendered  such  licentiousness  of 
seditious  and  profligate  libelers  almost  our 
daily  food,  what  must  they  have  seemed  in 
the  reign  of  Elizabeth,  when  the  press  had 
no  acknowledged  liberty,  and  while  the  ac- 
customed tone  in  addressing  those  in  power 
was  little  better  than  servile  adulation  ? 

A  law  had  been  enacted  some  years  be- 
fore, leveled  at  the  books  dispersed  by  the 
seminary  priests,  which  rendered  the  pub- 
lication of  seditious  libels  against  the  queen's 
government  a  capital  felony,  f  This  act,  by 
one  of  those  strained  constructions  which 
the  judges  were  commonly  ready  to  put 
upon  any  political  crime,  was  brought  to 
bear  on  some  of  these  Puritanical  writings. 
The  authors  of  jNIartin  IMar-prelate  could 
not  be  traced  with  certainty ;  but  strong 
suspicions  having  fallen  on  one  Penry,  a 
young  Welshman,  he  was  tried  some  time 
after  for  another  pamphlet,  containing  sharp 
reflections  on  the  queen  herself,  and  receiv- 
ed sentence  of  death,  v>-hicli  it  was  thought 

*  The  first  of  Martin  Mar-prelate's  Ubels  were 
pubUshed  in  1588.  In  the  month  of  November  of 
that  year  the  archbishop  is  directed  by  a  letter 
from  the  council  to  search  for  and  commit  to  prison 
the  authors  and  printers. — Strj-pe's  Whitgift.  288. 
These  pamphlets  are  scarce :  but  a  few  extracts 
from  them  may  be  found  in  Strype  and  other  au- 
thors. The  abusive  language  of  the  Puritan  pamph- 
leteers had  begun  several  years  before. — Strype's 
Annals,  ii.,  193.  See  the  trial  of  Sir  Richard 
Knightley,  of  Northamptonsliire,  for  dispersing  Pu- 
ritanical libels.  State  Trials,  i.,  1263. 
1     t  23  Ehz.,  c.  2. 


Eliz. — Puritans.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


125 


pi'oper  to  carry  iuto  execution.*  Udal,  a 
Puritan  minister,  fell  into  the  gi-asp  of  the 
same  statute  for  an  alleged  libel  on  the  bish- 
ops, which  had  surely  a  very  indirect  ref- 
erence to  the  queen's  administration.  His 
trial,  like  most  other  political  ti-ials  of  the 
age,  disgraces  the  name  of  English  justice. 
It  consisted  mainly  in  a  pitiful  attempt  by 
the  court  to  entrap  him  into  a  confession 
that  the  imputed  libel  was  of  his  writing,  as 
to  which  their  proof  was  deficient.  Though 
he  avoided  this  snare,  the  jury  did  not  fail 
to  obey  the  directions  they  received  to  con- 
vict him.  So  far  from  being  concerned  in 
Martin's  writings,  Udal  professed  his  disap- 
probation of  them  and  his  ignorance  of  the 
author.  This  sentence  appeared  too  ini- 
quitous to  be  executed,  even  in  the  eyes  of 
Whitgift,  who  interceded  for  his  life ;  but 
he  died  of  the  effects  of  confinement.! 

*  Penry  s  protestation  at  his  death  is  in  a  style 
of  the  most  affecting  aud  simple  eloquence. — -Life 
of  Whitgift,  409,  and  Appendix,  17G.  It  is  a  stick- 
ing conti-ast  to  the  coarse  abuse  for  which  he  suf- 
fered. The  authors  of  Martin  Mar-prelate  were 
never  fully  discoveiped;  but  Penry  seems  not  to 
deny  his  concern  in  it. 

t  State  Trials,  1271.  It  may  be  remarked  on 
this  as  on  other  occasions,  that  Udal's  trial  is  evi- 
dently published  by  himself;  and  a  defendant,  es- 
pecially in  a  political  proceeding,  is  apt  to  give  a 
paitial  color  to  his  own  case. — Life  of  Whitgift, 
314.  Annals  of  Reformation,  iv.,  21.  Fuller's 
Church  Histoiy,  122.  Neal,  340.  This  writer 
says :  "  Among  tlie  divines  who  suffered  death  for 
the  libels  above  mentioned,  was  the  Rev.  Mr. 
Udal."  This  is,  no  doubt,  a  splenetic  mode  of 
speaking.  But  Warburton,  in  his  short  notes  on 
Neal's  history,  treats  it  as  a  willful  and  audacious 
attempt  to  impose  on  the  reader ;  as  if  the  ensu- 
ing pages  did  not  let  him  into  all  the  circumstan- 
ces. I  will  liere  observe  that  Warburton,  in  his 
self-conceit,  has  paid  a  much  higher  compliment  to 
Neal  than  he  intended,  sj)eakiag  of  his  own  com- 
ments as  a  "fiUl  confutation  (I  quote  from  memo- 
ry) of  that  historian's  false  facts  and  misrepresen- 
tations." But  when  we  look  at  these,  we  find  a 
good  deal  of  wit  and  some  pointed  remarks,  but 
hardly  any  thing  that  can  be  deemed  a  material 
correction  of  facts. 

Neal's  History  of  the  Puritans  is  almost  wholly 
compiled,  as  far  as  this  reign  is  concerned,  from 
Strype,  and  from  a  manuscript  written  by  some  Pu- 
ritan about  the  time.  It  was  answered  by  Madox, 
afterward  Bishop  of  Worcester,  in  a  Vindication 
of  the  Church  of  England,  published  anonymous- 
ly in  1733.  Neal  replied  with  tolerable  success; 
but  Madox's  book  is  still  a  useful  con-ective.  Both, 
however,  were,  like  most  controversialists,  preju- 
diced men,  loving  the  uiterests  of  their  respective 
factions  better  than  truth,  aud  not  ver>-  scrupulous 


If  the  libelous  pen  of  Martin  Mar-prelate 
was  a  thorn  to  the  rulers  of  the  Chmxh, 
they  had  still  more  cause  to  take  alarm  at 
an  overt  measure  of  revolution  which  the 
discontented  party  began  to  effect  about  the 
year  1590.  They  set  up,  by  common  agree- 
ment, their  own  platform  of  gov-  Attempt  to 
ernment  by  synods  and  classes ;  presbvte- 
the  former  being  a  sort  of  gener-  "an  system, 
al  assemblies,  the  latter  held  in  particular 
shires  or  dioceses,  agi-eeably  to  the  Pres- 
byterian model  established  in  Scotland.  In 
these  meetings  debates  were  had,  and  deter- 
minations  usually  made,  sufficiently  unfa- 
vorable to  the  established  system.  The 
ministers  composing  them  subscribed  to  the 
Puritan  book  of  discipline.  These  associa- 
tions had  been  formed  in  several  counties, 
but  chiefly  in  those  of  Northampton  and 
Warwick,  under  the  dij-ection  of  Cartwi'ight, 
the  legislator  of  their  republic,  who  possess- 
ed, by  the  Earl  of  Leicester's  patronage, 
the  mastership  of  a  hospital  in  the  latter 
town.*  It  would  be  unjust  to  censure  the 
archbishop  for  interfering  to  protect  the  dis- 
cipline of  his  church  against  these  innova- 
tors, had  but  the  means  adopted  for  that 
purpose  been  more  consonant  to  equity. 
Cartwright,  Avith  several  of  his  sect,  were 
summoned  before  the  ecclesiastical  commis- 
sion, where  refusing  to  inculpate  themselves 
by  taking  the  oath  ex  officio,  they  were  com- 
mitted to  the  Fleet.  This  punishment  not 
satisfying  the  rigid  churchmen,  and  the  au- 
thority of  the  ecclesiastical  commission  be- 
ing incompetent  to  inflict  any  heavier  judg- 
ment, it  was  thought  fit  the  next  year  to 
remove  the  proceedings  into  the  court  of 
Star  Chamber.  The  judges,  on  being  con- 
sulted, gave  it  as  their  opinion,  that  since 
fai-  less  crimes  had  been  punished  by  con- 
demnation to  the  galleys  or  perpetual  ban- 
ishment, the  latter  would  be  fittest  for  their 
offense.  But  several  of  the  council  had 
more  tender  regards  to  sincere,  though  in- 
tractable men ;  and  in  the  end  they  were 
admitted  to  bail  upon  a  promise  to  be  quiet, 
after  answering  some  iuteirogatories  re- 
specting the  queen's  supremacy,  and  other 
points,  with  civility,  and  an  evident  wish  to 

about  misrepresenting  an  adversarj-.  But  Neal 
had  got  rid  of  the  intolerant  spirit  of  the  Puritans, 
while  Madox  labors  to  justify  every  act  of  Whit- 
gift and  Parker. 

*  Life  of  \^niitgift,  328. 


126 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  rv. 


avoid  offense.*    It  may  be  observed  that ' 
Caitwright  explicitly  declared  his  disappro-  ! 
bation  of  the  libels  under  the  name  of  Mar- 
tin Mar-prelfite.f    Every  political  party, 
however  honorable  may  be  its  objects  and 
character,  is  liable  to  be  disgi-aced  by  the 
association  of  such  unscrupulous  zealots.  : 
But,  though  it  is  an  uncandid  sophism  to 
charge  the  leaders  with  the  excesses  they 
profess  to  disapprove  in  their  followers,  it  j 
must  be  confessed  that  few  chiefs  of  faction  ' 
have  had  the  virtue  to  condemn  with  suffi- 
cient energy  the  misrepresentations  which 
are  intended  for  their  benefit. 

It  was  imputed  to  the  Puritan  faction 
with  more  or  less  of  ti-uth,  that,  not  content 
with  the  subversion  of  episcopacy  and  of  ' 
the  whole  ecclesiastical  polity  established 
in  the  kingdom,  they  maintained  principles 
that  would  essentially  affect  its  civil  institu- 
tions. Their  denial,  indeed,  of  the  queen's 
supremacy,  earned  to  such  lengths  as  I  have 
shown  above,  might  justly  be  considered  as 
a  derogation  of  her  temporal  sovereignty. 
Many  of  them  asserted  the  obligation  of  the 
judicial  law  of  Moses,  at  least  in  criminal 
cases ;  and  deduced  from  this  the  duty  of 
putting  idolaters  (that  is,  papists),  adulter- 
ers, witches  and  demoniacs.  Sabbath-break- 
ers, and  several  other  classes  of  offenders, 
to  death.}  They  claimed  to  theu*  ecclesi- 
astical assemblies  the  right  of  detemiining 
"  all  matters  wherein  breach  of  charity  may 
be,  and  all  matters  of  docti-ine  and  manners, 
so  far  as  appertaineth  to  conscience."  They 
took  away  the  temporal  right  of  patronage 
to  churches,  leaving  the  choice  of  ministers 
to  general  suffrage. §  There  are  even  pass- 
ages in  Cartwright's  Admonition  which  inti- 
mate that  the  Commonwealth  ought  to  be 
fashioned  after  the  model  of  the  Church.  || 
But  these  it  would  not  be  candid  to  press 

*  Life  of  Whitgift,  336,  3C0,  3C6.  Append.,  142, 
159. 

t  Id.,  Append.,  135.    Annals,  iv.,  52. 

t  This  predilection  for  the  Mosaic  polity  was 
not  uncommon  among  the  Reformers.  Collier 
quotes  passaires  from  Martin  Bucer  as  strong  as 
could  well  be  found  in  the  Puritiin  writmsrs. — P.  303. 

$  Life  of  Whiteift,  p.  61,  333,  and  Append.,  133. 
Annals,  iv.,  1 40.  As  I  have  not  seen  the  original 
works  in  which  these  tenets  are  said  to  be  pro- 
mulgated, I  can  not  vouch  for  the  fairness  of  the 
representation  made  by  hostile  pens,  though  I 
conceive  it  to  be  not  verj-  far  from  the  truth. 

II  Ibid.  Madox's  Vindication  of  the  Ch.  of  Eng. 
against  Neal,  p.  212.    Strj-pe's  Annals,  iv.,  142. 


against  the  more  explicit  declarations  of  aH 
the  Puritans  in  favor  of  a  limited  monarchy, 
though  they  grounded  its  legitimacy  on  the 
Republican  principles  of  popular  consent.* 
And  with  respect  to  the  former  opinions, 
they  appear  to  have  been  by  no  means  com- 
mon to  the  whole  Puritan  body ;  some  of 
the  deprived  and  imprisoned  ministers  even 
acknowledging  the  queen's  supremacy  in  as 
full  a  manner  as  the  law  conferred  it  on  her, 
and  as  she  professed  to  claim  it.f 

The  pretensions  advanced  by  the  school 
of  Cart  Wright  did  not  seem  the  less  danger- 
ous to  those  who  cast  their  eyes  upon  what 
was  passing  in  Scotland,  where  they  receiv- 
ed a  practical  illustration.  In  that  kingdom, 
a  form  of  polity  very  nearly  conforming  to 
the  Puritanical  platform  had  become  estab- 
lished at  the  Reformation  in  1560,  except 
that  the  office  of  bishop  or  superintendent 
stiU  continued,  but  with  no  paramount,  far 
less  arbitrary  dominion,  and  subject  even  to 
the  provincial  synod,  much  more  to  the  gen- 
eral assembly  of  the  Scottish  Chiu'ch.  Even 
tliis  very  limited  episcopacy  was  abolished 
in  1592.  The  Presbyterian  clergy,  indi- 
vidually and  collectively,  displayed  the  in- 
trepid, haughty,  and  untractable  spirit  of  the 
English  Puritans.  Though  Elizabeth  had 
from  policy  abetted  the  Scottish  clergy  in 
their  attacks  upon  the  civil  administration, 
this  connection  itself  had  probably  given  her 

*  The  large  views  of  civil  government  entertained 
by  the  Puritans  were  sometimes  imputed  to  them 
as  a  crime  by  their  more  courtly  adversaries,  who 
reproached  them  with  the  writings  of  Buchanan  and 
Languet.— Life  of  Whitgift.  253.   Annals,  iv.,  142. 

t  See  a  declaration  to  this  effect,  at  which  no 
one  could  ca\-il,  in  Strype's  Annals,  iv.,  85.  The 
Puritans,  or  at  least  some  of  their  friends,  retalia- 
ted this  charge  of  denying  the  queen's  supremacy 
on  their  adversaries.  Sir  Francis  Knollys  strongly 
opposed  the  claims  of  episcopacy  as  a  divine  in- 
stitution, which  had  been  covertly  insinuated  by 
Bancroft,  on  the  ground  of  its  incompatibility  with 
the  prerogative,  and  urged  Lord  Burleigh  to  make 
the  bishops  acknowledge  they  had  no  superiority 
over  the  clergy,  except  by  statute,  as  the  only 
means  to  save  her  majesty  from  the  extreme  dan- 
ger into  which  she  was  brought  by  tlie  machina- 
tions of  the  pope  and  King  of  Spain. — Life  of 
\Vhit2ift,  p.  350.  361.  339.  He  wrote  afterward  to 
Lord  Burleigh  in  1591,  that  if  he  misht  not  speak 
his  mind  freely  against  the  power  of  the  bisliops, 
and  prove  it  unlawful  by  the  laws  of  this  realm, 
and  not  by  the  canon  laws,  he  hoped  to  be  allowed 
to  become  a  private  man.  This  bold  letter  he  de- 
sires to  have  shown  to  the  queen. — Lansdowne 
Catalogue,  vol.  lx\-iii.,  31. 


EliZ. — Puritans.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


127 


such  an  insight  into  their  temper  as  well  as 
their  influence,  that  she  must  have  shud- 
dered at  the  thought  of  seeing  a  Republican 
assembly  substituted  for  those  faithful  sat- 
raps, her  bishops,  so  ready  to  do  her  bid- 
ding, and  so  patient  under  the  hard  usage 
she  sometimes  bestowed  on  them. 

These  prelates  did  not,  however,  obtain 
House  of  much  support  from  the  House 
Commons  of  Commons  as  from  their  sover- 

averse  to      .  ,       ,  ,  ,  , 

episcopal  eign.  In  that  assembly  a  deter- 
authonty.  j^ijjgj  band  of  Puritans  frequently 
can-ied  the  victory  against  the  courtiei-s. 
Every  session  exhibited  proofs  of  their  dis- 
satisfaction with  the  state  of  the  Church. 
The  crown's  influence  would  have  been  too 
weak  without  stretches  of  its  prerogative. 
The  Commons  in  1.575  received  a  message 
forbidding  them  to  meddle  with  religious 
concerns.  For  five  years  aftei-ward  the 
queen  did  not  convoke  Parliament,  of  which 
her  dislike  to  their  Puritanical  temper  might 
in  all  probability  be  the  chief  reason.  But 
when  they  met  again  in  1580,  the  same 
topic  of  ecclesiastical  grievances,  which  had 
by  no  means  abated  during  the  interval,  was 
revived.  The  Commons  appointed  a  com- 
mittee, formed  only  of  the  pi'incipal  officers 
of  the  crown  who  sat  in  the  House,  to  con- 
fer with  some  of  the  bishops,  according  to 
the  irregular  and  imperfect  course  of  Pai-- 
liamentary  proceedings  in  that  age,  "  touch- 
ing the  griefs  of  this  House  for  some  things 
very  requisite  to  be  reformed  in  the  Church, 
as  the  gi'eat  number  of  unlearned  and  una- 
ble ministers,  the  great  abuse  of  excommu- 
nications for  every  matter  of  small  moment, 
the  commutation  of  penances,  and  the  great 
multitude  of  dispensations  and  pluralities, 
and  other  things  veiy  hurtful  to  the 
Church."*  The  committee  reported  that 
they  found  some  of  the  bishops  desirous  of 
a  remedy  for  the  abuses  they  confessed,  and 
of  joining  in  a  petition  for  that  pu7-pose  to 
her  majesty ;  which  had  accordingly  been 
done,  and  a  gracious  answer,  pi'omising  all 
convenient  reformation,  but  laying  the  blame 
of  remissness  upon  some  prelates,  had  been 
received.  This  the  House  took  with  gi'eat 
thankfulness.  It  was  exactly  the  covu'se 
which  pleased  Elizabeth,  who  had  no  regard 
for  her  bishops,  and  a  real  anxiety  that  her 
ecclesiastical  as  well  as  temporal  govern- 

*  D'Ew^es,  302.  Strj-pe's  Whitrift,  92.  Ap- 
pend., 32. 


ment  should  be  well  administered,  provided 
her  subjects  would  intrust  the  sole  care  of 
it  to  herself,  or  limit  their  interference  to 
modest  petitioning. 

A  new  Parliament  having  been  assembled 
soon  after  Whitgift,  on  his  elevation  to  the 
primacy,  had  begun  to  enforce  a  universal 
conformity,  the  Lower  House  drew  up  a 
petition  in  sixteen  articles,  to  which  they 
requested  the  Lord's  concuiTence,  com- 
plaining of  the  oath  ex  officio,  the  subscrip- 
tion to  the  three  new  articles,  the  abuses 
of  excommunication,  licenses  for  non-resi- 
dence, and  other  ecclesiastical  grievances. 
The  Lords  replied  coolly,  that  they  con- 
ceived many  of  those  articles,  which  the 
Commons  had  proposed,  to  be  unnecessaiy, 
and  that  others  of  them  were  already  pro- 
vided for ;  and  that  the  uniformity  of  the 
Common  Prayer,  the  use  of  which  the  Com- 
mons had  requested  to  leave  in  certain  re- 
spects to  the  minister's  discretion,  had  been 
established  by  Parliament.  The  two  arch- 
bishops, Whitgift  and  Sandys,  made  a  more 
particular  answer  to  each  article  of  the  pe- 
tition, in  the  name  of  their  brethren.*  But, 
in  order  to  show  some  willingness  toward 
reformation,  they  proposed  themselves  in 
convocation  a  few  regulations  for  redress  of 
abuses,  none  of  which,  however,  on  this  oc- 
casion, though  they  received  the  royal  as- 
sent, were  submitted  to  the  Legislature;! 
the  queen,  in  fact,  maintaining  an  insuper- 
able jealousy  of  all  intermeddling  on  the  part 
of  Parliament  with  her  exclusive  suprema- 
cy over  the  Church.  Excluded  by  Eliza- 
beth's jealousy  from  entertaining  these  re- 
ligious innovations,  which  would  probably 
have  met  no  unfavorable  reception  from  a 
free  Parliament,  the  Commons  vented  their 
ill  will  toward  the  dominant  hierarchy  in 
complaints  of  ecclesiastical  gi'ievances,  and 
measures  to  redress  them ;  as  to  which, 
even  with  the  low  notions  of  Parliamentaiy 
right  prevailing  at  court,  it  was  impossible 
to  deny  their  competence.  Several  bills 
were  introduced  this  session  of  1584-5  into 
the  Lower  House,  which,  though  they  had 
little  chance  of  receiving  the  queen's  assent, 
manifest  the  sense  of  that  assembly,  and  in 
all  likelihood  of  their  constituents.  One  of 
these  imported  that  bishops  should  be  swoi-n 
in  one  of  the  courts  of  justice  to  do  nothing 

*  D'Ewes,  339,  et  post.  Strj-pe's  Wliitdt't,  176, 
&c.    Append.,  70.        t  Strype's  Annals,  iii.,  228. 


128 


CONSTITUTIONAL  HlSTOllY  OF  ENGLAND 


[Chap.  IV 


in  their  office  contv.ny  to  the  common  law. 
Another  went  to  restrain  plurahtics,  as  to 
which  the  prelates  would  very  reluctantly 
admit  of  any  limitation.*  A  bill  of  the  same 
nature  passed  the  Commons  in  1589,  though 
not  without  some  opposition.  The  clergy 
took  so  great  alami  at  this  measure,  that 
the  Convocation  addressed  the  queen  in  ve- 
hement language  against  it ;  and  the  arch- 
bishop throwing  all  the  weight  of  his  advice 
and  authority  into  the  same  scale,  the  bill 
expired  in  the  Upper  I  louse,  f  A  similar 
proposition  in  the  session  of  1601  seems  to 
have  miscarried  in  the  Commons. t  In  the 
next  chapter  will  be  found  other  instances 
of  the  Commons'  reforming  temper  in  ec- 
clesiastical concerns,  and  the  queen's  deter- 
mined assertion  of  her  supremacy. 

The  oath  ex  officio,  binding  the  taker  to 
answer  all  questions  that  should  bo  put  to 
him,  inasmuch  as  it  conti'avened  the  gener- 
ous niaxini  of  English  law,  that  no  one  is 
obliged  to  criminate  himself,  provoked  very 
just  animadversion.  Morice,  attorney  of 
the  Court  of  Wards,  not  only  attacked  its 
legality  with  arguments  of  no  slight  force, 
but  introduced  a  bill  to  take  it  away.  This 
was,  on  the  whole,  well  received  by  the 
House ;  and  Sir  Francis  KnoUys,  the  stanch 
enemy  of  episcopacy,  though  in  high  office, 
spoke  in  its  favor.  But  the  queen  put  a 
stop  to  the  proceeding,  and  Morice  lay  some 
time  in  prison  for  his  boldness.  The  civil- 
ians, of  whom  several  sat  in  the  Lower 
House,  defended  a  mode  of  procedure  that 
had  been  borrowed  from  their  own  juris- 
prudence. This  revived  the  ancient  ani- 
mosity between  them  and  the  common  law- 
yers. The  latter  had  always  manifested  a 
great  jealousy  of  the  spiritual  jurisdiction, 
and  had  early  learned  to  resti-ain  its  exorb- 
itances by  wi'its  of  prohibition  from  the  tem- 
poral courts.  Whitgift,  as  tenacious  of 
power  as  the  most  amiiitions  of  his  prede- 
cessors, murmured  liUc^  them  at  this  subor- 
dination, for  such  it  evidently  was,  to  a  lay 
tribunal. §    But  the  judges,  who  found  as 

*  Strype's  Anuals,  iii.,  186,  192.  Compare  Ap- 
pend., 3.5. 

t  Strype's  Whitgift  1279.    Amials,  i.,  543. 
t  Pari.  Hist.,  921. 

§  Stiype's  Whitsift,  ■'j21,  537.    App.,  130.  The 
archbishop  coukl  not  dissruise  his  dislike  to  the  law- 
yers.   "  The  temporal  lawyer,"  he  says  in  a  let- 
ter to  Cecil,  "whose  learning  is  no  learning  any  j 
where  but  here  at  home,  being  bom  to  nothing,  doth  | 


much  gi-atification  in  exerting  their  power 
as  the  bishops,  paid  little  regard  to  the  re- 
monstrances of  the  latter.  "We  find  tlio  law 
reports  of  this  and  the  succeeding  nugn  full 
of  cases  of  prohibitions.  Nor  did  other 
abuses  imputed  to  these  obnoxious  judica- 
tures fail  to  provoke  censure,  such  as  the 
unreasonable  fees  of  their  officers,  and  the 
usage  of  granting  licenses,  and  connnuting 
penances  for  money.*  The  ecclesiastical 
courts,  indeed,  liave  generally  been  reck- 
oned more  dilatory,  vexatious,  and  expens- 
ive than  those  of  the  common  law.  But 
in  the  present  age,  that  i)art  of  their  juris- 
diction, which,  though  coercive,  is  ])rofess- 
edly  spiritual,  and  wherein  the  greatest 
abuses  have  been  alleged  to  exist,  has  gone 
verj-  much  into  disuse.  In  matrimonial  and 
testamentary  causes,  their  course  of  pro- 
ceeding may  not  be  open  to  any  censure, 
so  far  as  the  essential  administration  of  jus- 
tice is  concerned  ;  though  in  the  latter  of 
these,  a  most  inconvenient  division  of  juiis- 
dictions,  following  not  only  the  unequal 
boundaries  of  episcopal  dioceses,  but  the 
various  peculiars  or  exempt  districts  which 
the  Church  of  England  has  continued  to 
retain,  is  productive  of  a  good  deal  of  troub- 
le and  needless  expense.  [1827.] 

Notwithstanding  the  tendency  toward 
Puritanism  which  the  House  of  , 
Connnons  generally  (iisplayed,  ents  liable  to 
the  court  succeeded  in  procuring 
an  act,  which  eventually  pressed  with  very 
great  severity  u|)on  that  class.  This  pass- 
ed in  1393,  and  enacted  the  penalty  of  im- 
prisonment against  any  person  above  the 
age  of  sixteen,  who  should  forbear  for  the 
space  of  a  month  to  repair  to  some  church, 
imtil  he  should  make  such  open  submission 
and  declaration  of  conformity  as  the  act  ap- 
points.   Those  who  refused  to  submit  to 

hy  his  labor  and  travel  in  that  barbaraas  knowl- 
edge purcliase  to  himself  and  his  heirs  forever  a 
thousand  pounds  per  annum,  and  oftentimes  much 
more,  whereof  there  are  at  this  day  many  exam- 
pies.'  — P.  215. 

*  Stiype's  Whitgift  and  D'Ewes,  passim.  In  a 
convocation  held  during  Grindal's  sequestration 
(1580),  i)roposals  for  reforming  certain  abuses  in 
the  spiritual  courts  were  considered,  hut  nothing 
was  done  in  it. — Strype's  Grindal.  p.  259,  and 
Append.,  p.  97.  And  in  1594,  a  commission  to  in- 
(juire  into  abuses  in  the  spiritual  courts  was  is- 
sued; but  whether  this  were  intended  bona  fide 
j  or  not,  it  produced  no  refonuation. — Strype's  Whit- 
1  gift,  419. 


Eliz. — Puritans.] 


FKOM  HENRY  VII.  TO  GEORGE  II. 


129 


these  conditions  were  to  abjure  the  realm, 
and  if  they  should  return  without  the  queen's 
license,  to  suffer  death  as  felons.*  As  this, 
on  the  one  hand,  like  so  many  foi'mer  stat- 
utes, helped  to  crush  the  vuifoitunate  adhe- 
rents to  the  Romish  faith,  so,  too,  did  it 
bear  an  obvious  application  to  such  Protes- 
tant sectaries  as  had  professedly  separated 
from  the  Anglican  Church.  But  it  is  here 
worthy  of  remark,  that  the  Puritan  minis- 
ters throughout  this  reign  disclaimed  the 
imputation  of  schism,  and  acknowledged 
the  lawfulness  of  continuing  in  the  estab- 
lished Church,  while  they  demanded  a  fur- 
ther reformation  of  her  discipline. f  The 
real  separatists,  who  were  also  a  numerous 
body,  were  denominated  Brownist  or  Bar- 
rowists,  from  the  names  of  their  founders, 
afterward  lost  in  the  more  general  appella- 
tion of  Independents.  These  went  far  be- 
yond the  Puritans  in  their  aversion  to  the 
legal  ministry,  and  were  deemed,  in  conse- 
quence, still  more  proper  subjects  for  per- 
secution. Multitudes  of  them  fled  to  Hol- 
land from  the  rigor  of  the  bishops  in  enforc- 
ing this  statute. t  But  two  of  this  persua- 
sion, Barrow  and  Greenwood,  experienced 
a  still  severer  fate.  They  were  indicted  on 
that  perilous  law  of  the  23d  of  the  queen, 
mentioned  in  the  last  chapter,  for  spreading 

*  35  Eliz.,  c.  1.    Pari.  Hist.,  863. 

t  Neal  asserts  in  his  summary  of  the  controver- 
sy, as  it  stood  in  this  reig7i,  that  the  Puritans  did 
not  object  to  the  office  of  bishop,  provided  he  was 
only  the  head  of  the  presbyters,  and  acted  in  con- 
junction with  them,  p.  398.  But  thi.s  was,  in  ef- 
fect, to  demand  every  thing ;  for  if  tlie  office  could 
be  so  far  lowered  in  eminence,  there  were  many 
waiting  to  clip  the  temporal  revenues  and  dignity 
in  proportion. 

In  another  passage,  Neal  states  clearly,  if  not 
quite  fairly,  the  main  points  of  difference  between 
the  Churcli  and  non-coufonning  parties  under  Ehz- 
abeth,  p.  147.  He  concludes  with  the  following  re- 
mark, which  is  very  tvae :  "  Both  parties  agreed 
too  well  in  asserting  the  necessity  of  a  uniformity 
of  public  worship,  and  of  calling  in  the  sword  of 
the  magistrate  for  the  support  and  defense  of  the 
several  principles  which  they  made  an  ill  use  of  in 
their  turns,  as  they  could  grasp  the  power  into 
their  hands.  Tlie  standard  of  uniformity,  accord- 
ing to  tlie  bishops,  was  the  queen's  supremacy  and 
the  laws  of  the  land ;  according  to  the  Puritans, 
the  decrees  of  provincial  and  national  synods,  al- 
lowed and  enforced  by  the  civil  magistrate ;  but 
neiUier  party  were  for  admitting  that  liberty  of 
conscience  and  freedom  of  profession  which  is  ev- 
ery man's  right,  as  far  as  is  consistent  with  the 
peace  of  the  government  he  lives  under." 

t  Neal,  253,  386. 

I 


seditious  writings,  and  executed  at  Bury. 
They  died,  Neal  tells  us,  with  such  expres- 
sions of  piety  and  loyalty,  that  Elizabeth 
regretted  the  consent  she  had  given  to  their 
deaths.* 

But,  while  these  scenes  of  pride  and  per- 
secution on  one  hand,  and  of  sectai'ian  inso- 
lence on  the  other,  were  deforming  the  bo- 
som of  the  English  Church,  she  found  a  de- 
fender of  her  institutions  in  one  who  min- 
gled in  these  vulgar  controversies  like  a 
knight  of  romance  among  caitiff  brawlers, 
with  arms  of  finer  tem[)er  and  worthy  to 
be  proved  in  a  nobler  field.  Richard  Hook- 
er, master  of  the  Temple,  published  the 

first  four  books  of  his  Ecclesias-  Hooker's  Ec- 

tical  Polity  in  1594 ;  the  fifth  p^f.'^y  f^;'^' 
three  years  aftei'ward  ;  and,  dy-  character, 
ing  in  1600,  left  behind  three  which  did  not 
see  the  light  till  1647.  This  eminent  work 
may  justly  be  reckoned  to  mark  an  era  in 
our  literature  :  for  if  passages  of  much  good 
sense  and  even  of  a  vigorous  eloquence  are 
scattered  in  several  earlier  writers  in  prose, 
yet  none  of  these,  except  perhaps  Latimer 
and  Ascham,  and  Sir  Philip  Sidney  and 
his  Arcadia,  can  be  said  to  have  acquired 
enough  reputation  to  be  generally  known 
even  by  name,  much  less  are  read  in  the 
present  day ;  and  it  is,  indeed,  not  a  little 
remarkable,  that  England,  until  near  the 
end  of  the  sixteenth  century,  had  given  few 
proofs  in  literature  of  that  intellectual  pow- 
er which  was  about  to  develop  itself  with 
such  unmatchable  energy  in  Shakspeare 
and  Bacon.  We  can  not,  indeed,  place 
Hooker  (but  whom  dare  we  to  place?)  by 
the  side  of  these  master-spirits  ;  yet  he  has 
abundant  claims  to  be  counted  among  the 
luminaries  of  English  literature.  He  not 
only  opened  the  mine,  but  explored  the 
depths,  of  our  native  eloquence.  So  state- 
ly and  graceful  is  the  march  of  his  periods, 
so  various  the  fall  of  his  musical  cadences 

*  Stiype's  Whitgift,  414.  Neal,  373.  Several 
years  before,  in  1583,  two  men  called  Anabaptists, 
Thacker  and  Copping,  were  hanged  at  the  same 
place  on  the  same  statute  for  denying  the  queen's 
ecclesiastical  supremacy  ;  tlie  proof  of  which  was 
their  dispersion  of  Brown's  tracts,  wherein  that 
was  only  owned  in  civil  cases. — Strype's  Annals, 
iii.,  186.  Tliis  was  according  to  the  invariable 
practice  of  Tudor  times ;  an  oppressive  and  san- 
guinary statute  was  first  made  ;  and  next,  as  occa- 
sion might  serve,  a  construction  was  put  on  it  con- 
tJ-ary  to  all  common  sense,  in  order  to  take  away 
men's  lives. 


130 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IV. 


upon  the  ear,  so  rich  in  images,  so  condens- 
ed in  sentences,  so  grave  and  noble  his  dic- 
tion, so  little  is  there  of  vulgarity  in  his  ra- 
cy idiom,  of  pedantry  in  his  learned  phrase, 
that  I  know  not  whether  any  later  writer 
has  more  admirably  displayed  the  capacities 
of  our  language,  or  produced  passages  more 
worthy  of  comparison  with  the  splendid 
monuments  of  antiquity.  If  we  compare 
the  first  book  of  the  Ecclesiastical  Polity 
with  what  bears,  perhaps,  most  resemblance 
to  it  of  any  thing  extant,  the  treatise  of 
Cicero  de  Legibus,  it  will  appear  some- 
what perhaps  inferior,  through  the  imper- 
fection of  our  language,  which  with  all  its 
force  and  dignity  does  not  equal  the  Latin 
in  either  of  these  qualities,  and  certainly 
more  tedious  and  diffuse  in  some  of  its  reas- 
onings, but  by  no  means  less  high-toned  in 
sentiment,  or  less  bright  in  fancy,  and  fai" 
more  comprehensive  and  profound  in  the 
foundations  of  its  philosophy. 

The  advocates  of  a  Presbyterian  Church 
had  always  thought  it  sufficient  to  prove 
that  it  was  conformable  to  the  apostolical 
scheme  as  deduced  merely  from  the  Script- 
ures. A  pious  reverence  for  the  sacred 
writings,  which  they  made  almost  their  ex- 
clusive study,  had  degenerated  into  veiy 
narrow  views  on  the  gi-eat  themes  of  natu- 
ral religion  and  the  moral  law,  as  deducible 
from  reason  and  sentiment.  These,  as 
most  of  the  various  families  of  their  de- 
scendants continue  to  do,  they  greatly  slight- 
ed, or  even  ti'eated  as  tlie  mere  chimeras 
of  heathen  philosophy.  If  they  looked  to 
the  Mosaic  law  as  the  standard  of  criminal 
jurisprudence,  if  they  sought  precedents 
from  Scripture  for  all  matters  of  temporal 
policy,  much  more  would  they  deem  the 
practice  of  the  apostles  an  unerring  and  im- 
mutable rule  for  the  discipline  of  the  Christ- 
ian Church.*  To  encounter  these  adver- 
saries. Hooker  took  a  far  more  original 

*  "The  discipline  of  Christ's  Church,"  said  Cart- 
wright,  "  that  is  necessaiy  for  all  times,  is  deliver- 
ed by  Christ,  and  set  down  in  the  Holy  Scriptures. 
Therefore  the  tnie  and  lawful  discipline  is  to  be 
fetched  from  thence,  and  from  tlience  alone ;  and 
that  which  resteth  upon  any  other  foundation  ought 
to  be  esteemed  unlawful  and  counterfeit."  Whit- 
gift,  in  his  answer  to  Cartwright's  Admonition, 
rested  the  controversy  in  the  main,  as  Hooker  did, 
on  the  indifferency  of  Church  discipline  and  cere- 
mony. It  was  not  till  afterwai-d  that  the  defenders 
of  the  established  order  found  out  that  one  claim 
of  divine  right  was  best  met  by  another. 


course  than  the  ordinary  conti'overtists, 
who  fought  their  battles  with  conflicting  in- 
terpretations of  scriptural  texts  or  passages 
from  the  fathers.  He  inquired  into  the  na- 
ture and  foundation  of  law  itself,  as  the  rule 
of  operation  to  all  created  beings,  yielding 
thereto  obedience  by  unconscious  necessity, 
or  sensitive  appetite,  or  reasonable  choice; 
reviewing  especially  those  laws  that  regu- 
late human  agency,  as  they  arise  out  of 
moral  relations,  common  to  our  species,  or 
the  institutions  of  politic  societies,  or  the 
intercommunity  of  independent  nations ; 
and  having  thoroughly  established  the  fun- 
damental distinction  between  laws  natural 
and  positive,  eternal  and  temporally,  immu- 
table and  variable,  he  came,  with  all  this 
strength  of  moial  philosophy,  to  discrimi- 
nate by  the  same  criterion  the  various  rvdea 
and  precepts  contiiined  in  the  Scriptures. 
It  was  a  kind  of  maxim  among  the  Puri- 
tans, tliat  Scripture  was  so  much  the  ex- 
clusive rule  of  human  actions,  that  whatev- 
er, in  matters,  at  least,  concerning  religion, 
could  not  be  found  to  have  its  authority, 
was  unlawful.  Hooker  devoted  the  whole 
second  book  of  his  work  to  the  refutation  of 
this  principle.  He  proceeded  aftenvard  to 
attack  its  application  more  particularly  to 
the  episcopal  scheme  of  church  govern- 
ment, and  to  the  various  ceremonies  or 
usages  which  those  sectaries  ti-eated  as 
either  absolutely  superstitious,  or  at  least 
as  impositions  without  authority.  It  was 
maintained  by  this  gi-eat  writer,  not  only 
that  ritual  observances  are  variable  accord- 
ing to  the  discretion  of  ecclesiastical  rulers, 
but  that  no  certain  form  of  polity  is  set 
down  in  Scripture  as  generally  indispensa- 
ble for  a  Christian  church.  Far,  however, 
from  conceding  to  his  antagonists  the  fact 
which  they  assumed,  he  contended  for  epis- 
copacy as  an  apostolical  institution,  and  al- 
ways preferable,  when  circumstances  would 
allow  its  preservation,  to  the  more  demo- 
cratical  model  of  the  Calviuistic  congi'ega- 
tions.  "  If  we  did  seek,"  he  says,  •'  to 
maintain  that  which  most  advantageth  our 
own  cause,  the  veiy  best  way  for  us  and 
the  strongest  against  them  were  to  liold, 
even  as  they  do,  that  in  Scripture  there 
must  needs  be  found  some  particular  form 
of  church  polity  which  God  hath  instituted, 
and  which  for  that  veiy  cause  belongeth 
to  all  churches  at  all  times.    But  with  any 


Eliz. — Puritans.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


131 


such  partial  eye  to  respect  oui-selves,  and 
by  cunning  to  make  those  things  seem  the 
truest,  which  are  the  fittest  to  sei-ve  our 
purpose,  is  a  thing  which  we  neither  hke 
nor  mean  to  follow." 

The  richness  of  Hooker's  eloquence  is 
chiefly  displayed  in  his  first  book,  beyond 
which,  perhaps,  few  who  want  a  taste  for 
ecclesiastical  reading  are  likely  to  proceed. 
The  second  and  third,  however,  though 
less  brilliant,  are  not  inferior  in  the  force 
and  comprehensiveness  of  reasoning.  The 
eighth  and  last  returns  to  the  subject  of 
civil  government,  and  expands,  with  remark- 
able liberality,  the  principles  he  had  laid 
down  as  to  its  nature  in  the  first  book. 
Those  that  intervene  are  mostly  confined 
to  a  more  minute  discussion  of  the  questions 
mooted  between  the  Chm-ch  and  Puritans  ; 
and  in  these,  as  far  as  I  have  looked  into 
them,  though  Hooker's  argument  is  always 
vigorous  and  logical,  and  he  seems  to  be  ex- 
empt from  that  abusive  insolence  to  which 
polemical  wi'iters  were  then  even  more 
prone  than  at  present,  yet  he  has  not  alto- 
gether the  terseness  or  lucidity  which  long 
habits  of  literary  warfare,  and  perhaps  a 
natural  turn  of  mind,  have  given  to  some 
expert  dialecticians.  In  respect  of  lan- 
guage, the  three  posthumous  books,  partly 
from  having  never  received  the  author's 
last  touches,  and  partly,  pei-haps,  from  his 
weariness  of  the  labor,  are  beyond  compari- 
son less  elegantly  written  than  the  preced- 
ing. 

The  better  parts  of  the  Ecclesiastical 
Polity  bear  a  resemblance  to  the  philosoph- 
ical -writings  of  antiquity,  in  their  defects  as 
well  as  their  excellences.  Hooker  is  often 
loo  vague  in  the  use  of  general  terms,  too 
inconsiderate  in  the  admission  of  principles, 
too  apt  to  acquiesce  in  the  scholastic  pseudo- 
philosophy,  and,  indeed,  in  all  received  ten- 
ets; he  is  comprehensive  rather  than  saga- 
cious, and  more  fitted  to  sift  the  truth  from 
the  stores  of  accumulated  learning  than  to 
seize  it  by  an  original  impulse  of  his  own 
mind;  somewhat  also  impeded,  like  many 
other  great  men  of  that  and  the  succeeding 
centuiy,  by  too  much  acquaintance  with 
books,  and  too  much  deference  for  their  au- 
thors. It  may  be  justly  objected  to  some 
passages,  that  they  elevate  ecclesiastical 
authority,  even  in  matters  of  belief,  with  an 
exaggeration  not  easily  reconciled  to  the 


Protestant  right  of  private  judgment,  and 
even  of  dangerous  consequence  in  those 
times — as  when  he  inclines  to  give  a  deci- 
sive voice  in  theological  controversies  to  gen- 
eral councils ;  not,  indeed,  on  the  principles 
of  the  Church  of  Rome,  but  on  such  as 
must  end  in  the  same  conclusion,  the  high 
probability  that  the  aggi-egate  judgment  of 
many  gi-ave  and  learned  men  should  be 
well  founded.*  Nor  would  it  be  difficult  to 
point  out  several  other  subjects,  such  as  re- 
ligious toleration,  as  to  which  he  did  not 
emancipate  himself  from  the  ti-ammels  of 
prejudice.  But,  whatever  may  be  the  im- 
perfections of  his  Ecclesiastical  Polity,  they 
are  far  more  than  compensated  by  its  elo- 
quence and  its  reasoning,  and  above  all,  by 
that  deep  pervading  sense  of  the  relation 
between  man  and  his  Creator,  as  the 
groundwork  of  all  eternal  law,  which  ren- 
dered the  first  book  of  this  work  a  ramjiart, 
on  the  one  hand,  against  the  Puritan  school, 
who  shunned  the  light  of  nature  as  a  deceit- 
ful meteor,  and,  on  the  other,  against  that 
immoral  philosophy  which,  displayed  in  tlie 
dark  precepts  of  Machiavel,  or  lurking  in 
the  desultory  sallies  of  Montaigne,  and  not 
always  rejected  by  writers  of  more  appa- 
rent seriousness,  threatened  to  destroy  the 
sense  of  inti-insic  distinctions  in  the  quality 
of  actions,  and  to  convert  the  maxims  of 

*  "  If  the  natural  strength  of  men's  writ  may  by 
experience  and  study  attain  uuto  such  ripeness  in 
the  knowledge  of  things  human,  tliat  men  in  this 
respect  may  presume  to  build  somewhat  upon 
their  judgment,  what  reason  have  we  to  think  but 
that  even  in  matters  divine,  the  like  wits,  furnish- 
ed with  necessary  helps,  exercised  in  Scripture 
with  like  diligence,  and  assisted  with  the  gi-ace  of 
Almighty  God,  may  grow  unto  so  much  perfection 
of  knowledge,  that  men  shall  have  just  cause, 
when  any  thing  pertinent  unto  faith  and  religion  is 
doubted  of,  the  more  willingly  to  incline  their 
minds  toward  that  which  the  sentence  of  so  grave, 
wise,  and  learned  in  that  faculty  shall  judge  most 
sound  ?  For  the  controversy  is  of  the  weight  of 
such  men's  judgment,"  &c.  But  Hooker's  mis- 
take was  to  exaggerate  the  weight  of  such  men's 
judgment,  and  not  to  allow  enough  for  their  pas- 
sions and  infirmities,  the  imperfection  of  their 
knowledge,  their  connivance  with  power,  their  at- 
tachment to  names  and  persons,  and  all  the  other 
drawbacks  to  ecclesiastical  authority. 

It  is  well  known  that  the  preface  to  the  Ecclesi- 
astical Polity  was  one  of  the  two  books  to  which 
James  II.  ascribed  his  return  into  the  fold  of  Rome, 
and  it  is  not  difficult  to  perceive  by  what  course 
of  reasoning  on  the  positions  it  contains  this  waa 
effected. 


/ 


132 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IV. 


state-craft  and  dissembling  policy  into  the 
rule  of  life  and  manners. 

Nothing,  perhaps,  is  more  stinking  to  a 
reader  of  the  Ecclesiastical  Polity  than  the 
constant  and  even  excessive  predilection  of 
Hooker  for  those  liberal  principles  of  civil 
government,  which  are  sometimes  so  just 
and  always  so  attractive.  Upon  these  sub- 
jects, his  theory  absolutely  coincides  with 
that  of  Locke.  The  origin  of  government, 
both  in  right  and  in  fact,  he  explicitly  derives 
from  a  primary  conti'act,  "  without  which 
consent,  there  were  no  reason  that  one 
should  take  upon  him  to  be  lord  or  judge 
over  another;  because,  although  there  be, 
according  to  the  opinion  of  some  very  gi-eat 
and  judicious  men,  a  kind  of  natural  right 
in  the  noble,  wise,  and  virtuous,  to  govern 
them  which  are  of  servile  disposition,  nev- 
ertheless, for  manifestation  of  this  their 
right,  and  men's  more  peaceable  content- 
ment on  both  sides,  the  assent  of  them  who 
are  to  be  governed  seemeth  necessary." 
"  The  lawful  power,"  he  observes  else- 
where, "  of  making  laws  to  command  whole 
politic  societies  of  men,  belongeth  so  prop- 
erly unto  the  same  entire  societies,  that  for 
any  prince  or  potentate,  of  what  kind  soev- 
er, upon  earth  to  exercise  the  same  of  him- 
self, and  not  either  by  express  commission 
immediately  and  personally  received  from 
God,  or  else  by  authority  received  at  first 
from  their  consent  upon  whose  persons  they 
impose  laws,  it  is  no  better  than  mere  tyr- 
anny. Laws  they  are  not,  therefore,  which 
public  approbation  hath  not  made  so.  But 
approbation  not  only  they  give  who  person- 
ally declare  their  assent  by  voice,  sign,  or 
act,  but  also  when  others  do  it  in  their  names, 
by  right  originally,  at  the  least,  derived  from 
them.  As  in  Parliaments,  councils,  and  the 
like  assemblies,  although  we  be  not  person- 
ally ourselves  present,  not\vithstanding  our 
assent  is  by  reason  of  other  agents  there  in 
our  behalf.  And  what  we  do  by  others,  no 
reason  but  that  it  should  stand  as  our  deed, 
no  less  effectually  to  bind  us,  than  if  our- 
selves had  done  it  in  person."  And  in  an- 
other place  still  more  peremptorily  :  "  Of 
this  thing  no  man  doubteth,  namely,  that  in 
all  societies,  companies,  and  corporations, 
what  severally  each  shall  be  boimd  unto,  it 
must  be  with  all  their  assents  ratified. 
Against  all  equity  it  were  that  a  man  should 
suffer  detriment  at  the  hands  of  men  for  not 


observing  that  which  he  never  did  either  by 
himself  or  others  mediately  or  immediately 
agree  unto." 

These  notions  respecting  the  basis  of  po- 
litical society,  so  far  unlike  what  prevailed 
among  the  next  generation  of  churchmen, 
are  chiefly  developed  and  dwelt  upon  in 
Hooker's  concluding  book,  the  eighth ;  and 
gave  rise  to  a  rumor,  very  sedulously  prop- 
agated soon  after  the  time  of  its  publication, 
and  still  sometimes  repeated,  that  the  post- 
humous portion  of  his  work  had  been  in- 
terpolated or  altered  by  the  Puritans.*  For 
this  surmise,  however,  I  am  persuaded  that 
there  is  no  foundation.  The  three  latter 
books  are  doubtless  imperfect,  and  it  is  pos- 
sible that  verbal  changes  may  have  been 
made  by  their  ti'anscribers  or  editors ;  but 
the  testimony  that  has  been  brought  forward 
to  throw  a  doubt  over  their  authenticity  con- 
sists in  those  vague  and  self-contradictory 

*  In  the  life  of  Hooker  prefixed  to  the  edition  I 
use,  fol.,  1671,  I  find  an  assertion  of  Dr.  Barnard, 
chaplain  to  Usher,  that  be  had  seen  a  manuscript 
of  the  last  books  of  Hooker,  containing  many  things 
omitted  in  the  printed  volume.  One  passage  is 
quoted,  and  seems  in  Hooker's  stj-le.  But  the 
question  is  rather  with  respect  to  interpolations 
than  omissions.  And  of  the  former  I  see  no  evi- 
dence or  likeUhood.  If  it  he  true,  as  is  alleged, 
that  different  manuscripts  of  the  three  last  hooka 
did  not  agree — if  even  these  disagreements  were 
the  result  of  fraud,  why  should  we  conclude  that 
they  were  corrupted  by  the  Puritans  rather  than 
the  Church  ?  In  Zouch's  edition  of  Walton's  Life 
of  Hooker,  the  reader  will  find  a  long  and  ill-di- 
gested note  on  this  subject,  the  result  of  which  has 
been  to  convince  me,  that  there  is  no  reason  to  be- 
lieve any  other  than  verbal  changes  to  have  been 
made  in  the  loose  draught  which  the  author  left, 
but  that  whatever  changes  were  made,  it  does  not 
appear  that  the  manuscript  was  ever  in  the  hands 
of  the  Puritans.  The  strongest  probabiIit3-,  how- 
ever, of  their  authenticity  is  from  internal  evidence. 
[But  it  has  been  proved  by  Mr.  Keble,  the  last 
editor  of  the  Ecclesiastical  PoUty,  that  the  sixth, 
book,  as  we  now  possess  it,  though  written  by 
Hooker,  did  not  belong  to  this  work,  and,  conse- 
quently, that  the  real  sixth  book  has  been  lost. 
1841.] 

A  late  writer  has  produced  a  somewhat  ridicu- 
lous proof  of  the  carelessness  with  wliich  all  edi- 
tions of  the  Ecclesiastical  Polity  have  been  print- 
ed ;  a  sentence  having  slipped  into  the  text  of  the 
seventh  book,  which  makes  nonsense,  and  which 
he  very  probably  conjectures  to  have  been  a  mar- 
ginal memorandum  of  the  author  for  his  own  uso 
on  revising  the  manQscript. — M'Crie's  Life  of  Mel- 
vil,  vol.  i.,  p.  471.  [But  it  seems,  on  the  whole,  a 
more  plausible  conjecture,  that  the  memorandum 
was  by  one  of  those  who,  after  Hooker's  death, 
had  the  manuscript  to  revise.  1841.] 


Eliz. — Paritans.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


133 


Stories,  wliich  gossiping  compilers  of  litera- 
ry anecdote  can  easily  accumulate ;  while 
the  inti'insic  evidence  arising  from  the  work 
itself,  on  which,  in  this  branch  of  criticism, 
I  am  apt  chiefly  to  rely,  seems  altogether 
to  repel  ev  ery  suspicion ;  for  not  only  the 
principles  of  civil  government,  presented  in 
a  more  e.xpanded  form  by  Hooker  in  the 
eighth  book,  are  precisely  what  he  laid 
down  in  the  first,  but  there  is  a  peculiar 
chain  of  consecutive  reasoning  running 
through  it,  wherein  it  would  be  difficult  to 
point  out  any  passages  that  could  be  reject- 
ed without  dismembering  the  context.  It 
was  his  business,  in  this  part  of  the  Eccle- 
siastical Polity,  to  vindicate  the  queen's  su- 
premacy over  the  Chm-ch.  and  this  he  has 
done  by  identifying  the  Church  with  the 
Commonwealth ;  no  one,  according  to  him, 
being  a  member  of  the  one  who  was  not 
also  a  member  of  the  other.  But  as  the 
constitution  of  the  Christian  Chuixh,  so  far 
as  the  laity  partook  in  its  government,  by 
choice  of  pastors  or  otherwise,  was  unde- 
niably democratical,  he  labored  to  show, 
through  the  medium  of  the  original  com- 
pact of  civil  society,  that  the  sovereign  had 
received  this,  as  well  as  all  other  powers, 
at  the  hands  of  the  people.  "  Laws  being 
made  among  us,"  he  affirms,  "are  not  by 
any  of  us  so  taken  or  interpi'eted,  as  if  they 
did  receive  their  force  from  power  which 
the  prince  doth  communicate  unto  the  Par- 
liament, or  unto  any  other  court  under  him, 
but  from  power  which  the  whole  body  of 
the  realm  being  naturally  possessed  with, 
hath  by  free  and  deliberate  assent  derived 
unto  him  that  ruleth  over  them  so  far  forth 
as  hath  been  declared ;  so  that  our  laws 
made  concerning  religion  do  take  originally 
their  essence  from  the  power  of  the  whole 
realm  and  Church  of  England." 

In  this  system  of  Hooker  and  Locke,  for 
it  will  be  obvious  to  the  reader  that  their 
principles  were  the  same,  there  is  much,  if 
I  am  not  mistaken,  to  disapprove.  That  no 
man  can  be  justly  bound  by  laws  which  his 
own  assent  has  not  ratified,  appears  to  me 
a  position  incompatible  with  the  existence 
of  society  in  its  literal  sense,  or  illusory  in 
the  sophistical  interpretations  by  which  it  is 
usual  to  evade  its  meaning.  It  will  be  more 
satisfactoiy  and  important  to  remark  the 
views  which  this  gi-eat  writer  entertained 
of  our  own  Constitution,  to  which  he  fre- 


quently and  fearlessly  appeals,  as  the  stand- 
ing illustration  of  a  government  restrained  by 
law.  "  I  can  not  choose,"  he  says,  "  but 
commend  highly  their  wisdom  by  whom 
the  foundation  of  the  Commonwealth  hath 
been  laid  ;  wherein,  though  no  manner  of 
person  or  cause  be  unsubject  unto  the  king's 
power,  yet  so  is  the  power  of  the  king  over 
all,  and  in  all  limited,  that  unto  all  his  pro- 
ceedings the  law  itself  is  a  rule.  The  ax- 
ioms of  our  regal  government  are  these  : 
'  Lex  facit  regem' — the  king's  gi'ant  of  any 
favor  made  contrary  to  the  law  is  void ; 
'Rex  nihil  potest  nisi  quod  jure  potest' — 
what  power  the  king  hath,  he  hath  it  by 
law ;  the  bounds  and  limits  of  it  are  known  ; 
the  entire  community  giveth  general  order 
by  law  how  all  things  publicly  are  to  be 
done;  and  the  king,  as  the  head  thereof, 
the  highest  in  authority  over  all,  causeth, 
according  to  the  same  law,  every  particular 
to  be  framed  and  ordered  thereby.  The 
whole  body  politic  maketh  laws,  which  laws 
give  power  unto  the  king;  and  the  king  hav- 
ing bound  himself  to  use  according  to  law 
that  power,  it  so  falleth  out,  that  the  execu- 
tion of  the  one  is  accomplished  by  the  oth- 
er." These  doctrines  of  limited  monarchy 
recur  perpetually  in  the  eighth  book ;  and 
though  Hooker,  as  may  be  supposed,  does 
not  enter  upon  the  perilous  question  of  re- 
sistance, and  even  intimates  that  he  does 
not  see  how  the  people  can  limit  the  extent 
of  power  once  gi-anted,  unless  where  it  es- 
cheats to  them,  yet  he  positively  lays  it 
down,  that  usurpers  of  power,  that  is,  law- 
ful rulers  arrogating  more  than  the  law  gives 
to  them,  can  not,  in  conscience,  bind  any 
man  to  obedience. 

It  would,  perhaps,  have  been  a  deviation 
from  my  subject  to  enlarge  so  much  on  these 
political  principles  in  a  writer  of  any  later 
age,  when  they  had  been  openly  sustained 
in  the  councils  of  the  nation.  But  as  the 
reigns  of  the  Tudor  family  were  so  inau- 
spicious to  liberty  that  some  have  been  apt 
to  imagine  its  recollection  to  have  been  al- 
most eflaced,  it  becomes  of  more  importance 
to  show  that  absolute  monarchy  was,  in  the 
eyes  of  so  eminent  an  author  as  Hooker, 
both  pernicious  in  itself,  and  contrary  to  the 
fundamental  laws  of  the  English  Common- 
wealth. Nor  would  such  sentiments,  we 
may  surely  presume,  have  been  avowed  by 
a  man  of  singular  humility,  and  whom  we 


131 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IV. 


might  charge  with  somewhat  of  an  excess- 
ive deference  to  authority,  unless  they  had 
obtained  more  currency,  both  among  divines 
and  lawyers,  than  the  complaisance  of  court- 
iers in  these  two  professions  might  lead  us 
to  conclude ;  Hooker  being  not  prone  to  deal 
in  paradoxes,  nor  to  borrow  from  his  ad- 
versai'ies  that  sturdy  republicanism  of  the 
school  of  Geneva  which  had  been  their 
scandal.  I  can  not,  indeed,  but  suspect 
that  his  Whig  principles,  in  the  last  book, 
are  announced  with  a  temerity  that  would 
have  startled  his  superiors  ;  and  that  its  au- 
thenticity, however  called  in  question,  has 
been  better  preserved  by  the  circumstance 
of  a  posthumous  publication  than  if  he  had 
lived  to  give  it  to  the  world.  Whitgift 
would  probably  have  induced  him  to  sup- 
press a  few  passages  incompatible  with  the 
servile  theories  akeady  in  vogue.  It  is  far 
more  usual  that  an  author's  genuine  senti- 
ments are  peneited  by  means  of  his  friends 
and  patrons  than  of  his  adversai-ies. 

The  prelates  of  the  English  Church, 
_  ,.       ,  while  they  inflicted  so  many  se- 

Spouation  of  -'  •' 

Church  rev-  verities  on  Others,  had  not  always 
cause  to  exult  in  their  own  con- 
dition. From  the  time  when  Henry  taught 
his  courtiers  to  revel  in  the  spoil  of  monas- 
teries, there  had  been  a  perpetual  appetite 
for  ecclesiastical  possessions.  Endowed  by 
a  prodigal  superstition  with  pomp  and 
wealth  beyond  aU  reasonable  measure,  and 
far  beyond  what  the  new  system  of  religion 
appeared  to  prescribe,  the  Church  of  Eng- 
land still  excited  the  covetousness  of  the 
powerful  and  the  scandal  of  the  austere.* 
I  have  mentioned  in  another  place  how  the 
bishoprics  were  impoverished  in  the  first 
Reformation  under  Edward  VI.  The 
Catholic  bishops  who  followed  made  haste 
to  plunder,  from  a  consciousness  that  the 
goods  of  their  church  were  speedily  to  pass 
into  the  hands  of  heretics. f  Hence  the 
alienation  of  their  estates  had  gone  so  far, 

*  The  Puritans  objected" to  the  title  of  lord  bish- 
op. Sampson  wrote  a  peevish  letter  to  Grindal  on 
this,  and  received  a  verj-  good  answer.  Strype's 
Parker,  Append.,  178.  Parker,  in  a  letter  to  Ce- 
cil, defends  it  on  the  best  ground ;  that  the  bish- 
ops bold  theii-  lands  by  barony,  and  therefore  the 
giving  them  the  title  of  lords  was  no  irregularity, 
and  nothing  more  than  a  consequence  of  the  ten- 
tire. — Collier,  544.  This  will  not  cover  our  modem 
colonial  bishops,  on  some  of  whom  the  same  title 
has,  without  any  good  reason,  been  conferred. 

t  Strype's  Annals,  i.,  159. 


that  in  the  beginning  of  Elizabeth's  reign 
statutes  were  made,  disabling  ecclesiastical 
proprietors  from  gi-anting  away  their  lands, 
except  on  leases  for  three  lives,  or  twenty- 
one  years.*  But  an  unfortunate  resena- 
tion  was  introduced  in  favor  of  the  crown. 
The  queen,  therefore,  and  her  courtiers, 
who  obtained  grants  from  her,  continued  to 
prey  upon  their  succulent  victim.  Few  of 
her  council  imitated  the  noble  disinterest- 
edness of  Walsingham,  who  spent  his  own 
estate  in  her  service,  and  left  not  sufficient 
to  pay  his  debts.  The  documents  of  that 
age  contain  ample  proofs  of  their  rapacity. 
Thus  Cecil  suiTounded  his  mansion-house 
at  Burleigh  with  estates  once  belonging  to 
the  see  of  Peterborough.  Thus  Hatton 
buUt  his  house  in  Holborn  on  the  Bishop  of 
Ely's  garden.  Cox,  on  making  resistance 
to  this  spoliation,  received  a  singular  epistle 
from  the  queen,  f  This  bishop,  in  conse- 
quence of  such  vexations,  was  desirous  of 
retiring  from  the  see  before  his  death.  Af- 
ter that  event,  Elizabeth  kept  it  vacant  eigh- 
teen years.  During  this  period  we  have  a 
petition  to  her  from  Lord-keeper  Pucker- 
ing, that  she  would  confer  it  on  Scambler, 
bishop  of  Norwich,  then  eighty-eight  years 
old,  and  notorious  for  simony,  in  order  that 
he  might  give  him  a  lease  of  part  of  the 
lands. t  These  ti'ansactions  denote  the  mer- 
cenary and  rapacious  spiiit  which  leavened 
almost  all  Elizabeth's  couitiei-s. 

The  bishops  of  this  reign  do  not  appear, 
with  some  distinguished  exceptions,  to  have 
reflected  so  much  honor  on  the  Established 
Church  as  those  who  attach  a  superstitious 
reverence  to  the  age  of  the  Refonnation 

*  1  Eliz.,  c.  19;  13  Eliz..  c.  10.  Blackstone's 
Commentaries,  vol.  ii.,  c.  28.  The  exception  in 
favor  of  the  crown  was  repealed  in  the  first  year 
of  James. 

t  It  was  couched  in  the  following  terms : 
"  Proud  Prelate, 

"  You  know  what  you  were  before  I  made  you 
what  you  are  :  if  you  do  not  immediately  comply 
with  my  request,  by  G —  I  will  unfrock  you. 

"  Elizabeth." 

Poor  Cox  wrote  a  very  good  letter  before  this, 
printed  in  Strj-pe's  Annals,  vol.  ii..  Append.,  84. 
The  names  of  Hatton  Garden  and  Ely  Place  (Man- 
tua vae  miserae  niminm  vicina  Cremonae)  still  bear 
witness  to  the  encroaching  lord-keeper  and  the  el- 
bowed bishop. 

t  Strj-pe,  iv.,  246.  See,  also,  p.  15  of  the  same 
volume.  By  an  act  in  the  first  year  of  James,  c. 
3,  conveyances  of  bishops'  lands  to  the  crown  are 
made  void;  a  concession  much  to  the  king's  honor. 


E LIZ.— Puritans.]  FROM  HENRY  VII.  TO  GEORGE  II. 


135 


are  apt  to  conceive.  In  the  plunder  that 
went  forward,  they  took  good  care  of  them- 
selves. Chai'ges  against  them  of  siraony, 
corruption,  covetousness,  and  especially  de- 
struction of  their  church  estates  for  the 
benefit  of  their  families,  are  very  common 
— sometimes,  no  doubt,  unjust,  but  too  fre- 
quent to  be  absolutely  without  foundation.* 
The  council  often  wrote  to  them,  as  well 
as  concerning  them,  with  a  sort  of  asperity 
which  would  astonish  one  of  their  success- 
ors. And  the  queen  never  resti'ained  hei"- 
self  in  treating  them  on  any  provocation 
with  a  good  deal  of  rudeness,  of  which  I 
have  just  mentioned  an  egregious  example. f 
In  her  speech  to  Parliament  on  closing  the 
session  of  1584,  when  many  complaints 
against  the  nilers  of  the  Church  had  i-ung 
in  her  ears,  she  told  the  bishops  that  if  they 
did  not  amend  what  was  wrong,  she  meant  to 
depose  them  ;t  for  there  seems  to  have  been 
no  question  in  that  age  but  that  this  might 
be  done  by  virtue  of  the  crown's  supremr.^y. 

The  Church  of  England  was  not  left  by 
Elizabeth  in  circumstances  that  demanded 
applause  for  the  policy  of  her  rulers.  After 
forty  years  of  constantly  aggravated  moles- 

*  Harrington's  State  of  tlie  Church,  iu  Nagas 
Antiquse,  vol.  ii.,  passim.  Wilkins's  ConciUa,  iv., 
256.  Strype's  Aunals,  iii.,  020,  et  alibi.  Life  of 
Parker,  454  ;  of  Whitgift,  220 ;  of  Aylmer,  passim. 
Observe  the  preamble  of  13  Eliz.,  c.  10.  It  mast 
be  admitted,  on  the  other  hand,  that  the  gentrj, 
when  popishly  or  Puritanically  affected,  were  apt 
to  behave  exceedingly  ill  toward  the  bishops.  At 
Lambeth  and  FuUiam  they  were  pretty  safe  ;  but 
at  a  distance  they  found  it  hard  to  struggle  with 
the  rudeness  and  iniquity  of  the  territorial  aristoc- 
racy, as  Sandys  twice  experienced. 

t  Birch's  Memoirs,  i.,  48.  Elizabeth  seeras  to 
bave  fancied  herself  entitled  by  her  supremacy  to 
dispose  of  bishops  as  she  pleased,  though  they  did 
not  hold  commissions  durante  bene  placito,  as  in 
her  brother's  time.  Thus  she  suspended  Fletch- 
er, bishop  of  London,  of  her  own  authoiity,  only  for 
marrj-ing  "  a  fine  lady  and  a  widow." — Strype's 
Whitgift,  453.  And  Aylmer  having  preached  too 
vehemently  against  female  vanity  in  dress,  which 
came  home  to  the  queen's  conscience,  she  told  her 
ladies  that  if  the  bishop  held  more  discourse  on 
such  matters,  she  would  fit  him  for  heaven  ;  but 
he  should  walk  thither  without  a  staff,  and  leave 
his  mantle  behind  him. — Harrington's  State  of  the 
Church,  in  Nugse  Antiquas,  i.,  170  ;  see,  too,  p.  217. 
It  will,  of  course,  not  appear  surprising,  that  Hut- 
ton,  arclibishop  of  York,  an  exceedingly  honest 
prelate,  having  preached  a  bold  sermon  before  the 
queen,  urging  her  to  settle  the  succession,  and 
pointing  sti-ongly  toward  Scotland,  received  a  sharp 
message,  p.  250.  t  D'Ewes,  328. 


tation  of  the  non-conforming  clergy,  their 
numbers  were  become  greater,  their  popu- 
larity more  deeply  rooted,  their  enmity  to 
the  established  order  more  irreconcilable. 
It  was  doubtless  a  problem  of  no  slight  dif- 
ficulty, by  what  means  so  obstinate  and 
opiniated  a  class  of  sectaries  could  have 
been  managed;  nor  are  we,  perhaps,  at  this 
distance  of  time,  altogether  competent  to 
decide  upon  the  fittest  course  of  pohcy  in 
that  respect.*  But  it  is  manifest  that  the 
obstinacy  of  bold  and  sincere  men  is  not  to 
be  quelled  by  any  punishments  that  do  not 
exterminate  them,  and  that  they  were  not 
likely  to  entertain  a  less  conceit  of  their  own 
reason  when  they  found  no  arguments  so 
much  relied  on  to  refute  it  as  that  of  force. 
Statesmen  invariably  take  a  better  view  of 
such  questions  than  churchmen ;  and  we 
may  well  believe  that  Cecil  and  Walsing- 
ham  judged  more  sagaciously  than  Whit- 
gift and  Aylmer.  The  best  apology  that 
can  be  made  for  Elizabeth's  tenaciousness 
of  those  ceremonies  which  produced  this 
fatal  contention  I  have  already  suggested, 
without  much  express  authority  from  the 
records  of  that  age;  namely,  the  justice  and 
expediency  of  winning  over  the  Catholics  to 
conformity,  by  retaining  as  much  as  possi- 
ble of  their  accustomed  rites.  But  in  the 
latter  period  of  the  queen's  reign,  this  poli- 
cy had  lost  a  great  deal  of  its  application ; 
or,  rather,  the  same  principle  of  policy 
would  have  dictated  numerous  concessions 
in  order  to  satisfy  the  people.  It  appears 
by  no  means  unlikely  that,  by  reforming 
the  abuses  and  corruption  of  the  spiritual 
courts ;  by  abandoning  a  pait  of  their  juris- 
diction, so  heterogeneous  and  so  unduly  ob- 
tained ;  by  abrogating  obnoxious,  and,  at 
best,  fi-ivolous  ceremonies  ;  by  restraining 
pluralities  of  benefices ;  by  ceasing  to  dis- 
countenance the  most  diligent  ministers, 
and  by  more  temper  and  disinterestedness 
in  their  own  behavior,  the  bishops  would 
have  palliated,  to  an  indefinite  degree,  that 
dissatisfaction  with  the  established  scheme 

*  Collier  says,  p.  586,  on  Heylin's  authority,  that 
Walsingham  offered  the  Puritans,  about  1583,  in 
the  queen's  name,  to  give  up  the  ceremony  of 
kneeling  at  the  communion,  the  cross  iu  baptism, 
and  the  surphce  ;  but  that  they  answered,  "  ne 
ungulam  quidem  esse  relinquendam."  But  I  am 
not  aware  of  any  better  testimony  to  the  fact ;  and 
it  is  by  no  means  agreeable  to  the  queen's  gener- 
al conduct. 


136 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IV. 


of  polity,  which  its  want  of  resemblance  to  [ 
that  of  other  Protestant  churches  must 
more  or  less  have  produced.  Such  a  ref-  j 
ormation  would  at  least  have  contented 
those  reasonable  and  moderate  persons, 
who  occupy  sometimes  a  more  extensive 
ground  between  contending  factions  than 
the  zealots  of  either  are  willing  to  believe 
or  acknowledge. 

I  am  very  sensible  that  such  freedom  as 
General  1  have  used  in  this  chapter  can  not 
remarks,  jjg  pleasing  to  such  as  have  sworn 
allegiance  to  either  the  Anglican  or  the  Pu- 
ritan pai'tj' ;  and  that  even  candid  and  lib- 
eral minds  may  be  inclined  to  suspect  that 
I  have  not  sufficiently  admitted  the  excess- 
es of  one  side  to  furnish  an  excuse  for  those 
of  the  other.  Such  readers  I  would  gladly 
refer  to  Lord  Bacon's  Advertisement  touch- 
ing the  Controversies  of  the  Church  of  Eng- 
land ;  a  treatise  written  under  Elizabeth,  in 
that  tone  of  dispassionate  philosophy  which 
the  precepts  of  Burleigh,  sown  in  his  own 
deep  and  fertile  mind,  had  taught  him  to 
apply.  This  treatise,  to  which  I  did  not 
turn  my  attention  in  writing  the  present 
chapter,  appears  to  coincide  in  eveiy  respect 
with  the  views  it  displays.  If  he  censures 
the  pride  and  obstinacy  of  the  Puritan  teach- 
ers, their  indecent  and  libelous  style  of 
wi'iting,  their  affected  imitation  of  foreign 
churches,  their  extravagance  of  receding 
from  every  thing  formerly  practiced,  he 
animadverts  with  no  less  plainness  on  the 
faults  of  the  Episcopal  party,  on  the  bad 
example  of  some  prelates,  on  their  peevish 
opposition  to  every  improvement,  theii-  un- 
just accusations,  their  contempt  of  foreign 
churches,  their  persecuting  spirit.* 

Yet  that  we  may  not  deprive  this  gi-eat 
Letter  of  queen's  administration,  in  what 
Waisingham  concerned  her  dealings  with  the 

in  defense  of  ...  .     '  , 

the  queen's  two  religious  parties  opposed  to 
government,  t^jg  Established  Church,  of  what 
vindication  may  best  be  offered  for  it,  I  will 
refer  the  reader  to  a  letter  of  Sir  Francis 

*  Bacon,  ii.,  375.  See,  also,  another  paper  con- 
cemiug  the  pacification  of  the  Church,  written  un- 
der James,  p.  387.  "The  wrongs,"  ho  says,  "of 
tliose  wliich  are  possessed  of  the  government  of  the 
Church  toward  the  other,  may  hardly  be  dissem- 
bled or  excused,"  p.  382.  Yet  Bacon  was  never 
charged  with  affection  for  the  Puritans.  In  truth, 
Elizabeth  and  James  were  personally  the  great 
support  of  the  high  church  interest ;  it  had  few  real 
frieuds  among  their  counselors. 


Waisingham,  written  to  a  person  in  France 
after  the  year  1580.*  It  is  a  very  able  apol- 
ogy for  her  government;  and  if  the  reader 
should  detect,  as  he  doubtless  may,  some- 
what of  sophistry  in  reasoning,  and  of  mis- 
statement in  matter  of  fact,  he  will  ascribe 
both  one  and  the  other  to  the  narrow  spirit 
of  the  age  ^^^th  respect  to  civil  and  religious 
freedom,  or  to  the  circumstances  of  the 
writer,  an  advocate  whose  sovereign  was 
his  client. 

*  Burnet,  ii.,  418.  Cabala,  part  ii.,  38  (4to  e<fi- 
tion).  Waisingham  grounds  the  queen's  proceed- 
ings upon  two  jjrinciples  :  the  one,  that  "  conscien- 
ces are  not  to  be  forced,  but  to  be  won  and  re- 
duced by  force  of  truth,  with  the  aid  of  time,  and 
use  of  all  good  means  of  instruction  and  persua- 
sion;" the  other,  that  "cases  of  conscience,  when 
they  exceed  their  bounds,  and  grow  to  be  matter 
of  faction,  lose  their  nature ;  and  that  sovereign 
princes  ought  distinctly  to  punish  their  practices 
and  contempt,  though  colored  with  the  pretense 
of  conscience  and  religion."  Bacon  has  repeated 
the  same  words,  as  well  as  some  more  of  Wal- 
singham's  letter,  in  his  observations  on  the  libel  oa 
Lord  Burleigh,  i.,  522 ;  and  Mr.  Southey  (Book  of 
the  Church,  ii.,  291)  seems  to  adopt  them  as  his 
own. 

Upon  this  it  may  be  observed,  first,  that  they 
take  for  gi-anted  the  fundamental  sophism  of  relig- 
ious intolerance,  namely,  that  the  civil  magistrate, 
or  the  church  he  supports,  is  not  only  in  the  right, 
but  so  clearly  in  the  right,  that  no  honest  man,  if 
he  takes  time  and  pains  to  consider  the  subject, 
can  help  acknowledging  it ;  secondly,  that,  accord- 
ing to  the  principles  of  Christianity  as  admitted  on 
each  side,  it  does  not  rest  in  an  esoteric  persua- 
sion, but  requires  an  exterior  profession,  evinced 
both  by  social  worship,  and  by  certain  posirive 
rites  ;  and  that  the  marks  of  this  profession,  accord- 
ing to  the  fonn  best  adapted  to  their  respective 
ways  of  thinking,  were  as  incumbent  upon  the  Cath- 
olic and  Puritan,  as  they  had  been  upon  the  primi- 
tive Church  :  nor  were  they  more  chargeable  with 
faction,  or  with  exceeding  the  bounds  of  conscience, 
when  they  persisted  in  the  use  of  them,  notwith- 
standing any  prohibitory  statute,  than  the  early 
Christians. 

The  generality  of  statesmen,  and  churchmen 
themselves  not  nnfrequently,  have  argued  upon 
the  principles  of  what,  in  the  seventeenth  century, 
was  called  Hobbism,  toward  which  the  Erastian 
system,  which  is  that  of  the  Church  of  England, 
though  excellent  in  some  points  of  view,  had  a 
tendency  to  gravitate  ;  namely,  that  ciWl  and  relig- 
ious allegiance  are  so  necessarily  connected,  that 
it  is  the  subject's  dutv*  to  foUow  the  dictates  of  the 
magistrate  in  both  aUke.  And  this  received  some 
countenance  from  the  false  and  mischievous  posi- 
tion of  Hooker,  that  tlie  Church  and  Commonwealth 
are  but  dififerent  denominations  of  the  same  socie- 
ty. Warburton  has  sufficiently  exposed  the  soph- 
istry of  this  theory,  though  I  do  not  thuik  him 
equally  successful  in  what  he  substitutes  for  it. 


Eliz.— Government.]         FROM  HENRY  VII.  TO  GEORGE  II.  ■  I37 


CHAPTER  V. 
ON  THE  CIVIL  GOVERNMENT  OF  ELIZABETH. 


General  Remarks.  —  Defective  Security  of  the 
Subject's  Liberty. — Trials  for  Treason  and  oth- 
er political  Offenses  unjustly  conducted. — Ille- 
gal Commitmenls.  —  Remonsti'ance  of  Judges 
against  theru.  —  Proclamations  unwarranted  by 
Law. — Resti-ictions  on  Printing. — Martial  Law. 
— Loans  of  Money  not  quite  Voluntary. — Char- 
acter of  Lord  Burleigh's  Aihuinistration. — Dis- 
position of  the  House  of  Commons. — Addresses 
concerning  the  Succession. — Difference  on  this 
between  the  dueen  and  Commons  in  1.5C6. — 
Session  of  1571. —  Influence  of  the  Puritans  in 
Parliament. — Speech  of  Mr.  Wentworth  in  1576. 
— The  Commons  continue  to  seek  Redress  of 
ecclesiastical  Grievances  ;  also  of  Monopolies, 
especially  in  the  Session  of  ICOl. — Influence  of 
the  Crown  in  Parliament. — Debate  on  Election 
of  non-resident  Burgesses. — Assertion  of  Priv- 
ileges by  Commons. —  Case  of  Fen-ers,  under 
Henry  VIII. — Other  Cases  of  Privilege. — Priv- 
ilege of  detenuiuing  contested  Elections  claim- 
ed by  the  House.  —  The  English  Constitution 
not  admitted  to  be  an  absolute  Monarchy. — 
Pretensions  of  the  Crown. 
The  subject  of  the  last  two  chapters,  I 
General  mean  the  policy  adopted  by  Eliza- 
remarks,  beth  for  resti-icting  the  two  religious 
parties  which  from  opposite  quarters  resist- 
ed the  exercise  of  her  ecclesiastical  prerog- 
atives, has  already  afforded  us  many  illus- 
trations of  what  may  more  strictly  be  reck- 
oned the  constitutional  history  of  her  reign. 
The  tone  and  temper  of  her  administration 
have  been  displayed  in  a  vigilant  execution 
of  severe  statutes,  especially  toward  the 
Catholics,  and  sometimes  in  stretches  of 
power  beyond  the  law.    And  as  Elizabeth 
had  no  domestic  enemies  or  refractory  sub- 
jects who  did  not  range  under  one  or  other 
of  these  two  sects,  and  little  disagreement 
with  her  people  on  any  other  gi-ounds,  the 
ecclesiastical  history  of  this  period  is  the 
best  preparation  for  our  inquiry  into  the 
civil  government.    In  the  present  chapter 
I  shall  first  offer  a  short  view  of  the  practi- 
cal exercise  of  government  in  this  reign, 
and  then  proceed  to  show  how  the  queen's 
high  assumptions  of  prerogative  were  en- 
countered by  a  resistance  in  Parliament, 
not  quite  uniform,  but  insensibly  becoming 
more  vigorous. 

Elizabeth  ascended  the  throne  with  all 


the  advantages  of  a  very  extended  authori- 
ty. Though  the  jurisdiction  actually  ex- 
erted by  the  Court  of  Star  Chamber  could 
not  be  vindicated  according  to  statute  law, 
it  had  been  so  well  established  as  to  pass 
without  many  audible  murmurs.  Her  pro- 
genitoi-s  had  intimidated  the  nobility ;  and 
if  she  had  something  to  fear  at  one  season 
from  this  order,  the  fate  of  the  Duke  of 
Norfolk  and  of  the  rebellious  earls  in  the 
North  put  an  end  forever  to  all  apprehension 
from  the  feudal  influence  of  the  aristocracy. 
There  seems  no  reason  to  believe  that  she 
attempted  a  more  absolute  power  than  her 
predecessors ;  the  wisdom  of  her  counsel- 
ors, on  the  conti'ary,  led  them  generally  to 
shun  the  more  violent  measures  of  the  late 
reigns ;  but  she  certainly  acted  upon  many 
of  the  precedents  they  had  bequeathed  her, 
with  little  consideration  of  their  legality. 
Her  own  remarkable  talents,  her  masculine 
intrepidity,  her  readiness  of  wit  and  royal 
deportment,  which  the  bravest  men  unaf- 
fectedly dreaded,  her  temper  of  mind,  above 
all,  at  once  fiery  and  inscrutably  dissem- 
bling, would  in  any  circumstances  have  in- 
sured her  more  real  sovereignty  than  weak 
monarchs,  however  nominally  absolute,  can 
ever  enjoy  or  retain.  To  these  personal 
qualities  was  added  the  co-operation  of  some 
of  the  most  diligent  and  circumspect,  as  well 
as  the  most  sagacious  counselors  that  any 
prince  has  employed ;  men  as  unlikely  to 
loose  from  their  gi'asp  the  least  portion  of 
that  authority  which  they  found  themselves 
to  possess,  as  to  excite  popular  odium  by  an 
unusual  or  misplaced  exertion  of  it.  The 
most  eminent  instances,  as  I  have  remark- 
ed, of  a  high-strained  prerogative  in  her 
reign,  have  some  relation  to  ecclesiastical 
concerns ;  and  herein  the  temper  of  the 
predominant  religion  was  such  as  to  account 
no  measures  harsh  or  arbitrary  that  were 
adopted  toward  its  conquered,  but  still  for- 
midaljle  enemy.  Yet  when  the  royal  su- 
premacy was  to  be  maintained  against  a  dif- 
ferent foe  by  less  violent  acts  of  power,  it 
revived  the  smouldering  embers  of  English 


138 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  V. 


liberty.  The  stern  and  exasperated  Puri- 
tans became  the  depositaries  of  that  sacred 
fire;  and  this  manifests  a  second  connection 
between  the  temporal  and  ecclesiastical  his- 
tory of  the  present  reign. 

Civil  liberty,  in  this  kingdom,  has  two  di- 
rect guarantees :  the  open  administi-ation 
of  justice  according  to  known  laws  tinily 
interpreted,  and  fair  consti'uctions  of  evi- 
dence ;  and  the  right  of  Parliament,  with- 
out let  or  interruption,  to  inquire  into,  and 
obtain  the  redress  of,  public  grievances. 
Of  these,  the  first  is  by  far  the  most  indis- 
pensable ;  nor  can  the  subjects  of  any  state 
be  reckoned  to  enjoy  a  real  freedom,  where 
this  condition  is  not  found  both  in  its  judicial 
institutions  and  in  their  constant  exercise. 
In  this,  much  more  than  in  positive  law,  our 
ancient  Constitution,  both  under  the  Plan- 
tagenet  and  Tudor  line,  had  ever  been  fail- 
ing ;  and  it  is  because  one  set  of  witers 
have  looked  merely  to  the  letter  of  our  stat- 
utes or  other  authorities,  while  another  have 
been  almost  exclusively  struck  by  the  in- 
stances of  arbiti'aiy  government  they  found 
on  record,  that  such  incompatible  systems 
have  been  laid  down  with  equal  positiveness 
on  the  character  of  that  Constitution. 

I  have  found  it  impossible  not  to  antici- 
pate, in  more  places  than  one. 
Trials  for       '       '         ,  ,  . 

treason  nnd  some  01  tliose  glaring  transgi'es- 
oiher  poiiu-  gjQjjg      natural  as  well  as  posi- 

cai  offenses  * 

unjustly  coa-  tive  law,  that  rendered  our  courts 
ucted.  justice  in  cases  of  treason  lit- 

tle better  than  the  caverns  of  murderers. 
Whoever  was  arraigned  at  their  bar  was 
almost  certain  to  meet  a  virulent  prosecu- 
tor, a  judge  hardly  distinguishable  from  the 
prosecutor  except  by  his  ermine,  and  a 
passive,  pusillanimous  jury.  Those  who 
are  acquainted  only  with  our  modern  decent 
and  dignified  procedure,  can  form  little  con- 
ception of  the  iiTegularity  of  ancient  finals  ; 
the  perpetual  interrogation  of  the  prisoner, 
which  gives  most  of  us  so  much  offense  at 
this  day  in  the  tribunals  of  a  neighboring 
kingdom ;  and  the  want  of  all  evidence  ex- 
cept written,  perhaps  unattested,  examina- 
tions or  confessions.  Habington,  one  of  the 
conspirators  against  Efizabeth's  life  in  1566, 
complained  that  two  witnesses  had  not  been 
brought  against  him,  conformably  to  the 
statute  of  Edward  VI.  But  Anderson,  the 
chief  justice,  told  him,  that  as  he  was  in- 
dicted on  the  act  of  Edward  III.,  that  pro- 


vision was  not  in  force.*  In  the  case  of 
Captain  Lee,  a  partisan  of  Essex  and  South- 
ampton, the  court  appear  to  have  denied 
the  right  of  peremptoiy  challenge. f  Nor 
was  more  equal  measure  dealt  to  the  noblest 
prisoners  by  their  equals.  The  Earl  of 
Ai'undel  was  convicted  of  imagining  the 
queen's  death,  on  evidence  which  at  the 
utmost  would  only  have  supported  an  in- 
dictment for  reconciliation  to  the  Church 
of  Rome. t 

The  integrity  of  judges  is  put  to  the 
proof  as  much  by  prosecutions  for  seditious 
writings  as  by  charges  of  ti-eason.  I  have 
before  mentioned  the  conviction  of  Udal  and 
Peniy,  for  a  felony  created  by  the  23d  of 
Elizabeth ;  the  former  of  which,  especially, 
must  sti-ike  every  reader  of  the  trial  as  one 
of  the  gross  judicial  iniquities  of  this  reign. 
But,  before  this  sanguinaiy  statute  was  en- 
acted, a  punishment  of  imcommon  sevei'ity 
had  been  inflicted  upon  one  Stubbe,  a  Pu- 
ritan lawyei-,  for  a  pamphlet  against  the 
queen's  intended  niamage  with  the  Duke 
of  Anjou.  It  will  be  in  the  recollection  of 
most  of  my  readers,  that  in  the  year  1579, 
Elizabeth  exposed  herself  to  much  censure 
and  ridicule,  and  inspii-ed  the  justest  alarm 
in  her  most  faithful  subjects,  by  entertain- 
ing, at  the  age  of  forty-six,  the  proposals 
of  this  j-oung  scion  of  the  house  of  Valois. 
Her  council,  though  several  of  them,  in  their 
deliberations,  had  much  inclined  against  the 
preposterous  alliance,  yet  in  the  end,  dis- 
playing the  compliance  usual  with  the  ser- 
vants of  self-willed  princes,  agi-eed,  "con- 
ceiving," as  they  say,  "  her  earnest  dispo- 
sition for  this  her  marriage,"  to  further  it 
with  all  their  power.  Sir  Philip  Sidney, 
with  more  real  royalty,  wrote  her  a  spirit- 
ed i-emonstrance,  which  she  had  the  mag- 
nanimity never  to  resent.*    But  she  poured 

*  State  Trials,  i.,  1148.  t  Id.,  i.,  1256. 

t  State  Trials,  i.,  1403. 

§  Murden,  337.  Dr.  Lingard  has  fully  establish- 
ed, what,  indeed,  no  one  could  reasonably  have 
■disputed,  Elizabeth's  passion  for  Anjou ;  and  says 
very  truly,  "  the  vrriters  who  set  all  this  down  to 
policy  can  not  have  consulted  the  original  docu- 
ments," p.  149.  It  was  altogether  repugnant  to 
sound  policy.  Persons,  the  Jesuit,  indeed  says, 
iu  his  famous  libel,  Leicester's  Commonwealth, 
written  not  long  after  this  time,  that  it  wovdd  have 
been  "  honorable,  convenient,  profitable,  and  need- 
ful," which  every  honest  Englishmen  would  inter- 
pret by  the  rule  of  coutraiies.  Sussex  wrote,  in- 
deed, to  the  queen  in  favor  of  the  marriage  (Lodge, 


Eliz. — Government] 


FROM  HENRY  VII.  TO  GEORGE  II. 


139 


her  indignation  on  Stubbe,  who,  not  enti- 
tled to  use  a  private  address,  had  ventured 
to  arouse  a  popular  ciy  in  his  "  Gaping 
Gulph,  in  which  England  will  be  swallowed 
up  by  the  French  Man-iage."  This  pam- 
phlet is  very  far  from  being,  what  some 
have  ignorantly  or  unjustly  called  it,  a  vii-u- 
lent  libel,  but  is  written  in  a  sensible  man- 
ner, and  with  unfeigned  loyalty  and  affec- 
tion toward  the  queen.  But,  besides  the 
main  offense  of  addressing  the  people  on 
state  affairs,  he  had,  in  tlie  simplicity  of  his 
heart,  thrown  out  many  allusions  proper  to 
hurt  her  pride,  such  as  dwelling  too  long 
on  the  influence  her  husband  would  acquu-e 
over  her,  and  imploring  that  she  would  ask 
her  physicians  whether  to  bear  children  at 
her  years  would  not  be  highly  dangerous  to 
her  life.  Stubbe,  for  writing  this  pamphlet, 
received  sentence  to  have  his  right  hand  cut 
off".  When  the  penalty  was  inflicted,  tak- 
ing oft"  his  hat  with  his  left,  he  exclaimed, 
"Long  live  Queen  Elizabeth!"  Burleigh, 
who  knew  that  his  fidelity  had  borne  so 
rude  a  test,  employed  liim  aftemard  in  an- 
swering some  of  the  popish  libelers.* 

There  is  no  room  for  wonder  at  any  ver- 
dict that  could  be  returned  by  a  juiy,  when 
we  consider  what  means  the  government 
possessed  of  securing  it.  The  sheriff"  re- 
turned a  panel,  either  according  to  express 
directions,  of  which  we  have  proofs,  or  to 
what  he  judged  himself  of  the  crown's  in- 
tention and  interest,  f    If  a  verdict  had  gone 

ii.,  177)  ;  and  Cecil  andoubtedly  professed  to  favor 
it ;  but  this  must  have  been  out  of  obsequiousness 
to  the  queen.  It  was  a  habit  of  this  minister  to 
set  down  briefly  the  arguments  on  both  sides  of  a 
question,  sometimes  iu  parallel  columns,  some- 
times successively ;  a  method  which  would  seem 
too  formal  in  our  age,  but  tending  to  give  himself 
and  others  a  clearer  view  of  the  case.  He  has 
done  this  twice  in  the  present  instance ;  Murden, 
322,  331 ;  and  it  is  evident  that  he  does  not,  and 
can  not,  answer  his  o'wu  objections  to  the  matcli. 
"When  the  council  waited  on  her  with  this  resolu- 
tion in  favor  of  the  man-iage,  she  spoke  sharply  to 
those  whom  she  believed  to  be  against  it.  Yet 
the  treaty  went  on  for  two  years ;  her  coquetry 
in  this  strange  delay  breeduig  her,  as  Walsingham 
wrote  from  Paiis,  "  greater  dishonor  than  I  dare 
commit  to  paper."- — Strj'pe's  Annals,  iii.,  2.  That 
she  ultimately  broke  it  off,  must  be  ascribed  to  the 
suspiciousness  and  irresolution  of  her  character, 
which,  acting  for  once  conjointly  with  her  good  un- 
derstanding, overcame  a  disgraceful  inclination. 

*  Strj-pe,  iii.,  480.  Stubbe  always  signed  him- 
self Scasva  in  these  left-handed  productions. 

t  Lodge,  ii.,  412  ;  iii.,  49. 


against  the  prosecution  m  a  matter  of  mo- 
ment, the  jurors  must  have  laid  their  ac- 
count with  appearing  before  the  Star  Cham- 
ber; lucky  if  they  should  escape,  on  hum- 
ble retractation,  with  sharp  words,  instead 
of  enormous  fines  and  indefinite  imprison- 
ment. The  control  of  this  arbitrary  tribu- 
nal bound  down  and  rendered  impotent  all 
the  minor  jurisdictions.  That  primeval  in- 
stitution, those  inquests  by  twelve  ti'ue  men, 
the  unadulterated  voice  of  the  people,  re- 
sponsible alone  to  God  and  their  conscience, 
which  should  have  been  heard  in  the  sanc- 
tuaries of  justice,  as  fountains  springing 
fresh  from  the  lap  of  earth,  became,  like 
waters  constrained  in  their  course  by  art, 
stagnant  and  impure.  Until  this  weight 
that  hung  upon  the  Constitution  should  be 
taken  oft',  there  was  literally  no  prospect  of 
enjoj'ing  with  security  those  civil  privileges 
which  it  held  forth.* 

It  can  not  be  too  frequently  repeated,  that 
no  power  of  arbiti-ary  detention  niegai  com- 
has  ever  been  known  to  our  Con-  mi'ments. 
stitution  since  the  charter  obtained  at  Rim- 
nymede.  The  writ  of  habeas  corpus  has 
always  been  a  matter  of  right.  But,  as 
may  naturally  be  imagined,  no  right  of  the 
subject,  in  his  relation  to  the  crown,  was 
preserved  with  gi-eater  difficulty.  Not  only 
the  privy-council  in  general  aiTogated  to  it- 
self a  power  of  discretionary  imprisonment, 
into  which  no  inferior  court  was  to  inquire, 
but  commitments  by  a  single  counselor  ap- 
pear to  have  been  frequent.  These  abuses 
gave  rise  to  a  remarkable  complaint  of  the 
judges,  which,  though  an  authentic  recog- 
nition of  the  privilege  of  personal  freedom 
against  such  iiregular  and  oppressive  acts 
of  individual  ministers,  must  be  admitted  to 
leave  by  far  too  great  latitude  to  the  exec- 
utive government,  and  to  sun-ender,  at  least 

*  Several  volumes  of  the  Harleian  MSS.  illus- 
trate the  course  of  government  under  EUzabeth. 
The  copious  analysis  in  tlie  catalogue,  by  Hum- 
phrey Wanley  and  others,  which  I  have  in  gener- 
al fomid  accurate,  will,  for  most  purposes,  be  suffi- 
cient. See  particularly  vol.  703.  A  letter,  inter 
alia,  in  this  (folio  1),  from  Lord  Hunsdon  and  Wal- 
singham to  the  sheriff  of  Sussex,  directs  him  not 
to  assist  the  creditors  of  John  Ashbuniham  iu  mo- 
lesting him,  "  till  such  time  as  our  determmation 
touching  the  premises  shall  be  known,"  Ashbura- 
ham  being  to  attend  the  council  to  prefer  his  com- 
plaint. See,  also,  vols.  6995,  6996,  6997,  and  many 
others.  The  Lansdowne  catalogue  will  furnish 
other  evidences. 


140 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  V. 


by  implication  fi-oin  rather  obscure  language, 
a  great  part  of  the  liberties  which  many 
statutes  had  confirmed.*  This  is  contained 
in  a  passage  from  Chief-justice  Anderson's 
Reports.  But  as  there  is  an  original  man- 
uscript in  the  British  Museum,  differing  in 
some  material  points  from  the  print,  I  shall 
follow  it  in  preference. f 

"  To  the  Rt.  Hon.  our  very  good  lords 
Reraon-  Chr.  Hatton,  of  the  honorable 

strance  Order  of  the  Garter,  knight,  and 
aga?nsl^^  Chancellor  of  England,  and  Sir  W. 
'l'^"-  Cecill,  of  the  hen.  Order  of  the 
Gaiter,  knight,  Lord  Burleigh,  lord-high- 
ti'easurer  of  England — We,  her  majesty's 
justices  of  both  benches,  and  barons  of  the 
Exchequer,  do  desire  your  lordships  that 
by  your  good  means  such  order  may  be 
taken  that  her  highness's  subjects  may  not 
be  committed  or  detained  in  prison,  by  com- 
mandment of  any  nobleman  or  counselor, 
against  the  laws  of  the  realm,  to  the  gi"iev- 
ous  charges  and  oppression  of  her  majesty's 
said  subjects :  Or  else  help  us  to  have  ac- 
cess to  her  majesty,  to  be  suitors  unto  her 
highness  for  the  same  ;  for  divers  have  been 
imprisoned  for  suing  ordinaiy  actions,  and 
suits  at  the  common  law,  until  they  wiW 
leave  the  same,  or  against  their  -svills  put 
their  matter  to  order,  although  some  time 
it  be  after  judgment  and  accusation. 

"  Item :  Others  have  been  committed  and 
detained  in  prison  upon  such  commandment 
against  the  law  ;  and  upon  the  queen's  writ 
in  that  behalf,  no  cause  sufificient  hath  been 
certified  or  returned. 

"  Item  :  Some  of  the  parties  so  commit- 
ted and  detained  in  prison  after  they  have, 
by  the  queen's  writ,  been  lawfully  discharg- 
ed in  coui't,  have  been  eftsoones  recommit- 
ted to  prison  in  secret  places,  and  not  in 
common  and  ordinaiy  known  prisons,  as 
the  Marshalsea,  Fleet,  King's  Bench,  Gate- 
house, nor  the  custodie  of  any  sheriff,  so  as 
upon  complaint  made  for  their  delivery, 
the  queen's  court  can  not  learn  to  whom  to 
award  her  majesty's  writ,  without  which 
justice  can  not  be  done. 

*  Anderson's  Reports,  i.,  297.  It  may  be  found 
also  in  the  Bioarapliia  Britannica,  and  the  Bio- 
grapliical  Dictionarj-,  ait.  Anderson. 

t  Lansdowne  MSS.,  Iviii.,  87.  The  Harleian 
MS.,  6846,  is  a  mere  transcript  from  Anderson's 
Reports,  and  consequently  of  no  value.  There  is 
another  in  the  same  collection,  at  wliich  I  have  not 
looked. 


"  Item  :  Divers  sergeants  of  London  and 
officers  have  been  many  times  committed 
to  prison  for  lawful  execution  of  her  maj- 
esty's writs  out  of  the  King's  Bench,  Com- 
mon Pleas,  and  other  courts,  to  their  great 
charges  and  oppression,  whereby  they  are 
put  in  such  fear  as  they  dare  not  execute 
the  queen's  process. 

"  Item  :  Divers  have  been  sent  for  by 
pursuivants  for  private  causes,  some  of  them 
dwelling  far  distant  from  Loudon,  and  com- 
pelled to  pay  to  the  pursuivants  great  sums 
of  money  against  the  law,  and  have  been 
committed  to  prison  till  they  would  release 
the  lawful  benefit  of  their  suits,  judgments, 
or  executions  for  remedie,  in  which  behalf 
we  are  almost  daily  called  upon  to  minister 
justice  according  to  law,  whereunto  we  are 
bound  by  our  office  and  oath. 

"  And  whereas  it  pleased  your  lordships 
to  will  divers  of  us  to  set  down  when  a  pris- 
oner sent  to  custody  by  her  majesty,  her 
council,  or  some  one  or  two  of  them,  is  to 
be  detained  in  prison,  and  not  to  be  deliv- 
ered by  her  majesty's  courts  or  judges  : 

"We  think  that,  if  any  person  shall  be 
committed  by  her  majesty's  special  com- 
mandment, or  by  order  from  the  council- 
board,  or  for  trecison  touching  her  majesty's 
person  [a  word  of  five  letters  follows,  illeg- 
ible to  me],  which  causes  being  generally 
retm-ned  into  any  court,  is  good  cause  for 
the  same  court  to  leave  the  person  commit- 
ted in  custody. 

"  But  if  any  person  shall  be  committed 
for  any  other  cause,  then  the  same  ought 
specially  to  be  returned." 

This  paper  bears  the  original  signatures 
of  eleven  judges.  It  has  no  date,  but  is  in- 
dorsed 5th  of  June,  1591.  In  the  printed 
report,  it  is  said  to  have  been  delivered  in 
Easter  term,  34  Eliz.,  that  is,  in  1592.  The 
Chancellor  Hatton,  whose  name  is  mention- 
ed, died  in  November,  1591  ;  so  that,  if 
there  is  no  mistake,  this  must  have  been 
delivered  a  second  time,  after  undergoing 
the  revision  of  the  judges.  And,  in  fact, 
the  diflferences  are  far  too  material  to  have 
proceeded  from  accidental  carelessness  in 
transcription.  The  latter  copy  is  fuller, 
and,  on  the  whole,  more  perspicuous,  than 
the  manuscript  I  have  followed  ;  but  in  one 
or  two  places  it  will  be  better  understood 
by  comparison  witli  it. 

It  was  a  natural  consequence,  not  more 


Enz. — Government.] 


FROM  HKNllY  VII.  TO  GEORGE  II. 


141 


Proclama-  of  tile  high  notions  entertained  of 
ran'tej'by'"^'  Prerogative  than  of  the  veiy  ir- 
law.  regular  and  infrequent  meeting  of 

Parliament,  tliat  an  extensive  and  somewhat 
indefinite  authority  should  be  arrogated  to 
proclamations  of  the  king  in  council.  Tem- 
porary ordinances,  bordering  at  least  on  leg- 
islative authority,  grow  out  of  the  varying 
exigencies  of  civil  society,  and  will,  by  veiy 
uecessity,  be  put  up  with  in  silence,  wher- 
ever the  Constitution  of  the  Commonwealth 
does  not,  directly  or  in  effect,  provide  for 
frequent  assemblies  of  the  body  in  whom 
the  right  of  making  or  consenting  to  laws 
has  been  vested.  Since  the  English  Con- 
stitution has  reached  its  zenith,  we  have 
endeavored  to  provide  a  remedy  by  statute 
for  every  possible  mischief  or  inconvenience ; 
and  if  tliis  has  swollen  -our  code  to  an  enor- 
mous redundance,  till,  in  the  labyrinth  of 
written  law,  we  almost  feel  again  the  un- 
certainties of  arbiti'aiy  power,  it  has  at  least 
put  an  end  to  such  exertions  of  prerogative 
as  fell  at  once  on  the  persons  and  properties 
of  whole  classes.  It  seems  by  the  procla- 
mations issued  under  Elizabeth,  that  the 
crown  claimed  a  sort  of  supplemental  right 
of  legislation,  to  perfect  and  cany  into  eft'ect 
what  the  spirit  of  existing  laws  might  re- 
quire, as  well  as  a  paramount  supremacy, 
called  sometimes  the  king's  absolute  or  sov- 
ereign power,  which  sanctioned  commands 
beyond  the  legal  prerogative,  for  the  sake 
of  public  safety,  whenever  the  council  might 
judge  that  to  be  in  hazard.  Thus  we  find 
Anabaptists,  without  distinction  of  natives 
or  aliens,  banished  the  realm ;  Irishmen 
commanded  to  depart  into  Ireland ;  the 
culture  of  woad,*  and  the  exportation  of 
corn,  money,  and  various  commodities,  pro- 
hibited ;  the  excess  of  apparel  restrained. 
A  proclamation  in  1580  forbids  the  erection 
of  houses  within  three  miles  of  London,  on 
account  of  the  too  great  increase  of  the  city, 
under  the  penalty  of  imprisonment  and  for- 

*  Hume  says,  "  that  the  queen  had  taken  a  dis- 
like to  the  smell  of  this  viseful  plaut."  But  this 
reason,  if  it  existed,  wauld  hardly  have  induced 
her  to  prohibit  its  cultivation  throughout  the  king- 
dom. The  real  motive  appears  in  several  letters 
of  the  Lansdovene  collection.  By  the  domestic 
culture  of  woad,  the  customs  on  its  importation 
were  reduced  ;  and  this  led  to  a  project  of  levying 
a  sort  of  excise  upon  it  at  home. — Catalogue  of 
Lansdowne  MSS.,  xlix.,  32-60.  The  same  princi- 
ple has  since  caused  the  prohibition  of  sowing  to- 
bacco. 


feiture  of  the  materials.*  This  is  repeated 
at  other  times,  and  lastly  (I  mean  during 
her  reign)  in  1602,  with  additional  restric- 
tions.f  Some  proclamations  in  this  reign 
hold  out  menaces,  which  the  common  law 
could  never  have  executed  on  the  disobedi- 
ent. To  trade  with  the  French  king's  reb- 
els, or  to  expoit  victuals  into  the  Spanish 
dominions  (the  latter  of  which  might  possi- 
bly be  construed  into  assisting  the  queen's 
enemies),  incun-ed  the  penalty  of  treason ; 
and  persons  having  in  their  possession  goods 
taken  on  the  high  seas,  which  had  not  paid 
customs,  are  enjoined  to  give  them  up,  on 
pain  of  being  punished  as  felons  and  pirates,  t 
Notwithstanding  these  instances,  it  can  not 
perhaps  be  said,  on  the  whole,  that  Eliza- 
beth stretched  her  authority  very  outra- 
geously in  this  respect.  Many  of  her  proc- 
lamations, which  may  at  first  sight  appear 
illegal,  are  warrantable  by  statutes  then  in 
force,  or  by  ancient  precedents.  Thus  the 
council  is  empowered  by  an  act  28  H.  8, 
c.  14,  to  fix  the  prices  of  wines  ;  and  absti- 
nence from  flesh  in  Lent,  as  well  as  on  Fri- 
days and  Saturdays  (a  common  subject  of 
Elizabeth's  proclamations),  is  enjoined  by 
several  statutes  of  Edward  VI.  and  of  her 
own.§  And  it  has  been  argued  by  some, 
not  at  all  inclined  to  diminish  any  popular 
rights,  that  the  king  did  possess  a  preroga- 
tive by  common  law  of  restraining  the  ex- 
port of  corn  and  other  commodities.  || 

It  is  natural  to  suppose  that  a  government 
thus  arbitrary  and  vigilant  must  Restrictions 
have  looked  with  extreme  jeal-  °"  printing, 
ousy  on  the  diffusion  of  free  inquiry  thi-ough 
the  press.  The  ti'ades  of  printing  and  book- 
selling, in  fact,  though  not  absolutely  licen- 
sed, were  always  subject  to  a  sort  of  pecu- 
liar superintendence.  Besides  protecting 
the  copyright  of  authors,  H  the  council  fre- 

*  Camden,  476.  f  Rynier,  xvi.,  448. 

t  Many  of  these  proclamations  are  scattered 
through  Byraer ;  and  the  whole  have  been  collect- 
ed in  a  volume. 

^  By  a  proclamation  in  1560,  butchers  killing 
flesh  in  Lent  are  made  subject  to  a  specific  penalty 
of  £20;  which  was  levied  upon  one  man. — Stiype's 
Annals,  i.,  235.    This  seems  to  have  been  illegal. 

II  Lord  Camden,  in  1766.  Hargrave,  in  preface 
to  Hale,  de  Jure  Coronae,  in  Law  Tracts,  vol.  i. 

IT  We  find  an  exclusive  privilege  granted  in 
1563  to  Thomas  Cooper,  afterward  Bishop  of  Win- 
chester, to  print  his  Thesaurus,  or  Latin  Diction- 
ary, for  twelve  years — RjTuer,  xv..  C20 — and  to 
Richard  Wright  to  print  his  ti'anslatiou  of  Tacitug 


142 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  V. 


quently  issued  proclamations  to  restrain  the 
importation  of  books,  or  to  regulate  their 
sale.*  It  was  penal  to  utter,  or  so  much 
as  to  possess,  even  the  most  learned  works 
on  the  Catholic  side ;  or  if  some  connivance 
was  usual  in  favor  of  educated  men,  the  ut- 
most sh-ictness  was  used  in  suppressing  that 
light  infantiy  of  literature,  the  smart  and 
vigorous  pamphlets,  with  which  the  two 
parties  arrayed  against  the  Church  assault- 
ed her  opposite  flanks. f  Stowe,  the  well- 
known  chronicler  of  England,  who  lay  un- 
der suspicion  of  an  attachment  to  popery, 
had  his  library  searched  by  waixant,  and  his 
unlawful  books  taken  away,  several  of  which 
were  but  materials  for  his  hist oiy.J  Whit- 
gift,  in  this,  as  in  every  other  respect,  aggi'a- 
vated  the  rigor  of  preceding  times.  At  his 
instigation,  the  Star  Chamber,  1585,  pub- 
lished ordinances  for  the  regulation  of  the 
press.  The  preface  to  these  I'ecites  "  enor- 
mities and  abuses  of  disorderly  persons  pro- 
fessing the  art  of  printing  and  selling  books  " 
to  have  more  and  more  increased  in  spite 
of  the  ordinances  made  against  them,  which 
it  attributes  to  the  inadequacy  of  the  penal- 
ties hitherto  inflicted.  Every  printer,  there- 
fore, is  enjoined  to  certify  his  presses  to  the 
Stationers'  Company,  on  pain  of  having 
them  defaced,  and  suffering  a  year's  im- 
prisonment. None  to  print  at  all,  under 
similar  penalties,  except  in  London,  and  one 
in  each  of  the  two  universities.  No  printer 
who  has  only  set  up  his  trade  within  six 
months  to  exercise  it  any  longer,  nor  any  to 
begin  it  in  future,  until  the  excessive  multi- 
tude of  printers  be  diminished,  and  brought 
to  such  a  number  as  the  Archbishop  of  Can- 
terbury and  Bishop  of  London  for  the  time 

during  bis  natural  life ;  any  one  infringing;  this 
pri\-ilege  to  forfeit  40s.  for  every  printed  copy. — 
Id.,  x\a.,  97. 

*  Strj-pe's  Parker,  221.  By  the  51st  of  the 
queen's  injunctions,  in  1559,  no  one  might  print 
any  book  or  paper  whatsoever  unless  the  same  be 
first  licensed  by  the  council  or  ordinary. 

t  A  proclamation,  dated  Feb.,  1589,  against  se- 
ditious and  scbismatical  books  and  vrritings,  com- 
mands all  persons  who  shall  have  in  their  custody 
any  such  libels  against  the  order  and  government 
of  the  Church  of  England,  or  the  rites  and  ceremo- 
nies used  in  it,  to  bring  and  deliver  up  the  same 
with  convenient  speed  to  their  ordinaiy. — Life  of 
Whitgift,  Appendix,  1-2G.  This  has  probably  been 
one  cause  of  the  exti'eme  scarcity  of  the  Puritan- 
ical pampWets. 

t  Strj-pe's  Grindal,  124,  and  Append.,  43,  where 
a  list  of  these  books  is  given. 


being  shall  think  convenient ;  but,  whenever 
any  addition  to  the  number  of  master  print- 
ers shall  be  required,  the  Stationers'  Com- 
pany shall  select  proper  persons  to  use  that 
calling,  with  the  approbation  of  the  ecclesi- 
astical commissioners.  None  to  print  any 
book,  matter,  or  thing  whatsoever,  until  it 
shall  have  been  first  seen,  perused,  and  al- 
lowed by  the  Archbishop  of  Canterbury  or 
Bishop  of  London,  except  the  queen's  print- 
er, to  be  appointed  for  some  special  service, 
or  law-printers,  who  shall  require  the  li- 
cense only  of  the  chief-justices.  Every 
one  selling  books  printed  conti-ary  to  the  in- 
tent of  this  ordinance,  to  suffer  three  months' 
imprisonment.  The  Stationers'  Company 
empowered  to  search  houses  and  shops  of 
printers  and  booksellers,  and  to  seize  all 
books  printed  in  contravention  of  this  ordi- 
nance, to  destroy  and  deface  the  presses, 
and  to  aiTest  and  bring  before  the  council 
those  who  shall  have  offended  thei'ein.* 

The  forms  of  English  law,  however  in- 
adequate to  defend  the  subject  in  state  pros- 
ecutions, imposed  a  degree  of  seeming  re- 
straint on  the  croAvn,  and  wounded  that  pride 
which  is  commonly  a  yet  sti'onger  senti- 
ment than  the  lust  of  power  with  princes 
and  their  counselors.  It  was  possible  that 
juries  might  absolve  a  prisoner;  it  was  al- 
ways necessary  that  they  should  be  the  ar- 
biters of  his  fate.  Delays,  too,  were  inter- 
posed by  the  regular  process ;  not  such,  per- 
haps, as  the  life  of  man  should  require,  yet 
enough  to  weaken  the  terrors  of  summary 
punishment.  Kings  love  to  display  the  di- 
vinity with  which  their  flatterers  invest 
them,  in  nothing  so  much  as  the  instanta- 
neous execution  of  their  will ;  and  to  stand 
revealed,  as  it  were,  in  the  storm  and  thun- 
derbolt, when  their  power  breaks  through 
the  operation  of  secondaiy  causes,  and  awes 

*  Str>-pe's  Whitgift.  222,  and  Append..  94.  The 
archbishop  exercised  his  power  over  the  press,  as 
may  be  supposed,  with  little  moderation.  Not 
confining  himself  to  the  suppression  of  books  favor- 
ing the  two  parties  adverse  to  the  Church,  he  per- 
mitted nothing  to  appear  that  interfered  in  the 
least  with  his  own  notions.  Thus  we  find  him 
seizing  an  edition  of  some  woi'ks  of  Hugh  Brough- 
ton,  an  eminent  Hebrew  scholar.  This  learned  di- 
vine differed  from  Whitgift  about  Christ's  descent 
to  hell.  It  is  amusing  to  read  that  ultimately  the 
primate  came  over  to  Broughton's  opinion  ;  which, 
if  it  prove  some  degree  of  candor,  is  also  a  glaring 
evidence  of  the  advantages  of  that  free  inquiry  he 
1  had  sought  to  suppress.— P.  384,  431. 


ELlz.-Goveniment.J  FROM  HENRY  VII.  TO  GEORGE  II. 


143 


a  prostrate  nation  without  the  intei-vention 
of  law.  There  may,  indeed,  be  times  of 
pressing  danger,  when  the  conservation  of 
all  demands  the  sacrifice  of  the  legal  rights 
of  a  few ;  there  may  be  circumstances  that 
not  only  justify,  but  compel,  the  temporary 
abandonment  of  constitutional  forms.  It 
has  been  usual  for  all  governments,  during 
an  actual  rebellion,  to  proclaim  martial  law, 
or  the  suspension  of  civil  jurisdiction  ;  and 
this  anomaly,  I  must  admit,  is  very  far  from 
being  less  indispensable  at  such  unhappy 
seasons,  in  countries  where  the  ordinary 
mode  of  ti-ial  is  by  juiy,  than  where  the 
right  of  decision  resides  in  the  judge.  But 
it  is  of  high  importance  to  watch  with 
extreme  jealousy  the  disposition,  toward 
which  most  governments  are  prone,  to  in- 
troduce too  soon,  to  extend  too  far,  to  retain 
too  long,  so  perilous  a  remedy.  In  the 
fourteenth  and  fifteenth  centuries,  the  court 
of  the  constable  and  marshal,  whose  jm-is- 
diction  was  considered  as  of  a  military  na- 
ture, and  whose  proceedings  were  not  ac- 
cording to  the  course  of  the  common  law, 
sometimes  ti'ied  offenders  by  Avhat  was 
caUed  martial  law,  but  only,  I  believe,  ei- 
ther dming,  or  not  long  after,  a  serious  re- 
bellion. This  tribunal  fell  into  disuse  under 
the  Tudors.  But  Mai-y  had  executed  some 
of  those  taken  in  Wyatt's  insuiTection  with- 
out regular  process,  though  their  leader  had 
his  ti'ial  by  a  juiy.  Elizabeth,  always  hasty 
in  passion  and  quick  to  punish,  would  have 
resorted  to  this  summary  course  on  a  slight- 
er occasion.  One  Peter  Burchell,  a  fanati- 
cal Puritan,  and  perhaps  insane,  conceiving 
that  Sir  Christopher  Hatton  Avas  an  enemy 
to  true  religion,  determined  to  assassinate 
him ;  but,  by  mistake,  he  wounded  instead 
a  famous  seaman,  Captain  Hawkins.  For 
this  ordinary  crime,  the  queen  could  hardly 
be  prevented  from  directing  him  to  be  ti-ied 
instantly  by  martial  law.  Her  council, 
however  (and  this  it  is  important  to  ob- 
serve), resisted  this  illegal  proposition  with 
spirit  and  success.*    We  have,  indeed,  a 

*  Camden,  449.  Sh-ype's  Aimals,  ii.,  288.  The 
queen  had  been  told,  it  seems,  of  vphat  was  done 
in  Wyatt's  business,  a  case  not  at  all  parallel ; 
though  there  was  no  sufficient  necessity  even  in 
that  instance  to  justify  the  x'roceeding  by  martial 
law.  But  bad  precedents  always  beget  "progeni- 
em  vitiosiorein." 

There  was  a  difficulty  how  to  punish  Borchell 
capitally,  which  probably  suggested  to  the  queen 


proclamation  some  years  afterward,  declar- 
ing that  such  as  brought  into  the  kingdom 
or  dispersed  papal  bulls,  or  ti-aitorous  libels 
against  the  queen,  should  with  all  severity 
be  proceeded  against  by  her  majesty's  lieu- 
tenants or  their  deputies,  by  martial  law, 
and  suffer  such  pains  and  penalties  as  they 
should  inflict;  and  that  none  of  her  said 
lieutenants  or  their  deputies  be  any  wise 
impeached,  in  body,  lands,  or  goods,  at  any 
time  hereafter,  for  any  thing  to  be  done  or 
executed  in  the  punishment  of  any  such 
offender,  according  to  the  said  martial  law, 
and  the  tenor  of  this  proclamation,  any  law 
or  statute  to  the  contrary  in  any  wise  not- 
withstanding.* This  measure,  though  by 
no  means  constitutional,  finds  an  apology  in 
the  circumstances  of  the  time.  It  bears 
date  the  1st  of  July,  1588,  when  within  the 
lapse  of  a  few  days  the  vast  armament  of 
Spain  might  efl'ect  a  landing  upon  our 
coasts ;  and  prospectively  to  a  crisis,  when 
the  nation,  struggling  for  life  against  an  in- 
vader's grasp,  could  not  afford  the  protec- 
tion of  law  to  domestic  ti-aitors.  But  it  is 
an  unhappy  consequence  of  all  deviations 
from  the  even  course  of  law,  that  the  forced 
acts  of  over-ruling  necessity  come  to  be  dis- 
torted into  precedents  to  serve  the  purpo- 
ses of  arbitrary  power.    No  oth- 

c  T^i-     1    ^1  ,  Martiallaw. 

er  measure  oi  JLlizabeth  s  reign 
can  be  compared,  in  point  of  violence  and 
illegality,  to  a  commission  in  July,  1595,  di- 
rected to  Sir  Thomas  Wilford,  whereby, 
upon  no  other  allegation  than  that  there  had 
been  of  late  "  sundry  great  unlawful  assem- 
blies of  a  number  of  base  people  in  riotous 
sort,  both  in  the  city  of  London  and  the 
suburbs,  for  the  suppression  whereof  (for 
that  the  insolency  of  many  desperate  of- 
fenders is  such,  that  they  care  not  for  any 
ordinary  punishment  by  imprisonment)  it 
was  found  necessary  to  have  some  such  not- 
able rebellious  persons  to  be  speedily  sup- 
pressed by  execution  to  death,  according  to 
the  justice  of  martial  law,"  he  is  appointed 
provost-marshal,  with  authority,  on  notice 

this  strange  expedient.  It  is  said,  which  is  full  as 
strange,  that  the  bishops  were  about  to  pass  sen- 
tence on  liim  for  heresy,  in  having  asserted  that  a 
papist  might  lawfully  be  killed.  He  put  an  end, 
however,  to  this  dilemma,  by  cleaving  the  skul]  of 
one  of  the  keepers  in  the  Tower,  and  was  hanged 
in  a  common  way. 

*  Stiype's  Annals,  iii.,  570.  Life  of  ^^nlitgift, 
Append.,  12C. 


144 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  V 


by  the  magisti'ates,  to  attach  and  seize  such 
notable  rebeUious  and  incomgible  offenders, 
and  in  the  presence  of  the  magistrates  to 
execute  them  openly  on  the  gallows.  The 
commission  empowers  him  also  "  to  repair 
to  all  common  high-ways  near  to  the  city, 
which  any  vagrant  persons  do  haunt,  and, 
with  the  assistance  of  justices  and  consta- 
bles, to  apprehend  all  such  vagrant  and  sus- 
pected persons,  and  them  to  deliver  to  the 
said  justices,  by  them  to  be  committed  and 
examined  of  the  causes  of  their  wandering, 
and  finding  them  notoriously  culpable  in 
then*  unlawful  manner  of  life,  as  incorrigi- 
ble, and  so  certified  by  the  said  justices,  to 
cause  to  be  executed  upon  the  gallows  or 
gibbet  some  of  them  that  are  so  found  most 
notorious  and  incorrigible  offenders ;  and 
some  such  also  of  them  as  have  manifestly 
broken  the  peace,  since  they  have  been  ad- 
judged and  condemned  to  death  for  former 
offenses,  and  had  the  queen's  pardon  for  the 
same."* 

This  peremptory  style  of  superseding  the 
common  law  was  a  sti'etch  of  prerogative 
without  an  adequate  parallel,  so  far  as  I 
know,  in  any  foi'mer  period.  It  is  to  be  re- 
marked, that  no  tumults  had  taken  place  of 
any  political  character  or  of  serious  import- 
ance, some  riotous  Jipprentices  only  having 
committed  a  few  disorders. f  But  rather 
more  than  usual  suspicion  had  been  excited 
about  the  same  time  by  the  intrigues  of  the 
Jesuits  in  favor  of  Spain,  and  the  queen's 
advanced  age  had  begun  to  renew  men's 
doubts  as  to  the  succession.  The  rapid  in- 
crease of  London  gave  evident  uneasiness, 
as  the  proclamations  against  new  buildings 
show,  to  a  very  cautious  administi'ation,  en- 
vironed by  bold  and  inveterate  enemies,  and 
entirely  destitute  of  regular  troops  to  with- 
stand a  sudden  insuirection.  Circumstan- 
ces of  which  we  are  ignorant,  I  do  not 
question,  gave  rise  to  this  exti-aordinary 
commission.  The  executive  goverament 
in  modern  times  has  been  invested  with  a 
degi'ee  of  coercive  power  to  maintain  obe- 
dience, of  which  our  ancestors,  in  the  most 
arbiti'ary  reigns,  had  no  practical  experi- 
ence. If  we  reflect  upon  the  multitude  of 
statutes  enacted  since  the  days  of  Elizabeth 
in  order  to  resti'ain  and  suppress  disorder, 
and,  above  aU,  on  the  prompt  and  certain 
aid  that  a  disciplined  army  affords  to  our 

*  Kj  mer,  xvi.,  279.       t  Carte,  693,  from  Stowe. 


civil  authorities,  we  may  be  inclined  to  think 
that  it  was  rather  the  weakness  than  the 
vigor  of  her  government  which  led  to  its  in- 
quisitorial watchfulness  and  harsh  measures 
of  prevention.  We  find  in  an  earlier  part 
of  her  reign  an  act  of  state  somewhat  of 
the  same  charactei-,  though  not  perhaps  il- 
legal. Letters  were  written  to  the  sheriffs 
and  justices  of  divers  counties  in  1.569,  di- 
recting them  to  apprehend,  on  a  certain 
night,  all  vagabonds  and  idle  persons  having 
no  master,  nor  means  of  living,  and  either 
to  commit  them  to  prison,  or  pass  them  to 
their  proper  homes.  This  was  repeated 
several  times  ;  and  no  less  than  13,000  per- 
sons were  thus  apprehended,  chiefly  in  the 
north,  which,  as  Strype  says,  very  much 
broke  the  rebellion  attempted  in  that  year.* 

Amid  so  many  infringements  of  the  free- 
dom of  commerce,  and  with  so  precarious 
an  enjoyment  of  personal  liberty,  the  Eng- 
lish subject  continued  to  pride  himself  in 
his  immunity  from  taxation  without  consent 
of  Parliament.  This  privilege  he  had  as- 
serted, though  not  with  constant  success, 
against  the  rapacity  of  Henry  VII.  and  the 
violence  of  his  son.  Nor  was  it  ever  dispu- 
ted in  theory  by  Elizabeth.  She  retained, 
indeed,  notwithstanding  the  complaints  of 
the  merchants  at  her  accession,  a  custom 
upon  cloths,  arbiti-arily  imposed  by  her  sis- 
ter, and  laid  one  herself  upon  sweet  wines. 
But  she  made  no  attempt  at  levying  inter- 
nal taxes,  except  that  the  clergy  were  call- 
ed upon,  in  1586,  for  an  aid  not  gi-anted  in 
convocation,  but  assessed  by  the  archdeacon 
according  to  the  value  of  their  benefices,  to 
which  they  naturally  showed  no  little  re- 
luctance.f    By  dint  of  singular  frugality, 

*  Strype's  Annals,  i.,  53-5. 

t  Strj  pe,  iii..  Append.,  147.  This  was  exacted 
in  order  to  raise  men  for  service  in  the  Low  Coaa- 
ti-ies.  Bat  the  beneficed  clergy  were  always 
boimd  to  furnish  horses  and  armor,  or  their  value, 
for  the  defense  of  the  kingdom  iu  peril  of  invasion 
or  rebellion.  An  instance  of  their  being  called  on 
for  such  a  continsrent  occuiTed  iu  1569. — Strype's 
Parker,  273 ;  and  Rj-mer  will  supply  many  others 
in  earlier  times. 

The  magristi-atcs  of  Cheshire  and  Lancashire 
had  imposed  a  cliarge  of  eishtpence  a  week  on 
each  parish  of  those  counties  for  the  maintenance 
of  recusants  in  custody.  This,  though  very  near- 
ly borne  out  by  the  letter  of  a  recent  statute,  14th 
Eliz.,  c.  5,  was  conceived  by  the  inhabitants  to  be 
against  law.  We  have,  in  Strype's  Annals,  vol. 
iii..  Append.,  56,  a  letter  from  the  privy-council,  di- 
recting the  charge  to  be  taken  oft'.    It  is  only  worth 


E LIZ.— Government.]  FUOM  HENRY  VII. 


TO  GEORGE  11. 


145 


she  continued  to  steer  the  true  cour.se,  so 
as  to  keep  lier  popularity  undiminished  and 
her  prerogative  unimpaired,  asking  veiy  lit- 
tle of  her  subjects'  money  in  Parliaments, 
and  being  hence  enabled  both  to  have  long 
breathing  times  between  their  sessions,  and 
to  meet  them  without  coaxing  or  wrangling, 
till,  in  the  latter  years  of  her  reign,  a  for- 
eign war  and  a  rebellion  in  Ireland,  joined 
to  a  rapid  depreciation  in  the  value  of  mon- 
ey, rendered  her  demands  somewhat  high- 
er. But  she  did  not  abstain  from  the  an- 
cient practice  of  sending  privy-seals  to  bor- 
row money  of  the  wealthy.  These  were 
not  considered  as  illegal,  though  plainly  for- 
bidden by  the  statute  of  Richard  III. ;  for 
it  was  the  fashion  to  set  aside  the  authori- 
ty of  that  act,  as  having  been  passed  by  a 
Loans  of  usurper.  It  is  impossible  to  doubt 
quite  vol-'  ^^^'"^^  ^""^'^  loans  Were  so  far  ob- 
uutary.  tained  by  compulsion,  that  any 
gentleman  or  citizen  of  sufficient  ability 
refusing  compliance  would  have  discovered 
that  it  were  far  better  to  part  with  his  mon- 
ey than  to  incur  the  council's  displeasure 
We  have,  indeed,  a  letter  from  a  lord-mayor 
to  the  council,  informing  them  that  he  had 
committed  to  prison  some  citizens  for  refus- 
ing to  pay  the  money  demanded  of  them.* 
But  the  queen  seems  to  have  been  punctu- 
al in  their  speedy  repayment  according  to 

noticing,  as  it  illustrates  the  jealousy  which  the 
people  entertained  of  any  thing  approaching  to 
taxation  without  consent  of  Parliament,  and  the 
caution  of  the  ministiy  in  not  pushing  any  exertion 
of  prerogative  further  than  would  readily  be  en- 
dured. 

*  Murden,  632.  That  some  degi-ee  of  intimida- 
tion was  occasionally  made  use  of,  may  be  infeiTed 
from  the  following  letter  of  Sir  Hemy  Cholmley  to 
the  mayor  and  aldermen  of  Cliester,  in  1597.  He 
informs  them  of  letters  received  by  him  from  tlie 
council,  ■'  whereby  I  am  commanded  in  all  haste 
to  require  you  that  you  and  every  of  you  send  in 
your  several  sums  of  money  unto  Torpley  (Tarpor- 
ly)  on  Friday  next,  the  23d  December,  or  else  that 
yoa  and  evei-y  of  you  give  me  meeting  there,  the 
said  day  and  place,  to  enter  severally  into  bond  to 
her  highness  for  your  appearance  forthwith  before 
their  lordships,  to  show  cause  wherefore  you  and 
every  of  you  should  refuse  to  pay  her  majestj-'s 
loan  according  to  her  highness's  several  privy-seals 
by  you  received,  lettuig  you  wit  tliat  I  am  now  di- 
rected by  other  letters  from  their  lordships  to  pay 
over  the  said  money  to  the  use  of  her  majesty,  and 
to  send  and  certify  the  said  bonds  so  taken ;  which 
praying  you  heaitily  to  consider  of  as  the  last  di- 
rection of  the  service,  I  heartily  bid  you  farewell." 
— Harl.  MS3.,  2173,  10. 

K 


stipulation,  a  virtue  somewhat  unusual  with 
royal  debtors.  Thus  we  find  a  proclama- 
tion in  1571,  that  such  as  had  lent  the  queen 
money  in  the  last  summer  should  receive 
repayment  in  November  and  December.* 
Such  loans  were  but  an  anticipation  of  her 
regular  revenue,  and  no  great  hardship  on 
rich  merchants,  who,  if  they  got  no  interest 
for  their  money,  were  recompensed  with 
knighthoods  and  gi-acious  words.  And  as 
Elizabeth  incuired  no  debt  till  near  the  con- 
clusion of  her  reign,  it  is  pi-obable  that  she 
never  had  borrowed  more  than  she  was 
sure  to  repay. 

A  letter  quoted  by  Hume  from  Lord 
Burleigh's  papers,  though  not  written  by 
him,  as  the  historian  asserts,  and  somewhat 
obscure  in  its  purport,  appears  to  warrant 
the  conclusion  that  he  had  revolved  in  his 
mind  some  project  of  i-aising  money  by  a 
general  contribution  or  benevolence  from 
persons  of  ability,  without  purpose  of  re- 
payment. This  was  also  amid  the  difficul- 
ties of  the  year  15G9,  when  CecU,  perhaps, 
might  be  afraid  of  meeting  Parliament,  on 

*  Stiype,  ii.,  102.  In  Haj-nes,  p.  5X8,  is  the 
foim  of  a  circular  letter  or  privy  seal,  as  it  was 
called  from  passing  that  office,  sent  in  1569,  a  year 
of  gi-eat  difficulty,  to  those  of  whose  aid  the  queen 
stood  in  need.  It  contains  a  promise  of  repayment 
at  tlie  expiration  of  twelve  months.  A  similar  ap- 
plication was  made  through  the  lord-lieutenants  in 
their  several  counties,  to  the  wealthy  and  weU- 
disposed,  in  1588,  immediately  after  the  destruc- 
tion of  the  Ai-mada.  The  loans  are  asked  only  for 
the  space  of  a  year,  "  as  heretofore  has  been  yield- 
ed unto  her  majesty  in  times  of  less  need  and  dan- 
ger, and  yet  always  fully  repaid." — Sti-ype,  iii., 
535.  Large  sums  of  money  are  said  to  have  been 
demanded  of  the  citizens  of  London  in  1599. — 
Carte,  C75.  It  is  perhaps  to  this  year  that  we 
may  refer  a  curious  fact  mentioned  in  Mr.  Justice 
Hutton's  judgment  in  the  case  of  ship-money.  "  In 
the  time  of  Clucen  Elizabeth  (he  says),  who  was 
a  gracious  and  a  glorious  queen,  yet  in  the  end  of 
her  reign,  whether  through  covetousness,  or  by 
reason  of  the  wars  that  came  upon  her,  I  know  not 
by  what  counsel  she  desired  benevolence,  the  stat- 
ute of  2d  Richard  III.  was  pressed,  yet  it  went  so 
far,  that  by  commission  and  direction  money  waa 
gathered  in  eveiy  iim  of  court;  and  I  myself,  for 
my  part,  paid  twenty  shillings.  But  when  the 
queen  was  informed  by  her  judges  that  this  kind 
of  proceeding  was  against  law,  she  gave  directions 
to  pay  all  such  sums  as  were  collected  hack  ;  and 
so  I  (as  all  the  rest  of  our  house,  and  as  I  think  of 
olher  houses  too)  had  my  twenty  sliiUings  repaid 
me  again;  and  privy  counselors  were  sent  down 
to  all  parts,  to  tell  them  that  it  was  for  the  defense 
of  the  realm,  and  it  should  be  repaid  tliem  again." 
—State  Trials,  iii.,  1199. 


146 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  V. 


account  of  the  factions  leagued  against  him- 
self. But  as  nothing  further  was  done  in 
this  matter,  we  must  presume  that  he  per- 
ceived the  impracticability  of  so  unconstitu- 
tional a  scheme.* 

Those  whose  curiosity  has  led  them 
Character  of  to  somewhat  more  acquaintance 
uT'i^ld.  '^vith  the  details  of  English  his- 
mmistration.  tory  Under  Elizabeth  than  the 
pages  of  Camden  or  Hiujie  will  afford,  can 
not  but  have  been  struck  with  the  perpetual 
interference  of  men  in  power  with  matters 
of  private  concern.  I  am  far  from  pretend- 
ing to  know  how  far  the  solicitations  for  a 
prime  minister's  aid  and  influeuce  may  ex- 
tend at  present.  Yet  one  may  think  that 
he  would  hardly  be  employed,  like  Cecil, 
where  he  had  no  personal  connection,  in 
reconciling  family  quarrels,  interceding  with 
a  landlord  for  his  tenant,  or  persuading  a 
rich  citizen  to  bestow  his  daughter  on  a 
young  lord.  We  are  sure,  at  least,  that  he 
would  not  use  the  air  of  authority  upon 
such  occasions.  The  vast  collection  of 
Lord  Burleigh's  letters  in  the  Museum  is 
full  of  such  petty  matters,  too  insignificant, 
for  the  most  part,  to  be  mentioned  even  by 
Strype.f  They  exhibit,  however,  collective- 
ly, a  curious  view  of  the  manner  in  which 
England  was  managed,  as  if  it  had  been  the 
household  and  estate  of  a  nobleman  under  a 
strict  and  piying  steward.  We  are  told 
that  the  relaxation  of  this  minister's  mind 
was  to  study  the  state  of  England,  and  the 


*  Haynes,  518.  Hume  has  exaggerated  this, 
like  other  facts,  iu  his  very  able,  but  partial  sketch 
■of  the  Constitution  in  EUzabeth"s  reign. 

t  The  following  are  a  few  specimens,  copied 
from  the  Lansdowne  catalogue.  "  Sir  Antony 
Cooke  to  Sir  William  Cecil,  that  he  would  move 
Mr.  Petei-s  to  recommend  Mr.  Edward  Stanhope  to 
acertain  younglady  of  Mr.  P.'s  acquaintance,  whom 
Mr.  Stanhope  was  desirous  to  many." — Jan.  25, 
1563  ;  Ixxi.,  73.  "  Sir  John  Mason  to  Sir  William 
Cecil,  that  he  fears  his  young  landlord,  Spelman, 
has  intentions  of  turning  him  out  of  his  house,  wliich 
will  be  disagreeable  ;  hopes,  therefore.  Sir  William 
C.  will  speak  in  his  behalf  "—Feb.  4,  1566  ;  Id.,  74. 
"Lord  Stafford  to  Lord  Burleigh,  to  further  a  match 
between  a  certain  rich  citizen's  daughter  and  his 
son;"  he  requests  Lord  B.  to  appoint  the  father  to 
meet  him  (Lord  Stafford)  some  day  at  his  house, 
"  where  I  will  in  few  wonis  make  him  so  reasona- 
ble an  offer  as  I  trast  he  will  not  disallow."' — Ixviii., 
20.  '■■  Lady  Zouch  to  Lord  Burleigh,  for  his  friend- 
ly intei-position  to  reconcile  Lord  Zouch  her  hus- 
band, who  had  forsaken  her  through  jealousy." — 
1593 ;  Ixxiv.,  72. 


pedigrees  of  its  nobility  and  gentry:  of 
these  last  he  drew  whole  books  with  his 
own  hands,  so  that  he  was  better  versed  in 
descents  and  families  than  most  of  the  her- 
alds, and  would  often  surprise  persons  of 
distinction  at  his  table  by  appearing  better 
acquainted  with  their  manors,  parks,  and 
woods,  than  themselves.*  Such  knowl- 
edge was  not  sought  by  the  crafty  Cecil  for 
mere  diversion's  sake.  It  was  a  main  part 
of  his  system  to  keep  alive  in  the  English 
gentry  a  persuasion  that  his  eye  was  upon 
them.  No  minister  was  ever  more  exempt 
from  that  false  security  wliich  is  the  usual 
Aveakness  of  a  court.  His  failing  was  rather 
a  bias  toward  suspicion  and  timiditj' :  there 
were  times,  at  least,  in  which  his  sti-ength 
of  mind  seems  to  have  almost  deserted  hira, 
through  sense  of  the  perils  of  his  sovereign 
and  country.  But  those  perils  appear  less 
to  us,  who  know  how  the  vessel  outrode 
them,  than  thej'  could  do  to  one  harassed 
by  continual  informations  of  those  numer- 
ous spies  whom  he  employed  both  at  home 
and  fibroad.  The  one  word  of  Burleigh's 
policy  was  prevention  ;  and  this  was  dicta- 
ted by  a  consciousness  of  wanting  an  armed 
force  or  money  to  support  it,  as  well  as  by 
some  uncertainty  as  to  the  public  spirit,  in 
respect,  at  least,  of  religion.  But  a  gov- 
ernment that  du'ects  its  chief  attention  to 
prevent  offenses  against  itself,  is  in  its  very 
nature  incompatible  with  that  absence  of 
restraint,  that  immunity  from  suspicion,  in 
which  civil  liberty,  as  a  tangible  possession, 
may  be  said  to  consist.  It  appears  prob- 
able that  Elizabeth's  administration  carried 
too  far,  even  as  a  matter  of  policy,  thisprecau- 
tionaiy  system,  upon  which  they  founded 
the  penal  code  against  popeiy  ;  and  we  may 
surely  point  to  a  contrast  veiy  advantageous 
to  our  modern  Constitution,  in  the  lenient 
treatment  which  the  Jacobite  faction  expe- 
rienced fi-om  the  princes  of  the  house  of 
Hanover.  She  reigned,  however,  in  a  pe- 
riod of  real  difificulty  and  danger.  At  such 
seasons,  few  ministers  will  abstain  from  ar- 
bitrary actions,  except  those  who  are  not 
strong  enough  to  practice  them. 

I  have  traced,  in  another  work,  the  ac- 
quisition by  the  House  of  Com-  Dj^p„3„i„„ 
mens  of  a  practical  right  to  in-  oftheiiousa 

,      1  .  .1  ofCommons. 

quu'e  mto  and  advise  upon  the 
public  administration  of  affairs,  during  the 
*  Biographia  Britamiica,  ai-t.  Cecil. 


JE HZ.— Government]  FROM  HENRY  VII.  TO  GEORGE  II. 


147 


r«igns  of  Edward  III.,  Richard  II.,  and  the 
princes  of  the  line  of  Lancaster.  This  en- 
ergy of  Parliament  was  quelled  by  the  civil 
wars  of  the  fifteenth  century ;  and,  what- 
ever may  have  pas.sed  in  debates  within  its 
walls  that  have  not  been  preserved,  did  not 
often  display  itself  in  any  overt  act  imder 
the  first  Tudors.  To  grant  subsidies  which 
could  not  be  raised  by  any  other  course,  to 
propose  statutes  which  were  not  binding 
without  their  consent,  to  consider  of  public 
grievances,  and  procure  their  redress,  ei- 
ther by  law  or  petition  to  the  crown,  were 
their  acknowledged  constitutional  privileges, 
which  no  sovereign  or  minister  ever  pre- 
tended to  deny.  For  this  end,  liberty  of 
speech  and  free  access  to  the  royal  person 
were  claimed  by  the  speaker  as  customary 
privileges  (though  not  quite,  in  his  modern 
language,  as  undoubted  rights)  at  the  com- 
mencement of  eveiy  Parliament.  But  the 
House  of  Commons  in  Elizabeth's  reign 
contained  men  of  a  bold  and  steady  patriot- 
ism, well  read  in  the  laws  and  records  of 
old  time,  sensible  to  the  dangers  of  their 
countiy  and  abuses  of  government,  and  con- 
scious that  it  was  their  privilege  and  their 
duty  to  watch  over  the  common  weal.  This 
led  to  several  conflicts  between  the  crown 
and  Parliament;  wherein,  if  the  former  oft- 
en asserted  the  victoiy,  the  latter  some- 
times kept  the  field,  and  was  left,  on  the 
whole,  a  gainer  at  the  close  of  the  campaign. 

It  would  surely  be  erroneous  to  conceive 
that  many  acts  of  government  in  the  four 
preceding  reigns  had  not  appeared  at  the 
time  arbitraiy  and  unconstitutional.  If,  in- 
deed, we  are  not  mistaken  in  judging  them 
according  to  the  ancient  law,  they  must  have 
been  viewed  in  the  same  light  by  cotem- 
poraries,  who  were  full  as  able  to  tiy  them 
by  that  standard.  But,  to  repeat  what  I 
have  once  before  said,  the  extant  docurhents 
from  which  we  draw  our  knowledge  of  Con- 
stitutional history  under  those  reigns  are 
so  scanty,  that  instances  even  of  a  success- 
ful Parliamentary  resistance  to  measures 
of  the  crown  may  have  left  no  memorial. 
The  debates  of  Pai-liament  are  not  preserv- 
ed, and  veiy  little  is  to  be  gained  from  such 
histories  as  the  age  produced.  The  com- 
plete barrenness,  indeed,  of  Elizabeth's 
chroniclers,  Holingshed  and  Thin,  as  to  ev- 
eiy Parliamentary  or  Constitutional  infor- 
mation, speaks  of  itself  the  jealous  tone  of 


her  administi'ation,  Camden,  writing  to 
the  next  generation,  though  far  from  an  in- 
genuous historian,  is  somewhat  less  under 
resti-aint.  Tliis  forced  silence  of  history  is 
much  more  to  be  suspected  after  the  use 
of  printing  and  the  Reformation,  than  in  the 
ages  when  monks  compiled  annals  in  their 
convents,  reckless  of  the  censure  of  courts, 
because  independent  of  their  permission. 
Grosser  ignorance  of  public  transactions  is 
undoubtedly  found  in  the  chronicles  of  the 
Middle  Ages  ;  but  far  less  of  that  deliberate 
mendacity,  or  of  that  insidious  suppression, 
by  which  fear,  and  flattery,  and  hati*ed,  and 
the  thirst  of  gain,  have,  since  the  invention 
of  printing,  corrupted  so  much  of  historical 
literature  throughout  Europe.  We  begin, 
however,  to  find  in  Elizabeth's  reign  more 
copious  and  unquestionable  documents  for 
Parliamentary  history.  The  regular  jour- 
nals, indeed,  are  partly  lost ;  nor  would 
those  which  remain  give  us  a  sufficient  in- 
sight into  the  spirit  of  Parliament,  without 
the  aid  of  other  sources.  But  a  volume 
called  Sir  Simon  D'Ewes's  Journal,  part 
of  which  is  copied  from  a  manuscript  of 
Heywood  Townsend,  a  member  of  all  Par- 
liaments from  1580  to  1601,  contains  min- 
utes of  the  most  interesting  debates  as  weU 
as  transactions,  and  for  the  first  tiine  ren- 
ders us  acquainted  with  the  names  of  those 
who  swayed  an  English  House  of  Com- 
mons.* 

There  was  no  peril  more  alarming  to  this 
kingdom  during  the  queen's  reign  Addresses 
than  the  precariousness  of  her  life  ^^he^uccef- 
— a  thread  whereon  its  ti-anquilli-  sion. 
ty,  if  not  its  religion  and  independence,  was 
suspended.  Hence  the  Commons  felt  it  an 
imperious  duty  not  only  to  recommend  her 
to  marry,  but,  when  this  was  delayed,  to 
solicit  that  some  limitations  of  the  crown 
might  be  enacted,  in  failure  of  her  issue. 
The  former  request  she  evaded  without 
ever  manifesting  much  displeasure,  though 
not  spai-ing  a  hint  that  it  was  a  little  beyond 
the  province  of  Parliament.  Upon  the  last 
occasion,  indeed,  that  it  was  preferred,  name- 
ly, by  the  speaker  in  1575,  she  gave  what 
from  any  other  woman  must  have  appeared 
an  assent,  and  almost  a  promise.  But  about 
declaring  the  succession  she  was  always 

*  Townsend's  mauascript  has  been  separately 
published  ;  but  I  do  not  find  that  D'Evpes  has  omit- 
ted any  thing  of  consequence. 


148 


COXSTITUTIONAL  HI: 


:STORY  OF  EXGI<AXD 


[Chap.  V. 


veiy  sensible.  Through  a  pohcy  not,  per- 
haps, entirely  selfish,  aud  certainly  not  er- 
roneous on  selfish  principles,  she  was  de- 
termined never  to  pronounce  anaong  the 
possible  competitors  for  the  throne.  Least 
of  all  could  she  brook  the  intermeddling  of 
Parliament  in  such  a  concern.  The  Com- 
mons first  took  up  this  business  in  15G2, 
when  there  had  begun  to  be  much  debate 
in  the  nation  about  the  opposite  titles  of  the 
Queen  of  Scots  and  Lady  Catharine  Grey; 
and  especially  in  consequence  of  a  danger- 
ous sickness  the  queen  had  just  experienced, 
and  which  is  said  to  have  been  the  cause  of 
summoning  Parliament.  Their  language  is 
waiy,  praying  her  only  by  "  proclamation  of 
certainty  already  provided,  if  any  such  be," 
alluding  to  the  will  of  Henry  VIII.,  "  or 
else  by  limitations  of  certainty,  if  none  be, 
to  provide  a  most  gracious  remedy  in  this 
great  necessity;"*  offering,  at  the  same  time, 
to  concur  in  provisions  to  guaranty  her  per- 
sonal safety  against  any  one  who  might  be 
limited  in  remainder.  Ehzabeth  gave  them 
a  tolerably  courteous  answer,  though  not 
without  some  intimation  of  her  dislike  to 
this  address. f  But  at  their  next  meeting, 
_  „.        which  was  not  till  1566,  the  hope 

Difference  ... 

on  this  be-  01  her  own  maiTiage  havmg  gi-own 
queen  and  fainter,  and  the  circumstances  of 
Commons  the  kingdom  stiU  more  powerfully 

in  1566.      ,  S  ■         .  , 

demandmg  some  security,  both 
houses  of  Parliament  united,  with  a  bold- 
ness of  which  there  had,  perhaps,  been  no 
example  for  more  than  a  hundred  years,  to 
overcome  her  repugnance.  Some  of  her 
own  council  among  the  peers  are  said  to 
have  asserted  in  their  places  that  the  queen 
ought  to  be  obliged  to  take  a  husband,  or 
that  a  successor  should  be  declared  by  Par- 
liament against  her  will.  She  was  charged 
with  a  disregard  to  the  state  and  to  posteri- 
ty. She  would  prove,  in  the  uncoui'tly 
phi'ase  of  some  sturdy  members  of  the 
Lower  House,  a  step-mother  to  her  coun- 
tiy,  as  being  seemingly  desirous  that  Eng- 

*  D'Ewes,  p.  82.  Stiype,  i..  258;  from  which 
latter  passage  it  seems  that  Cecil  was  rather  ad- 
verse to  the  proposal. 

t  D'Ewes,  p.  85.  The  speech  which  Hume,  on 
D'Ewes  s  authoritj-,  has  put  into  the  queen's  mouth 
at  the  end  of  this  session,  is  but  an  imperfect  copy 
or  abridgment  of  one  which  she  made  in  1566,  as 
D'Ewes  himself  afterwai-d  confesses.  Her  real 
answer  to  the  speaker  in  1563  is  in  Harrington's 
Nugae  Antiquse,  vol.  i.,  p.  80. 


land,  which  lived  as  it  were  in  her,  should 
rather  expire  with  than  survive  her;  that 
kings  can  only  gain  the  affections  of  their 
subjects  by  providing  for  their  welfare  both 
while  they  live  and  after  their  deaths ;  nor 
did  any  but  princes  hated  by  their  subjects, 
or  faint-hearted  women,  ever  stand  in  fear 
of  their  successors.*  But  this  great  prin- 
cess wanted  not  skill  and  courage  to  resist 
tills  unusual  importunity  of  Parliament. 
The  peers,  who  had  forgotten  their  cus- 
tomary i-espectfulness,  were  excluded  the 
presence-chamber  till  they  made  their  sub- 
mission. She  preva'iled  on  the  Commons, 
through  her  ministers  who  sat  there,  to  join 
a  request  for  her  marriage  with  the  more 
unpalatable  alternative  of  naming  her  suc- 
cessor ;  and  when  this  request  was  present- 
ed, gave  them  fair  words,  and  a  sort  of  as- 
surance that  their  desires  should  by  some 
means  be  fulfilled. f  When  they  continued 
to  dwell  on  the  same  topic  in  their  speech- 
es, she  sent  messages  through  her  ministers, 
and  at  length  a  positive  injunction  through 
the  speaker,  that  they  should  proceed  no 
further  in  the  business.  The  House,  how- 
evei',  was  not  in  a  temper  for  such  ready 
acquiescence  as  it  sometimes  displayed. 
Paul  WentAvorth,  a  bold  and  plain-spoken 
man,  moved  to  know  whether  the  queen's 
command  and  inhibition  that  they  should  no 
longer  dispute  of  the  matter  of  succession, 
were  not  against  their  liberties  and  privi- 
leges. This  caused,  as  we  ai'e  told,  long 
debates,  which  do  not  appear  to  have  teiin- 
inated  in  any  resolution. t  But,  more  prob- 
ably having  passed  than  we  know  at  pres- 
ent, the  queen,  whose  haughty  temper  and 
tenaciousness  of  prerogative  were  always 
within  check  of  her  discretion,  several  days 
after  announced  through  the  speaker  that 
she  revoked  her  two  former  command- 
ments ;  "  which  revocation,"  says  the  Jour- 
nal, "was  taken  by  the  House  most  joyful- 
ly, wuth  hearty  prayer  and  thanks  for  the 
same."  At  the  dissolution  of  this  Parlia- 
ment, which  was  perhaps  determined  upon 
in  consequence  of  their  steadiness,  Elizabeth 
alluded,  in  addressing  them,  with  no  small 
bitterness  to  what  had  occun'ed.§ 
~*  Camden,  p.  400. 

t  The  courtiers  told  the  House  that  the  queen 
intended  to  maiTj-,  in  order  to  divert  them  from 
their  request  that  they  would  name  her  successor. 
— Stn,-pe,  vol.  i.,  p.  494.  X  D'Ewes,  p.  128. 

9  Id.,  p.  116.    Journals,  Oct.  8,  Nov.  25,  Jan.  2. 


Eli2.— Government.]  FROM  HENRY  VII.  TO  GEORGE  II. 


149 


This  is  the  most  serious  disagreement  on 
record  between  the  crown  and  the  Com- 
mons since  the  days  of  Richard  II.  and 
Heniy  IV.  Doubtless  the  queen's  indig- 
nation was  excited  by  the  nature  of  the  sub- 
ject her  Parliament  ventured  to  discuss, 
still  more  than  by  her  general  disapproba- 
tion of  their  interference  in  matters  of  state. 
It  was  an  endeavor  to  penetrate  the  great 
secret  of  her  reign,  in  pi-eserving  which  she 
conceived  her  peace,  dignity,  and  personal 
safety  to  be  bound  up.  There  were,  in  her 
opinion,  as  she  intimates  in  her  speech  at 
closing  the  session,  some  undei'hand  movers 
of  this  intrigue  (whether  of  the  Scots  or 
Suflblk  faction  does  not  appeal'),  who  were 
more  to  blame  than  even  the  speakers  in 
Parliament.  And  if,  as  Cecil  seems  justly 
to  have  thought,  no  limitations  of  the  crown 
could  at  that  time  have  been  effected  with- 
out much  peril  and  inconvenience,  we  may 
find  some  apology  for  her  warmth  about 
their  precipitation  in  a  business  which,  even 
according  to  our  present  constitutional  usage, 
it  would  naturally  be  for  the  government  to 
bring  forward.  It  is  to  be  collected  fi'om 
Weritworth's  motion,  that  to  deliberate  on 
subjects  affecting  the  Commonwealth  was 
reckoned,  by  at  least  a  large  part  of  the 
House  of  Commons,  one  of  their  ancient 
privileges  and  liberties.  This  was  not  one 
which  Elizabeth,  however  she  had  yielded 
for  the  moment  in  revoking  her  prohibition, 
ever  designed  to  concede  to  them.  Such 
was  her  frugality,  that,  although  she  had 
remitted  a  subsidy  gianted  in  this  session, 
alleging  the  very  honoi'able  reason  that, 
knowing  it  to  have  been  voted  in  expecta- 
tion of  some  settlement  of  the  succession, 
she  would  not  accept  it  when  that  implied 
condition  had  not  been  fulfilled,  she  was 
able  to  pass  five  years  without  again  con- 
voking her  people.  A  Parliament  met  in 
Session  April,  1571,  when  the  Lord-keeper 
of  1571.  Bacon,*  in  answer  to  the  speaker's 
customaiy  request  for  freedom  of  speech 
in  the  Commons,  said  that  "  her  majesty 
havijig  experience  of  late  of  some  disorder 
and  cei'tain  offenses,  which,  though  they 
were  not  punished,  yet  were  they  offenses 
still,  and  so  must  be  accounted,  they  would 
therefore  do  well  to  meddle  with  no  mat- 
ters of  state  but  such  as  should  be  pro- 
pounded unto  them,  and  to  occupy  them- 
*  D'Ewes,  p.  141. 


selves  in  other  matters  concei'ning  the  Com- 
monwealth." 

The  Commons  so  far  attended  to  this 
intimation,  that  no  proceedings  influence  of 
about  the  succession  appear  to  pariJa-'"'^ 
have  taken  place  in  this  Parlia-  ment. 
ment,  except  such  as  were  calculated  to 
gratify  the  queen.  We  may  perhaps  ex- 
cept a  bill  attainting  the  Queen  of  Scots, 
which  was  rejected  in  the  Upper  House. 
But  they  entered  for  the  first  time  on  a  new 
topic,  which  did  not  cease  for  the  rest  of 
this  reign  to  fm-nish  matter  of  contention 
with  their  sovereign.  The  party  called 
Puritan,  including  such  as  charged  abuses 
on  the  actual  government  of  the  Church, 
as  well  as  those  who  objected  to  part  of  its 
lawful  discipline,  had,  not  a  little  in  conse- 
quence of  the  absolute  exclusion  of  the 
Catholic  gently,  obtained  a  very  considera- 
ble sti-ength  in  the  Commons.  But  the 
queen  valued  her  ecclesiastical  supremacy 
more  than  any  part  of  her  prerogative. 
Next  to  the  succession  of  the  crown,  it  was 
the  point  she  could  least  endure  to  be  touch- 
ed. The  House  had,  indeed,  resolved,  upon 
reading  a  bill  the  first  time  for  reformation 
of  the  Common  Prayei-,  that  petition  be 
made  to  the  queen's  majesty  for  her  license 
to  proceed  in  it,  before  it  should  be  further 
dealt  in.  But  Strickland,  who  had  proposed 
it,  w^as  sent  for  to  the  council,  and  restrain- 
ed from  appearing  again  in  his  place,  though 
put  under  no  confinement.  This  was  no- 
ticed as  an  infringement  of  their  liberties. 
The  ministers  endeavored  to  excuse  his  de- 
tention, as  not  intended  to  lead  to  any  se- 
verity, nor  occasioned  by  any  thing  spoken 
in  that  House,  but  on  account  of  his  intro- 
ducing a  bill  against  the  prerogative  of  the 
queen,  which  was  not  to  be  tolerated.  And 
instances  were  quoted  of  animadversion  on 
speeches  made  in  Parfiament.  But  Mr. 
Yelverton  maintained  that  all  matters  not 
treasonable,  nor  too  much  to  the  derogation 
of  the  imperial  crown,  were  tolerable  there, 
where  all  things  came  to  be  considered,  and 
where  there  was  such  fullness  of  power  as 
even  the  right  of  the  crown  was  to  be  de- 
termined, which  it  would  be  high  treason 
to  deny.  Princes  were  to  have  their  pre- 
rogatives, but  yet  to  be  confined  within  reas- 
onable limits.  The  queen  could  not  of  her- 
self make  laws,  neither  could  she  break 
them.    This  was  the  true  voice  of  English 


150 


COXSTITUTIONAl  HISTORY  OF  ENGLAND 


[Chap.  V. 


liberty,  not  so  new  to  men's  eai-s  as  Hume  ] 
has  imagined,  though  many  there  were  who  j 
would  not  forfeit  the  court's  favor  by  utter-  j 
ing  it.  Such  speeches  as  the  liistoriau  h£is  I 
quoted  of  Sir  Humphiy  Gilbert,  and  many  ■ 
such  may  be  found  iu  the  proceedings  of 
this  reign,  ai-e  rather  directed  to  intimidate 
the  House  by  exaggerating  their  inability  to 
contend  with  the  crown,  than  to  prove  the 
law  of  the  land  to  be  against  them.  In  the 
present  aftau-  of  Sn'ickland,  it  became  so 
evident  that  the  Commons  would  at  least 
address  the  queen  to  restore  him,  that  she 
adopted  the  course  her  usual  prudence  in- 
dicated, and  permitted  his  return  to  his 
house.  But  she  took  the  reformation  of  ec- 
clesiastical abuses  out  of  their  hands,  send- 
ing word  that  she  would  have  some  articles 
for  that  pui-pose  executed  by  the  bishops 
tmder  her  royal  supremacy,  and  not  dealt 
in  by  Pailiament.  This  did  not  prevent  the 
Commons  from  proceeding  to  send  up  some 
bUls  in  the  Upper  House,  where,  as  was 
natm-al  to  expect,  they  fell  to  the  groimd.* 
This  session  is  also  i-emarkable  for  the 
first  marked  complaints  against  some  noto- 
rious abuses  which  defaced  the  civil  gov- 
ei-nment  of  Elizabeth. f  A  member  having 
rather  prematurely  suggested  the  ofier  of  a 
subsidy,  several  complaints  were  made  of 
uregular  and  oppressive  practices,  and  Mr. 
Bell  said,  that  licenses  granted  by  the  crown 
and  other  abuses  galled  the  people,  intima- 
ting, also,  that  the  subsidy  should  be  accom- 
panied by  a  redress  of  gi-ievances.J  This 
occasion  of  introducing  the  subject,  though 
sti'ictly  constitutional,  was  likely  to  cause 
displeasure.  The  speaker  informed  them 
a  few  days  after  of  a  message  from  the 
queen  to  spend  little  time  in  motions,  and 
make  no  long  speeches. §  And  Bell,  it  ap- 
pears, having  been  sent  for  by  the  council, 
came  into  the  House  with  such  an  amaz- 
ed countenance,  that  it  daunted  all  the  I'est," 
who  for  many  days  durst  not  enter  on  any 
matter  of  importance. ||  It  became  the 
common  whisper  that  no  one  must  speak 
against  licenses,  lest  the  queen  and  council 

*  D'Ewes,  156,  &c.  There  is  no  mention  of 
Strickland's  business  iu  the  Joamal. 

t  Something  of  this  sort  seems  to  have  occurred 
in  the  session  of  1566,  as  may  be  inferred  from  the 
lord-keeper's  reproof  to  the  speaker  for  calling  her 
majestj^'s  letters  patent  in  question. — Id.,  115. 

t  Id.,  158.    Journals,  7  Apr. 

$  Journals,  9  and  10  Apr.       |1  D'Ewes,  159. 


should  be  angry;  and  at  the  close  of  the 
session,  the  lord-keeper  severely  repri- 
manded those  audacious,  arrogant,  and  pre- 
sumptuous members  who  had  called  her 
majesty's  grants  and  prerogatives  in  ques- 
tion, meddling  with  matters  neither  per- 
taining to  tliem,  nor  within  the  capacity  of 
their  undei-standing.* 

The  Parliament  of  1.572  seemed  to  give 
evidence  of  their  inheriting  the  spirit  of  the 
last  by  choosing  3Ir.  Bell  for  their  speaker. f 
But  very  little  of  it  appeared  in  their  pro- 
ceedings. In  their  first  short  session,  chief- 
ly occupied  by  the  business  of  the  Queen 
of  Scots,  the  most  remarkable  circumstan- 
ces are  the  followuig  :  The  Commons  were 
desirous  of  absolutely  excluding  Mary  from 
inheriting  the  crown,  and  even  of  taking 
away  her  life,  and  had  prepared  bills  with 
this  intent :  but  Elizabeth,  constant  to  her 
mysterious  policy,  made  one  of  her  minis- 
ters inform  them  that  she  would  neither 
have  the  Queen  of  Scots  enabled  nor  disa- 
bled to  succeed,  and  willed  that  the  bUl  re- 
specting her  should  be  drawn  by  her  coun- 
cil ;  and  that,  in  the  mean  time,  the  House 
should  not  enter  on  any  speeches  or  argu- 
ments on  that  matter,  t  Another  circum- 
stance worthy  of  note  in  this  session  is  a 
signification,  through  the  speaker,  of  her 
majesty's  pleasure  that  no  bills  concerning 
religion  should  be  received,  unless  they 
should  be  first  considered  and  approved  by 
the  clergy,  and  requiring  to  see  certain  bills 
touching  rites  and  ceremonies  that  had  been 
read  in  the  House.  The  bills  were  accoi-d- 
ingly  ordered  to  be  delivered  to  her,  with 
a  humble  prayer  that,  if  she  should  dislike 
them,  she  would  not  conceive  an  ill  opinion 
of  the  House,  or  of  the  parties  by  whom 
they  were  prefeiTed.§ 

The  submissiveness  of  this  Parliament 
w^as  doubtless  owing  to  the  queen's  Speech  of 
vigorous  dealings  with  the  last.  At  *f^^^J 
their  next  meetins.  which  was  not  15"6. 


*  D'Ewes,  151. 

t  Bell,  I  suppose,  had  reconciled  himself  to  the 
court,  which  would  have  approved  no  speaker  cho- 
sen without  its  recommendation.  There  was  al- 
ways an  understanding  between  this  servant  of 
the  House  and  the  government.  Proofs  or  pre- 
sumptions of  this  are  not  unfrequent.  In  Strype'a 
Annals,  vol.  iv.,  p.  1Q4,  we  find  instructions  for  tlie 
speaker's  speech  in  1592,  di-awn  up  by  Lord  Bur- 
leigh, as  might  verj-  likely  be  the  case  on  otlier  oc- 
casions.     "  t  D'Ewes,"219.      $  Id.,  213,  214. 


E LIZ.— Government.]  FEOM  HENRY  VII.  TO  GEORGE  U. 


151 


till  February,  1575-6,  Peter  WenUvorth, 
brother,  I  believe,  of  the  persou  of  thatuame 
before  mentioned,  broke  out,  in  a  speech  of 
uuconunon  boldness,  against  her  arbitrary 
encroachments  on  their  privileges.  The 
liberty  of  free  speech,  he  said,  had  in  the 
last  two  sessions  been  so  many  ways  in- 
fringed, that  they  were  in  danger,  while 
they  contented  themselves  with  the  name, 
of  losing  and  foregoing  the  thing.  It  was 
common  for  a  rumor  to  spread  through  that 
House,  "  the  queen  likes  or  dislikes  such  a 
matter ;  beware  what  you  do."  Messages 
were  even  sometimes  brought  down,  either 
commanding  or  inhibiting,  very  injurious  to 
the  liberty  of  debate.  He  instanced  that 
in  the  last  session,  restraining  the  House 
from  dealing  iu  mattei-s  of  religion,  against 
which  and  against  the  prelates  he  inveighed 
with  great  acrimony.  With  still  greater 
indignation  he  spoke  of  the  queen's  refusal 
to  assent  to  the  attainder  of  Mary,  and  after 
surprising  the  House  by  the  bold  words, 
"  None  is  without  fault,  no,  not  our  noble 
queen,  but  has  committed  gi-eat  and  danger- 
ous faults  to  herself,"  went  on  to  tax  her 
with  ingratitude  and  unkindness  to  her  sub- 
jects in  a  strain  perfectly  free,  indeed,  fi-om 
disaffection,  but  of  more  rude  censure  than 
any  kings  would  put  up  with.* 

This  direct  attack  upon  the  sovereign  in 
matters  relating  to  her  public  administi'ation 
seems,  no  doubt,  unparlianientary,  though 
neither  the  rules  of  Parliament  in  this  re- 
spect, nor  even  the  constitutional  principle, 
were  so  sti'ictly  understood  as  at  present. 
But  it  was  part  of  Elizabeth's  character  to 
render  herself  extremely  prominent,  and, 
as  it  were,  responsible  in  public  esteem, 
for  every  important  measure  of  her  govern- 
ment. It  was  difficult  to  consider  a  queen 
as  acting  merely  by  the  advice  of  ministers, 
who  protested  in  Parliament  that  they  had 
labored  in  vain  to  bend  her  heart  to  their 
councils.  The  doctrine  that  some  one  must 
be  responsible  for  every  act  of  the  crown 
was  yet  perfectly  unknown,  and  Elizabeth 
would  have  been  the  last  to  adopt  a  system 
so  inglorious  to  monai'chy.  But  Went- 
worth  had  gone  to  a  length  which  alarmed 
the  House  of  Commons.  They  judged  it 
expedient  to  prevent  an  unpleasant  interfer- 
ence by  sequestering  their  member,  and 
appointing  a  committee  of  all  the  privy 
"  ~         *I)'EweB,  236. 


counselors  in  the  House  to  examine  him. 
Wentworth  declined  their  authority,  till 
they  assured  him  that  they  sat  as  members 
of  the  Commons,  and  not  as  counselors. 
After  a  long  examination,  in  which  he  not 
only  behaved  witli  intrepidity,  but,  accord- 
ing to  his  own  statement,  reduced  them  to 
confess  the  ti'uth  of  all  he  advanced,  they 
made  a  report  to  the  House,  who  commit- 
ted him  to  the  Tower.  He  had  lain  there 
a  month,  when  the  queen  sent  word  that 
she  remitted  her  displeasure  toward  him, 
and  referred  his  enlargement  to  the  House, 
who  released  him  upon  a  reprimand  from 
the  speaker,  and  an  acknowledgment  of  his 
fault  upon  his  knees.*  In  this  commit- 
ment of  Wentworth,  it  can  hardly  be  said 
that  there  was  any  thing,  as  to  the  main 
point,  by  which  the  House  sacrificed  its  ac- 
knowledged privileges.  In  later  instances, 
and  even  in  the  reign  of  George  the  First, 
members  have  been  committed  for  much 
loss  indecent  reflections  on  the  sovereign. 
The  queen  had  no  reason,  upon  the  whole, 
to  be  ill  pleased  with  this  Parliament,  nor 
was  she  in  haste  to  dissolve  it,  though  there 
was  a  long  mtermission  of  its  sessions.  The 
next  was  in  1581,  when  the  chancellor,  on 
confirming  a  new  speaker,  did  not  fail  to 
admonish  him  that  the  House  of  Commons 
should  not  intermeddle  in  any  thing  touch- 
ing her  majesty's  person  or  estate,  or  church 
government.  They  were  supposed  to  diso- 
bey this  injunction,  and  fell  under  the  queen's 
displeasure,  by  ajjpointing  a  public  fast  on 
their  own  authority,  though  to  be  enforced 
on  none  but  themselves.  This  trifling  reso- 
lution, which  showed,  indeed,  a  little  of  the 
Puritan  spirit,  passed  for  an  encroachment 
on  the  supremacy,  and  was  only  expiated 
by  a  humble  apology. f  It  was  not  till  the 
month  of  February,  1587-8,  that  the  zeal 
for  ecclesiastical  reformation  overcame  in 
some  measure  the  terrors  of  power,  but 
with  no  better  success  than  before.  A  Mr. 
Cope  offered  to  the  House,  we  are  inform- 
ed, a  bill  and  a  book,  the  former  annulling  all 
laws  respecting  ecclesiastical  government 
then  in  force,  and  establishing  a  certain  new 
form  of  common  prayer  contained  in  the 
latter.  The  speaker  interposed  to  prevent 
this  bill  from  being  read,  on  the  ground  that 
her  majesty  had  commanded  them  not  to 
meddle  in  this  matter.  Several  members, 
*  D'Ewes,  260.  t  Ibid.,  282. 


152 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap  V. 


however,  spoke  in  favor  of  hearing  it  read,  | 
and  the  day  passed  in  debate  on  this  sub- 
ject.   Before  they  met  again,  the  queen 
sent  for  the  speaker,  who  delivered  up  to  I 
her  the  bill  and  book.    Next  time  that  the  t 
House  sat,  Mr.  AVentworth  insisted  that 
some  questions  of  his  proposing  should  he 
read.    These  queries  were  to  the  following  ' 
purport :  "  Whether  this  council  was  not  a  ; 
place  for  any  member  of  the  same,  freely  j 
and  without  control,  by  bill  or  speech,  to  ut-  j 
ter  any  of  the  gi-iefs  of  this  Commonwealth  ?  ] 
Whether  there  be  any  council  that  can  j 
make,  add,  or  diminish  from  the  laws  of  the  , 
realm,  but  only  this  council  of  Parliament  ? 
Whether  it  be  not  against  the  orders  of  this 
council  to  make  any  secret  or  matter  of 
weight,  which  is  here  in  hand,  known  to 
the  prince  or  any  other,  without  consent  of 
the  House  ?    Whether  the  speaker  may 
overrule  the  House  in  any  matter  or  cause 
in  question  ?    Whether  the  prince  and  state 
can  continue  and  stand,  and  be  maintained 
without  this  council  of  Parliament,  not  alter- 
ing the  government  of  the  state  ?"  These 
questions  Sei'geant  Pickering,  the  speaker, 
instead  of  reading  them  to  the  House, 
showed  to  a  courtier,  through  whose  means 
Wentworth  was  committed  to  the  Tower. 
Mr.  Cope,  and  those  who  had  spoken  in 
favor  of  his  motion,  undenveut  the  same 
fate ;  and  notwithstanding  some  notice  tak- 
en of  it  in  the  House,  it  does  not  appear 
that  they  were  set  at  liberty  before  its  dis- 
solution, which  ensued  in  three  weeks.* 
Yet  the  Commons  were  so  set  on  display- 
ing an  ineffectual  hankering  after  reform, 
that  they  appointed  a  committee  to  address 
the  queen  for  a  learned  ministry. 

At  the  beginning  of  the  next  Parliament, 
„   „        which  met  in  1588-9,  the  speaker 

The  Com-  .      ^  ,         .  ;        ,  ^  , 

mons  con-  received  an  admonition  that  the 
redres°ofe^  House  were  not  to  extend  their 
desiastical  privileges  to  any  iireverent  or 
giie\ances.   jjjjgjjggQj^jjjg  speech.     In  this 

session  Mr.  Damport,  we  are  informed  by 
D"Ewes,f  moved  neither  for  making  of  any 
new  laws,  nor  for  abrogating  of  any  old 
ones,  but  for  a  due  course  of  proceeding 
in  laws  already  established,  but  executed 
by  some  ecclesiastical  governors  contrary 
both  to  their  purport  and  the  intent  of  the 


*  D  Ewes,  410. 

t  P.  438.  Townsend  calls  this  gentleman  Dav- 
enport, which  no  doubt  was  his  true  name. 


Legislature,  which  he  proposed  to  bring 
into  discussion.  So  cautious  a  motion  .=aved 
its  author  from  the  punishment  which  had 
attended  3Ir.  Cope  for  his  more  radical  re- 
form ;  but  the  secretaiy  of  state,  reminding 
the  House  of  the  queen's  express  inhibition 
from  dealing  with  ecclesiastical  causes,  de- 
clared to  them  by  the  chancellor  at  the 
commencement  of  the  session  (in  a  speech 
which  does  not  appear),  prevented  thetn 
from  taking  any  further  notice  of  Mr.  Dam- 
port's  motion.  They  narrowly  escaped 
Elizabeth's  displeasure  in  attacking  some 
civil  abuses.  Sir  Edward  Hobby  brought  in 
a  bill  to  prevent  certain  exactions  made  for 
their  own  profit  by  the  officers  of  the  Ex- 
chequer. Two  days  after,  he  complained 
that  he  had  been  very  shai-ply  rebuked  by 
some  gi'eat  personage,  not  a  member  of  the 
House,  for  his  sjieech  on  that  occasion. 
But  instead  of  testifying  indignation  at  this 
breach  of  their  pi-ivileges,  neither  he  nor 
the  House  thought  of  any  further  redress 
than  by  exculpating  him  to  this  great  per- 
sonage, apparently  one  of  the  ministers, 
and  admonisliing  their  members  not  to  re- 
peat elsewhere  any  thing  uttered  in  their 
debates.*  For  the  bill  itself,  as  well  as  one 
intended  to  resti'ain  the  flagrant  abuses  of 
purveyance,  they  both  were  passed  to  the 
I  Lords.  But  the  queen  sent  a  message  to 
the  Upper  House,  expressing  her  dislike 
!  of  them,  as  meddling  with  abuses,  which, 
if  they  existed,  she  was  both  able  and  will- 
ing to  repress ;  and  this  having  been  form- 
ally communicated  to  the  Commons,  they 
appointed  a  committee  to  search  for  prece- 
dents in  order  to  satisfy  her  majesty  about 
their  proceedings.  They  received  after- 
ward a  gracious  answer  to  their  address, 
the  queen  declaring  her  willingness  to  af- 
ford a  remedy  for  the  alleged  gi-ievances.f 

Elizabeth,  whose  reputation  for  consist- 
ency, which  haughty  princes  overvalue, 
was  engaged  in  protecting  the  established 
hierarchy,  must  have  experienced  not  a  lit- 
tle vexation  at  the  perpetual  recuiTence  of 
complaints  which  the  unpopularity  of  that 
order  di-ew  from  every  Parliament.  The 
speaker  of  that  summoned  in  1593  received 
for  answer  to  his  request  of  liberty  of 
speech,  that  it  was  granted,  "but  not  to 
speak  every  one  what  he  listefh,  or  what 
cometh  into  his  brain  to  utter;  their  priv- 

'  D'Ewes.  433.  t  Id.,  440,  et  post. 


Eliz. — Governmeut.] 


FROM  HENEY  VII.  TO  GEORGE  II. 


153 


ilege  was  aye  or  no.  Wherefore,  Blr. 
Speaker,"  continues  the  Lord-keeper  Pick- 
ering, himself  speaker  in  the  Parliament  of 
1588,  "  her  majesty's  pleasure  is,  that  if 
you  perceive  any  idle  heads  which  will  not 
stick  to  hazard  their  own  estates,  which 
will  meddle  with  reforming  the  Church  and 
transforming  the  Commonwealth,  and  do 
exhibit  such  bills  to  such  purpose,  that  j-ou 
receive  them  not,  until  they  be  viewed  and 
considered  by  those  who  it  is  fitter  should 
consider  of  such  things,  and  can  better 
judge  of  them."  It  seems  not  improbable 
that  this  admonition,  which,  indeed,  is  in  no 
unusual  style  for  this  reign,  was  suggested 
by  the  expectation  of  some  unpleasing  de- 
bate ;  for  we  read  that  the  very  first  day 
of  the  session,  though  the  Commons  had 
adjourned  on  account  of  the  speaker's  ill- 
ness, the  unconquerable  Peter  Went  worth, 
with  another  member,  presented  a  petition 
to  the  lord-keeper,  desiring  the  lords  of  the 
Upper  House  to  join  with  them  of  the 
Lower  in  imploring  her  majesty  to  entail 
the  succession  of  the  crown,  for  which  they 
had  already  prepared  a  bill.  This  step, 
which  may  seem  to  us  rather  aiTOgant  and 
unparliamentary,  drew  down,  as  they  must 
have  expected,  the  queen's  indignation. 
They  were  summoned  before  the  council, 
end  committed  to  different  prisons.*  A 
few  days  afterward,  a  bill  for  reforming  the 
abuses  of  ecclesiastical  courts  was  present- 
ed by  Morice,  attorney  of  the  Court  of 
Wards,  and  underwent  some  discussion  in 
the  House. f  But  the  queen  sent  for  the 
speaker,  and  expressly  commanded  that  no 
bill  touching  matters  of  state  or  reformation 
of  causes  ecclesiastical  should  be  exhibited  ; 
and  if  any  such  should  be  off  ered,  enjoining 
him,  on  his  allegiance,  not  to  read  it.J  It 
was  the  custom  at  that  time  for  the  speaker 
to  read  and  expound  to  the  House  all  the 
bills  that  any  member  offered.  Morice  him- 
self was  committed  to  safe  custody,  from 
which  he  WTote  a  spirited  letter  to  Loi-d 
Burleigh,  expressing  his  soitow  for  having 
offended  the  queen,  but,  at  the  same  time, 
his  resolution  "to  stiive,"  he  saj's,  "while 
his  life  should  last,  for  freedom  of  con- 
science, public  justice,  and  the  liberties  of 
his  country. "§    Some  days  after,  a  motion 

*  D'Ewes,  470. 

t  Id.,  474     Townsend,  60.  t  H.,  62. 

§  See  the  letter  in  Lodge's  Ulustratious,  vol.  iii., 


was  made  that,  as  some  places  might  com- 
plain of  paying  subsidies,  their  representa- 
tives not  having  been  consulted  nor  been 
present  when  they  were  granted,  the 
House  should  address  the  queen  to  set 
their  members  at  liberty.  But  the  minis- 
ters opposed  this,  as  likely  to  hurt  those 
whose  good  was  sought,  her  majesty  being 
more  likely  to  release  them  if  left  to  her 
own  gi-acious  disposition.  It  does  not  ap- 
pear, however,  that  she  did  so  during  the 
session,  which  lasted  above  a  month.*  We 
read,  on  the  contrary,  in  an  undoubted  au- 
thority, namely,  a  letter  of  Antony  Bacon 
to  his  mother,  that  "  divers  gentlemen  who 
were  of  the  Parliament,  and  thought  to 
have  retui'ned  into  the  country  after  the  end 
thereof,  were  stayed  by  her  majesty's  com- 
mandment, for  being  privy,  as  it  is  thought, 
and  consenting  to  Mr.  Wentworth's  mo- 
tion."! Some  difficulty  was  made  by  this 
House  of  Commons  about  their  gi-ant  of 
subsidies,  which  was  uncommonly  large, 
though  rather  in  appearance  than  truth,  so 
gi'eat  had  been  the  depreciation  of  silver  for 
some  years  past.J 

The  admonitions  not  to  abuse  fi-eedom  of 
speech,  which  had  become  almost  as  much 
matter  of  course  as  the  request  for  it,  were 
repeated  in  the  ensuing  Pai-liaments  of  1597 
and  1601.  Nothing  more  remarkable  oc- 
curs in  the  former  of  these  ses-  j^^^^ 
sions  than  an  address  to  the  queen  nopoiies,  es- 
against  the  enormous  abuse  of  fife'sessiou 
monopolies.  The  crown  either  "f'CUl. 
possessed  or  assumed  the  prerogative  of 
regulating  almost  all  matters  of  commerce 
at  its  discretion.  Patents  to  deal  exclusive- 
ly in  particular  articles,  generally  of  foreign 
gi'owth,  but  reaching,  in  some  instances,  to 
such  important  necessaries  of  life  as  salt, 
leather,  and  coal,  had  been  lavishly  gi-anted 
to  the  courtiers,  with  little  direct  advantage 
to  the  revenue.    They  sold  them  to  com- 


34.  Townsend  says  he  vras  committed  to  Sir 
John  Fortescue's  keeping,  a  gentler  sort  of  impris- 
onment, p.  61.  *  D'Ewes,  470. 

t  Birch's  Memoirs  of  Elizabeth,  i.,  96. 

t  Sti-j-pe  has  publislied,  from  Lord  Burleigh's 
manuscripts,  a  speech  made  in  the  Parliament  of 
1589,  against  the  subsidy  then  proposed. — Annals, 
vol.  iii..  Append.,  238.  Not  a  woi'd  about  this  oc- 
curs in  D'Ewes's  Journal;  and  I  mention  it  as  an 
additional  proof  how  little  we  can  rely  on  negative 
inferences  as  to  proceedings  in  Parliament  at  this 
period. 


154 


COXSTITUTIONAL  HISTOaY  OP  ENG];.AJ<'D 


[Chap.  V, 


panies  of  merchants,  who  of  course  enhanc- 
ed the  price  to  the  utmost  ability  of  the 
purchaser.  This  business  seems  to  have 
been  purposely  proti-acted  by  the  ministers 
and  the  speaker,  who,  in  this  reign,  was 
usually  in  the  couit's  interests,  till  the  last 
day  of  the  session,  when,  in  answer  to  his 
mention  of  it,  the  lord-keeper  said  that  the 
queen  "hoped  her  dutiful  and  loving  sub- 
jects would  not  take  away  her  prerogative, 
which  is  the  choicest  flower  in  her  garden, 
and  the  principal  and  head  pearl  in  her 
crown  and  diadem,  but  would  rather  leave 
that  to  her  disposition,  promising  to  examine 
all  patents,  and  to  abide  the  touchstone  of 
the  law."*  This  answer,  though  less  stem 
than  had  been  usual,  was  merely  evasive ; 
and  in  the  session  of  ICOl,  a  bolder  and 
more  successful  attack  was  made  on  the 
administration  than  this  reign  had  wit- 
nessed. The  grievance  of  monopolies  had 
gone  on  continually  increasing;  scarce  any 
article  was  exempt  from  these  oppressive 
patents.  When  the  list  of  them  was  read 
^  over  in  the  House,  a  member  exclaimed, 
"  Is  not  bread  among  the  number  ?  "  The 
House  seemed  amazed :  "  Nay,"  said  he, 
if  no  remedy  is  found  for  these,  bread 
will  be  there  before  the  next  Pai-liament." 
Every  tongue  seemed  now  unloosed,  each 
as  if  emulously  descanting  on  the  injuries 
of  the  place  he  represented.  It  was  vain 
for  the  couitiers  to  withstand  this  torrent. 
Raleigh,  no  small  gainer  himself  by  some 
monopolies,  after  making  what  excuse  he 
could,  oflered  to  give  them  up.  Robert 
Cecil  the  secretarj',  and  Bacon,  talked  loud- 
]y  of  the  prerogative,  and  endeavored  at 
least  to  persuade  the  House  that  it  would 
be  fitter  to  proceed  by  petition  to  the  queen 
than  by  a  bill.  But  it  was  properly  an- 
swered, that  nothing  had  been  gained  by 
petitioning  in  the  last  Parliament.  After 
four  days  of  eager  debate,  and  more  heat 
than  had  ever  been  witnessed,  this  ferment 
was  suddenly  appeased  by  one  of  those 
well-timed  concessions  by  which  skillful 
princes  spare  themselves  the  moitification 
of  being  overcome.  Elizabeth  sent  down  a 
message  that  she  would  revoke  all  grants 
that  should  be  found  injurious  by  fair  trial 
at  law ;  and  Cecil  i-endered  the  somewhat 
ambiguous  generality  of  this  expression 
more  satisfactory,  by  an  assurance  that  the 
*  D'Ewes,  547. 


existing  patents  should  all  be  repealed,  and 
no  more  be  granted.  This  victory  filled  the 
Commons  with  joj',  perhaps  the  more  from 
being  rather  unexpected.*  They  address- 
ed the  queen  with  rapturous  and  hyperbol- 
ical acknowledgments,  to  which  she  an- 
swered in  an  affectionate  strain,  glancing 
only  with  an  oblique  irony  at  some  of  those 
movers  in  the  debate,  whom  in  her  earlier 
and  more  vigorous  years  she  would  have 
keenly  reprimanded.  She  repeated  this  a 
little  more  plainly  at  the  close  of  the  ses 
sion,  but  still  with  commendation  of  the 
body  of  the  Commons.  So  altered  a  tone 
must  be  ascribed  partly  to  the  growing  spir- 
it she  perceived  in  her  subjects,  but  partly, 
also,  to  those  cares  which  clouded  with  list- 
less melancholy  the  last  scenes  of  her  iilus- 
tinous  life.f 


*  Their  joy  and  gratitude  were  rather  prema- 
ture, for  her  majesty  did  not  revoke  all  of  them,  as 
appears  by  Rj-mer,  xvi.,  540,  and  Carte,  iii.,  712. 
A  list  of  them,  dated  May,  1603,  Lodge,  iii.,  159, 
seems  to  imply  that  they  were  still  existing. 

t  D'Ewes,  619,  Gii,  &c. 

The  speeches  made  in  this  Parliament  are  re- 
ported more  fully  than  usual  hy  Heywood  Town- 
send,  from  whose  journal  those  of  most  importance 
have  been  tran.scribed  by  D'Ewes.  Hume  has 
given  considerahle  extracts,  for  the  sole  purpose  of 
inferring  from  this  very  debate  on  monopolies,  that 
the  royal  prerogative  was,  according  to  the  opin- 
ion of  the  House  of  Commons  itself,  hardly  subject 
to  anj-  kind  of  restraint.  But  the  passages  he  se- 
lects are  so  unfairly  taken  (some  of  them  being  the 
mere  language  of  courtiers,  others  separated  fi-om 
the  context,  in  order  to  distort  their  meaning),  that 
no  one  who  compares  them  with  the  original  can 
acquit  him  of  extreme  prejudice.  The  adulatory 
strain  in  which  it  was  usual  to  speak  of  the  sever 
eign  often  covered  a  strong  disposition  to  keep 
down  his  anthority.  Thus,  when  a  Mr.  Davies  says 
in  this  debate,  "  God  hath  given  that  power  to  ab- 
solute princes  which  he  attributes  to  himself — Dixi 
quod  dii  estis  ;"  it  would  have  been  seen,  if  Hume 
had  quoted  the  following  sentence,  that  he  infers 
from  hence,  that  justice  being  a  divine  attribute,  the 
kingcando  nothing  that  is  unjust,  and.  consequently, 
can  not  grant  hcenses  to  the  injury  of  his  subjects. 
Strong  language  was  no  doubt  used  in  respect  of 
the  prerogative.  But  it  is  erroneous  to  assert,  with 
Hume,  that  it  came  equally  from  the  courtiers  and 
country  gentlemen,  and  was  admitted  by  both.  It 
will  chiefly  be  found  in  the  speeches  of  Secretary 
Cecil,  the  official  defender  of  prerogative,  and  of 
some  lawyers.  Hume,  after  quoting  an  extrava- 
gant speech  ascribed  to  Sergeant  Heyle,  that  "  all 
we  have  is  her  majesty's,  and  she  may  lawfully  at 
any  time  take  it  from  us ;  yea,  she  hath  as  much 
rieht  to  all  our  lands  and  goods  as  to  any  revenue  of 
her  crown,"  observ  es  that  Heyle  was  an  eminent 
lawyer,  a  man  of  character.    That  Heyle  was  high 


E LIZ.— Government.]  mOM  HENRY  VII.  TO  GEORGE  II. 


The  discontent  that  vented  itself  against 
monopolies  was  not  a  little  excited  by  the 
increasing  demiinds  which  Elizabeth  was 
compelled  to  make  upon  the  Commons  in 
all  her  latter  Parliaments.  Though  it  was 
declaimed  in  the  preamble  to  the  subsidy- 
bill  of  1593,  that  "these  large  and  unusual 
grants,  made  to  a  most  excellent  princess 
on  a  most  pressing  and  extraordinary  occa- 
sion, should  not  at  any  time  hereafter  be 
drawn  into  a  precedent,"  yet  an  equal  sum 
was  obtained  in  1597,  and  one  still  gi'eater 
in  1601.  But  money  was  always  reluctant- 
ly given,  and  the  queen's  early  frugality  had 
accustomed  her  subjects  to  very  low  taxes; 
80  that  the  debates  on  the  supply  in  1601, 
as  handed  down  to  us  by  Towusend,  exhib- 
it a  lurking  ill  humor,  which  would  find  a 
better  occasion  to  break  forth. 

The  House  of  Commons,  upon  a  review 
,  of  Elizabeth's  reign,  was  very  far, 

Influence  of  &  '  j  ' 

the  crown  in  on  the  One  hand,  fi'om  exercising 
Parliament,  ^^iose  constitutional  rights  which 
have  long  since  belonged  to  it,  or  even  those 
which  by  ancient  precedent  they  might  have 
claimed  as  theh  own,  yet,  on  the  other  hand, 
was  not  quite  so  servile  and  submissive  an 
assembly  as  an  artful  historian  has  repre- 
sented it.    If  many  of  ita  members  were 

in  his  profession  is  beyond  doubt ;  but  iu  that  age, 
as  has  since,  though  from  the  change  of  times  less 
grossly,  continued  to  be  the  case,  the  most  distin- 
guished lawyers  notoriously  considered  the  court 
and  country  as  plaintiff  and  defendant  in  a  great 
suit,  and  themselves  as  their  retained  advocates. 
It  is  not  Hkely,  howevei',  that  Heyle  should  have 
used  the  exact  words  imputed  to  him.  He  made, 
no  doubt,  a  strong  speech  for  prerogative,  but  so 
grossly  to  transcend  all  limits  of  truth  and  decen- 
cy seems  even  beyond  a  lawyer  seeking  office. 
Townsend  and  D'Ewes  write  with  a  sort  of  sar- 
castic humor,  which  is  not  always  to  be  taken  ac- 
cording to  the  letter. — D'Ewes,  433.  Towusend, 
205. 

Home  proceeds  to  tell  us,  that  it  was  asserted 
this  session,  that  the  speaker  might  either  admit 
or  reject  bills  in  the  House  ;  and  remarks,  that  the 
very  proposal  of  it  is  a  proof  at  what  a  low  ebb 
libertj'  was  at  that  time  in  England.  There  can 
not  be  a  more  complete  mistake.  No  such  asser- 
tion was  made  ;  but  a  member  suggested  that  the 
speaker  might,  as  the  consuls  iu  the  Roman  sen- 
ate used,  appoint  the  order  in  which  biUs  should 
be  read ;  at  which  speech,  it  is  added,  some  hiss- 
ed.— D'Ewes,  677.  The  present  regularitj'  of  Par- 
liamentary forms,  so  justly  valued  by  the  House, 
was  yet  unknown,  and  the  members  called  confus- 
edly for  the  business  they  wished  to  have  brought 
forward. 


155 

but  creatures  of  power,  if  the  majority  was 
often  too  readily  intimidated,  if  the  bold  and 
honest,  but  not  very  judicious,  Wentwoiths 
were  but  feebly  supported,  when  their  im- 
patience hun-ied  them  beyond  their  col- 
leagues, there  was  still  a  considerable  par- 
ty, sometimes  cariyiug  the  House  along 
with  them,  who  with  patient  resolution  and 
inflexible  aim  recurred  in  every  session  to 
the  assertion  of  that  one  great  privilege 
which  their  sovereign  contested,  the  right 
of  Parliament  to  inquire  into  and  suggest  a 
remedy  for  every  public  mischief  or  danger. 
It  may  be  remarked,  that  the  ministers, 
such  as  Knollys,  Hatton,  and  Robert  Cecil, 
not  only  sat  among  the  Commons,  but  took 
a  very  leading  part  in  their  discussions  :  a 
proof  that  the  influence  of  argument  could 
no  more  be  dispensed  with  than  that  of 
power.  This,  as  I  conceive,  will  never  be 
the  case  in  any  kingdom  where  the  assem- 
bly of  the  estates  is  quite  subsen'ient  to  the 
crown.  Nor  should  we  put  out  of  consid- 
eration the  manner  in  which  the  Commons 
were  composed.  Sixty-two  members  were 
added  at  different  times  by  Elizabeth  to  the 
representation,  as  well  from  places  which 
had  in  earlier  times  discontinued  their  fran- 
chise, as  from  those  to  which  it  was  first 
granted  ;*  a  very  large  proportion  of  them 

*  Pari.  Hist.,  958.  In  the  session  of  1571,  a  com- 
mittee was  appointed  to  confer  with  the  attorney 
and  solicitor  general  about  the  return  of  burgesses 
from  nine  places  which  had  not  been  represented 
in  the  last  Parliament.  But  m  the  end  it  was  "or- 
dered, by  Mr.  Attorney's  assent,  that  the  burgess- 
es shall  remain  according  to  their  returns ;  for  that 
the  validity  of  the  charters  of  their  towns  is  else- 
where to  be  examined,  if  cause  be." — D'Ewes,  p. 
156,  159. 

D'Ewes  observes  that  it  was  very  common  in 
fonner  times,  in  order  to  avoid  the  charge  of  pay- 
ing wages  to  their  burgesses,  that  a  borough  which 
had  fallen  into  poverty  or  decay  either  got  license 
of  the  sovereign  for  the  time  being  to  be  discharg- 
ed from  electing  members,  or  discontinued  it  of 
themselves  ;  but  that  of  late,  the  raembei's  for  the 
most  part  bearing  their  own  charges,  many  of  those 
towns  which  had  thus  discontinued  their  privilege 
renewed  it,  both  in  Elizabeth's  reign  and  that  of 
James,  p.  80.  This  could  only  have  been,  it  is 
hardly  necessary  to  say,  by  obtaining  writs  out  of 
chancery  for  that  purpose.  As  to  the  pa3'ment  of 
wages,  the  words  of  D'Ewes  intimate  that  it  was 
not  entirely  disused.  In  the  session  of  1586,  the 
borough  of  Grantham  complained  that  Arthur  HaU 
(whose  name  now  appears  for  the  last  time)  had 
sued  them  for  wages  due  to  him  as  their  represent- 
ative in  the  preceding  Parliament ;  alleging  that, 


156 


CONSTITUTIONAL  HISTORY  OF  ENGLAIfD 


[Chap.  V. 


petty  boroughs,  evidently  under  the  influ- 
ence of  the  crown  or  peerage.  This  had 
been  the  policy  of  her  brother  and  sister,  in 
order  to  counterbalance  the  countiy  gentle- 
men, and  find  room  for  those  dependents 
who  had  no  natural  interest  to  return  them 
to  Parliament.  The  ministry  took  much 
pains  with  elections,  of  which  many  proofs 
remain.*     The  House,  accordingly,  was 


as  well  by  reason  of  his  negligent  attendance  and 
some  other  offenses  by  him  committed  in  some  of 
its  sessions,  as  of  his  promise  not  to  require  any 
such  wages,  they  ought  not  to  be  charged ;  and  a 
committee  having  been  appointed  to  inquire  into 
this,  reported  that  they  had  requested  Mr.  Hall  to 
remit  his  claim  for  wages,  which  he  had  fi-eely 
done. — D'Ewes,  p.  417. 

*  Strj'pe  mentions  letters  from  the  council  to 
Wildmay,  sheriff  of  Essex,  in  1559,  about  the  choice 
of  knights. — Annals,  vol.  i.,  p.  32.  And  other  in- 
Btances  of  interference  may  be  found  in  the  Lans- 
downe  and  Harleian  collections.  Thus  we  read 
that  a  Mr.  Copley  used  to  nominate  burgesses  for 
Gatton,  "  for  that  there  were  no  burgesses  in  the 
borough."  The  present  proprietor  being  a  minor 
in  custody  of  the  Court  of  Wards,  Lord  Burleigh 
directs  the  sheriff  of  Surrey  to  make  no  return 
without  instructions  from  himself;  and  afterward 
orders  him  to  cancel  the  name  of  Francis  Bacon  in 
his  indenture,  he  being  returned  for  another  place, 
and  to  substitute  Edward  Brown. — HarL  MSS., 
Dcciii.,  10. 


filled  with  placemen,  civilians,  and  common 
lawyers  gi-asping  at  preferment.  The  slav- 
ish tone  of  these  persons,  as  we  collect  from 
the  minutes  of  D'Ewes,  is  strikingly  con- 
trasted with  the  manliness  of  independent 
gentlemen ;  and  as  the  House  was  by  no 
means  very  fully  attended,  the  divisions,  a 
few  of  which  are  recorded,  rimning  from 
200  to  2-50  in  the  aggregate,  it  may  be  per- 
ceived that  the  court,  whose  followers  were 
at  hand,  would  maintain  a  formidable  influ- 
ence. But  this  influence,  however  perni- 
cious to  the  integrity  of  Parliament,  is  dis- 
tinguishable from  that  exertion  of  almost 
absolute  prerogative  which  Hume  has  as- 
sumed as  the  sole  spring  of  Elizabeth's  gov- 
ernment, and  would  never  be  employed  tiU 
some  deficiency  of  sti-ength  was  experienced 
in  the  other. 

D'Ewes  has  preserved  a  somewhat  re- 
markable debate  on  a  bill  pre-  Debate  on 
sented  in  the  session  of  1.571,  in  non-residlnt 
order  to  render  valid  elections  of  burgesses, 
non-resident  burgesses.  According  to  the 
tenor  of  the  king's  writ,  confinned  by  an  act 
passed  under  Henry  V.,  every  city  and  bor- 
ough was  required  to  elect  none  but  mem- 
bers of  their  own  community.  To  this  pro- 
vision, as  a  seat  in  the  Commons'  House 


I  will  introduce  in  this  place,  though  not  belong- 
ing to  the  present  reign,  a  proof  that  Hemy  VIII.  gi'ew  more  an  object  of  general'  ambition, 
did  not  tnist  altogether  to  the  intimidating  effects  while  many  boroughs  fell  into  comparative 
of  his  despotism  for  the  obedience  of  Parliament, 
and  that  his  ministers  looked  to  the  management 
of  elections,  as  their  successors  have  always  done. 
Sir  Robert  Sadler  writes  to  some  one,  whose 
name  does  not  appear,  to  inform  him  that  the  Duke 
of  Norfolk  had  spoken  to  the  king,  who  was  well 
content  he  should  be  a  burgess  of  Oxford ;  and  that 
he  should  "  order  himself  in  the  said  room  accord- 
ing to  such  iustractions  as  the  said  Duke  of  Nor- 
folk should  give  him  from  the  king :"  if  he  is  not 
elected  at  Oxford,  the  writer  will  recommend  him 
to  some  of  "my  lord's  towns  of  his  bishopric  of 
Winchester." — Cotton  MSS.,  Cleopatra  E.,  iv.,  178. 
Thus  we  see  that  the  practice  of  our  government 
has  always  been  alike  ;  and  we  may  add  the  same 
of  the  nobilitj',  who  interfered  with  elections  fuU 
as  continually,  and  far  more  openly,  than  in  mod- 
em times.  The  difference  is,  that  a  secretary  of" 
the  treasurj-,  or  peer's  agent,  does  that  with  some 
precaution  of  secrecy,  which  the  council  board,  or 
peer  himself,  under  the  Tudors,  did  b^-  express  let- 
ters to  the  returning  officer ;  and  that  the  operating 
motive  is  the  prospect  of  a  good  place  in  the  excise 
or  customs  for  compliance,  rather  than  that  of  ly- 
ing some  months  in  the  Fleet  for  disobedience. 

A  late  writer  has  asserted,  as  an  undoubted  fact, 
which  "historic  ti-uth  requires  to  be  mentioned,  ' 
that  for  the  first  Parliament  of  Elizabeth,  "  five 
candidates  were  nominated  by  the  court  for  each 


decay,  less  and  less  attention  had  been  paid, 
till,  the  greater  part  of  the  borough  repre- 
sentatives having  become  strangers,  it  was 
deemed  by  some  expedient  to  repeal  the 
ancient  statute,  and  give  a  sanction  to  the  in- 
novation that  time  had  wi-ought,  while  others 
contended  in  favor  of  the  original  usage,  and 
seemed  anxious  to  restore  its  vigor.  It  was 
alleged,  on  the  one  hand,  by  Mr.  Norton, 
that  the  bill  would  take  away  all  pretense 
for  sending  unfit  men,  as  was  too  often  seen, 
and  remove  any  objection  that  might  be 
started  to  the  sufficiency  of  the  present 
Parliament,  wherein,  for  the  most  part 
against  positive  law,  strangers  to  their  sev- 
eral boroughs  had  been  chosen ;  that  per- 

borouffh,  and  three  for  each  county ;  and  by  the 
authority  of  the  sheriffs,  the  members  were  chosen 
from  among  the  candidates." — Butler's  Book  of  the 
Roman  Catholic  Church,  p.  2'25.  I  never  met  with 
any  tolerable  authoiity  for  this,  and  believe  it  to 
be  a  mere  fabricarion;  not  certainly  of  Mr.  Butler, 
who  is  utterly  incapable  of  a  willful  deviation  from 
truth,  but  of  some  of  those  whom  he  too  implicitly 
follows. 


E LIZ.— Government.]  FROM  HENRY  VII.  TO  GEORGE  II. 


157 


sons  able  and  fit  for  so  great  an  einploynient 
ought  to  be  prefeired  without  regard  to 
then-  iuhabitanc}',  since  a  inau  could  not  be 
presumed  to  be  the  wiser  for  being  a  resi- 
dent burgess ;  and  that  the  whole  body  of 
the  realm,  and  the  service  of  the  same,  was 
rather  to  be  respected  than  any  private  re- 
gard of  place  or  person.  This  is  a  remark- 
able, and  perhaps  the  eai-liest  assertion,  of 
an  important  constitutional  principle,  that 
each  member  of  the  House  of  Commons  is 
deputed  to  seiTe,  not  only  for  his  constitu- 
ents, but  for  the  whole  kingdom ;  a  princi- 
ple which  marks  the  distinction  between  a 
modern  English  Parliament  and  such  dep- 
utations of  the  estates  as  wei-e  assembled 
in  several  Continental  kingdoms ;  a  princi- 
ple to  which  the  House  of  Commons  is  in- 
debted for  its  weight  and  dignity,  as  well  as 
its  beneficial  efficiency,  and  which  none  but 
tlie  seiTile  worshipers  of  the  populace  are 
ever  found  to  gainsay.  It  is  obvious  that 
such  a  principle  could  never  obtain  curren- 
cy, or  even  be  advanced  on  any  plausible 
ground,  until  the  law  for  the  election  of  res- 
ident burgesses  had  gone  into  disuse. 

Those  who  defended  the  existing  law, 
forgetting,  as  is  often  the  case  with  the  de- 
fenders of  existing  laws,  that  it  had  lost  its 
practical  efficacy,  urged  that  the  inferior 
ranks  using  manual  and  mechanical  arts 
ought,  like  the  rest,  to  be  regarded  and  con- 
sulted with  on  matters  which  concerned 
them,  and  of  which  strangers  could  less 
judge.  "We,"  said  a  member,  "who  have 
never  seen  Berwick  or  St.  Michael's  Mount, 
can  but  blindly  guess  of  them,  albeit  we  look 
on  the  inaps  that  come  from  thence,  or  see 
letters  of  instruction  sent ;  some  one  whom 
observation,  experience,  and  due  considera- 
tion of  that  counhy  hath  taught,  can  more 
perfectly  open  what  shall  in  question  there- 
of grow,  and  more  effectually  reason  there- 
upon, than  the  skillfulle.st  otherwise  whatso- 
ever." But  the  greatest  mischief  resulting 
from  an  abandonment  of  their  old  Constitu- 
tion would  be  the  interference  of  noblemen 
with  elections :  lords'  letters,  it  was  said, 
would  from  henceforth  bear  the  sway ;  in- 
stances of  which,  so  late  as  the  days  of  Ma- 
ly,  were  alleged,  though  no  one  cared  to 
allude  particularly  to  any  thing  of  a  more 
recent  date.  Some  proposed  to  impose  a 
fine  of  forty  pounds  on  any  borough  making 
its  election  on  a  peer's  nomination.  The 


bill  was  committed  by  a  majority ;  but  as  no 
further  entry  appears  in  the  Journals,  we 
may  infer  it  to  have  dropped.* 

It  may  be  mentioned,  as  not  unconnected 
with  this  subject,  that  in  the  same  session 
a  fine  was  imposed  on  the  borough  of  West- 
bury  for  receiving  a  bribe  of  four  pounds 
from  Thomas  Long,  "  being  a  veiy  simple 
man,  and  of  small  capacity  to  seiTe  in  that 
place ;"  and  the  mayor  was  ordered  to  re- 
pay the  money.  Long,  however,  does  not 
seem  to  have  been  expelled.  This  is  the 
earliest  precedent  on  record  for  the  pun- 
ishment of  bribery  in  elections. f 

We  shall  find  an  additional  proof  that  the 
House  of  Commons  under  the  ^^^^^1.^^^^^ 
Tudor  princes,  and  especially  privileges  by 
Elizabeth,  was  not  so  feeble  and  Commons, 
insignificant  an  assembly  as  has  been  often 
insinuated,  if  we  look  at  their  frequent  as- 
sertion and  giadual  acquisition  of  those  pe- 
culiar authorities  and  immunities  which 
constitute  what  is  called  privilege  of  Parlia- 
ment. Of  these,  the  first,  in  order  of  time 
if  not  of  importance,  was  their  exemption 
from  arrest  on  civil  process  during  their 
session.  Several  instances  occurred  under 
the  Plantagenet  dynasty  where  this  privi- 
lege was  claimed  and  admitted,  but  gener- 
ally by  means  of  a  distinct  act  of  Parliament, 
or  at  least  by  a  writ  of  privilege  out  of  Chan- 
cery. The  House  of  Commons  for  the  first 
time  took  upon  themselves  to  avenge  their 
own  injmy  in  1543,  when  the  caseofFer- 
remarkable  case  of  George  Fer-  rers  under 
rers  occurred.  This  is  related  in 
detail  by  Holingshed,  and  is,  perhaps,  the 
only  piece  of  constitutional  information  we 
owe  to  him.  Without  repeating  all  the  cir- 
cumstances, it  will  be  sufficient  here  to  men- 
tion, that  the  Commons  sent  their  sergeant 
with  his  mace  to  demand  the  release  of 
Ferrers,  a  burgess  who  had  been  aiTested 
on  his  way  to  the  House ;  that  the  jailers 
and  sheriffs  of  London  having  not  only  re- 
fused compliance,  but  ill  treated  the  ser- 
geant, they  compelled  them,  as  well  as  the 
sheriffs  of  London,  and  even  the  plaintiff 
who  had  sued  the  writ  against  Feirers,  to 
appear  at  the  bar  of  the  House,  and  com- 
mitted them  to  prison  ;  and  that  the  king,  in 
the  presence  of  the  judges,  confirmed  in  the 
strongest  manner  this  assertion  of  privilege 
by  the  Commons.    It  was,  however,  so  far, 

*  D'Ewes,  168.  t  Journals,  p.  88. 


15S 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  V. 


at  least,  as  our  knowledge  extends,  a  very 
important  novelty  in  constitutional  practice ; 
not  a  ti'ace  occurring  in  any  former  instance 
on  record,  either  of  a  party  being  delivered 
from  arrest  at  the  mere  demand  of  tlie  ser- 
geant, or  of  any  one  being  committed  to 
prison  by  the  sole  authority  of  the  House 
of  Commons.  With  respect  to  the  first, 
"the  chancellor,"  says  Holingshed,  "offer- 
ed to  grant  them  a  writ  of  privilege,  which 
they  of  the  Commons'  House  refused,  be- 
ing of  a  clear  opinion  that  all  commandments 
and  other  acts  proceeding  from  the  nether 
House  were  to  be  done  and  executed  by 
their  sergeant  without  writ,  only  by  show 
of  his  mace,  which  was  his  warrant."  It 
might  naturally  seem  to  follow  from  this 
position,  if  it  were  conceded,  that  the  House 
had  the  same  power  of  attachment  for  con- 
tempt, that  is,  of  committing  to  prison  per- 
sons refusing  obedience  to  lawful  process, 
which  our  law  attributes  to  all  courts  of  jus- 
tice, as  essential  to  the  discharge  of  their 
duties.  The  king's  behavior  is  worthy  of 
notice  :  while  he  dexterously  endeavors  to 
insinuate  that  the  offense  was  rather  against 
him  than  the  Commons,  FeiTers  happening 
to  be  in  his  service,  he  displays  that  cun- 
ning flatteiy  toward  them  in  their  moment 
of  exasperation  which  his  daughter  knew 
60  well  how  to  employ.* 

Such  important  powers  were  not  likely 
Other  cases  to  be  thrown  away,  though  their 
of  privilege,  exertion  might  not  always  be 
thought  expedient.    The  Commons  had 

*  Holingshed,  vol.  iii.,  p.  824  (4to  edit.).  Hat- 
Bell's  Precedents,  v.  i.,  p.  53.  Mr.  Hatsell  inclines 
too  much,  in  my  opinion,  to  depreciate  the  author- 
ity of  this  case,  imagining  that  itvras  rather  as  the 
king's  sen-ant  than  as  a  memher  of  the  House  that 
Ferrers  was  delivered.  But,  though  Henry  art- 
fully endeavors  to  rest  it  chiefly  on  this  ground,  it 
appears  to  me  that  the  Commons  claim  the  privi- 
lege as  belonging  to  themselves,  without  the  least 
reference  to  this  circumstance.  If  they  did  not  al- 
ways assert  it  afterward,  this  negative  presump- 
tion is  veiy  weak  when  we  consider  how  common 
it  was  to  overlook  or  recede  from  precedents  before 
the  Constitution  had  been  reduced  into  a  system. 
Carte,  vol.  iii.,  p.  164,  endeavors  to  discredit  the 
case  of  Fon-ers  as  an  absolute  fable,  and  certainly 
points  out  some  inaccuracy  as  to  dates,  but  it  is 
highly  improbable  that  the  whole  should  be  on  in- 
vention. He  returns  to  the  subject  afterward,  p. 
541,  and,  with  a  folly  aUnost  inconceivable  even  in 
a  Jacobite,  supposes  tlie  Puritans  to  have  fabrica- 
ted the  tale,  and  prevailed  on  HoUngshed  to  insert 
it  in  his  history. 


sometimes  recourse  to  a  writ  of  privilege 
in  order  to  release  their  members  under 
aiTest,  and  did  not  repeat  the  proceeding  in 
Ferrers's  case  till  that  of  Smalley,  a  mem- 
ber's servant,  in  1575,  whom  they  sent  their 
sergeant  to  deliver.  And  this  was  only  "  af- 
ter sundiy  reasons,  arguments,  and  disputa- 
tions," as  the  Journal  informs  us  ;  and,  what 
is  more,  after  rescinding  a  previous  resolu- 
tion that  they  could  find  no  precedents  for 
setting  at  liberty  any  one  in  aiTest  except 
by  writ  of  privilege.*  It  is  to  be  observed, 
that  the  privilege  of  immunity  extended  to 
the  menial  servants  of  members,  till  taken 
away  by  the  statute  of  George  III.  Sev- 
eral persons,  however,  were,  at  different 
times  under  Mary  and  Elizabeth,  commit- 
ted by  the  House  to  the  Tower,  or  to  the 
custody  of  their  own  sergeant,  for  assaults 
on  theu-  members. f  Smalley  himself  above 
mentioned,  it  having  been  discovered  that 
he  had  fraudulently  procured  this  arrest  in 
order  to  get  rid  of  the  debt,  was  committed 
for  a  month,  and  ordered  to  pay  the  plain- 
tiff one  hundred  pounds,  which  was  possibly 
the  amount  of  what  he  owed.  J  One,  also, 
who  had  served  a  subpoena  out  of  the  Star 
Chamber  on  a  member  in  the  session  of 
1584,  was  not  only  put  in  confinement,  but 
obliged  to  pay  the  party's  expenses  before 
they  would  discharge  him,  making  his  hum- 
ble submission  on  his  knees. §  This  is  the 
more  remarkable,  inasmuch  as  the  chancel- 
lor had  but  just  before  made  answer  to  a 
committee  deputed  "  to  signify  to  him  how, 
by  the  ancient  liberties  of  the  House,  the 
members  thereof  are  privileged  from  being 
served  with  subpoenas,"  that  "  he  thought 
the  House  had  no  such  privilege,  nor  would 
he  allow  any  precedents  for  it,  unless  they 
had  also  been  ratified  in  the  Court  of  Chan- 
cery."||  They  continued  to  enforce  this 
summaiy  mode  of  redress,  with  no  objec- 
tion, so  far  as  appears,  of  any  other  author- 
ity, till,  by  the  end  of  the  rineen's  reign,  it 
had  become  their  established  law  of  privi- 
lege that  "  no  subpoena  or  summons  for  the 
attendance  of  a  member  in  any  other  court 
ought  to  be  served,  without  leave  obtained 
or  information  given  to  the  House ;  and  that 
the  persons  who  procured  or  served  such 
process  were  guilty  of  a  breach  of  privilege, 

*  Journals,  Feb.  22d  and  27th. 
t  Hatsell,  73,  92,  119. 

t  Hatsell,  90.  6  Id.,  97.  )|  Id.,  96. 


Eliz.— Government.]  FROM  HENRY  VII.  TO  GEORGE  II. 


159 


and  were  punishable  by  commitment  or  oth- 
erwise, by  the  order  of  the  House."*  The 
great  importance  of  such  a  privilege  was  the 
security  it  furnished,  wheu  fully  claimed 
and  acted  upon,  against  those  irregular  de- 
tentions and  examinations  by  the  council, 
and  which,  in  despite  of  the  promised  lib- 
erty of  speech,  had,  as  we  have  seen,  op- 
pressed some  of  their  most  distinguished 
members.  But  it  must  be  owned,  that  by 
thus  suspending  all  civil  and  private  suits 
against  themselves,  the  Commons  gave  too 
much  encouragement  to  needy  and  worth- 
less men,  who  sought  their  walls  as  a  place 
of  sanctuaiy. 

This  power  of  punishment,  as  it  were  for 
contempt,  assumed  in  respect  of  those  who 
molested  members  of  the  Commons  by  legal 
process,  was  still  more  naturally  applicable 
to  offenses  against  established  order  com- 
mitted by  any  of  themselves.  In  the  ear- 
liest record  that  is  extant  of  their  daily  pro- 
ceedings, the  Commons'  Journal  of  the  first 
Parliament  of  Edward  VI.,  we  find,  on  the 
21st  of  .Januaiy,  1.547-8,  a  short  entry  of 
an  order  that  John  Storie,  one  of  the  burg- 
esses, shall  be  committed  to  the  custody  of 
the  sergeant.  The  order  is  repeated  the 
next  day ;  on  the  next,  articles  of  accusation 
are  read  against  Storie.  It  is  ordered  on 
the  following  day  that  he  shall  be  commit- 
ted prisoner  to  the  Tower.  His  wife  soon 
after  presents  a  petition,  which  is  ordered 
to  be  delivered  to  the  Protector.  On  the 
20th  of  Februaiy,  letters  from  Storie  in  the 
Tower  are  read.  These,  probably,  were 
not  deemed  satisfactory,  for  it  is  not  till  the 
2d  of  March  that  wo  have  an  entiy  of  a  let- 
ter from  Mr.  Storie  in  the  Tower  with  his 
submission ;  and  an  order  immediately  fol- 
lows, that  "  the  king's  privy-council  in  the 
nether  House  shall  humbly  declare  unto  the 
Lord  Protector's  gi'ace,  that  the  resolution 
of  the  House  is,  that  Mr.  Storie  be  enlarged 
and  at  liberty,  out  of  prison ;  and  to  require 
the  king's  majesty  to  forgive  him  his  offens- 
es in  this  case  toward  his  majesty  and  his 
council." 

Storie  was  a  zealous  enemy  of  the  Ref- 
ormation, and  suffered  death  for  treason  un- 
der Elizabeth.  His  temper  appears  to  have 
been  ungovernable  ;  even  in  Maiy's  reign 
he  fell  a  second  time  under  the  censure  of 
the  House  for  disrespect  to  the  speaker.  It 
*  Hatsell,  119. 


I  is  highly  probable  that  his  offense  in  the 
present  instance  was  some  ebullition  of  vir- 
ulence against  the  changes  in  religion,  for 
the  first  entry  concerning  him  immediately 
follows  the  third  reading  of  the  bill  that 
established  the  English  Liturgy.  It  is  also 
manifest  that  he  had  to  atone  for  language 
disrespectful  to  the  Protector's  government 
as  well  as  to  the  House.  But  it  is  worthy 
of  notice,  that  the  Commons,  by  their  single 
authority,  commit  their  burgess  first  to  their 
own  officer,  and  next  to  the  Tower;  and 
that  upon  his  submission  they  inform  the 
Protector  of  their  resolution  to  discharge 
him  out  of  custody,  recommending  him  to 
forgiveness  as  to  his  offense  against  the 
councU,  which,  as  they  must  have  been 
aware,  the  privilege  of  Parliament  as  to 
words  spoken  within  its  walls  (if  we  are 
right  in  supposing  such  to  have  been  the 
case)  would  extend  to  cover.  It  would  be 
very  unreasonable  to  conclude  that  this  is 
the  first  instance  of  a  member's  commitment 
by  order  of  the  House,  the  earlier  journals 
not  being  in  existence.  Nothing  indicates 
that  the  course  taken  was  unprecedented; 
yet,  on  the  other  hand,  we  can  as  little  in- 
fer that  it  rested  on  any  previous  usage ; 
and  the  times  were  just  such  in  which  a 
new  precedent  was  likely  to  be  established. 
The  right  of  tlie  House,  indeed,  to  punish 
its  own  members  for  indecent  abuse  of  the 
libeity  of  speech,  may  be  thought  to  re.sult 
naturally  fi-om  the  king's  concession  of  that 
liberty ;  and  its  right  to  preserve  order  in 
debate  is  plainly  incident  to  that  of  debating 
at  all. 

In  the  subsequent  reign  of  Mary,  Mr. 
Copley  incurred  the  displeasure  of  the 
House  for  speaking  in-everent  words  of  her 
majesty,  and  was  committed  to  the  sergeant- 
at-arms ;  but  the  despotic  character  of  that 
government  ^ed  the  Commons  to  recede  in 
some  degree  from  the  regard  to  their  o^va 
privileges  they  had  shown  in  the  former 
case.  The  speaker  was  directed  to  declare 
this  offense  to  the  queen,  and  to  request 
her  mercy  for  the  offender.  Mary  an- 
swered that  she  would  well  consider  that 
request,  but  desired  that  Copley  should  be 
examined  as  to  the  cause  of  his  behavior. 
A  prorogation  followed  the  same  day,  and 
of  course  no  more  took  place  in  this  affair.* 

A  more  remarkable  assertion  of  the 
*  Journals,  5th  and  7th  March,  1357-e. 


160 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  V. 


House's  right  to  inflict  punishment  on  its 
own  members  occurred  in  1581,  and  being 
much  better  known  than  tliose  I  have  men- 
tioned, has  been  sometimes  ti'eated  as  the 
earliest  ])recedent.  One  Arthur  Hall,  a 
burgess  for  Grantham,  was  charged  with 
having  caused  to  be  published  a  book  against 
the  present  Parliament,  on  account  of  cer- 
tain proceedings  in  the  last  session,  where- 
in he  was  privately  interested,  "  not  only 
re]oroaching  some  particular  good  members 
of  the  House,  but  also  veiy  much  slander- 
ous and  derogatoiy  to  its  general  authority, 
power,  and  state,  and  prejudicial  to  the  va- 
lidity of  its  proceedings  iu  making  and  estab- 
lishing of  laws."  Hall  was  the  master  of 
SmaUey,  whose  case  has  been  mentioned 
above,  and  had  so  much  incuiTed  the  dis- 
pleasure of  the  House  by  his  supposed  priv- 
itj-  to  the  fraud  of  his  servant,  that  a  bill  was 
brought  in  and  read  a  first  time,  the  precise 
natiu-e  of  which  does  not  appear,  but  ex- 
pressed to  be  against  him  and  two  of  his 
senauts.  It  seems  probable,  from  these 
and  some  other  passages  in  the  entities  that 
occur  on  this  subject  in  the  Journal,  that 
Hall,  in  his  libel,  had  depreciated  the  House 
of  Commons  as  an  estate  of  Parliament,  and 
especially  in  respect  of  its  privileges,  pretty 
much  in  the  strain  which  the  advocates  of 
prerogative  cfune  afterward  to  employ. 
AVhatever  share,  therefore,  personal  re- 
sentment may  have  had  in  exasperating  the 
House,  they  had  a  public  quarrel  to  avenge 
against  one  of  their  members,  who  was  led 
by  pique  to  betray  their  ancient  liberties. 
The  vengeance  of  popular  assemblies  is  not 
easily  satisfied.  Though  Hall  made  a  pi'et- 
ty  humble  submission,  they  went  on,  by  a 
unanimous  vote,  to  heap  eveiy  punishment 
in  their  power  upon  his  head.  They  ex- 
pelled him,  thej-  imposed  a  fine  of  five  hun- 
dred marks  upon  him.  they  sent  him  to  the 
Tower  until  he  should  make  a  satisfactory- 
reti-action.  At  the  end  of  the  session  he 
had  not  been  released ;  nor  was  it  the  de- 
sign of  the  Commons  that  his  imprisonment 
should  then  tenninate ;  but  their  own  dis- 
solution, which  ensued,  put  an  end  to  the 
business.*    HaU  sat  in  some  later  Parlia- 


'  D'Ewes,  291.  Hatsell,  93.  The  latter  says, 
"  I  can  not  but  suspect  that  there  was  some  pri- 
vate history  in  this  affair,  some  particular  offense 
against  the  queen,  with  which  we  are  unacquaint- 
ed.''   But  I  believe  the  explanation  I  have  cfiven 


I  ments.    This  is  the  leading  precedent,  as 
I  far  as  records  show,  for  the  power  of  ex- 
pulsion, which  the  Commons  have  ever  re- 
j  tained  without  dispute  of  those  who  would 
j  most  curtail  their  privileges.    But  in  1558 
j  it  had  been  put  to  the  vote  whether  one 
I  outlawed  and  guilty  of  divers  frauds  should 
continue  to  sit,  and  cairied  in  his  favor  by 
a  very  small  majority,  which  affords  a  pre- 
sumption that  the  right  of  expulsion  was 
,  already  deemed  to  appertain  to  the  House.* 
I  They  exercised  it  with  no  small  violence  in 
the  session  of  1585  against  the  famous  Dr. 
I  Pany,  who  having  spoken  warmly  against 
j  the  bill  inflicting  the  penalty  of  death  on 
I  Jesuits  and  seminaiy  priests,  as  being  cniel 
^  and  bloody,  the  Commons  not  only  ordered 
j  him  into  the  custody  of  the  sergeant  for 
opposing  a  bill  approved  of  by  a  committee, 
and  directed  the  speaker  to  reprimand  him 
I  upon  his  knees,  but  on  his  failing  to  make  a 
sufficient  apology,  voted  him  no  longer  a 
burgess  of  that  House. f    The  year  after- 
ward, Bland,  a  cun-ier,  was  brought  to  their 
bar  for  using  what  were  judged  contumeli- 
ous expressions  against  the  House  for  some- 
thing they  had  done  in  a  matter  of  little  mo- 
ment, and  dbcharged  on  account  of  his  pov- 
erty, on  making  submission,  and  paying  a 
fine  of  twenty  shillings. t    In  tliis  case  they 
perhaps  stretched  their  power  somewhat 
further  than  in  the  case  of  Arthur  Hall, 
who,  as  one  of  their  body,  might  seem  more 
amenable  to  their  jmisdiction. 

will  be  thought  more  to  the  purpose ;  and  so  far 
from  ha^-ing  offended  the  queen,  Hall  seems  to 
have  had  a  pati'on  in  Lord  Burleigh,  to  whom  he 
wrote  many  letters,  complaining  of  the  Commons, 
which  are  extant  in  the  Lansdowne  Collection. 
He  appears  to  have  been  a  man  of  eccentric  and 
unpopular  character,  and  had  already  incurred  the 
displeasure  of  the  Commons  iu  the  session  of  1572, 
when  he  was  ordered  to  be  warned  by  the  sergeant 
to  appear  at  the  bar,  "to  answer  for  sundrj'  lewd 
speeches  used  as  well  in  the  House  as  elsewhere." 
Another  entry  records  him  to  have  been  "  charged 
with  seven  several  articles,  but  ha\'ing  humblj'  sub- 
mitted himself  to  the  House,  and  confessed  his  fol- 
ly, to  have  been  upon  the  question  released  with  a 
good  exhortation  from  the  speaker." — D'Ewes, 
207.  212.  *  Hatsell,  60.       t  D'Ewes,  341. 

I  t  D'Ewes,  366.  This  case,  though  of  considera- 
ble importance,  is  overlooked  b3-  Hatsell,  who 
speaks  of  that  of  Hall  as  the  only  one  before  the 
Long  Parliament,  wherein  the  Commons  have  ptm- 
ished  the  authors  of  hbels  derogatory  to  their  priv- 
ileges.— P.  127.  Though  he  mentions  only  libels, 
certahJy  the  punishment  of  words  spoken  is  at 

I  least  as  strong  an  exercise  of  power. 


E  L I  z.  — Government.] 


FllOiM  HENllY  V: 


II.  TO  GEOHGE  II. 


161 


The  Commons  asserted  in  this  reign, 
,  perhaps  for  the  first  time,  anoth- 

Pnvileg-e  of  '  .  .  . 

lieteriniiiing-  er  and  most  miportant  privilege, 
elo"cr.ous^  the  right  of  determining  all  mat- 
claimed  by  ters  relative  to  their  own  elec- 
tions. Difficulties  of  this  nature 
had  in  former  times  been  decided  in  Chan- 
cery, from  which  the  writ  issued,  and  into 
which  the  return  was  made.  Whether  no 
cases  of  interference  on  the  i)art  of  the 
House  had  occurred,  it  is  impossible  to  pro- 
nounce, on  account  of  the  unsatisfactoiy 
state  of  the  rolls  and  journals  of  Parliament 
under  Edward  IV.,  Henry  VH.,  and  Hen- 
ry VIII.  One  remarkable  entiy,  however, 
maj-  be  found  in  the  reign  of  Mary,  when  a 
committee  is  appointed  "  to  inquire  if  Alex- 
ander Nowell,  prebendary  of  Westminster, 
may  be  of  the  House ;"  and  it  is  declared 
next  day  by  them,  that  "  Alexander  Now- 
ell, being  prebendaiy  in  Westminster,  and 
thereby  having  voice  in  the  Convocation 
House,  can  not  be  a  member  of  this  House  ; 
and  so  agreed  by  the  House,  and  the 
queen's  writ  to  be  directed  for  another 
burgess  in  his  place."*  Nothing  further 
appears  on  record  till  in  1586  the  House 
appointed  a  committee  to  examine  the  state 
and  circumstances  of  the  returns  for  the 
county  of  Norfolk.  The  fact  was,  that  the 
chancellor  had  issued  a  second  writ  for  this 
county  on  the  gi'ound  of  some  irregularity 
in  the  first  return,  and  a  different  person 
had  been  elected.  Soine  notice  having 
been  taken  of  this  matter  in  the  Commons, 
the  speaker  received  orders  to  signify  to 
them  her  majesty's  displeasure  that  "  the 
House  had  been  ti'oubled  with  a  thing  im- 
pertinent for  them  to  deal  with,  and  only 
belonging  to  the  charge  and  oflfice  of  the 
lord  chancellor,  whom  she  had  appointed 
to  confer  with  the  judges  about  the  returns 
for  the  county  of  Norfolk,  and  to  act  there- 
in according  to  justice  and  right."  The 
House,  in  spite  of  this  peremptory  inhibi- 
tion, proceeded  to  nominate  a  committee  to 
examine  into  and  report  the  circumstances 
of  these  returns,  who  reported  the  whole 
case  with  their  opinion,  that  those  elected 
on  the  first  writ  should  take  their  seats, 
declaring  further  that  they  understood  the 
chancellor  and  some  of  the  judges  to  be  of 
the  same  opinion,  but  that  "  they  had  not 
thought  it  proper  to  inquire  of  the  chancel- 


Joumals,  1  Mary,  p.  27. 
L 


lor  what  he  had  done,  because  they  thought 
it  prejudicial  to  the  privilege  of  the  House 
to  have  the  same  determined  by  others  than 
such  as  wei'e  members  thereof;  and  tliough 
they  thouglit  very  reverently  of  the  said 
lord-chancellor  and  judges,  and  knew  them 
to  be  competent  judges  in  their  places,  yet 
in  tliis  case  they  took  them  not  for  judges 
in  Parliament  in  this  House ;  and  there- 
upon required  that  the  members,  if  it  were 
so  thought  good,  might  take  their  oaths  and 
be  allowed  of  by  force  of  the  first  writ,  as 
allowed  by  the  censure  of  this  House,  and 
not  as  allowed  of  by  the  said  lord-chancellor 
and  judges  ;  which  was  agreed  unto  by  the 
whole  House."*  This  judicial  control  over 
their  elections  was  not  lost.  A  committee 
was  appointed,  in  the  session  of  1589,  to  ex- 
amine into  sundry  abuses  of  returns,  among 
which  is  enumerated  that  some  are  return- 
ed for  new  places  ;f  and  several  instances 
of  the  House's  deciding  on  elections  occur 
in  subsequent  Parliaments. 

This  tenaciousness  of  their  own  dignity 
and  privileges  was  shown  in  some  disagree- 
ments with  the  Upper  House.  They  com- 
plained to  the  Lords  in  1597  that  they  had 
received  a  message  from  the  Commons  at 
their  bar  without  uncovering,  or  rising  from 
their  places  ;  but  the  Lords  proved,  upon  a 
conference,  that  this  was  agreeable  to  usage 
in  the  case  of  messages,  though  when  biUs 
were  brought  up  from  the  Lower  House, 
the  speaker  of  the  Lords  always  left  his 
place,  and  received  them  at  the  bar.f  An- 
other remonstrance  of  the  Commons,  against 
having  amendments  to  bills  sent  down  to 
them  on  paper  instead  of  parcliment,  seems 
a  little  frivolous,  but  serves  to  indicate  a  i"is- 
ing  spirit,  jealous  of  the  superiority  that  the 
peers  had  arrogated. §  In  one  point  more 
material,  and  in  which  they  had  more  pre- 
cedent on  their  side,  the  Commons  success- 
fully vindicated  their  privilege.  The  Lords 
sent  them  a  message  in  the  session  of  1593, 
reminding  them  of  the  queen's  want  of  a 
supply,  and  requesting  that  a  committee  of 
conference  might  be  appointed.  This  was 
accordingly  done,  and  Sir  Robert  Cecil  re- 
ported from  it  that  the  Lords  would  con- 
sent to  nothing  less  than  a  grant  of  three 
entire  subsidies,  the  Commons  having  shown 
a  reluctance  to  give  more  than  two.  But 


*  D'Ewes,  393,  &c. 
$  D'Ewes,  596. 


t  Id.,  430.       i  Id.,  539. 


162 


CONSTITUTIONAL  HISTORY  OF  EXGL-VN'D 


[Chap.  V. 


Mr.  Francis  Bacon  said  "  he  yielded  to  the 
subsid}',  but  disliked  that  this  House  should 
join  with  the  Upper  House  in  granting  it; 
for  the  custom  and  privilege  of  this  House 
hath  always  been,  first  to  make  offer  of  the 
subsidies  from  hence,  then  to  the  Upper 
House,  except  it  were  that  they  present  a 
bill  unto  this  House,  with  desire  of  our  as- 
sent thereto,  and  then  to  send  it  up  again." 
But  the  House  were  now  so  much  awaken- 
ed to  the  privilege  of  originating  money-bills, 
that,  in  spite  of  all  the  exertions  of  the  court, 
the  proposition  for  another  conference  with 
the  Lords  was  lost  on  a  division  by  217  to 
128.*  It  was  by  this  opposition  to  the  min- 
istry in  this  session  that  Bacon,  who  acted, 
perhaps,  full  as  much  from  pique  toward 
the  Cecils,  and  ambitious  attachment  to  Es- 
sex, as  from  any  real  patriotism,  so  deeply 
offended  the  queen,  that,  with  all  his  subse- 
quent pliancy,  he  never  fiilly  reinstated  him- 
self in  her  favor,  f 

That  the  government  of  England  was  a 
^   „  ,. ,  monai-chv  bounded  by  law,  far ' 

The  English       ,.,  ,  /  ,  , 

Constitution  mihke  the  actual  state  oi  the 
T^I'T:^.  P'-i°cipal  kingdoms  on  the  Con- 1 
solute  men-   tinent,  appears  to  have  been  so 
obvious  and  fundamental  a  ti-uth,  ■ 
that  flattery  itself  did  not  venture  directly 
to  contravene  it.    Hume  has  laid  hold  of  a 
passage  in  Raleigh's  preface  to  his  Histoiy  | 
of  the  World  (wi-itten,  indeed,  a  few  years 
later  than  the  age  of  Elizabeth),  as  if  it  fair-  | 
ly  represented  public  opinion  as  to  our  form  ^ 
■of  government.    Raleigh  says  that  Philip  ^ 
II.  "  attempted  to  make  himself  not  only  | 
an  absolute  monarch  over  the  Netherlands,  j 
like  unto  the  kings  and  sovereigns  of  Eng-  | 
land  and  France,  but,  Turk-like,  he  treaded  | 
under  his  feet  all  their  national  and  funda- 
mental laws,  privileges,  and  ancient  rights.'' 
But  who,  that  was  really  desu'ous  of  estab- 
lishing the  truth,  w^ould  have  brought  Ra- 
leigh into  court  as  an  unexceptionable  wit- 


*  D'Ewes,  486.  Another  trifling  circumstance 
may  be  menrioned,  to  show  the  rising  spirit  of  the 
age.  In  the  session  of  1601,  Sir  Robert  Cecil  hav- 
ing proposed  that  the  speaker  should  attend  the 
lord-keeper  about  some  matter,  Sir  Edward  Hob- 
by took  up  the  word  in  strong  language,  as  derog- 
atory to  their  dignity ;  and  the  secretarj-,  who 
knew,  as  later  ministers  have  done,  that  the  Com- 
mons are  never  so  unmanageable  as  ou  such  points 
c£  honor,  made  a  proper  apology. — Id.,  627. 

t  Birch's  Memoirs,  i.,  97,  120,  152,  &c. ;  ii.,  129. 
Bacou's  Works,  ii.,  416,  435. 


ness  on  such  a  question  ?  Unscrupulous 
ambition  taught  men  in  that  age,  who 
sought  to  win  or  regain  the  crown's  favor, 
to  falsify  ail  law  and  fact  in  behalf  of  pre- 
rogative, as  unblushingly  as  our  modem 
demagogues  exaggerate  and  distort  the  lib- 
erties of  the  people.*  The  sentence  itself, 
if  designed  to  cany  the  full  meaning  that 
Hume  assigns  to  it,  is  little  better  than  an 
absurdity  ;  for  why  were  the  rights  and 
privileges  of  the  Netherlands  more  funda- 
mental than  those  of  England  ?  and  by  what 
logic  could  it  be  proved  more  Tui-k-Uke  to 
impose  the  tax  of  the  twentieth  penny,  or  to 
bring  Spanish  troops  into  those  provinces, 
in  contravention  of  then-  ancient  charters, 
than  to  ti-ansgress  the  Great  Charter  of  this 
kingdom,  with  all  those  unrescinded  stat- 
utes and  those  traditional  unwritten  liberties 
which  were  the  ancient  inheritance  of  its 
subjects  ?  Or  could  any  one,  conversant  in 
the  slightest  degi'ee  w"ith  the  two  countries, 
range  in  the  same  class  of  absolute  sover- 
eigns the  kings  of  France  and  England? 
The  arbitrary  acts  of  our  Tudor  princes, 
even  of  Heniy  VIII.,  were  trifling  in  com- 
parison of  the  despotism  of  Francis  I.  and 
Heniy  II.,  who  forced  theh  most  tyrannic- 
al ordinances  down  the  throats  of  the  Par- 
liament of  Pai-is  with  all  the  violence  of  mil- 
itary usm'pers.  No  permanent  law  had 
ever  been  attempted  in  England,  nor  any 
internal  tax  imposed,  without  consent  of  the 
people's  representatives.  No  law  in  France 

*  Raleigh's  Dedication  of  his  Prerogarive  of  Par- 
liaments to  James  I.  contains  terrible  things, 
"  The  bonds  of  subjects  to  their  kings  sliould  always 
be  wrought  out  of  iron,  the  bonds  of  kings  unto 
subjects  but  with  cobwebs."  "  All  binding  of  a  king 
by  law  upon  the  advantage  of  his  necessity,  makes 
the  breach  itself  lawful  in  a  king ;  his  charters  and 
all  other  instruments  being  no  other  than  the  sur- 
viving witnesses  of  his  unconstrained  will."  The 
object,  however,  of  the  book  is  to  persuade  the 
kin?  to  call  a  ParUament  (aboQt  1613),  and  we  are 
not  to  suppose  that  Raleigh  meant  what  he  said.  He 
was  never  verj-  scrupulous  about  truth.  In  anoth- 
er of  his  tracts,  entitled  "  The  Prince ;  or,  Thesau- 
rus of  State,"  he  holds,  though  not  without  flattery 
toward  James,  a  more  reasonable  language.  "In 
every  just  state,  some  part  of  the  government  is  or 
ousrht  to  be  impartial  to  the  people ;  as  in  a  king- 
dom, a  voice  or  suffrage  iu  making  laws ;  and 
sometimes,  also,  in  levying  of  arms,  if  the  charge 
be  ereat.  and  the  prince  be  forced  to  borrow  help 
of  his  subjects,  the  matter  rightly  may  be  propound- 
ed to  a  Parliament,  that  the  tax  may  seem  to  have 
proceeded  from  themselves." 


Eliz. — Govex'mnent] 


FROM  HENRY  VII.  TO  GEORGE  II. 


163 


had  evei*  received  such  consent ;  nor  had 
the  taxes,  enormously  burdensome  as  they 
were  in  Raleigh's  tune,  been  imposed,  for 
one  hundred  and  fifty  years  past,  by  any 
higher  authority  than  a  royal  ordinance. 
If  a  few  nobler  spirits  had  protested  against 
the  excessive  despotism  of  the  house  of  Va- 
lois  ;  if  La  Beetle  had  drunk  at  the  springs 
of  classical  Republicanism ;  if  Hottoman 
liad  appealed  to  the  records  of  their  free- 
born  ancestry  that  surrounded  the  throne 
of  Clovis  ;  if  Languet  had  spoken  in  yet  a 
bolder  tone  of  a  rightful  resistance  to  tyran- 
ny ;*  if  the  Jesuits  and  partisans  of  the 
League  had  cunningly  attempted  to  win 
men's  hearts  to  their  faction  by  the  sweet 
sounds  of  civil  libei-ty  and  the  popular  origin 
of  politic  rule,  yet  these  obnoxious  paradox- 
es availed  little  with  the  nation,  which,  after 
tlie  wild  fanaticism  of  a  rebellion  arising 
wholly  from  religious  bigotiy  had  passed 
away,  relapsed  at  once  into  its  patient  loyal- 
ty, its  self-complacent  servitude.  But  did 
tJie  English  ever  recognize,  even  by  impli- 
cation, the  strange  parallels  which  Raleigh 
has  made  for  their  government  with  that  of 
France,  and  Hume  with  that  of  Turkey  ? 
The  language  adopted  in  addressing  Eliza- 
beth was  always  remarkably  submissive. 
Hypocritical  adulation  was  so  much  among 
the  vices  of  that  age,  that  the  want  of  it 
passed  for  rudeness ;  yet  Onslow,  speaker 
of  the  Parliament  of  15GC,  being  then  solic- 
itor-general, in  addressing  the  queen,  says, 
"By  our  common  law,  although  there  be 
for  the  princ9  provided  many  princely  pre- 
rogatives and  royalties,  yet  it  is  not  such  as 
tlie  prince  can  take  money  or  other  things, 
or  do  as  he  will  at  his  own  pleasure  without 
order,  but  quietly  to  suffer  his  subjects  to 
enjoy  their  own,  without  \VTongful  oppres- 

*  Le  Contre  Un  of  La  Boetie,  the  friend  of 
Montaigne,  is,  as  the  title  intimates,  a  vehement 
philippic  against  monarchy.  It  is  subjoined  to  some 
editions  of  the  latter's  essays.  The  Franco  Gallia 
of  Hottoman  contains  little  more  than  extracts 
from  Fredegarius,  Almoin,  and  other  ancient  writ- 
ers, to  prove  the  elective  character  and  general 
freedom  of  the  monarchj'  under  tlio  first  two  races. 
This  made  a  considerable  impression  at  tlie  time, 
though  the  passages  in  question  have  been  so  often 
quoted  since,  that  we  ai'e  now  almost  sui-prised  to 
find  the  book  so  devoid  of  noveltj'.  Hubert  Lan- 
guet's  Vindiciae  couti-a  Tyrannos,  published  under 
the  name  of  Junius  Brutus,  is  a  more  argumenta- 
tive discussion  of  the  lights  of  governors  and  their 
subjects. 


sion ;  wherein  other  princes  by  their  liber- 
ty do  take  as  pleaseth  them."* 

*  D'Ewes,  p.  ]15. 

I  have  already  adverted  to  Gardiner's  resolute 
assertion  of  the  law  against  the  prince's  single 
will,  as  a  proof  that,  in  spite  of  Hume's  preposter- 
ous insinuations  to  the  contrary,  the  English  mon- 
archy was  luiown  and  acknowledged  to  be  limit- 
ed. Another  testimony  may  be  adduced  from  the 
words  of  a  gi'eat  Protestant  churchman.  Arch- 
bishop Parker,  writing  to  Cecil  to  justify  himself 
for  not  allowing  the  queen's  right  to  grant  some 
dispensation  in  a  case  of  marriage,  says,  "  he  would 
not  dispute  of  the  queen's  absolute  power,  or  pre- 
rogative royal,  how  far  her  highness  might  go  in 
following  the  Roman  authority,  but  he  yet  doubt- 
ed, that  if  any  dispensation  sliould  pass  from  her 
authority  to  any  subject,  not  avouchable  by  laws  cf 
her  realm,  made  and  established  by  herself  and 
her  three  estates,  whether  that  sul)ject  be  in  sure- 
ty at  all  tunes  afterward,  especially  seeing  there 
be  Parliament  laws  precisely  determinuig  cases  of 
dispensations." — Strype's  Parker,  177. 

Perhaps,  however,  there  is  no  more  decisive 
testimony  to  the  established  principles  of  limited 
monarchy  in  the  age  of  Elizabeth,  than  a  circum- 
stance mentioned  in  Anderson's  Reports,  134. 
The  queen  had  granted  to  Mr.  Richard  Cavendish 
an  office  for  issuing  certain  writs,  and  directed  the 
judges  to  admit  him  to  it,  which  they  neglected 
(that  is,  did  not  think  fit)  to  do.  Cavendish  here- 
upon obtained  a  letter  from  her  majesty,  express- 
ing her  surprise  that  he  was  not  admitted  accord- 
ing to  her  grant,  and  commanding  them  to  seques- 
ter the  pi-ofits  of  the  office  for  his  use,  or  that  of 
any  other  to  whom  these  might  appear  to  be  due, 
as  soon  as  the  controversy  respecting  the  execu- 
tion of  the  said  office  should  be  decided.  It  is  plain 
that  some  other  persons  were  in  possession  of  these 
profits,  or  claimed  a  right  therein.  The  judges 
conceived  that  they  could  not  lawfully  act  accord- 
ing to  the  said  letter  and  command,  because, 
through  such  a  sequesti-ation  of  the  emoluments, 
those  who  claimed  a  right  to  issue  the  writs  would 
be  disseised  of  their  freehold.  The  queen,  inform- 
ed that  they  did  not  obey  the  letter,  sent  another, 
under  the  sign-manual,  in  more  positive  language, 
ending  in  these  words :  "  We  look  that  you  and 
every  of  you  should  dutifully  fulfill  our  command- 
ment herein,  and  these  our  letters  shall  be  your 
warrant."  21st  April,  1587.  This  letter  was  de- 
livered to  the  justices  in  the  presence  of  the  chan- 
cellor and  Lord  Leicester,  who  were  commission- 
ed to  hear  their  answer,  telling  them,  also,  that  the 
queen  had  granted  the  patent  on  account  of  her 
great  desire  to  provide  for  Cavendish.  The  judges 
took  a  little  time  to  consult  what  should  be  said ; 
and,  returning  to  the  Lords,  answered,  that  they 
desired  m  all  respects  humbly  to  obey  her  majes- 
ty, but,  as  this  case  is,  could  not  do  so  without  per- 
jury, which  they  well  knew  the  queen  would  not 
require,  and  so  went  away.  Their  answer  was  re- 
ported to  the  queen,  who  ordered  the  chancellor, 
chief-justice  of  the  king's  bench,  and  master  of  the 
rolls,  to  hear  the  judges'  reasons  ;  and  the  queen's 


164 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  V. 


In  the  first  months  of  Elizabeth's  reign, 
Ayhner,  afterward  Bishop  of  London,  pub- 
lished an  answer  to  a  book  by  John  Knox, 
against  female  monarchy,  or,  as  he  termed 
it,  "  Blast  of  the  Trumpet  against  the 
Monstrous  Regiment  of  Women  ;"  Avhich, 
though  written  in  the  time  of  Mary,  and 
directed  against  her,  was  of  course  not  ac- 
ceptable to  her  sister.  The  answerer  re- 
lies, among  other  arguments,  on  the  nature 
of  the  English  Constitution,  which,  by  di- 
minishing the  power  of  the  crown,  renders 
it  less  unfit  to  be  worn  by  a  woman. 
"  Well,"  he  says,  "  a  woman  may  not  reign 
in  England!    Better  in  England  than  any 

counsel  were  ordered  to  attend,  when  the  queen's 
sergeant  began  to  show  the  queen's  prerogative  to 
grant  the  issuing  of  writs,  and  showed  precedents. 
The  judges  protested  in  answer,  that  they  had  ev- 
ery wish  to  assist  her  majesty  to  all  her  rights, 
but  said  that  this  manner  of  proceeding  was  out  of 
course  of  justice  ;  and  gave  their  reasons,  that  the 
right  of  issuing  these  writs  and  fees  incident  to  it 
was  in  the  prothonotaries  and  others,  who  claim- 
ed it  by  freehold ;  who  ought  to  be  made  to  an- 
swer, and  not  the  judges,  being  more  interested 
therein.  This  was  certainly  a  little  feeble,  but 
they  soon  recovered  themselves.  They  were  then 
charged  with  having  neglected  to  obey  these  let- 
ters of  the  queen ;  which  they  confessed,  but  said 
that  this  was  no  offense  or  contempt  toward  her 
majest}',  because  the  command  was  against  the 
law  of  the  land ;  in  which  case,  they  said,  no  one 
is  bound  to  obey  such  command.  When  further 
pressed,  they  said  the  queen  herself  was  sworn  to 
keep  the  laws  as  well  as  they,  and  that  they  could 
not  obey  this  command  without  going  against  the 
laws  directly  and  plainly,  against  their  oaths,  and 
to  the  offense  of  God,  her  majesty,  the  country, 
and  commonwealth  in  which  they  were  bom  and 
live :  so  that  if  the  fear  of  God  were  gone  from 
them,  yet  the  examples  of  others,  and  the  punish- 
ment of  those  who  had  fomerly  ti-ansgressed  the 
laws,  would  remind  them  and  keep  them  from  such 
an  offense.  Then  they  cited  the  Spensers,  and 
Thorp,  a  judge  under  Edward  III.,  and  precedents 
of  Richard  II. 's  time,  and  of  Empson,  and  the  stat- 
utes of  Magna  Charta,  which  show  what  a  crime 
it  is  for  judges  to  infringe  the  laws  of  the  laud ; 
and  thus,  since  the  queen  and  the  judges  were 
sworn  to  observe  them,  they  said  that  they  would 
not  act  as  was  commanded  in  these  letters. 

AU  this  was  repeated  to  her  majesty  for  her 
good  allowance  of  the  said  reasons,  and  which  her 
majesty,  as  I  have  heard,  says  the  reporter,  took 
well ;  but  nothing  further  was  heard  of  the  busi- 
ness. Such  was  the  law  and  the  government,  which 
Mr.  Hume  has  compared  to  that  of  Turkey  !  It  is 
almost  certain,  that  neither  James  nor  Charles 
would  have  made  so  discreet  a  sacrifice  of  their 
pride  and  arbitrary  temper;  and  in  this  self-com- 
mand lay  the  great  superiority  of  Elizabeth's  pol- 
icy. 


where,  as  it  shall  well  appear  to  him  that 
without  affection  will  consider  the  kind  of 
regimen.  While  I  compare  ours  with  oth- 
er, as  it  is  in  itself,  and  not  maimed  by 
usurpation,  I  can  find  none  either  so  good 
or  so  indifferent.  The  regiment  of  Eng- 
land is  not  a  mere  monarchy,  as  some  for 
lack  of  consideration  think,  nor  a  mere  oli- 
garchy nor  democracy,  but  a  rule  mixed  of 
all  these,  wherein  each  one  of  these  have, 
or  should  have,  like  authority.  The  image 
whereof,  and  not  the  image,  but  the  thing 
indeed,  is  to  be  seen  in  the  Parliament 
House,  wherein  you  shall  find  these  three 
estates  :  the  king  or  queen  which  repre- 
senteth  the  monarchy,  the  noblemen  which 
be  the  aristocracy,  and  the  burgesses  and 
knights  the  democracy.  If  the  Parliament 
use  their  privileges,  the  king  can  ordain 
nothing  without  them :  if  he  do,  it  is  his 
fault  in  usui-ping  it,  and  their  fault  in  per- 
mitting it.  Wherefore,  in  my  judgment, 
those  that  in  King  Heniy  VIII. 's  days 
would  not  gi'ant  him  that  his  proclamations 
should  have  the  force  of  a  statute,  were 
good  fathers  of  the  countiy,  and  worthy 
commendation  in  defending  their  liberty. 
But  to  what  purpose  is  all  this  ?  To  de- 
clare that  it  is  not  in  England  so  dangerous 
a  matter  to  have  a  woman  ruler  as  men 
take  it  to  be.  For,  first,  it  is  not  she  that 
ruleth,  but  the  laws,  the  executors  where- 
of be  her  judges  appointed  by  her,  her  jus- 
tices, and  such  other  officers.  Secondly, 
she  maketh  no  statutes  or  laws,  but  die 
honorable  court  of  Parliament ;  she  break- 
eth  none,  but  it  must  be  she  and  thej-  to- 
gether, or  else  not.  If,  on  the  other  part, 
the  regiment  were  such  as  all  hanged  on 
the  king's  or  queen's  wUl,  and  not  upon  the 
laws  written;  if  she  might  decree  and  make 
laws  alone  without  her  senate  ;  if  she  judg- 
ed offenses  according  to  her  wisdom,  and 
not  by  limitation  of  statutes  and  laws ;  if  she 
might  dispose  alone  of  war  and  peace ;  if, 
to  be  short,  she  were  a  mere  monarch  and 
not  a  mixed  ruler,  you  might  peradventure 
make  me  to  fear  the  matter  the  more,  and 
the  less  to  defend  the  cause."* 

This  passage  afibrds  a  proof  of  the  doc- 
trine cuiTent  among  Englishmen  in  1559, 

*  Harborowe  of  True  and  Faithful  Subjects,  1559. 
Most  of  this  passage  is  quoted  by  Dr.  M'Crie,  in 
his  Life  of  Knox,  vol.  i.,  note  BB,  to  whom  I  am 
indebted  for  pointing  it  out. 


E LIZ.— Government.]  FROM  HENRY  VII.  TO  GEORGE  II. 


165 


and  may,  perhaps,  be  the  less  suspected,  as 
it  does  not  proceed  from  a  legal  pen.  And 
the  quotations  I  have  made  in  the  last  chap- 
ter from  Hooker  are  evidence  stiD  more  sat- 
isfactory, on  account  of  the  gravity  and  ju- 
diciousness of  the  writer,  that  the  same 
theoiy  of  the  Constitution  prevailed  in  the 
later  period  of  Elizabeth's  reign.  It  may 
be  observed,  that  those  who  speak  of  the 
limitations  of  the  sovereign's  power,  and  of 
the  acknowledged  liberties  of  the  subject, 
use  a  distinct  and  intelligible  language ; 
while  the  opposite  tenets  are  insinuated  by 
means  of  vague  and  obscure  generalities,  as 
in  the  sentence  above  quoted  from  Raleigh. 
Sir  Thomas  Smith,  secretary  of  state  to 
Elizabeth,  has  bequeathed  us  a  valuable 
legacy  in  his  ti-eatise  on  the  Commonwealth 
of  England;  but  undoubtedly  he  evades,  as 
far  as  possible,  all  great  constitutional  prin- 
ciples, and  ti'eats  them,  if  at  all,  with  a 
vagueness  and  timidity  veiy  different  from 
the  tone  of  Foitescue.  He  thus  concludes 
his  chapter  on  the  Parliament:  "This  is 
the  order  and  form  of  the  highest  and  most 
authentical  court  of  England,  by  virtue 
whereof  all  these  things  be  established 
whereof  I  spoke  before,  and  no  other  means 
accounted  available  to  make  any  new  for- 
feiture of  life.,  memhers,  or  lands,  of  any 
Englishman,  where  there  was  no  law  or- 
dered for  it  before."*  This  leaves  no  small 
latitude  for  the  authority  of  royal  proclama- 
tions, which  the  phrase,  I  make  no  ques- 
tion, was  studiously  adopted  in  order  to 
preserve. 

There  was,  unfortunately,  a  notion  very 
Pretensions  pi'cvalent  in  the  cabinet  of  Eliza- 
of  the  crown,  beth,  though  it  was  not  quite  so 
broadly,  or  at  least  so  frequently,  promulga- 
ted as  in  the  following  reigns,  that,  besides 
the  common  prerogatives  of  the  English 
crown,  which  were  admitted  to  have  legal 
bounds,  there  was  a  kind  of  paramount  sov- 
ereignty, which  they  denominated  her  ab- 
solute power,  incident,  as  they  pretended, 
to  the  abstract  nature  of  sovereigntj%  and 
arising  out  of  its  primary  office  of  presei-v- 
ing  the  state  from  destruction.  This  seem- 
ed analogous  to  the  dictatoi-ial  power  which 
might  be  said  to  reside  in  the  Roman  sen- 
ate, since  it  could  confer  it  upon  an  individ- 
ual. And  we  all  must,  in  fact,  admit  that 
self-preservation  is  the  first  necessity  of 
*  Commonwealth  of  England,  b.  ii.,  c.  3. 


commonwealths  as  well  as  persons,  which 
may  justify,  in  Montesquieu's  poetical  lan- 
guage, the  veiling  of  the  statutes  of  bbertj". 
Thus  martial  law  is  proclaimed  during  an 
invasion,  and  houses  are  destroyed  in  ex- 
pectation of  a  siege  ;  but  few  governments 
are  to  be  trusted  with  this  insidious  plea  of 
necessity,  which  more  often  means  their 
own  security  than  that  of  the  people  :  nor 
do  I  conceive  that  the  ministers  of  Eliza- 
beth restrained  this  pretended  absolute 
power,  even  in  theoiy,  to  such  cases  of 
overbearing  exigency.  It  was  the  misfor- 
tune of  the  sixteenth  century  to  see  kingly 
power  strained  to  the  highest  pitch  in 
the  two  principal  European  monarchies. 
Charles  V.  and  Philip  II.  had  crushed  and 
trampled  the  ancient  libeities  of  Castile  and 
Aragon.  Francis  I.  and  his  successors, 
who  found  the  work  nearly  done  to  their 
hands,  had  inflicted  every  practical  oppres- 
sion upon  their  subjects.  These  examples 
could  not  be  without  their  effect  on  a  gov- 
ernment so  unceasingly  attentive  to  aU  that 
passed  on  the  stage  of  Europe  :*  nor  was 
this  effect  confined  to  the  court  of  Elizabeth. 
A  king  of  England,  in  the  presence  of  abso- 
lute sovereigns,  or  perhaps  of  their  ambas- 
sadors, must  always  feel  some  degi-ee  of  that 
humiliation  with  which  a  young  man,  in 
check  of  a  prudent  father,  regards  the  care- 
less prodigality  of  the  rich  hehs  with  whom 
he  associates.  Good  sense  and  elevated 
views  of  dutj^  may  subdue  the  emotion,  but 
he  must  be  above  human  natm-e  who  is  in- 
sensible to  the  contrast. 

There  must  be  few  of  my  readers  who 
are  imacquanted  with  the  animated  sketch 
that  Hume  has  delineated  of  the  English 
Constitution  under  Elizabeth.  It  has  been 
partly  the  object  of  the  present  chapter  to 
coiTect  his  exaggerated  outline  ;  and  noth- 
ing would  be  more  easy  than  to  point  at 
other  mistakes  into  which  he  has  fallen 
through  prejudice,  through  carelessness, 
or  tlu'ough  want  of  acquaintance  with  law. 
His  capital  and  inexcvxsable  fault  in  every 

*  Bodin  saj-s  the  English  ambassador,  M.  Dail 
(Mr.  Dale),  had  assured  hun,  not  only  that  the  king 
may  assent  to  or  refuse  a  biU  as  he  pleases.,  but 
that  il  ne  laisse  pas  d'en  ordonner  a  son  plaisir,  et 
contre  la  volonte  des  estats,  comme  on  a  vu  Henry 
VIII.  avoir  toujours  use  de  sa  puissance  souver- 
aine.  He  admitted,  however,  that  taxes  could 
only  be  imposed  in  Parliament.— De  la  llepublique, 
1.  i.,  c.  8. 


1G6 

thing  he  has  written  on  our  Constitution  is 
to  have  sought  for  evidence  upon  one  side 
only  of  the  question.  Thus  the  remon- 
sti"ance  of  the  judges  against  arbiti'aiy  im- 
prisonment by  the  council  is  infinitely  more 
conclusive  to  prove  that  the  right  of  person- 
al liberty  existed,  than  the  fact  of  its  in- 
fringement can  be  to  prove  that  it  did  not. 
There  is  something  fallacious  in  the  nega- 
tive argument  which  he  perpetually  uses, 
that  because  we  find  no  mention  of  any  um- 
brage being  taken  at  certain  sti-ains  of  pre- 
rogative, they  must  have  been  perfectly 
consonant  to  law;  for  if  nothing  of  this 
could  be  traced,  which  is  not  so  often  the 
case  as  he  represents  it,  we  should  remem- 
ber that  even  when  a  constant  watchfulness 
is  exercised  by  means  of  political  parties 
and  a  free  press,  a  nation  is  seldom  alive  to 
the  transgi-essions  of  a  pi-udent  and  success- 
ful government.    The  character,  which  on 


[Chap.  VL 

a  former  occasion  I  have  given  of  the  Eng- 
lish Constitution  under  the  house  of  Plan- 
tagenet,  may  still  be  applied  to  it  under  the 
line  of  Tudor,  that  it  was  a  monarchy  gi  eat- 
ly  limited  by  law,  but  retaining  much  pow- 
er that  was  ill  calculated  to  promote  the 
public  good,  and  swerving  continually  into 
an  iiTegular  course,  which  there  was  no 
restraint  adequate  to  correct.  It  may  be 
added,  that  the  practical  exercise  of  author- 
ity seems  to  have  been  less  frequently  vio- 
lent and  oppressive,  and  its  legal  limitations 
better  understood  in  the  reign  of  Elizabeth, 
than  for  some  preceding  ages,  and  that  suf- 
ficient indications  had  become  distinguisha- 
ble before  its  close,  from  which  it  might  be 
gathered  that  the  seventeenth  century  had 
arisen  upon  a  race  of  men  in  whom  the  spir- 
it of  those  who  stood  against  John  and  Ed- 
ward was  rekindled  with  a  less  paitial  and 
a  steadier  warmth.* 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


CHAPTER  VI. 


ON  THE  ENGLISH  CONSTITUTION  UNDER  JAJilES  L 


duiet  Accession  of  James. — Question  of  his  Title 
to  the  Crown. — Legitimacy  of  the  Earl  of  Hert- 
ford's Issue. — Early  Unpopularity  of  the  King. 

—  Conduct  toward  the  Puritans.  —  Parliament 
convoked  by  an  irregular  Proclamation. — Q,ues- 
tion  of  Fortescue  and  Goodwin's  Election.  — 
Shirley's  Case  of  Prinlege.  —  Complaints  of 
Grievances.  —  Commons'  Vindication  of  them- 
selves.— Session  of  1605. — ^Union  with  Scotland 
debated.  —  Continual  Bickerings  between  the 
Crown  and  Commons.  —  Impositions  on  Mer- 
chandise without  Consent  of  Parliament. — Re- 
monstrances against  these  in  Session  of  1610. — 
Doctrine  of  King's  absolute  Power  inculcated 
by  Clergy. — Articuli  Cleri. — Cowell's  Interpret- 
er.— Renewed  Complaints  of  the  Commons. — 
Negotiation  for  giving  up  the  feudal  Revenue. 

—  Dissolution  of  Parliament.  —  Character  of 
James.  —  Death  of  Lord  Salisburj-.  —  Foreign 
Politics  of  the  Government. — Lord  Coke's  Al- 
ienation from  the  Court. — Illegal  Proclamations. 
— ^Means  resorted  to  in  order  to  avoid  the  Meet- 
ing of  Parliament.— ParUament  of  1614.— Under- 
takers.— It  is  dissolved  without  passing  a  single 
Act. — Benevolences. — Prosecution  of  Peacham. 
• — Dispute  about  the  Jurisdiction  of  the  Court 
of  Chancery. — Case  of  Commendams. — Arbitra- 
ry Proceedings  in  Star  Chamber. — Arabella  Stu- 
art.— Somerset  and  Overbury. — Sir  Walter  Ra- 
leigh.— Parliament  of  1621. — Proceedings  against 
Mompesson  and  Lord  Bacon. — Violence  in  the 
Case  of  Floyd.  —  Disagreement  between  the 
King  and  Commons. — Their  Dissolution,  after  a 


strong  Remonstrance.  —  Marriage  Treaty  with 
Spain. — Parliament  of  1624. — Impeachment  of 
Middlesex. 

It  might  afford  an  illustration  of  the  falla- 
ciousness of  political  specula-  q^,,^^  acces- 
tions,  to  conti-ast  the  hopes  and  sion  of  James, 
inquietudes  that  agitated  the  minds  of  men 
concerning  the  inheritance  of  the  crown 
during  Elizabeth's  Lfetime,  while  not  less 
than  fourteen  titles  were  idly  or  mischiev- 
ously reckoned  up,  with  the  perfect  tran- 
quillity which  accompanied  the  accession 
of  her  successor.*    The  house  of  Suflfolk, 


*  The  misrepresentations  of  Hume  as  to  the 
EngUsh  Constitution  under  Elizabeth,  and  the  gen- 
eral administration  of  her  reign,  have  been  expos- 
ed, since  the  present  chapter  was  written,  by  Mr. 
Brodie,  in  his  History  of  the  British  Empire  from 
the  Accession  of  Charles  I.  to  the  Restoration,  voL 
i.,  c.  3.  In  some  respects,  Mr.  B.  seems  to  have 
gone  too  far  in  an  opposite  system,  and  to  repre- 
sent the  practical  course  of  government  as  less  ar- 
bitrary than  I  can  admit  it  to  have  been. 

+  Father  Persons,  a  subtle  and  lying  Jesuit,  pub- 
lished in  1594,  under  the  name  of  Doleman,  a  treat- 
ise entitled  '•  Conference  about  the  next  Succes- 
sion to  the  Crown  of  England."  This  book  is  dedi- 
cated to  Lord  Essex,  wliether  from  any  hopes  en- 
tertained of  him,  or,  as  was  then  supposed,  in  or- 
der to  injure  his  fame  and  his  credit  with  the  queen. 


James  I.] 


FROM  HENRY  YII,  TO  GEORGE  II. 


167 


whose  claim  Avas  legally  indisputable,  if  we 
admit  the  testament  of  Henry  VIII.  to  have 
— Sidney  Papers,  i.,  357.  Birch's  Memoirs,  i.,  313. 
It  is  writteu  with  much  ait,  to  show  the  extreme 
uncertainty  of  the  succession,  and  to  pei-plex  men's 
minds  by  multiplying  the  number  of  competitors. 
This,  however,  is  but  the  second  part  of  his  Con- 
ference, the  aim  of  the  first  being  to  prove  the 
right  of  commonwealths  to  depose  sovereigns,  much 
more  to  exclude  the  right  heir,  especially  for  want 
of  true  religion.  "  I  affii-m  and  hold,"  he  says, 
"that  for  any  man  to  give  his  help,  consent,  or  as- 
sistance toward  the  making  of  a  king  whom  he 
judgeth  or  believeth  to  be  faulty  in  religion,  and 
consequently  would  advance  either  no  religion,  or 
tbe  wrong,  if  he  were  in  authority,  is  a  most  griev- 
ous and  damnable  sin  to  him  that  doth  it,  of  what 
side  soever  the  truth  be,  or  how  good  or  bad  so- 
ever the  party  be  that  is  preferred." — P.  216.  He 
pretends  to  have  found  very  few  who  favor  the 
King  of  Scots'  title ;  an  assertion  by  which  we 
may  appreciate  bis  veracity.  The  Protestant  par- 
ty, he  tells  us,  was  wont  to  favor  the  house  of 
Hertford,  bat  of  late  have  gone  more  toward  Ara- 
bella, whose  claim  the  Lord  Burleigh  is  supposed 
to  countenance. — P.  241.  The  drift  of  tbe  whole  is 
to  recommend  the  Infanta,  by  means  of  perverted 
history  and  bad  law,  yet  ingeniously  conti-ivcd  to 
insnare  ignorant  persons.  In  his  former  and  more 
celebrated  treatise,  Leicester's  Commonwealth, 
though  he  harps  much  on  the  emban-assments  at- 
tending the  succession,  Persons  argues  with  all  his 
power  in  favor  of  the  Scottish  title,  Mary  being 
still  alive,  and  James's  return  to  the  faith  not  des- 
perate. Both  these  works  are  full  of  the  mendaci- 
ty generally  and  justly  ascribed  to  his  order,  j-et 
tliey  are  worthy  to  be  read  by  any  one  who  is  cu- 
rious about  the  secret  politics  of  the  queen's  reign. 

Philip  II.  held  out  assurances,  that  if  the  Eng- 
lish would  aid  him  in  dethroning  Elizabeth,  a  free 
Parliament  should  elect  any  Catholic  sovereign  at 
their  pleasure,  not  doubting  that  their  choice  would 
fall  on  the  Infanta.  He  promised,  also,  to  enlarge 
the  privileges  of  the  people,  to  give  the  merchants 
a  free  trade  to  the  Indies,  with  many  other  flatter- 
ing inducements. — Birch's  Memoirs,  ii.,  308.  But 
most  of  the  Catholic  gentry,  it  is  just  to  observe, 
would  never  concur  in  the  invasion  of  the  kingdom 
by  foreigners,  prefemng  the  elevation  of  Arabella, 
according  to  the  pope's  project.  This  difierence  of 
opinion  gave  rise,  among  other  causes,  to  the  vio- 
lent dissensions  of  that  party  in  the  latter  years  of 
Elizabeth's  reign ;  dissensions  that  began  soon  af- 
ter the  death  of  Maiy,  in  favor  of  whom  they  were 
all  united,  though  they  could  never  afterward  agree 
on  any  project  for  the  succession. — Wiuwood's 
Memorials,  i.,  57.  Lettres  du  Cardinal  d'Ossat, 
ii.,  501. 

For  the  life  and  character  of  the  famous  Father 
Persons,  or  Parsons,  above  mentioned,  see  Dodd's 
Church  History,  the  Biographia  Britannica,  or  Miss 
Aikin's  James  I.,  i.,  3G0.  Mr.  Butler  is  too  favor- 
ably inclined  toward  a  man  without  pati-iotism  or 
veracity.  Dodd  plainly  thinks  worse  of  him  than 
he  dares  speak.  [Several  letters  of  considerable 
historical  importance  relative  to  the  Catholic  in- 


been  duly  executed,  appear,  though  no  pub- 
lic inquiry  had  been  made  into  that  fact,  to 
have  lost  ground  in  popular  opinion,  partlj' 
through  an  unequal  marriage  of  Lord  Beau- 
champ  with  a  private  gentleman's  daughter, 
but  still  more  from  a  natural  disposition  to 
favor  the  hercditaiy  line  rather  than  the  ca- 
pricious disposition  of  a  sovereign  long  since 
dead,  as  soon  as  it  became  consistent  "with 
the  preservation  of  the  Reformed  faith. 
Leicester  once  hoped,  it  is  said,  to  place  his 
brother-in-law,  the  Earl  of  Huntingdon,  de- 
scended from  the  Duke  of  Clarence,  upon 
the  throne ;  but  this  pretension  had  been 
entirely  forgotten.  The  more  intriguing 
and  violent  of  the  Catholic  party,  after  the 
death  of  Mary,  entertaining  little  hope  that 
the  King  of  .Scots  would  abandon  the  prin- 
ciples of  his  education,  sought  to  gain  sup- 
port to  a  pretended  title  in  the  King  of  Spain, 
or  his  daughter  the  Infanta,  who  afterwai-d 
married  tlie  Archduke  Albert,  governor  of 
the  Netherlands.  Others,  abhorring  so  odi- 
ous a  claim,  looked  to  Arabella  Stuart,  daugh- 
ter of  the  Earl  of  Lennox,  younger  broth- 
er of  James's  father,  and  equally  descended 
from  the  stock  of  Heniy  VII.,  sustaining 
her  manifest  defect  of  primogeniture  by 
her  birth  within  the  realm,  according  to  tlie 
principle  of  law  that  excluded  aliens  from 
inheritance.  But  this  principle  was  justly 
deemed  inapplicable  to  the  crown.  Clem- 
ent VIII.,  who  had  no  other  view  than  to 
secure  the  re-establishment  of  the  Catho- 
lic faith  in  England,  and  had  the  judgment 
to  perceive  that  the  ascendency  of  Spain 
would  neither  be  endured  by  the  nation  nor 
permitted  by  the  French  king,  favored  this 
claim  of  Arabella,  who,  though  apparently 
of  the  Reformed  religion,  was  rather  sus- 
pected at  home  of  wavering  in  her  faith, 
and  entertained  a  hope  of  mariying  her  to 
the  Cardinal  Farnese,  brother  of  the  Duke 
of  Parma.*    Considerations  of  public  inter- 

trigues  as  to  the  succession,  are  lately  published 
in  Tierney's  edition  of  Dodd's  Church  History,  vo!. 
iii.  A  considerable  part  of  the  Catholics,  especial- 
ly those  who  had  looked  up  to  Maiy  personally  as 
their  rallj-ing  point,  adhered  to  the  Scottish  title ; 
and  those,  of  course,  were  the  best  Englishmen. 
Persons  and  his  Spanish  faction,  whose  letters  ap- 
pear in  the  work  above  quoted,  endeavor  to  de- 
preciate them.  I  must  add,  that  Mr.  T.  does  not 
by  any  means  screen  this  last  party.  ISiJ.] 

*  D'Ossat,  ubi  supra.  Clement  had,  some  years 
before,  indulged  the  idle  hope  that  France  and 
Spain  might  unite  to  conquer  England,  and  either 


168 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VI. 


est,  however,  unequivocally  pleaded  for  the 
Scottish  line ;  the  extinction  of  long  san- 
guinary feuds,  and  the  consolidation  of  the 
British  empire.  Elizabeth  herself,  though 
by  no  means  on  terms  of  sincere  friendship 
with  James,  and  harassing  him  by  intrigues 
with  his  subjects  to  the  close  of  her  life, 
seeins  to  have  always  designed  that  he 
should  inherit  her  crown ;  and  the  general 
expectation  of  what  was  to  follow,  as  well 
from  conviction  of  his  right  as  from  the  im- 
practicability of  any  effectual  competition, 
had  so  thoroughly  })aved  the  way,  that  the 
council's  proclamation  of  the  King  of  Scots 
excited  no  more  commotion  than  that  of  an 
heir  apparent.* 


bestow  the  kingdom  on  some  Catholic  prince,  or 
divide  it  between  themselves,  as  Louis  XII.  and 
Ferdinand  had  done  with  Naples  in  1501 ;  an  ex- 
ample not  veiy  inviting  to  the  French.  D'Ossat, 
Henrj''s  minister  at  Rome,  pointed  out  the  difficul- 
ties of  such  an  enterprise,  England  being  the 
greatest  naval  power  in  the  world,  and  the  people 
warlike.  The  pope  only  replied,  that  the  kingdom 
had  been  once  conquered,  and  might  be  so  again ; 
and  especially  being  governed  by  an  old  woman, 
whom  he  was  ignorant  enough  to  compai-e  with  Jo- 
amia  II.  of  Naples. — Vol.  i.,  3U9.  Henry  IV.  would 
not  even  encourage  the  project  of  setting  up  Ara- 
bella, which  he  declared  to  be  both  unjust  and  chi- 
merical.— Mem.  de  Sully,  1.,  15.  A  knot  of  Protes- 
tants were  also  busy  about  the  interests  of  Ara- 
bella, or  suspected  of  being  so — Raleigh,  Cobham, 
Northumberland,  though,  perhaps,  the  last  was  a 
CathoUc.  Their  intrigues  occupy  a  great  part  of 
tlie  letters  of  other  iutiiguers,  Cecil  and  Lord  Hen- 
ry Howard,  in  the  Secret  Correspondence  with 
King  James,  published  by  Sir  David  Djilrj-mple, 
vol.  i.,  passim. 

*  The  explicit  declaration  on  her  death-bed,  as- 
cribed to  her  by  Hume  and  most  other  writers, 
that  her  kinsman  the  King  of  Scots  should  succeed 
her,  is  not  confii-med  by  Carey,  who  was  there  at 
the  time.  "  She  was  speechless  when  the  council 
proposed  the  King  of  Scots  to  succeed  her,  bat  put 
her  hand  to  her  head  as  if  in  token  of  approbation." 
— E.  of  Monmouth's  Memoirs,  p.  176.  But  her  uni- 
form conduct  shows  her  intentions.  See,  howev- 
er, DTsraeli's  Curiosities  of  Literature,  iii.,  107. 
[A  remarkable  account  of  Elizabeth  s  last  days 
will  be  found  in  Dodd  s  Church  History ;  it  ap- 
pears to  have  been  written  by  Lady  Southwell,  an 
eye-witness,  who  had  been  one  of  the  queen's 
maids  of  honor. — Tiemey's  edition  of  Dodd,  vol. 
iii.,  p.  70.  And  this  accomit  is  coufiimed,  so  as  to 
make  it  fully  trastworthy,  by  a  report  from  Beau- 
mont, the  French  ambassador,  published  in  Rau- 
mer's  History  of  the  16th  and  17th  Centuries  illus- 
trated.   Loudon,  1833,  vol.  ii.,  p.  188. 

The  famous  story  of  Essex's  ring,  delivered  by 
the  Countess  of  Nottingham  in  her  dying  hours  to 
the  queen,  has  been  rejected  by  modem  writers, 
as  only  to  be  ti'aced  to  some  memoirs  pubUshed  in 


The  popular  voice  in  favor  of  James  was 
undoubtedly  raised  in  consequence  _ 

-  ,       .   .         ,       ,  Question  of 

ot  a  natural  opinion  that  he  was  his  tule  to 
the  lawful  heir  to  the  throne.  But  "'*"'"'»• 
this  was  only  according  to  vulgar  notions  of 
right,  which  respect  hereditary  succession 
as  something  indefeasible.  In  point  of  fact, 
it  is  at  least  very  doubtful  whether  James 
I.  were  a  legitimate  sovereign,  according  to 
the  sense  which  that  word  ought  properly 
to  bear.  The  house  of  Stuart  no  more 
came  in  by  a  clear  title  than  the  house  of 
Brunswick  ;  by  such  a  title.  I  mean,  as  the 
statute  laws  of  this  kingdom  had  recognized. 
No  private  man  could  have  recovered  ao 
acre  of  land  without  proving  a  better  right 
than  they  could  make  out  to  the  crown  of 
England.  What,  then,  had  James  to  rest 
upon  ?  What  renders  it  absurd  to  call  him 
and  his  children  usurpers  ?  He  had  that 
which  the  flatterers  of  bis  family  most  af- 
fected to  disdain — the  will  of  the  people; 
not  certainly  expressed  in  regular  suffrage 
or  declared  election,  but  unanimously  and 
voluntarily  ratifying  that  which  in  itself 
could  surely  give  no  right,  the  determina- 
tion of  the  late  queen's  coimcil  to  proclaim 
his  accession  to  the  throne. 

It  is  probable  that  what  has  been  just 
said  may  appear  rather  paradoxical  to  those 

HoUand  eightj"  years  aftervi-ard.  It  may  be  con- 
sidered whether  it  derives  any  kind  of  confirma- 
tion ft'om  a  passage  in  Ranmer,  ii.,  166.  184.5.] 

It  is  impossible  to  justify  Elizabeth's  conduct  to- 
ward James  in  his  own  kingdom.  What  is  best 
to  be  said  for  it  is,  that  his  indiscretion,  his  su.spi- 
cious  intrigues  at  Rome  and  Madrid,  the  danger^ 
ous  influence  of  his  favorites,  and  the  evident  pur- 
pose of  the  court  of  Spain  to  make  him  its  tool, 
rendered  it  uecessarj-  to  keep  a  very  strict  watch 
over  his  proceedings.  If  she  excited  the  peers 
and  presbyters  of  Scotland  against  their  king,  he 
was  not  behind  her  in  some  of  the  last  years  of  her 
reign.  It  appears  by  a  letter  from  the  Earl  of 
Mar,  in  Dah-y  mple's  Secret  Correspondence,  p.  2, 
that  James  had  hopes  of  a  rebellion  in  England  in 
1601,  wliich  he  would  have  had  no  scruple  in  abet- 
ting. And  in  a  letter  from  him  to  Tyrone,  in  the 
Lansdowne  MSS.,  Ixxxiv.,  36,  dated  22d  Dec,  1597, 
when  the  latter  was  at  least  preparing  for  rebell- 
ion, though  rather  cautious,  is  full  of  expressions 
of  favor,  and  of  promises  to  receive  his  assistance 
thankfully  at  the  queen's  death.  This  letter  being 
found  in  the  collection  once  belonging  to  Sir  Mi- 
chael Hicks,  must  have  been  in  Lord  Burleigh's, 
and  probably  in  Elizabeth's  hands ;  it  would  not 
make  her  less  inclined  to  instigate  conspiracies 
across  the  Tweed.  The  letter  is  not  an  original, 
and  may  have  been  communicated  by  some  one 
about  the  King  of  Scots  in  the  pay  of  England. 


James  I. 


FROM  HENRY  VII.  TO  GEORGE  H. 


1G9 


who  have  not  considered  this  part  of  our 
history  ;  yet  it  is  capable  of  satisfactory 
proof.  This  proof  consists  of  four  proi)osi- 
tions  :  1.  That  a  lawful  king  of  England, 
with  the  advice  and  consent  of  Parliament, 
may  make  statutes  to  limit  the  inheritance 
of  the  crown  as  shall  seem  fit.  2.  That  a 
statute  passed  in  the  3.5th  year  of  King 
Hemy  VIII.  enabled  that  prince  to  dispose 
of  the  succession  by  his  last  will  signed  with 
his  own  hand.  3.  That  Heniy  executed 
such  a  will,  by  which,  in  default  of  issue 
from  his  children,  the  crown  was  entailed 
upon  the  descendants  of  his  younger  sister 
Maiy,  duchess  of  Suffolk,  before  those  of 
Mai'garet,  queen  of  Scots.  4.  That  such 
descendants  of  Maiy  were  living  at  the  de- 
cease of  Elizabeth. 

Of  these  propositions,  the  two  former  can 
require  no  support ;  the  first  being  one  that 
it  would  be  perilous  to  deny,  and  the  sec- 
ond asserting  a  notorious  fact.  A  question 
has,  however,  been  raised  with  respect  to 
the  third  proposition ;  for  though  the  will 
of  Henry,  now  in  the  Chapter  House  at 
Westminster,  is  certainly  authentic,  and  is 
attested  by  many  witnesses,  it  has  been 
doubted  whether  the  signature  was  made 
with  his  own  hand,  as  required  by  the  act 
of  Parliament.  In  the  reign  of  Elizabeth, 
it  was  asserted  by  the  Queen  of  Scots'  min- 
isters, that  the  king  being  at  the  last  exti'em- 
ity,  some  one  had  put  a  stamp  for  him  to 
the  insti-ument.*    It  is  true,  that  he  was  in 

*  See  Barnet,  vol.  i.,  Appendix,  267,  for  Secre- 
tary Lethingtou's  letter  to  Cecil,  where  he  tells  a 
circumstantial  story  so  positively,  and  so  open,  if 
false,  to  a  contradiction  it  never  received,  that 
tliose  who  lay  too  much  stress  on  this  very  equiv- 
ocal species  of  presumption  would,  if  the  will  had 
perished,  have  reckoned  its  forgeiy  heyond  ques- 
tion. The  king's  death  approaching,  he  asserts, 
"  some  as  well  known  to  you  as  to  me  caused  Will- 
iam Clark,  sometimes  servant  to  Thomas  Hene- 
age,  to  sign  the  supposed  will  with  a  stamp,  for 
otherwise  signed  it  was  never ;"  for  which  he  ap- 
peals to  an  attestation  of  the  late  Lord  Paget  in 
ParUament,  and  requests  the  depositions  of  sever- 
al persons  now  living  to  be  taken.  He  proceeds 
to  refer  him  "  to  the  original  will  sunuised  to  be 
signed  with  the  king's  own  hand,  that  thereby  it 
may  most  clearly  and  evidently  appear  by  some 
differences,  how  the  same  was  not  signed  with 
the  king's  hand,  but  stamped  as  aforesaid.  And 
albeit  it  is  used  both  as  an  ai'gument  and  calum- 
niation against  my  sovereign  by  some,  that  the 
said  original  hath  been  embezzled  iu  dueen  Ma- 
ry's time,  I  tinist  God  will  and  hath  reserved  the 
same  to  be  au  instrument  to  relieve  [prove]  the 


the  latter  part  of  his  life  accustomed  to  em- 
ploy a  stamp  instead  of  making  his  signa- 
ture. Many  impressions  of  this  are  extant; 
but  it  is  evident  on  the  first  inspection,  not 
only  that  the  presumed  autogiaphs  in  the 
will  (for  there  are  two)  are  not  like  these 
impressions,  but  that  they  are  not  the  im- 
pressions of  any  stamp,  the  marks  of  the 
pen  being  very  clearly  discernible.  It  is 
more  difficult  to  pronounce  that  they  may 
not  be  feigned;  but  such  is  not  the  opinion 
of  some  who  are  best  acquainted  with  Hen- 
ry's handwriting  ;*  and,  what  is  still  more  to 
the  purpose,  there  is  no  pretense  for  setting 
up  such  a  possibility,  when  the  story  of  the 
stamp,  as  to  which  the  partisans  of  Maiy 
pretended  to  adduce  evidence,  appears  so 
clearly  to  be  a  fabrication.  We  have,  there- 
fore, every  reasonable  gi'ound  to  maintain 
that  Henry  did  duly  execute  a  will,  post- 
poning the  Scots  line  to  that  of  Suffolk. 

The  fourth  proposition  is  in  itself  unde- 
niable. There  were  descendants  of  Mary, 
duchess  of  Suffolk,  by  her  two  daughters, 
Frances,  second  duchess  of  Suffolk,  and 
Eleanor,  countess  of  Cumberland.  A  story 
had,  indeed,  been  circulated  that  Charles 
Brandon,  duke  of  Suffolk,  was  already  mar- 
ried to  a  lady  of  the  name  of  Mortimer  at 
the  time  of  his  union  with  the  king's  sister. 

trath  and  to  confound  false  surmises,  that  thereby 
the  right  may  take  place,  notwithstan<ling  the 
many  exempliticatious  and  transcripts,  which  being 
sealed  with  the  great  seal,  do  run  abroad  iu  Eng- 
land." Lesley,  bishop  of  Ross,  repeats  the  same 
stoiy  with  some  additions. — Bedford's  Hereditary 
Right,  p.  197.  A  treatise  of  Hales,  for  which  he 
suffered  imprisonment,  in  defense  of  the  Suffolk 
title  under  the  will,  of  which  there  is  a  manuscript 
in  the  British  Museum,  Harl.  MSS.,  537,  and  which 
is  also  printed  in  the  ajjpendix  to  the  hook  last 
quoted,  leads  me  to  conjecture  that  the  original 
will  had  been  mislaid,  or  rather  concealed  at  that 
time ;  for  he  certainly  argues  on  the  supposition 
that  it  was  not  forthcoming,  and  had  not  himself 
seen  it ;  but  "  he  has  been  infomied  that  the  king's 
name  is  evidently  written  with  a  pen,  though  some 
of  the  strokes  are  unseen,  as  if  drawn  by  a  weak 
and  trembling  hand."  Eveiy  one  who  has  seen 
the  will  must  bear  witness  to  the  correctness  of 
this  infoi-raatiou.  The  reappearance  of  this  very 
remarkable  instrament  was,  as  I  conceive,  after 
the  Revolution,  for  Collier  mentions  that  he  had 
heard  it  was  in  existence ;  and  it  is  also  describ- 
ed in  a  note  to  the  Acta  Regia. 

*  It  is  right  to  mention,  that  some  difference  of 
opinion  exists  as  to  the  genuineness  of  Henry's 
signature.  But  as  it  is  attested  by  many  witness- 
es, and  can  not  be  proved  a  forgery,  the  legal  pre- 
sumption turns  much  in  its  favor. 


170 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  VI. 


But  this  c:rcum5t;iace  soems  to  l)e  suffi- 
ciently explained  iu  the  trentise  of  Hales.* 
It  is  somewhat  more  questionable  from 
which  of  his  nvo  daugliters  we  are  to  de- 
rive the  hereditary  stock.  This  depends 
Legitimacy  on  the  legitimacy  of  Lord  Beau- 
ofHTn^rd's  champ,  son  of  the  Earl  of  Hert- 
issue.  ford  by  Catharine  Grey.  I  have 
mentioned  iu  another  place  the  ])rocess  be- 
fore a  commission  appointed  by  Elizabeth, 
which  ended  in  declaring  that  their  mar- 
riage was  not  proved,  and  that  their  cohab- 
itation had  been  illicit.  The  parties  alleged 
themselves  to  have  been  married  clandes- 
tinely in  the  Earl  of  Hertford's  house  by  a 
minister  whom  they  had  never  before  seen, 
and  of  whose  name  they  were  ignorant,  in 
the  presence  only  of  a  sister  of  the  earl,  then 
deceased.  This  entire  absence  of  testimo- 
ny, and  the  somewhat  improbable  natui-e  of 
the  story,  at  least  iu  appearance,  may  still, 
perhaps,  leave  a  shade  of  doubt  as  to  the 


of  James,  having  long  abandoned  all  ambi- 
tious hopes,  and  seeking  only  to  establish 
his  children's  legitimacy  and  the  honor  of 
one  who  had  been  the  victim  of  their  un- 
happy loves,  petitioned  the  king  for  a  re- 
view of  the  proceedings,  alleging  himself  to 
have  vainly  sought  this  at  the  hands  of  Eliz- 
abeth. It  seems  probable,  though  I  have 
not  met  with  any  more  distinct  proof  of  it 
than  a  stoiy  in  Dugdale,  that  he  had  been 
successful  in  finding  the  person  who  solem- 
nized the  mairiage.*  A  commission  of  del- 
egates was  accordingly  appointed  to  investi- 
gate the  allegations  of  the  earl's  petition ; 
but  the  jealousy  that  had  so  long  oppressed 
this  unfortunate  family  was  not  yet  at  rest. 
Questions  seem  to  have  been  raised  as  to 
the  lapse  of  time  and  other  technical  diffi- 
culties, which  served  as  a  pretext  for  com- 
ing to  no  detennination  on  the  merits,  f 
Hertford,  or  rather  his  son,  not  long  after, 
endeavored  indirectly  to  bring  fonvard  the 


reality  of  the  maii-iage.    On  the  other  hand,  '  main  question  by  means  of  a  suit  for  some 


it  was  unquestionable  that  their  object  must 
have  been  a  legitimate  union;  and  such  a 
hasty  and  furtive  ceremony  as  they  assert- 
ed to  have  taken  place,  while  it  would,  if 
sufficiently  proved,  be  completely  valid,  was 
necessary  to  protect  them  fi-om  the  queen's 


lands  against  Lord  Monteagle.  This  is  said 
to  have  been  heard  in  the  Court  of  Wards, 
where  a  juiy  was  impanneled  to  try  the  fact; 
but  the  law  officers  of  the  crown  interposed 
to  prevent  a  verdict,  which,  though  it  could 
not  have  been  legally  conclusive  upon  the 


indignation.    They  were  examined  sepa-  marriage,  would  certainly  have  given  a  sanc- 


rately  upon  oath  to  answer  a  series  of  the 
closest  interrogatories,  which  they  did  with 
little  contradiction,  and  a  perfect  agreement 
in  the  main  ;  nor  was  any  evidence  worth 
mentioning  adduced  on  the  other  side ;  so 
that,  unless  the  rules  of  the  ecclesiastical 
law  are  scandalouslj-  repugnant  to  common 
justice,  their  oaths  entitled  them  to  credit 
on  the  merits  of  the  case.f  The  Earl  of 
Hertford,  soon  after  the  ti-anquil  accession 


*  Bedford's  (Harbin's)  Hereditary  B.igbt  As- 
serted, p.  204. 

t  A  mauuscript  in  the  Cottouian  library,  Fans- 
tina,  A.  xi.,  written  about  15G2,  in  a  verj'  hostile 
spirit,  endeavoi-s  to  prove  from  tlie  want  of  testi- 
mony, and  from  some  variances  in  their  deposi- 
tions (not  very  material  ones),  tliat  their  allega- 
tions of  matrimony  could  not  be  admitted,  and  that 
tbe_v  had  incurred  an  ecclesiastical  censure  for  for- 
nication. But  another,  vrhich  I  have  also  found  in 
the  Museum,  Harl.  MriS.,  62S6,  contains  the  whole 
proceedings  and  e\'ideuce,  from  which  I  have 
drawn  the  conclusion  iu  the  text.  Their  ignorance 
of  the  clergyman  who  performed  the  ceremony  is 
not,  perhaps,  verj'  extraordinary" ;  he  seems  to  have 
been  one  of  those  vagabond  ecclesiastics  who,  till 
the  marriage  act  of  1752,  were  always  ready  to  do 
that  serv'ice  for  a  fee. 


tion  to  it  in  public  opinion. J  The  house  of 
*  '■  Hereupon  I  shall  add,  what  I  have  heard  re- 
lated from  persons  of  great  credit,  which  is,  that 
the  validity  of  this  marriage  was  afterward  brought 
to  a  ti-ial  at  the  common  law,  when  the  niiuister 
who  married  them  being  present,  and  other  cir- 
cumstances agreeing,  the  jury  (whereof  John  Dig- 
by,  of  Coleshill,  in  com.  War.  esquire,  was  the 
foreman)  found  it  a  good  marriage." — Baronage  of 
England,  part  ii.,  369.  Mr.  Luders  doubts  the  ac- 
curacy of  Dagdale's  story ;  and  I  think  it  not  un- 
likelj'  that  it  is  a  confused  account  of  what  hap- 
pened in  the  Coui-t  of  Wards. 

t  I  derive  this  fact  from  a  Cotton  MS.,  Vitellius, 
C.  xvi.,  412,  &c. ;  but  the  volume  is  much  burned, 
and  the  papers  confused  with  others  relative  tD 
Lord  Essex's  divorce.  See  as  to  the  same  suit, 
or  rather,  perhaps,  that  mentioned  in  the  next 
note.  Birch's  Negotiarions,  p.  219,  or  Aikin  s  James 
the  First,  i.,  225. 

i  "The  same  day  a  great  cause  between  the 
Lord  Beauchamp  and  Monteagle  was  heard  iu  the 
Court  of  Wards,  the  main  point  whereof  was  to 
prove  the  lawfiilness  of  E.  of  Hertford's  marriage. 
The  court  sat  unril  five  of  the  clock  in  the  after- 
noon, and  the  jury  had  a  week's  respite  for  the  de- 
hvery  of  their  verdict." — Letter  of  Sir  E.  Hoby  to 
Sir  f .  Edmonds,  Feb.  10,  1606.  "For  my  Lord  of 
Hertford's  cause,  when  the  verdict  was  ready  to 
be  given  up,  Mr.  Attorney  interposed  himself  for 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


171 


Seymour  was  now  coinpoUed  to  seek  a  re- 
newal of  their  honors  by  another  channel. 
Lord  Beauchamp,  as  he  had  uniformly  been 
called,  took  a  grant  of  the  barony  of  Beau- 
champ,  and  another  of  the  earldom  of  Hert- 
ford, to  take  effect  upon  the  death  of  the 
earl,  who  is  not  denominated  his  father  in 
the  patent.*  But  after  the  return  of  Charles 
II.,  in  the  patent  restoi'ing  this  Lord  Beau- 
champ's  son  to  the  dukedom  of  Somerset, 
he  is  recited  to  be  heir  male  of  the  body 
of  the  first  duke  by  his  wife  Anne,  which 
establishes  (if  the  recital  of  a  private  act  of 
Parliament  can  be  said  to  establish  any 
tiling)  the  validity  of  the  disputed  marriage. f 
The  descent  from  Eleanor,  the  younger 
daughter  of  Maiy  Brandon,  who  man-ied 
the  Earl  of  Cumberland,  is  subject  to  no 
difficulties.  She  left  an  only  daughter, 
irifin-ied  to  the  Earl  of  Derby,  from  whom 
the  claim  devolved  again  upon  females,  and 
seems  to  have  atti'acted  less  notice  during 
the  reign  of  Elizabeth  than  some  others 
much  inferior  in  plausibility.  If  any  should 
be  of  opinion  that  no  marriage  was  regular- 
ly conti-acted  between  the  Earl  of  Hertford 
and  Lady  Catharine  Grey,  so  as  to  make 
their  children  capable  of  inheritance,  the 
title  to  the  crown,  resulting  from  the  stat- 
ute of  35  H.  8,  and  the  testament  of  that 
prince,  will  have  descended,  at  the  death  of 
Elizabeth,  on  the  issue  of  the  Countess  of 
Cumberland,  the  youngest  daughter  of  the 
Duchess  of  Suffolk,  Lady  Francis  Keyes, 
having  died  without  issue. t  In  neither  case 
tlie  king^,  and  said  that  the  land  that  they  both 
strove  for  was  the  king's,  and  until  liis  title  were 
decided,  the  jury  ought  not  to  proceed,  not  doubt- 
ing but  the  king  will  be  gracious  to  both  lords  ;  but 
thereby  both  land  and  legitimation  remain  unde- 
cided."— The  same  to  the  same,  March  7.  Sloane 
MSS.,  4176. 

*  Dugdale's  Baronage,  Luders's  Essay  on  the 
Right  of  Succession  to  the  Crown  in  the  Reign  of 
Elizabeth.  This  ingenious  author  is,  I  believe, 
the  first  who  has  taken  the  strong  position  as  to 
the  want  of  legal  title  to  the  house  of  Stuart  which 
I  have  endeavored  to  support.  In  the  entertaining 
letters  of  Joseph  Mede  on  the  news  of  the  day, 
Hai-1.  MSS.,  380,  it  is  said  that  the  king  had  thought 
of  declaring  Hertford's  issue  by  Lady  Catharine 
Grey  illegitimate  in  the  Parliament  of  1621,  and 
that  Lord  Southampton's  commitment  was  for 
having  searched  for  proofs  of  their  marriage. — 
June  30,  1622.  t  Luders,  ubi  supra. 

{  I  have  not  adverted  to  one  objection  which 
some  urged  at  the  time,  as  we  find  by  Persons's 
treatises,  Leicester's  Commonwealth,  and  the  Con- 
ference, to  the  legitimacy  of  the  Seymours.  Cath- 


could  the  house  of  Stuart  have  a  lawful 
claim.  But  I  may,  perhaps,  have  dwelled 
too  long  on  a  subject  which,  though  curious 
and  not  very  generally  understood,  can  be 
of  no  sort  of  importance,  except  as  it  serves 
to  cast  ridicule  upon  those  notions  of  legiti- 
mate sovereignty  and  absolute  right  which 
it  was  once  attempted  to  set  up  as  jiara- 
mount  even  to  the  great  interests  of  a  com- 
monwealth. 

There  is  much  reason  to  believe  that  the 
consciousness  of  this  defect  in  his  Parlia- 
mentary title  put  James  on  magnifying,  still 
more  than  from  his  natural  temper  he  was 
prone  to  do,  the  inherent  rights  of  primo- 
genitary  succession,  as  something  indefeas- 
ible by  the  Legislature  ;  a  doctrine  which, 
however  it  might  suit  the  schools  of  divini- 
ty, was  in  diametrical  opposition  to  our  stat- 
utes.* Through  the  servile  spirit  of  those 
times,  however,  it  made  a  rapid  progress ; 
and,  interwoven  by  cunning  and  bigotry  with 
religion,  became  a  distinguishing  tenet  of 
the  party  who  encoiu'aged  the  Stuarts  to 
subvert  the  liberties  of  this  kingdom.  In 
James's  proclamation  on  ascending  the 
throne,  he  set  forth  his  hereditarj-  right  in 
pompous  and  perhaps  unconstitutional  phra- 
ses. It  was  the  first  measure  of  Parliament 
to  pass  an  act  of  recognition,  acknowledging 
that,  immediately  on  the  decease  of  Eliza- 
beth, "  the  imperial  crown  of  the  realm  of 
England  did  by  inherent  birthright,  and  law- 
ful and  undoubted  succession,  descend  and 
come  to  his  most  excellent  majestj',  as  be- 
ing lineally,  justly,  and  lawfulh%  next  and 
sole  heir  of  the  blood  royal  of  this  realm. "f 

arine  Grey  had  been  betrothed,  or  perhaps  mar- 
ried, to  Lord  Herbert,  son  of  the  Earl  of  Pembroke, 
during  the  brilliant  days  of  her  famih-,  at  the  close 
of  Edward's  reign.  But  on  her  father's  fall,  Pem- 
broke caused  a  sentence  of  divorce  to  be  pronounc- 
ed, the  grounds  of  which  do  not  appear,  but  which 
was  probably  sufficient  in  law  to  warrant  her  sub- 
sequent union  with  Hertford.  No  advantage  is 
taken  of  this  in  the  proceedings,  which  seems  to 
show  tliat  there  was  no  legal  bond  remaining  be- 
tween the  parties.  Camden  says  she  was  divorc- 
ed from  Lord  Herbert,  "  being  so  far  gone  with 
child  as  to  be  very  near  her  time."  But  from  her 
youth  at  the  time,  and  the  silence  of  all  other  writ- 
ers, I  conclude  this  to  be  unworthy  of  credit. 

*  Boliugbroke  is  of  this  opinion,  considering  the 
act  of  recognition  as  "  the  aera  of  hereditarj'  right, 
and  of  all  those  exalted  notions  concerning  the 
power  of  prerogative  of  kings  and  the  sacredness 
of  their  persons." — Dissertation  on  Parties,  Letter 
IL  t  Stat.,  1  Jac,  c.  1. 


172 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VT. 


The  will  of  Henry  VIII.  it  was  tacitly 
agreed  by  all  parties  to  consign  to  oblivion ; 
and  this  most  wisely,  not  on  the  principles 
which  seem  rather  too  much  insinuated  in 
this  act  of  recognition,  but  on  such  substan- 
tial motives  of  public  expediency  as  it  would 
have  shown  an  equal  want  of  patriotism  and 
of  good  sense  for  the  descendants  of  the 
house  of  Suffolk  to  have  withstood. 

James  left  a  kingdom  where  his  author- 
ity was  incessantly  thwarted  and  sometimes 
openly  assailed,  for  one  wherein  the  royal 
prerogative  had  for  more  than  a  century 
been  strained  to  a  very  high  pitch,  and 
where  there  had  not  occun'ed  for  above 
thirty  years  the  least  appearance  of  rebell- 
ion and  hai-dly  of  tumult.  Such  a  posture 
of  the  English  commonwealth,  as  well  as 
the  general  satisfaction  testified  at  his  ac- 
cession, seemed  favorable  circumstances  to 
one  who  entertained,  with  less  disguise,  if 
not  with  more  earnestness,  than  most  oth- 
er sovereigns,  the  desire  of  reigning  with  as 
little  impediment  as  possible  to  his  own  will. 
Yet  some  considerations  might  have  in- 
duced a  prince  who  really  possessed  the 
king-craft  wherein  James  prided  himself, 
to  take  his  measures  with  caution.  The 
late  queen's  popularity  had  remarkably 
abated  during  her  last  years.*  It  is  a  veiy 
common  delusion  of  royal  personages  to  tri- 
umph in  the  people's  dislike  of  those  into 
whose  place  they  expect  shortly  to  come, 
and  to  count  upon  the  most  transitory  of 
possessions,  a  favor  built  on  hopes  that  they 
can  not  realize  and  discontents  that  they 
will  not  assuage.  If  Elizabeth  lost  a  great 
deal  of  that  affection  her  subjects  had  en- 
tertained for  her,  this  may  be  ascribed,  not 
so  much  to  Essex's  death,  though  that,  no 

*  This  is  confirmed  by  a  curious  little  tract  in 
the  British  Museum,  Sloaue  MSS.,  827,  containing^ 
a  shoi't  liistory  of  the  queen's  death  and  new  kind's 
accession.  It  affords  a  good  cotemporary  illustra- 
tion of  the  various  feelings  vrhicli  influenced  men 
at  this  crisis,  and  is  written  in  a  dispassionate 
manner.  Tlie  autlior  ascribes  the  loss  of  Eliza- 
beth's popularity  to  tlie  impoverishment  of  the 
realm,  and  to  the  abuses  which  prevailed.  Carte 
says  "foreigners  were  shocked  on  James's  arrival 
at  the  applause  of  the  populace  who  had  professed 
to  adore  the  late  queen,  but  in  fact  she  had  no 
huzzas  after  Essex's  execution.  She  was  in  four 
days'  time  as  much  forgot  as  if  she  had  never  ex- 
isted, by  all  the  world,  and  even  by  her  own  ser- 
vants.''— Vol.  iii.,  p.  707.  This  is  exaggerated,  and 
what  Carte  could  not  know ;  but  there  is  no  doubt 
that  the  generality  were  glad  of  a  change. 


doubt,  had  its  share,  as  to  weightier  taxa- 
tion, to  some  oppressions  of  her  govern- 
ment, and,  above  all,  to  her  inflexible  tena- 
j  ciou.sness  in  every  ])oint  of  ecclesiastical  dis- 
cipline. It  was  the  part  of  a  prudent  suc- 
cessor to  preserve  an  undeviating  economy, 
to  remove  without  repugnance  or  delay  the 
iiTitations  of  monopolies  and  purveyance, 
and  to  remedy  those  alleged  abuses  in  the 
Church  against  which  the  gi-eater  and  stron- 
ger part  of  the  nation  had  so  long  and  so 
loudly  raised  its  voice. 

The  new  king's  character,  notwithstand- 
ing the  vicinity  of  Scotland,  seems  , 

•1         1  1-1  T  1  ,       Early  uopop- 

I  to  have  been  little  understood  by  ui-dmyof  the 

I  the  English  athis  accession.  But 
he  was  not  long  in  undeceiving  them,  if  it 
be  true  that  his  popularity  had  vanished 
away  before  his  an-ival  in  London.*  The 
kingdom  was  fuU  of  acute  wits  and  skillful 
politicians,  quick  enough  to  have  seen 
*  Cai-te,  no  foe,  surely,  to  the  house  of  Stuartf 
says,  "  By  the  time  he  reached  London,  the  admi- 
ration of  the  intelligent  world  was  turned  into  con- 
tempt." On  this  journey  be  gave  a  remarkable 
proof  of  his  hastj'  temper  and  disregai-d  of  law,  in 
ordering  a  pickpocket  taken  in  the  fact  to  be  hang- 
ed without  trial.  The  historian  last  quoted  thinks 
fit  to  say  in  vindication,  that  "  all  felonies  commit- 
ted within  the  verge  of  the  court  are  cognizable 
in  the  court  of  the  king's  household,"  refemng  to 
33  H.  8,  c.  i.  This  act,  however,  contains  no  such 
thing ;  nor  does  any  court  appear  to  have  been 
held.  Though  the  man's  notorious  guilt  might 
prevent  any  open  complaint  of  so  illegal  a  proceed- 
ing, it  did  not  fail  to  excite  obser\'ation.  "  I  hear 
our  new  king,"  says  Sir  John  Harrington,  "has 
hanged  one  man  before  he  was  tried ;  it  is  strange- 
ly done  ;  now  if  the  wind  bloweth  thus,  why  may 
not  a  man  be  tried  before  he  has  offended?" — Nu- 
gae  Antiquas,  vol.  i.,  p.  180. 

Birch  and  Carte  tell  us,  on  the  authority  of  the 
French  ambassadoi^'s  dispatclies,  that  on  this 
journey  he  expressed  a  great  contempt  for  wom- 
en, suffering  them  to  be  presented  on  their  knees, 
and  indiscreetly  censuring  his  own  wife  ;  that  he 
offended  the  military  men  by  telling  them  they 
might  sheathe  their  swords,  since  peace  was  his 
object ;  that  he  showed  impatience  of  the  common 
people,  who  flocked  to  see  him  wliile  hunting,  driv- 
ing them  away  with  curses,  very  unlike  the  affa- 
ble manners  of  the  late  queen.  This  is  confirmed 
by  Wilson,  in  Kennet's  Complete  Historj-,  vol.  ii., 
p.  667. 

[It  is  also  mentioned  in  the  extracts  from  the  re- 
ports of  Beaumont,  the  French  ambassador,  pub- 
lished in  Raumer's  Rlnstrarions  of  the  Historj-  of 
the  16th  and  17th  Centuries  (Lord  F.  Egerton's 
translation,  183.5,  vol.  ii.,  p.  196,  1202).  These  ex- 
tracts give  a  most  unfavorable  picture  of  the  con- 
duct of  James  at  his  accession,  as  those  from  other 
ambassadors  do  at  a  later  period.] 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


173 


through  a  less  unguarded  character  than 
that  of  James.  It  was  soon  manifest  that 
he  was  unable  to  wield  the  scepter  of  the 
great  jjrincess  whom  he  lidiculously  affect- 
ed to  despise,*  so  as  to  keep  under  that 
rising  spirit,  which  might,  perhaps,  have 
grown  too  strong  even  for  her  conti'ol.  He 
Conduct  to-  committed  an  impoitant  eiTor  in 
ward  the  Pu-  throwing  away  the  best  opportu- 
ntans.        ^.j^,  ^^^^  -^^^  offered  itself  for 

healing  the  wounds  of  the  Church  of  Eng- 
land. In  his  way  to  Loudon,  the  malcontent 
clergy  presented  to  him  what  was  common- 
ly called  the  Millenary  Petition,  as  if  signed 
by  1000  ministers,  though  the  real  number 
was  not  so  gi-eat.f  This  petition  contained 
no  demand  inconsistent  with  the  established 
hierarchy.  .Tames,  however,  who  had  not 
unnaturally  taken  an  extreme  disgust  at  the 
Presbyterian  clergy  of  his  native  kingdom, 
by  whom  his  life  had  been  perpetually  har- 
assed, showed  no  disposition  to  treat  these 
petitioners  with  favor.t    The  bishops  had 

*  Sully  being  sent  over  to  compliment  James  on 
his  accession,  persisted  in  wearing  mourning  for 
Elizabeth,  though  no  one  had  done  so  in  the  king's 
presence,  and  he  was  warned  that  it  would  be  tak- 
en ill ;  "  dans  une  cour  ou  il  scmbloit  qu'on  eut  si 
fort  affecte  de  metti-e  en  oubli  cette  grande  reine, 
qu'on  n'y  faisoit  jamais  mention  d'elle,  et  qu'on 
evitoit  meme  de  pronoucer  son  nom." — Mem.  de 
Sully,  1.  14.  James  afterward  spoke  slightingly  to 
Sully  of  his  predecessor,  and  said  that  he  had  long 
ruled  England  through  her  ministers. 

t  It  was  subscribed  by  825  ministers  from  twen- 
ty-five counties.  It  states,  that  neither  as  factious 
men  desiring  a  popular  party  in  the  Church,  nor 
as  schismatics  aiming  at  the  dissolution  of  the  state 
ecclesiastical,  they  humbly  desired  the  redress  of 
EOme  abuses  Their  objections  were  chiefly  to  the 
cap  and  surplice,  the  cross  in  baptism,  baptism  by 
women,  confirmation,  the  ring  in  man-iage,  tlie 
reading  of  the  Apocrypha,  bowing  at  the  name  of 
Jesus,  &c. ;  to  non-residence  and  incapable  minis- 
ters, the  commendams  held  by  bishops,  luiuecessa- 
ry  excommunications,  and  other  usual  topics. — 
Neal,  p.  408.    Fuller,  part  ii.,  p.  22. 

t  The  Puritans  seem  to  have  flattered  them-' 
selves  that  James  would  favor  their  sect,  on  the 
credit  of  some  strong  assertions  he  had  occasional- 
ly made  of  his  adherence  to  the  Scots  kirk.  Some 
of  these  were  a  good  while  before ;  but  on  quit- 
ting the  kingdom,  he  had  declared  that  he  left  it  in 
a  state  wliidi  he  did  not  intend  to  alter.— Neal, 
406.  James,  however,  was  all  his  life  rather  a 
bold  liar  than  a  good  dissembler.  It  seems  strange 
tliat  they  should  not  have  attended  to  his  Basili- 
con  Doron,  printed  three  years  before,  though  not 
for  general  circulation,  wherein  there  is  a  passage 
quite  decisive  of  his  disposition  toward  the  Pres- 
byterians and  their  scheme  of  polity.    The  Mille- 


promised  him  an  obsequiousness  to  which 
he  had  been  little  accustomed,  and  a  zeal  to 
enhance  his  prerogative  which  they  after- 
ward too  well  displayed.  His  measures 
toward  the  non-conformist  party  had  evi- 
dently been  resolved  upon  before  he  sum- 
moned a  few  of  their  divines  to  the  famous 
conference  at  Hampton  Court.  In  the  ac- 
counts that  we  read  of  this  meeting,  we  are 
alternately  struck  with  wonder  at  the  inde- 
cent and  partial  behavior  of  the  king  and  at 
the  abject  baseness  of  the  bishops,  mixed, 
according  to  the  custom  of  servile  natures, 
with  insolence  toward  their  opponents.* 
It  was  easy  for  a  monarch  and  eighteen 
churchmen  to  claim  the  victoiy,  be  the 
merits  of  their  dispute  what  they  might, 
over  four  abashed  and  intimidated  adversa- 
ries.! A  veiy  few  altei-ations  were  made 
in  the  Church  sei^vice  after  this  conference, 
but  not  of  such  moment  as  to  reconcile  prob- 
ably a  single  minister  to  the  estatjlished  dis- 
cipline.t  The  king  soon  afterward  put  forth 
a  proclamation,  requiring  all  ecclesiastical 
and  civil  officers  to  do  their  duty  by  enforc- 
ing conformity,  and  admonishing  aU  men 
not  to  expect  nor  attempt  any  further  alter- 
ation in  the  public  service  ;  for  "  he  would 
neither  let  any  presume  that  his  own  judg- 
ment, having  determined  in  a  matter  of  this 
weight,  should  be  swayed  to  alteration  by 
the  frivolous  suggestions  of  any  light  spirit, 
nor  was  he  ignorant  of  the  inconvenience 
of  admitting  innovation  in  things  once  set- 
tled by  matvu-e  deliberation."§  And  he  had 
nary  Petition,  indeed,  did  not  go  so  far  as  to  request 
any  thing  of  that  kind. 

*  StrjTje's  Whitgift,  p.  571.  Collier,  p.  673. 
Neal,  p.  411.  Fuller,  part  ii.,  p.  7.  State  Trials, 
vol.  ii.,  p.  69.  Winwood,  ii.,  13.  All  these,  except 
the  last,  are  taken  from  an  account  of  the  confer- 
ence published  by  Barlow,  and  probably  more  fa- 
vorable to  the  king  and  bishops  than  they  desei-v- 
ed.  See  what  Harrington,  an  eye-witness,  saj  s  in 
Nug»  Antiquae,  i.,  181,  which  I  would  quote  as  the 
best  evidence  of  James's  behavior,  were  the  pas- 
sage quite  decent. 

t  Reynolds,  the  principal  disputant  on  the  Puri- 
tan side,  was  nearly,  if  not  altogether,  the  most 
learned  man  in  England.  He  was  censured  by 
his  faction  for  making  a  weak  defense ;  but  the 
king's  partiality  and  intemperance  plead  his  apol- 
ogy. He  is  said  to  have  complained  of  unfair  rep- 
resentation in  Barlow's  account. — Hist,  and  Ant. 
of  Oxford,  ii.,  293.  James  wrote  a  conceited  let- 
ter to  one  Blake,  boasting  of  his  own  superior  log- 
ic and  learning. — Strype's  Whitgift,  Append.,  239. 

t  RjTner,  xvi.,  565. 

§  Str3T)e's  Whitgift,  587.    How  desirous  men 


174 


COXSTITUTIOXAL  HISTORY  OF  ENGL,AND 


[Chap.  VI. 


already  strictly  enjoined  the  bishops  to  pro- 
ceed against  all  their  clergy  who  did  not  ob- 
serve the  prescribed  order  ;*  a  command 
which  Bancroft,  who  about  tliis  time  fol- 
lowed Whitgift  in  the  primacy,  did  not  wait 
to  have  repeated.  But  the  most  enormous 
outrage  on  the  civil  rights  of  these  men  was 
the  commitment  to  prison  of  ten  among 
those  who  had  presented  the  Millenary 
Petition,  the  judges  having  declared  in  the 
Star  Chamber  that  it  was  an  oftense  finea- 
ble  at  discretion,  and  veiy  near  to  treason 
and  felony,  as  it  tended  to  sedition  and  re- 
bellion, f  By  such  beginnings  did  the  house 
of  Stuart  indicate  the  course  it  would  steer. 

An  enthe  year  elapsed,  chiefly  on  ac- 
count of  the  unhealthhiess  of  the  season  in 
London,  before  James  summoned  his  first 
Parliament.  It  might,  perhaps,  have  been 
more  politic  to  have  chosen  some  other  city, 
for  the  length  of  this  interval  gave  time  to 
form  a  disadvantageous  estimate  of  his  ad- 
ministi-ation,  and  to  alienate  beyond  recov- 
eiy  the  Puritanical  party.  Libels  were  al- 
ready m  circulation,  reflecting  with  a  sharp- 
ness never  before  known  on  the  king's  pei-- 
sonal  behavior,  which  presented  an  extra- 
ordinary conti'ast  to  that  of  Elizabeth.t 
The  nation,  it  is  easy  to  perceive,  cheated 
itself  into  a  jiersuasion  that  it  had  borne  that 

not  at  all  connected  in  faction  with  the  Puritans 
were  of  amendments  in  the  Church,  appears  by  a 
tract  of  Bacon,  wiitten,  as  it  seems,  about  the  end 
of  1603,  vol.  i.,  p.  387.  He  excepts  to  several  mat- 
ters of  ceremony  :  the  cap  and  surplice,  the  ring  in 
mai-riage,  the  use  of  organs,  the  form  of  absolution, 
lay-baptism,  &c. ;  and  inveighs  against  the  abuse 
of  excommunication,  against  non-i-esidence  and 
pluralities,  the  oath  ex-officio,  the  sole  exercise  of 
ordination  and  jurisdiction  by  the  bishop,  conceiv- 
ing that  the  dean  and  chapter  should  always  as- 
sent, <5cc. ;  and,  in  his  predominant  spirit  of  improve- 
ment, asks,  "  Why  the  civil  state  should  be  purg- 
ed and  restored  by  good  and  wholesome  laws  made 
eveiy  three  orfourj  ears  in  Parliament  assembled, 
devising  remedies  as  fast  as  time  breedeth  mis- 
chief and  contrariwise  the  ecclesiastical  state 
should  still  continue  upon  the  dregs  of  time,  and 
receive  no  alteration  now  for  these  forty-five  years 
or  more  ?"  *  Strj-pc's  Wliitgift,  5i7. 

t  Neal,  432.    Wiuwood,  ii.,  36. 

i  See  one  of  the  Somers  Tracts,  vol.  ii.,  p.  144,  en- 
titled "Advertisements  of  a  Loyal  Subject,  drawn 
from  the  ObseiTation  of  the  People's  Speeches.'' 
Tliis  appears  to  have  been  written  before  the 
meeting  of  Parliament.  The  French  ambassadors. 
Sully  and  La  Boderie,  thought  most  contemptibly 
of  the  king. — Lingard,  vol.  ix.,  p.  107.  His  own 
courtiers,  as  their  private  letters  show,  disliked 
and  derided  him. 


princess  more  aff'ection  than  it  had  really 
felt,  especially  in  her  latter  years  ;  the  sor- 
row of  subjects  for  deceased  monarchs  be- 
ing often  rather  inspired  by  a  sense  of  evil 
than  a  recollection  of  good.  James,  howev 
er,  little  heeded  the  popular  voice,  satisfied 
with  the  fulsome  and  preposterous  adulation 
of  his  court,  and  intent  on  promulgating 
certain  maxims  concerning  the  dignity  and 
power  of  princes,  which  he  had  already 
announced  in  his  discourse  on  the  True 
Law  of  Free  Monarchies,  printed  some 
years  before  in  Scotland.  In  this  treatise, 
after  laying  it  down  that  monarchy  is  the 
true  pattern  of  divinity,  and  proving  the 
duty  of  passive  obedience,  rather  singular- 
ly, fi-om  that  passage  in  the  book  of  Samu- 
el where  the  prophet  so  forcibly  paints  the 
miseries  of  absolute  power,  he  denies  that 
the  kings  of  Scotland  owe  their  crown  to 
any  primaiy  contract,  Fergus,  their  progen- 
itor, having  conquered  the  country  with  his 
Irish ;  and  advances  still  more  alarming  ten- 
ets, as  that  the  king  makes  daily  statutes 
and  ordinances,  enjoining  such  pains  there- 
to as  he  thinks  meet,  without  any  advice 
of  Parliament  or  estates ;  that  general  laws 
made  publicly  in  Parliament  may  by  the 
king's  authority  be  mitigated  or  suspended 
upon  causes  only  known  to  him ;  and  that, 
"  altliough  a  good  king  will  frame  all  his  ac- 
tions to  be  according  to  the  law,  yet  he  is 
not  bound  thereto  but  of  his  own  will  and 
for  example-giving  to  his  subjects."*  These 
doctrines,  if  not  absolutely  novel,  seemed 
peculiarly  indecent,  as  well  as  dangerous, 
from  the  mouth  of  a  sovereign.  Yet  they 
proceeded  far  more  from  James's  self-con- 
ceit and  pique  against  the  Republican  spirit 
of  Presbyterianism  than  fiom  his  love  of 
power,  which  (in  its  exercise,  I  mean,  as 
distingtiished  fi-om  its  possession)  he  did  not 
feel  in  so  eminent  a  degree  as  either  his 
predecessor  or  his  son. 

In  the  proclamation  for  calling  together 
his  first  Parliament,  the  king,  af-  parliament 
ter  dilating,  as  was  his  favorite  convoked  by 

*-  .  „        ,        an  irregular 

practice,  on  a  series  or  rather  proclama- 
common  truths  in  veiy  good  Ian-  "°"' 
guage,  charges  all  persons  interested  in  the 
choice  of  knights  for  the  shire  to  select  them 
out  of  the  principal  knights  or  gentlemen 
within  the  county ;  and  for  the  burgesses, 
that  choice  be  made  of  men  of  sufliciency 
I  *  King  James's  Works,  p.  207. 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


175 


and  discretion,  without  desire  to  please  pa- 
rents and  friends,  that  often  speak  for  their 
children  or  kindred  ;  avoiding  persons  noted 
in  religion  for  their  superstitious  blindness 
one  way,  or  for  their  turbulent  humor  oth- 
er ways.  We  do  command,  he  says,  that  no 
bankrupts  or  outlaws  be  chosen,  but  men  of 
known  good  behavior  and  sufficient  liveli- 
hood. The  sheriffs  are  charged  not  to  di- 
rect a  writ  to  any  ancient  town  being  so 
ruined  that  there  are  not  residents  suffi- 
cient to  make  such  choice,  and  of  whom 
such  lawful  electioij  may  be  made.  All  i-e- 
turns  are  to  be  fded  in  Chancery,  and  if  ahy 
be  found  conti'ary  to  this  proclamation,  the 
same  to  be  rejected  as  unlawful  and  insuf- 
ficient, and  the  place  to  be  fined  for  making 
it ;  and  any  one  elected  contrary  to  the  pur- 
port, cft'ect,  and  true  meaning  of  this  proc- 
lamation, to  be  fined  and  imprisoned.* 

Such  an  assumption  of  control  over  Par- 
Question  of  liamentaiy  elections  was  a  glaring 
Fortescue  infringement  of  those  privileges 
win's  elec-  which  the  House  of  Commons 
had  been  steadily  and  successfully 
assei-ting  in  tlie  late  reign.  An  opportunity 
very  soon  occuiTed  of  contesting  this  im- 
portant point.  At  the  election  for  the  coun- 
ty of  Buckingham,  Sir  Francis  Goodwin 
had  been  chosen  in  preference  to  Sir  John 
Fortescue,  a  privy-counselor,  and  the  writ 
returned  into  Chauceiy.  Goodwin  having 
been  some  years  before  outlawed,  the  re- 
turn was  sent  back  to  the  sheriff,  as  con- 
ti'aiy  to  the  late  proclamation ;  and,  on  a 
second  election.  Sir  John  Fortescue  was 
chosen.  This  matter  being  brought  under 
tlie  consideration  of  the  House  of  Commons, 
a  very  few  days  after  the  opening  of  the 
session,  gave  rise  to  their  first  sti'uggle  with 
the  new  king.  It  was  resolved,  after  hear- 
ing the  whole  case,  and  arguments  by  mem- 
bers on  both  sides,  that  Goodwin  was  law- 
fully elected  and  returned,  and  ought  to  be 
received.  The  fii'st  notice  taken  of  this 
was  by  the  Lords,  who  requested  that  this 
might  be  discussed  in  a  conference  between 
the  two  Houses,  before  any  other  matter 
should  be  proceeded  in.  The  Commons 
returned  for  answer  tliat  they  conceived  it 
not  according  to  the  honor  of  the  House  to 
give  account  of  any  of  tlieir  proceedings. 
The  Lords  replied,  that  having  acqu.ainted 
his  majesty  with  the  matter,  he  desired 
*  Pari.  Hist.,  i.,  967. 


there  might  be  a  conference  thereon  be- 
tween the  two  Houses.  Upon  this  mes- 
sage, the  Commons  came  to  a  resolution 
that  the  speaker,  Avith  a  numerous  deputa- 
tion of  members,  should  attend  his  majesty, 
and  report  the  reasons  of  their  proceedings 
in  Goodwin's  case.  In  this  conference  with 
the  king,  as  related  by  the  speaker,  it  ap- 
pears that  he  had  shown  some  degi*ee  of 
chagrin,  and  insisted  that  the  House  ought 
not  to  meddle  with  returns,  which  could 
only  be  corrected  by  tlie  Court  of  Chance- 
ry ;  and  that,  since  they  derived  all  matters 
of  privilege  from  him  and  his  gi'ant,  he  ex- 
pected they  should  not  be  turned  against 
him.  He  ended  by  directing  the  House  to 
confer  with  the  judges.  After  a  debate, 
which  seems,  from  the  minutes  in  the  Jour- 
nals, to  have  been  rather  warm,  it  was  unan- 
imously agreed  not  to  have  a  conference 
with  the  judges ;  but  the  reasons  of  the 
House's  proceeding  were  laid  before  the 
king  in  a  written  statement  or  memorial, 
answering  the  several  objections  that  his 
majesty  had  alleged.  This  they  sent  to  the 
Lords,  requesting  them  to  deliver  it  to  the 
king,  and  to  be  mediators  in  behalf  of  the 
House  for  his  majesty's  satisfaction;  a  mes- 
sage in  rather  a  lower  tone  than  they  had 
previously  taken.  The  king,  sending  for 
the  speaker  privately,  told  him  that  he  was 
now  distracted  in  judgment  as  to  the  merits 
of  the  case,  and  for  his  further  satisfaction, 
desired  and  commanded,  as  an  absolute  king, 
that  there  should  be  a  conference  between 
the  House  and  the  judges.  Upon  this  un- 
expected message,  says  the  Journal,  there 
grew  some  amazement  and  silence  ;  but  at 
last  one  stood  up  and  said,  "  The  prince's 
command  is  like, a  thunderbolt;  his  com- 
mand upon  our  allegiance  like  the  roaring 
of  a  lion.  To  his  command  there  is  no  con- 
tj'adiction ;  but  how  or  in  what  manner  we 
should  now  proceed  to  perform  obedience, 
that  will  be  the  question."*  It  was  resolv- 
ed to  confer  with  the  judges  in  presence  of 
the  king  and  council.  In  this  second  con- 
ference, tlie  king,  after  some  favorable  ex- 
pressions toward  the  House,  and  conceding 
that  it  was  a  court  of  record  and  judge  of 
returns,  though  not  exclusively  of  the  Chan- 
cery, suggested  that  both  Goodwin  and 
Fortescue  should  be  set  aside,  by  issuing  a 
new  writ.  This  compromise  was  joyfully 
*  Commous'  Journals,  i.,  166. 


176 


CONSTITUTIONAL  HISTOBY  OF  ENGLAND 


[Chap.  VL 


accepted  by  the  greater  part  of  the  Com- 
mons, after  the  dispute  had  lasted  nearly 
three  weeks.*  They  have  been  considered 
as  victorious,  upon  the  -whole,  in  this  con- 
test, though  they  apparently  fell  short  in 
tlie  result  of  what  they  had  obtained  some 
years  before.  But  no  attempt  was  ever  af- 
terward made  to  dispute  theu-  exclusive  ju- 
risdiction.f 

Tlie  Commons  were  engaged  during  this 
Shirley's  case  session  in  the  defense  of  another 
of  privilege,  privilege,  to  which  they  annex- 
ed, perhaps,  a  disproportionate  importance. 
Sir  Thomas  Shirley,  a  member,  having 
been  taken  in  execution  on  a  private  debt 
before  their  meeting,  and  the  warden  of  the 
Fleet  prison  refusing  to  deliver  him  up,  they 
were  at  a  loss  how  to  obtain  his  release. 
Several  methods  wex'e  projected  ;  among 
which,  that  of  sending  a  party  of  members, 
with  the  sergeant  and  his  mace,  to  force 
open  the  prison,  was  carried  on  a  division; 
but  the  speaker  hinting  that  such  a  vigorous 
measure  would  expose  them  individually  to 
prosecution  as  ti'espassers,  it  was  prudently 
abandoned.  The  warden,  though  commit- 
ted by  the  House  to  a  dungeon  in  the  Tow- 
er, continued  obstinate,  conceiving  that  by 
releasing  his  prisoner  he  should  become  an- 
swerable for  the  debt.  They  were  evident- 
ly reluctant  to  solicit  the  king's  interference ; 
but  aware  at  length  that  their  own  authori- 
ty was  insufficient,  "the  vice-chamberlain, 
according  to  a  memorandum  in  the  Journals, 
was  privately  instinicted  to  go  to  the  king, 
and  humbly  desire  that  he  would  be  pleased 
to  command  the  warden,  on  his  allegiance, 
to  deliver  up  Sir  Thomas  ;  not  as  petitioned 
for  by  the  House,  but  as  if  himself  thought  it 
fit,  out  of  his  own  gi-acious  judgment."  By 
this  sti'atagem,  if  we  may  so  term  it,  they 

*  It  appears  that  some  of  the  more  eager  patri- 
ots were  dissatisfied  at  the  concession  made  by 
Tacating  Goodwin's  seat,  and  said  they  had  drawn 
on  themselves  the  reproach  of  inconstancy  and  lev- 
ity. "  But  the  acclamation  of  the  House  was,  that 
it  was  a  testimony  of  our  duty,  and  no  levity."  It 
was  thought  expedient,  however,  to  save  their 
honor,  that  Goodwin  should  send  a  letter  to  the 
speaker  expressing  his  acquiescence. — Id.,  1G8. 

t  Commons'  Journals,  147,  &c.  Pari.  Hist,  997. 
Carte,  iii.,  730,  who  gives,  on  this  occasion,  a  re- 
view of  the  earlier  cases  where  the  House  had  en- 
tered on  matters  of  election.  See,  also,  a  rather 
curious  letter  of  Cecil,  in  Winwood's  Memorials, 
ii.,  18,  where  he  artfully  endeavors  to  treat  the 
matter  as  of  little  importance. 


saved  the  point  of  honor,  and  recovered 
their  member.*  The  warden's  apprehen- 
sions, however,  of  exposing  himself  to  aa 
action  for  the  escape,  gave  rise  to  a  stat- 
ute, which  empowers  the  creditor  to  sue 
out  a  new  execution  against  any  one  who 
shall  be  delivered  by  virtue  of  his  privilege 
of  Parliament,  after  that  shall  have  expired, 
and  discharges  from  liability  those  out  of 
whose  custody  such  persons  shall  be  deliv- 
ered. This  is  the  first  legislative  recogni- 
tion of  privilege. f  The  most  important  part 
of  the  wliole  is  a  proviso  subjoined  to  the 
act,  "  That  nothing  therein  contained  .shall 
extend  to  the  diminishing  of  any  punishment 
to  be  hereafter,  by  censure  in  Parliament, 
inflicted  upon  any  person  who  hereafter 
shall  make  or  procure  to  be  made  any  such 
arrest  as  is  aforesaid."  The  right  of  com- 
mitment, in  such  cases  at  least,  by  a  vote  of 
the  House  of  Commons,  is  here  unequivo- 
cally maintained. 

It  is  not  necessary  to  repeat  the  com- 
plaints of  ecclesiastical  abuses  pre-  Cn^pjajn,, 
ferredby  this  House  of  Commons,  of  gnevau- 
as  by  those  that  had  gone  before 
them.  James,  by  siding  openly  with  the 
bishops,  had  given  alarm  to  the  reforming 
party.  It  was  anticipated  that  he  would  go 
further  than  his  predecessor,  whose  uncer- 
tain humor,  as  well  as  the  inclinations  of 
some  of  her  advisers,  had  materially  coun- 
terbalanced the  dislike  she  entertained  of 
the  innovators.  A  code  of  new  canons  had 
recently  been  established  in  convocation 
with  the  king's  assent,  obligatory,  perhaps, 
upon  the  clergy,  but  tending  to  set  up  an 
unwarranted  authority  over  the  whole  na- 
tion ;  imposing  oaths  and  exacting  securi- 
ties in  certain  cases  from  the  laity,  and  aim- 
ing at  the  exclusion  of  non-conformists  from 
all  ci\il  rights. t  Against  these  canons,  as 
well  as  various  other  grievances,  the  Com- 
mons remonstrated  in  a  conference  with  the 
Upper  House,  but  witli  little  immediate  ef- 
fect.§    They  made  a  more  remeirkable  ef- 

*  Commons'  Journals,  page  155,  &c.  Pari.  Hist., 
1028.    Carte,  734.  t  1  Jac.  I.,  c.  13. 

t  By  one  of  these  canons,  all  persons  affirming 
any  of  the  Thii-tj--nine  Articles  to  he  erroneous  are 
excommunicated  ipso  facto ;  consequently  become 
incapable  of  being  witnesses,  of  suing  for  their 
debts,  &c. — Neal,  428.  But  the  courts  of  law  dis- 
regarded these  ipso  facto  excommunications. 

6  Somers  Tracts,  ii.,  14.  Journals,  199,  235,  238. 
Pari.  Hist.,  1078.    It  is  here  said,  that  a  bill  re- 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


177 


fort  in  attacking  some  public  mischiefs  of  a 
temporal  nature,  which,  though  long  the 
theme  of  general  murmurs,  were  closely 
interwoven  with  the  ancient  and  undisput- 
ed prerogatives  of  the  crown.  Complaints 
were  uttered,  and  innovations  projected  by 
the  Commons  of  1604,  which  Elizabeth 
would  have  met  with  an  angry  message, 
and  perhaps  visited  with  punishment  on 
the  proposers.  James,  however,  was  not 
entirely  averse  to  some  of  the  projected  al- 
terations, from  which  he  hoped  to  derive  a 
pecuniary  advantage.  The  two  principal 
grievances  were,  purveyance,  and  the  inci- 
dents of  militaiy  tenure.  The  former  had 
been  resti-ained  by  not  less  than  thirty-six 
statutes,  as  the  Commons  assert  in  a  peti- 
tion to  the  king ;  in  spite  of  which,  the  im- 
pressing of  carts  and  carriages,  and  the  ex- 
action of  victuals  for  the  king's  use,  at 
prices  far  below  the  ti-ue  value,  and  in 
quantity  beyond  what  was  necessaiy,  con- 
tinued to  prevail,  under  authority  of  com- 
missions from  the  board  of  green  cloth,  and 
was  enforced,  in  case  of  demm*  or  resist- 
ance, by  imprisonment  under  their  warrant. 
The  purveyors,  indeed,  are  described  as 
living  at  free  quarters  upon  the  country, 
felling  wpods  without  the  owners'  consent, 
and  commanding  labor  witli  little  or  no  rec- 
ompense.* Purveyance  was  a  very  an- 
cient topic  of  remonstrance ;  but  both  the 
inadequate  revenues  of  the  crown,  and  a 
supposed  dignity  attached  to  this  royal  right 
of  spoil,  had  pi-evented  its  abolition  from  be- 
ing attempted.  But  the  Commons  seemed 
still  more  to  trench  on  the  pride  of  our  feu- 
dal monarchy  when  they  proposed  to  take 
away  guardianship  in  chivalry ;  that  lucra- 
tive tyranny,  bequeathed  by  Norman  con- 
querors, the  custody  of  every  military  ten- 
ant's estate  until  he  should  arrive  at  twen- 
ty-one, without  accounting  for  the  profits. 
This,  among  other  grievances,  was  refeiTed 
to  a  committee,  in  which  Bacon  took  an  ac- 


Btraining  excommunications  passed  into  a  law, 
which  does  not  appear  to  be  trae,  though  James 
himself  had  objected  to  their  frequency.  I  can  not 
trace  such  a  bill  in  the  Joui-nals  beyond  the  com- 
mittee, nor  is  it  in  the  statute-book.  The  fact  is, 
that  the  king  desired  the  House  to  confer  on  the 
subject  with  the  Convocation,  which  they  justly 
deemed  unprecedented,  and  derogatory  to  their 
privileges,  but  offered  to  confer  with  tlie  bishops 
as  lords  of  Parliament. — Journals,  173. 
*  Bacon's  Works,  i.,  624.  Journals,  190,  215. 
M 


tive  share.  Tliey  obtaiiied  a  conference  on 
this  subject  with  the  Lords,  who  refused 
to  agree  to  a  bill  for  taking  guardianship  in 
chivalry  away,  but  offered  to  join  in  a  peti- 
tion for  that  purpose  to  the  king,  since  it 
could  not  be  called  a  wrong,  having  been 
patiently  endured  by  their  ancestors  as  well 
as  themselves,  and  being  warranted  by  the 
law  of  the  laud.  In  the  end,  the  Lords  ad- 
vised to  drop  the  matter  for  the  present,  as 
somewhat  unseasonable  in  the  king's  first 
Parliament.* 

In  the  midst  of  these  testimonies  of  dis- 
satisfaction with  the  civil  and  ecclesiastical 
administration,  the  House  of  Commons  had 
not  felt  much  willingness  to  greet  the  new 
sovereign  with  a  subsidy.  No  demand  had 
been  made  upon  them,  far  less  any  proof 
given  of  the  king's  exigencies ;  and  they 
doubtless  knew  by  experience,  that  an  ob- 
stinate determination  not  to  yield  to  any  of 
their  wishes  would  hardly  be  shaken  by  a 
liberal  grant  of  money.  They  had  even 
passed  the  usual  bill  granting  tonnage  and 
poundage  for  life,  with  certain  reservations 
that  gave  the  court  offense,  and  which, 
apparently,  they  afterward  omitted ;  but 
there  was  so  little  disposition  to  do  any 
thing  further,  that  the  king  sent  a  message 
to  express  his  desire  that  the  Commons 
would  not  enter  upon  the  business  of  a  sub- 
sidy, and  assuring  them  that  he  would  not 
take  unkindly  their  omission.  By  this 
artifice,  which  was  rather  ti-ansparent,  he 
.avoided  the  not  improbable  mortification  of 
seeing  the  proposal  rejected. f 

The  king's  discontent  at  the  proceedings 
of  this  session,  which  he  seems  Commons' 
to  have  rather  strongly  expressed  of"th'em-"'" 
in  some  speech  to  the  Commons  selves, 
that  has  not  been  recorded, t  gave  rise  to  a 
veiy  remarkable  vindication,  prepared  by  a 
committee  at  the  House's  command,  and  en- 
titled "  A  Form  of  Apology  and  Satisfaction 
to  be  delivered  to  his  Majesty,"  though 
such  may  not  be  deemed  the  most  appro- 
priate title.  It  contains  a  fuU  and  perti- 
nent justification  of  all  those  proceedings  at 
which  James  had  taken  umbrage,  and  as- 
serts, with  respectful  boldness  and  in  ex- 
plicit language,  the  constitutional  rights  and 
liberties  of  Parliament.  If  the  English  mon- 
archy had  been  reckoned  as  absolute  under 

*  Commons'  Journals,  150,  &c. 

t  Journals,  246.  t  Ibid.,  230. 


178 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


the  Plantagenets  and  Tudors  as  Hume  has 
endeavored  to  make  it  appear,  the  Com- 
inons  of  1C04  must  have  made  a  surprising 
advance  in  their  notions  of  freedom  since 
the  king's  accession.  Adverting  to  what 
they  call  the  misinformation  openly  deliver- 
ed to  his  majesty  in  three  things,  namely, 
that  their  privileges  were  not  of  right,  but 
of  grace  only,  renewed  every  Parliament 
on  petition  ;  that  they  are  no  court  of  rec- 
ord, nor  yet  a  court  that  can  command  view 
of  records ;  that  the  examination  of  the  re- 
turns of  writs  for  knights  and  burgesses  is 
without  their  compass,  and  belonging  to  the 
Chancery  :  assertions,  they  say,  "  tending 
directly  and.  apparently  to  the  utter  over- 
throw of  the  very  fundamental  privileges  of 
our  House,  and  therein  of  the  rights  and 
liberties  of  the  whole  commons  of  your 
realm  of  England,  which  they  and  their 
ancestors,  from  time  immemorial,  have  un- 
doubtedly enjoyed  under  your  majesty's 
most  noble  progenitors  ;"  and  against  which 
they  expressly  protest,  as  derogatoiy  in 
the  highest  degree  to  the  tnie  dignity  and 
authority  of  Parliament,  desiring  "  that 
such  their  protestations  might  be  recorded 
to  all  })osterity ;"  they  maintain,  on  the  con- 
trary, "  1.  That  their  privileges  and  liber- 
ties are  their  right  and  inheritance,  no  less 
than  then-  veiy  lands  and  goods.  2.  That 
they  can  not  be  withheld  from  them,  denied 
or  impaired,  but  with  apparent  wrong  to  the 
whole  state  of  the  realm.  3.  That  their 
making  request,  at  the  beginning  of  a  Par- 
liament, to  enjoy  their  privilege,  is  only  an 
act  of  manners,  and  does  not  weaken  their 
right.  4.  That  their  House  is  a  court  of 
record,  and  has  been  ever  so  esteemed.  5. 
That  there  is  not  the  highest  standing  court 
in  this  land  that  ought  to  enter  into  compe- 
tition, either  for  dignity  or  authorit}',  with 
this  high  coiu-t  of  Parliament,  which,  with 
his  majesty's  royal  assent,  gives  law  to  oth- 
er comts,  but  from  other  courts  receives 
neither  laws  nor  orders.  6.  That  the 
House  of  Commons  is  the  sole  proper  judge 
of  return  of  all  such  writs,  and  the  election 
of  all  such  members  as  belong  to  it,  without 
which  the  freedom  of  election  were  not  en- 
tire." They  aver  that  in  this  session  the 
privileges  of  the  House  have  been  more 
universally  and  dangerously  impugned  than 
ever,  as  they  suppose,  since  the  beginnings 
of  Parliaments.    That  "  in  regard  to  the 


late  queen's  sex  and  age,  and  much  more 
upon  care  to  avoid  all  trouble,  which  by 
wicked  practice  might  have  been  drawn  to 
impeach  the  quiet  of  his  majesty's  right  ia 
the  succession,  those  actions  were  then 
passed  over  which  they  hoped  in  succeed- 
ing times  to  redress  and  rectify  ;  whereas, 
on  the  conti'ary,  in  this  Parliament,  not 
privileges,  but  the  whole  freedom  of  the 
Parliament  and  realm,  had  been  hewed 
from  them."  "  What  cause,"  they  pro- 
ceed, "we,  your  poor  Commons,  have  to 
watch  over  our  privileges,  is  manifest  in  it- 
self to  all  men.  The  prerogatives  of  prin- 
ces may  easily  and  do  daily  grow.  The 
privileges  of  the  subject  are  for  the  most 
part  at  an  everlasting  stand.  They  may  be 
by  good  providence  and  care  presen  ed  ;  but 
being  once  lost,  are  not  recovered  but  with 
much  disquiet."  They  then  enter  in  detail 
on  the  vaiious  matters  that  had  arisen  dur- 
ing the  session — the  business  of  Goodwin's 
election,  of  Shirley's  arrest,  and  some  small- 
er matters  of  privilege  to  which  my  limits 
have  not  permitted  me  to  allude.  "  We 
thought  not,"  speaking  of  the  first,  "  that 
the  judges'  opinion,  which  yet,  in  due  place, 
we  greatly  reverence,  being  delivered  what 
the  common  law  was,  which  extends  only 
to  inferior  and  standing  courts,  ought  to 
bring  any  prejudice  to  this  high  court  of 
Parliament,  whose  power,  being  above  the 
law,  is  not  founded  on  the  common  law,  but 
have  their  rights  and  privileges  peculiar  to 
themselves."  They  vindicate  their  endeav- 
ors to  obtain  redress  of  religious  and  public 
grievances  :  "  Your  majesty  would  be  mis- 
informed," they  tell  him,  "  if  any  man 
should  deliver  that  the  kings  of  England 
have  any  absolute  power  in  themselves, 
either  to  alter  religion,  which  God  defend 
should  be  in  the  power  of  any  mortal  man 
whatsoever,  or  to  make  any  laws  concern- 
ing the  same,  otherwise  than  as  in  temporal 
causes,  by  consent  of  Parliament.  We 
have  and  shall  at  all  times  by  our  oaths  ac- 
knowledge, that  your  majesty  is  sovereign 
lord  and  supreme  governor  in  both."*  Such 

*  Pari.  Hist.,  1030,  from  Petyt's  Jus  Parliamen- 
tarium,  the  earliest  book,  as  far  as  I  know,  where 
this  important  document  is  presei^vcd.  The  entry 
on  the  Journals,  p.  243,  contains  only  the  first  par- 
agraph. Hume  and  Carte  have  been  ignorant  of 
it.    It  is  just  alluded  to  by  Rapin. 

It  was  remarked  that  the  attendance  of  members 
in  this  session  was  more  frequent  than  had  over 


James  I.] 


FROM  HEXRY  VII.  TO  GEORGE  H. 


179 


was  the  state  of  the  English  Commons  in 
1604,  at  the  commencement  of  that  gi'cat 
conflict  for  their  liberties  which  is  measured 
•by  the  line  of  the  house  of  Stuart ;  but  it  is 
not  certain  that  this  apology  was  ever  de- 
livered to  the  king,  though  he  seems  to  al- 
lude to  it  in  a  letter  written  to  one  of  his 
ministers  about  the  same  time.* 

The  next  session,  which  is  remarkable 
on  account  of  the  conspiracy  of 

Session  1605.  ,  ,  , 

some  desperate  men  to  blow  up 
both  Houses  of  Parliament  with  gunpowder 
on  the  day  of  their  meeting,  did  not  produce 
much  worthy  of  our  notice.  A  bill  to  regu- 
late, or  probably  to  suppress,  purveyance 
was  thrown  out  by  the  Lords.  The  Com- 
mons sent  up  another  bill  to  the  same  effect. 


been  knowu,  so  that  fresh  seats  were  required. — 
Journals,  141. 

*  "  My  faithful  3.  such  is  now  my  misfortune,  as 
I  must  be  for  this  time  secfetarj-  to  the  devil  in  an- 
swering your  letters  directed  unto  him.  That  the 
entering  now  iutf)  the  matter  of  the  subsidy  should 
be  deferred  until  the  council's  next  meeting  with 
me,  I  think  no  ways  convenient,  especially  for  three 
reasons.  First,  ye  see  it  has  bin  already  longest 
delayd  of  any  thing,  and  yet  yee  see  the  Lower 
House  are  ever  the  longer  the  further  from  it ;  and 
(as  in  every  thing  that  concerns  mee)  delay  of  time 
does  never  turn  them  towards  mee,  but,  by  the 
contrarj-,  every  hour  breedeth  a  new  trick  of  con- 
tradiction amongst  them,  and  every  day  produces 
new  matter  of  sedition,  so  fertile  are  their  brains 
in  ever  buttering  forth  venome.  Next,  the  Parlt. 
is  now  so  very  near  an  end,  as  this  matter  can  suf- 
fer no  longer  delay.  And  thirdly,  if  this  be  not 
granted  unto  before  they  receive  my  answer  unto 
their  petition,  it  needs  never  to  be  moved,  for  the 
will  of  man  or  angel  can  not  de%-ise  a  pleasing  an- 
swer to  their  proposition,  except  I  should  pull  the 
.crown  not  only  from  my  own  head,  but  also  fmm 
the  head  of  all  those  that  shall  succeed  unto  mee, 
and  lay  it  down  at  their  feet.  And  that  freedom 
of  uttering  my  thoughts,  which  no  extremitj',  strait, 
nor  peril  of  my  hfe  could  ever  bereave  mee  of  in 
time  past,  shall  now  remain  with  mee,  as  long  as 
the  soul  shall  with  the  body.  And  as  for  the  Res- 
ervations of  the  Bill  of  Tonnage  and  Poundage,  yee 
of  the  Upper  House  must  out  of  your  Love  and 
Discretion  help  it  again,  or  otherwise  they  will  in 
this,  as  in  all  things  else  that  concern  mee,  wrack 
both  mee  and  all  my  Posterity.  Yee  may  impart 
tliis  to  httle  10  and  bigg  Suffolk.  And  so  Fare- 
well from  my  Wildemesse,  w<:''  I  had  rather  live  in 
(as  God  shall  judge  mee)  Uke  an  Hermite  in  this 
Forrest,  then  be  a  King  over  such  a  People  as  the 
pack  of  Puritans  are  that  over-rules  the  Lower 
House  J.  R." 

MS.  penes  autorem. 

I  can  not  tell  who  is  addressed  in  this  letter  by 
the  numeral  3;  perhaps  the  Earl  of  Dunbar.  By 
10  we  must  doubtless  understand  Salisburv. 


which  the  Upper  House  rejected  without 
discussion,  by  a  rule  then  perhaps  first  es- 
tablished, that  the  same  bill  could  not  be 
proposed  twice  in  one  session.*  They  vot- 
ed a  liberal  subsidy,  which  the  king,  who 
had  reigned  three  years  without  one.  had 
just  cause  to  require ;  for  though  he  had 
concluded  a  peace  with  Spain  soon  after  his 
accession,  yet  the  late  queen  had  left  a  debt 
of  d£400,000,  and  other  charges  had  fallen 
I  on  the  crown.  But  the  bill  for  this  subsidy 
j  lay  a  good  while  in  the  House  of  Commons, 
who  came  to  a  vote  that  it  should  not  pass 
till  their  Ust  of  grievances  was  ready  to  be 
I  presented.  No  notice  was  taken  of  these 
till  the  next  session  beginning  in  November, 
1606,  when  the  king  returned  an  answer  to 
each  of  the  sixteen  articles  in  which  mat- 
ters of  giievauce  were  alleged.  Of  tliese, 
the  gi'eater  part  refer  to  certain  grants 
made  to  particular  persons  in  the  nature  of 
monopolies  ;  the  king  either  defending  these 
in  his  answer,  or  remitting  the  parties  to  the 
courts  of  law  to  tiT  their  legality.  . 

*'  .  \      \     Union  with 

The  principal  business  of  this  Scotland  de- 
third  session,  as  it  had  been  of 
the  last,  was  James's  favorite  scheme  of  a 
perfect  union  between  England  and  Scot- 
land. It  may  be  collected,  though  this  was 
never  explicitly  brought  forward,  that  his 
views  extended  to  a  legislative  incorpora- 
tion.f    But  in  all  the  speeches  on  this  sub- 


*  Pai'l.  Hist.  Journals,  274,  278.  Ac.  In  a  con- 
ference with  the  Lords  on  this  bill,  Mr.  Hare,  a 
member,  spoke  so  warmly  as  to  give  their  lord- 
ships offense  and  to  incur  some  reprehension. 
"  You  would  have  thought,"  says  Sir  Thomas  Hoby, 
"  that  Hare  and  Hyde  represented  two  tribunes 
of  the  people."— Sloane  MSS.,  4161.  But  the  Com- 
mons resented  this  infringement  on  their  pi-ivileges, 
and  after  voting  that  Mr.  Hare  did  not  err  in  his 
emplojTiient  in  the  committee  with  the  Lords,  sent 
a  message  to  inform  the  other  House  of  their  vote, 
and  to  request  that  they  would  "forbear  hereafter 
any  taxations  and  reprehensions  in  their  conferen- 
ces."— Journals,  20th  and  22d  Feb. 

t  Journals,  316. 

An  acute  historic.il  critic  doubts  whether  James 
aimed  at  a  union  of  Legislatures,  though  suggest- 
ed by  Bacon. — Laing's  Hist,  of  Scotland,  iii.,  17. 
It  is  certain  that  his  own  speeches  on  the  subject 
do  not  mention  this,  nor  do  I  know  that  it  was  ev- 
er distinctly  brought  forward  by  the  government ; 
yet  it  is  hard  to  see  how  the  incorporation  could 
have  been  complete  without  it.  Bacon  not  only 
contemplates  the  formation  of  a  single  Parliament, 
but  the  alterations  necessarj'  to  give  it  effect,  vol. 
i.,  p.  633  :  suggesting  that  the  previous  commis- 
sion of  lords  of  articles  might  be  adopted  for  some, 


ISO 


CONSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


ject,  and  especially  his  own,  there  is  a  want 
of  distinctness  as  to  the  object  proposed. 
He  dwells  continually  upon  the  advantage 
of  unity  of  laws,  yet  extols  those  of  Eng- 
land as  the  best,  which  the  Scots,  as  was  ev- 
ident, had  no  inclination  to  adopt.  Where- 
fore, then,  was  delay  to  be  imputed  to  our 
English  Parliament,  if  it  waited  for  that  of 
the  sister  kingdom?  And  what  steps  were 
recommended  toward  this  measure,  that 
the  Commons  can  be  said  to  have  declined, 
except  only  the  naturalization  of  the  ante- 
nati,  or  Scots  born  before  the  king's  acces- 
sion to  our  thi'one,  which  could  only  have 
a  temporary  effect?*    Yet  Hume,  ever 


thouffh  not  for  all  purposes.  This,  of  itself,  vfas  a 
sufficient  justificatiou  for  the  dilatoriness  of  the 
English  Parliament:  nor  were  the  common  law- 
yers who  sat  in  the  House  much  better  pleased 
with  Bacon's  schemes  for  remodeling  all  our  laws. 
See  his  speech,  vol.  i.,  p.  654,  for  naturalizing  the 
aute-uati.  In  this,  he  asserts  the  kingdom  not  to 
be  fully  peopled ;  "  the  temtories  of  France,  It- 
aly, Flanders,  and  some  parts  of  Gennany,  do  in 
eqaal  space  of  ground  bear  and  contain  a  far  great- 
er quantity  of  people,  if  they  were  mustered  by 
the  poll ;"  and  even  goes  on  to  assert  the  popula- 
tion to  have  been  more  considerable  under  the 
heptarchy. 

*  It  was  held  by  twelve  judges  out  of  fourteen, 
in  Calvin's  case,  that  the  post-nati,  or  Scots  bom 
after  the  king's  accession,  were  natural  subjects  of 
the  King  of  England.  This  is  laid  down,  and  irre- 
sistibly demonsti'ated,  by  Coke,  then  chief-justice, 
with  his  abundant  legal  learning. — State  Trials, 
vol.  ii.,  559. 

It  may  be  observed,  that  the  high-flying  creed 
of  prei'ogative  mingled  itself  intimately  with  this 
question  of  naturalization,  which  was  much  argued 
on  the  monarchical  principle  of  personal  allegiance 
to  the  sovereign,  as  opposed  to  the  half-Republican 
theory  that  lurked  in  the  contrary  proposition. 
"Allegiance,"  says  Lord  Bacon,  "is  of  a  greater 
extent  and  dimension  than  laws  or  kingdoms,  and 
can  not  consist  by  the  laws  merely,  because  it  be- 
gan before  laws  ;  it  continueth  after  laws,  and  it  is 
in  %'igor  when  laws  are  suspended  and  have  not 
had  their  force." — Id.,  596.  SoLordCoke:  "What- 
soever is  due  by  the  law  or  constitution  of  man 
may  be  altered ;  but  natural  legiance  or  obedience 
of  the  subject  to  the  sovereign  can  not  be  altered; 
ergo,  natural  legiance  or  obedience  to  the  sover- 
eign is  not  due  by  the  law  or  constitution  of  man." 
—652. 

There  are  many  doubtful  positions  scattered 
through  the  judgment  in  this  famous  case.  Its 
surest  basis  is  the  long  series  of  precedents,  evinc- 
ing that  the  natives  of  Jersey,  Guernsey,  Calais, 
and  even  Normandy  and  Guienne,  while  these 
counti-ies  appertained  to  the  kings  of  England, 
though  not  in  right  of  its  crown,  were  never  reput- 
ed aliens. 


prone  to  eulogize  this  monarch  at  the  ex- 
pense of  his  people,  while  he  bestows  mer- 
ited praise  on  his  speech  in  favor  of  the 
union,  which  is,  upon  the  whole,  a  well- 
written  and  judicious  performance,  charges 
the  Parliament  with  prejudice,  reluctance, 
and  obstinacy.  The  code,  as  it  may  be 
called,  of  international  hostility,  those  nu- 
merous statutes  treating  the  northern  in- 
habitants of  this  island  as  foreigners  and  en- 
emies, were  entirely  abrogated.  And  if  the 
Commons,  while  both  the  theory  of  our  own 
Constitution  was  so  unsettled  and  its  prac- 
tice so  full  of  abuse,  did  not  precipitately 
give  in  to  schemes  that  might  create  stUl 
further  difficulty  in  all  questions  between 
the  crown  and  themselves,  schemes,  too, 
which  there  was  no  imperious  motive  for 
canying  into  effect  at  that  juncture,  we  may 
justly  consider  it  as  an  additional  proof  of 
their  wisdom  and  public  spirit.  Their  slow 
progress,  however,  in  this  favorite  measure, 
which,  though  they  could  not  refuse  to 
entertain  it,  they  endeavored  to  defeat  by 
interposing  delays  and  impediments,  gave 
much  offense  to  the  king,  which  he  ex- 
pressed in  a  speech  to  the  two  Houses, 
with  the  haughtiness,  but  not  the  dignity 
of  Elizabeth.  He  threatened  them  to  live 
alternately  in  the  two  kingdoms,  or  to  keep 
his  court  at  York ;  and  alluded,  with  pecu- 
liar acrimony,  to  certain  speeches  made  in 
the  House,  wherein  probably  his  own  fame 
had  not  been  spared.*  "  I  looked,"  he 
says,  "  for  no  such  fruits  at  your  hands, 
such  personal  discourses  and  speeches, 
which  of  all  other  I  looked  you  should  avoid, 
as  not  beseeming  the  gi'avity  of  your  as- 
sembly. I  am  your  king ;  I  am  placed  to 
govern  you,  and  shall  answer  for  your  er- 
rors ;  I  am  a  man  of  flesh  and  blood,  and 
have  my  passions  and  affections  as  other 
men ;  I  pray  j-ou  do  not  too  far  move  me 
to  do  that  which  my  power  may  tempt  me 
unto."f 

*  The  House  had  lately  expelled  Sir  Christo- 
pher Pigott  for  reflecting  on  the  Scots  nation  in  a 
speech. — Journals,  13th  Feb.,  1607. 

t  Commons'  Journals,  366. 

The  Journals  are  fuU  of  notes  of  these  long  dis- 
cussions about  the  union  in  160-1,  1606,  1607,  and 
even  1610.  It  is  easy  to  perceive  a  jealousy  that 
the  prerogative  by  some  means  or  other  woald  be 
the  gainer.  The  very  change  of  name  to  Great 
Britain  was  objected  to.  One  said,  we  can  not 
legislate  for  Great  Britain,  p.  186.  Another,  with 
more  astonishing  sagacity,  feared  that  the  king 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


ISl 


It  is  most  probable,  as  experience  had 
.     ,     shown,  tliat  such  a  demonstration 

Continual  '  t-i  •     ,  i 

bickerings  of  displeasure  from  Elizabeth 
crownTud''*  would  have  ensured  the  repent- 
Commons,  submission  of  the  Commons  ; 
but  within  a  few  yeai-s  of  the  most  unbrok^ 
en  ti-anquillity,  there  had  been  one  of  those 
changes  of  popular  feeling  which  a  govern- 
ment is  seldom  observant  enough  to  watch. 
Two  springs  had  kept  in  play  the  machine 
of  her  administration,  affection  and  fear; 
attachment  arising  from  the  sense  of  dan- 
gers endured,  and  gloiy  achieved  for  her 
people,  tempered,  though  not  subdued,  by 
the  di-ead  of  her  stern  courage  and  vindic- 
tive rigor.  For  James  not  a  particle  of 
loyal  affection  lived  in  the  hearts  of  the 
nation,  while  his  easy  and  pusillanimous, 
though  choleric  disposition,  had  gradually 
diminished  those  sentiments  of  apprehen- 
sion which  royal  frowns  used  to  excite. 
The  Commons,  after  some  angry  speeches, 
resolved  to  make  known  to  the  king,  through 
the  speaker,  their  desire  that  he  would  list- 
en to  no  private  reports,  but  take  his  infor- 
mation of  the  House's  meaning  from  them- 
selves ;  that  he  would  give  leave  to  such 
persons  as  he  had  blamed  for  their  speech- 
es to  clear  themselves  in  his  hearing ;  and 
that  he  would,  by  some  gi-acious  message, 
make  known  his  intention  that  they  should 
deliver  their  opinions  with  full  libeity  and 
without  fear.  The  speaker  next  day  com- 
mimicated  a  slight  but  civil  answer  he  had 
received  from  the  king,  importing  his  wish 
to  preserve  their  privileges,  especially  that 
of  liberty  of  speech.*  This,  however,  did 
not  prevent  his  sending  a  message  a  few 
days  afterward,  commenting  on  their  de- 
bates, and  on  some  clauses  they  had  inti-o- 
duced  into  the  biU  for  the  abolition  of  all 
hostile  laws.f  And  a  petition  having  been 
prepared  by  a  committee  under  the  House's 
direction  for  better  execution  of  the  laws 
against  recusants,  the  speaker,  on  its  being 
moved  that  the  petition  be  read,  said  that 

might  succeed,  by  what  the  lawj'ers  call  remitler, 
to  the  prerogatives  of  the  British  kings  before  Ju- 
lius Cresar,  which  would  supersede  Magna  Charta, 
p.  185. 

James  took  the  title  of  King  of  Great  Britain  in 
the  second  year  of  his  reign.  Lord  Bacon  drew  a 
well-written  proclamation  on  that  occasion — Ba- 
con, i.,  621.  Rymer,  xvi.,  603 — but  it  was,  not 
long  afterward,  abandoned. 

*  Commons'  Journals,  p.  370.  t  P.  377. 


his  majesty  had  taken  notice  of  the  petition 
as  a  thing  belonging  to  himself,  concerning 
which  it  was  needless  to  press  him.  This 
interference  provoked  some  members  to  re- 
sent it,  as  an  infringement  of  their  liberties. 
The  speaker  replied  that  there  were  many 
precedents  in  the  late  queen's  time,  where 
she  had  resti'ained  the  House  from  meddling 
in  politics  of  divers  kinds.  This,  as  a  mat- 
ter of  feet,  was  too  notorious  to  be  denied. 
A  motion  was  made  for  a  committee  "  to 
search  for  precedents  of  ancient  as  well  as 
later  times  that  do  concern  any  messages 
from  the  sovereign  magisti-ate,  king  or  queen 
of  this  realm,  touching  petitions  offered  to 
the  House  of  Commons."  The  king  now 
interposed  by  a  second  message,  that,  though 
the  petition  were  such  as  the  like  had  not 
been  read  in  the  House,  and  contained  mat- 
ter whereof  the  House  could  not  properly 
take  knowledge,  yet  if  they  thought  good  to 
have  it  read,  he  was  not  against  the  read- 
ing. And  the  Commons  were  so  well  sat- 
isfied with  this  concession,  that  no  further 
proceedings  were  had  ;  and  the  petition, 
says  the  Journal,  was  at  length,  with  gen- 
eral liking,  agi'eed  to  sleep.  It  contained 
some  sti'ong  remonstrances  against  ecclesi- 
astical abuses,  and  in  favor  of  the  deprived 
and  silenced  Puritans,  but  such  as  the  House 
had  often  before,  in  various  modes,  brought 
forward.* 

The  ministiy  betrayed,  in  a  still  more 
pointed  manner,  their  jealousy  of  any  inter- 
ference on  the  part  of  the  Commons  with 
the  conduct  of  public  affairs  in  a  business 
of  a  different  nature.  The  pacification 
concluded  with  Spain  in  1604,  very  much 
against  the  general  wish,f  had  neither  re- 
moved all  gi-ounds  of  dispute  between  the 
governments,  nor  allayed  the  dislike  of  the 
nations.  Spain  advanced  in  that  age  the 
most  preposterous  claims  to  an  exclusive 
navigation  beyond  the  ti-opic,  and  to  the 

*  Commons'  Journals,  p.  384. 

t  James  entertained  the  strange  notion  that  the 
war  with  Spain  ceased  by  his  accession  to  the 
tlirone.  By  a  proclamation  dated  23d  of  June,  1603, 
he  pennits  his  subjects  to  keep  such  ships  as  had 
been  captured  by  them  before  the  24th  of  April, 
but  orders  all  taken  since  to  be  restored  to  the 
owners. — Rymer,  xvi.,  516.  He  had  been  used  to 
call  the  Dutch  rebels,  and  was  probably  kept  with 
difficulty  by  Cecil  from  displaying  his  partiality 
BtUl  more  outrageously. — Carte,  iii.,  714.  All  the 
oouncil,  except  this  minister,  are  said  to  have  been 
favorable  to  peace. — Id.,  938. 


182 


COXSTITTJTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


sole  possession  of  the  American  continent ; 
while  the  English  merchants,  mindful  of  the 
lucrative  adventures  of  the  queen's  reign, 
could  not  be  resti'ained  from  ti-espassing  on 
the  rich  harvest  of  the  Indies  by  conti-aband 
and  sometimes  piratical  voyages.  These 
conflicting  interests  led,  of  course,  to  mutu- 
al complaints  of  maritime  tyranny  and  fraud ; 
neither  likely  to  be  ill  founded,  where  the 
one  party  was  as  much  distinguished  for 
the  despotic  exercise  of  vast  power,  as  the 
other  by  boldness  and  cupidity.    It  was  the 
prevailing  bias  of  the  king's  temper  to  keep 
on  friendly  terms  with  Spain,  or,  rather,  to 
court  her  with  undisguised  and  impolitic 
partiality.*    But  this  so  much  thwarted 
the  prejudices  of  his  subjects,  that  no  part, 
perhaps,  of  his  administration  had  such  a 
disadvantageous  effect  on  his  popularity. 
The  merchants  presented  to  the  Commons, 
iu  this  session  of  1607,  a  petition  upon  the 
giievances  they  sustained  from  Spain,  en- 
tering into  such  a  detail  of  alleged  cruelties 
as  was  hkely  to  exasperate  that  assembly. 
Nothing,  however,  was  done  for  a  consider- 
able time,  when,  after  receiving  the  report 
of  a  committee  on  the  subject,  the  House 
prayed  a  conference  with  the  Lords.  They, 
who  acted  in  this  and  the  preceding  session 
as  the  mere  agents  of  govemment,  intima- 
ted in  their  reply  that  they  thought  it  an 
unusual  matter  for  the  Commons  to  enter 
upon,  and  took  time  to  consider  about  a  con- 
ference.   After  some  delay  this  was  grant- 
ed, and  Sir  Francis  Bacon  reported  its  re- 
sult to  the  Lower  House.    The  Earl  of 
Salisbury  managed  the  conference  on  the 
part  of  the  Lords.    The  tenor  of  his  speech, 
as  reported  by  Bacon,  is  very  remarkable. 
After  discussing  the  merits  of  the  petition, 
and  considerably  extenuating  the  WTongs 
imputed  to  Spain,  he  adverted  to  the  cir- 
cumstance of  its  being  presented  to  the 
Conamons.    The  crown  of  England  was  in- 
vested, he  said,  with  an  absolute  power  of 
peace  and  war ;  and  inferred,  from  a  series 
of  precedents  which  he  vouched,  that  pe- 
titions made  in  Parliament,  intermeddling 

*  Winwood,  vol.  ii.,  100,  152,  <tc.  Birch's  Ne- 
gotiations of  Edmondes.  If  we  may  believe  Sir 
Charles  Comwallis,  our  ambassador  at  Madrid, 
"  England  never  lost  such  an  opportunity  of  vrin- 
ning  honor  and  wealth  as  by  relinquishing  the 
war."  The  Spaniards  were  astonished  how  peace 
could  have  been  obtained  on  such  advantageous 
conditions. — Winwood,  p.  73. 


with  such  matters,  had  gained  little  suc- 
cess; that  gi'eat  inconveniences  must  follow 
from  the  public  debate  of  a  king's  designs, 
which,  if  they  take  wind,  must  be  frustra- 
ted; and  that,  if  Parliaments  have  ever  been 
made  acquainted  with  matter  of  jjeace  or 
war  in  a  general  way,  it  was  either  when 
the  king  and  council  conceived  that  it  was 
material  to  have  some  declaration  of  the  zeal 
and  affection  of  the  people,  or  else  when 
they  needed  money  for  the  charge  of  a  war, 
in  which  case  they  should  be  sure  enough 
to  hear  of  it ;  that  the  Lords  would  make 
a  good  construction  of  the  Commons'  desire, 
that  it  sprang  from  a  forwardness  to  assist 
his  majesty's  future  resolutions,  rather  than 
a  determination  to  do  that  WTong  to  his  su- 
preme power  which  haply  might  appear  to 
those  who  were  prone  to  draw  evil  inferen- 
ces from  their  proceedings.    The  Earl  of 
Northampton,  who  also  bore  a  part  in  this 
conference,  gave  as  one  reason,  among  oth- 
ers, why  the  Lords  could  not  concur  in  for- 
warding the  petition  to  the  crown,  that  the 
composition  of  the  House  of  Commons  was 
in  its  first  foundation  intended  merely  to  be 
of  thftse  that  have  their  residence  and  voca- 
tion in  the  places  for  which  they  serve,  and 
therefore  to  have  a  private  and  local  wisdom 
according  to  that  compass,  and  so  not  fit  to 
examine  or  determine  secrets  of  state  which 
depend  upon  such  variety  of  circumstances ; 
and  although  he  acknowledged  that  there 
were  divers  gentlemen  in  the  House  of 
good  capacity  and  insight  into  matters  of 
state,  yet  that  was  the  accident  of  the  per- 
son, and  not  the  intention  of  the  place  ;  and 
things  were  to  be  taken  in  the  institution, 
and  not  in  the  practice.    The  Commons 
seem  to  have  acquiesced  in  this  rather  con- 
temptuous ti'eatment.    Several  precedents, 
indeed,  might  have  been  opposed  to  those 
of  the  Earl  of  Salisbury,  wherein  the  Com- 
mons, especially  under  Richard  II.  and 
Henrj'  VI.,  had  assumed  a  right  of  advising 
on  matters  of  peace  and  war.    But  the 
I  more  recent  usage  of  the  Constitution  did 
j  not  warrant  such  an  interference.    It  was, 
I  however,  rather  a  bold  assertion,  that  they 
I  were  not  the  proper  channel  through  which 
public  grievances,  or  those  of  so  large  a  por- 
j  tion  of  the  community  as  the  merchants, 
I  ought  to  be  represented  to  the  throne.* 

!  *  Bacon,  i.,  663.  Journals,  p.  341.  Carte  says, 
j  on  the  authority  of  the  French  ambassador's  dis- 


James  I.] 


FROM  HENRY  YU.  TO  GEORGE  II. 


1S3 


During  tho  intenal  of  two  years  and  a 
,      •.       half  that   elapsed   before  the 

Impositions  * 

on  nierchan-  commencement  of  the  next  ses- 

dise  without     .  j     •  •       i    j  i  ■ 

consent  of  sion,  a  decision  had  occui-red  m 
Parliament,  {jjg  (Jq^^j.^.      Exchequer  which 

threatened  the  entire  overthrow  of  our 
Constitution.  It  had  always  been  deemed 
the  indispensable  characteristic  of  a  limited 
monarchy,  however  irregular  and  inconsist- 
ent might  be  the  exercise  of  some  preroga- 
tives, that  no  money  could  be  raised  from  the 
subject  without  the  consent  of  the  estates. 
This  essentia]  principle  was  settled  in  Eng- 
land, after  much  contention,  by  the  statute 
entitled  Confirmatio  Chartarum,  in  the  25th 
year  of  Edward  I.  More  comprehensive 
and  specific  in  its  expression  than  the  Great 
Charter  of  John,  it  abolishes  all  "aids,  tasks, 
and  prises,  unless  by  the  common  assent  of 
the  realm,  and  for  the  common  profit  there- 
of, saving  the  ancient  aids  and  prises  due 
and  accustomed ;"  the  king  explicitly  i-e- 
nouncing  the  custom  he  had  lately  set  on 
wool.  Thus  the  letter  of  the  statute  and 
the  history  of  the  times  conspire  to  prove, 
that  impositions  on  merchandise  at  the  ports, 
to  which  alone  the  word  prises  was  applica- 
ble, could  no  more  be  levied  by  the  royal 
prerogative  after  its  enactment,  than  inter- 
nal taxes  upon  landed  or  movable  property, 
known  in  that  age  by  the  appellations  of 
aids  and  tallages ;  but  as  the  former  could 
be  assessed  with  great  ease,  and  with  no 
risk  of  immediate  resistance,  and  especially 
as  certain  ancient  customs  were  preserved 
by  the  statute,*  so  that  a  tiain  of  fiscal  offi- 

patches,  that  the  ministry  secretly  put  forward 
this  petition  of  the  Commons  in  order  to  frighten 
the  Spanish  court  into  making  compensation  to  the 
merchants,  wherein  they  succeeded,  iii.,  76C.  This 
is  rendered  very  improbable  by  Salisburj'  s  behav- 
ior. It  was  Carte's  mistake  to  rely  too  much  on 
the  dispatches  he  was  permitted  to  read  in  the 
Depot  des  AfiFaires  Etrangeres;  as  if  an  ambassa- 
dor were  not  liable  to  be  deceived  by  rumors  in  a 
country  of  which  he  has,  in  general,  too  little 
knowledge  to  correct  them. 

*  There  was  a  duty  on  wool,  wool-fells,  and  leath- 
er, called  magna,  or  sometimes  antiqua  custuma, 
which  is  said  in  Dyer  to  have  been  by  prescrip- 
tion, and  by  the  barons  in  Bates's  case  to  have 
been  imposed  by  the  king's  prerogative.  As  this 
existed  before  the  25th  Edward  I.,  it  is  not  very 
material  whether  it  were  so  imposed,  or  granted 
by  Parliament.  During  the  discussion,  however, 
■which  took  place  in  1610,  a  record  was  discovered 
of  3  Edw.  I.,  proving  it  to  have  been  granted  par 
tons  les  graantz  del  realme,  par  la  priure  des  co- 


cers,  and  a  scheme  of  regulations  and  re- 
sti'aints  upon  the  export  and  import  of  goods 
became  necessaiy,  it  was  long  before  the 
sovereigns  of  this  kingdom  could  be  induced 
constantly  to  respect  this  part  of  the  law. 
Hence  several  remonstrances  from  the 
Commons  under  Edward  III.  against  the 
maletolts,  or  unjust  exactions  upon  wool,  bj- 
which,  if  they  did  not  oljtain  more  than  a 
promise  of  effectual  redress,  they  kept  up 
their  claim,  and  perpetuated  the  recogni- 
tion of  its  justice,  for  the  sake  of  posterity. 
They  became  powerful  enough  to  enforce 
it  under  Richard  II.,  in  whose  time  there 
is  little  clear  evidence  of  illegal  impositions; 
and  from  the  accession  of  the  house  of  Lan- 
caster, it  is  undeniable  that  they  ceased  al- 
together. The  gi'ant  of  tonnage  and  pound- 
age for  the  king's  life,  which  from  the  time 
of  Hemy  V.  was  made  in  the  first  Parlia- 
ment of  eveiy  reign,  might,  perhaps,  be  con- 
sidered as  a  tacit  compensation  to  the  crown 
for  its  abandonment  of  these  irregular  ex- 
tortions. 

Henry  VII.,  the  most  rapacious,  and 
Henry  VIII.,  the  most  despotic,  of  English 
monarchs,  did  not  presume  to  violate  this 
acknowledged  right.  The  first  who  had 
again  recourse  to  this  means  of  enhancing 
the  revenue  was  Maiy,  who,  in  the  year 
1557,  set  a  duty  upon  cloths  exported  be- 
yond seas,  and  afterward  another  on  the 
importation  of  French  wines.  The  former 
of  those  was  probablj-  defended  by  arguing 
that  there  was  already  a  duty  on  wool ;  and 
if  cloth,  which  was  wool  manufactured, 
could  pass  free,  there  would  be  a  fraud  on 
the  revenue.  The  merchants,  however, 
did  not  acquiesce  in  this  arbitrary  imposi- 
tion ;  and  as  soon  as  Elizabeth's  accession 
gave  hopes  of  a  restoration  of  English  gov- 
ernment, they  petitioned  to  be  released 
from  this  burden.  The  question  appears, 
by  a  memorandum  in  Dyer's  Eeports,  to 
have  been  extra-judicially  referred  to  the 
judges,  unless  it  were  rather  as  assistants 
to  the  privy-council  that  their  opinion  was 
demanded.  This  entiy  concludes  abruptly, 
without  any  determination  of  the  judges;* 

mtmes  des  marchants  de  tout  Engleten-e. — Hale, 
146.  The  prisage  of  wines,  or  duty  of  two  tons 
from  every  vessel,  is  considerably  more  ancient; 
but  how  the  crown  came  by  this  right  does  not 
appear. 

*  Dyer,  fol.  165.  An  argument  of  the  great  law- 
yer Plowden  in  this  case  of  the  queen's  increasing 


1S4 


COXSTITLTIONAL  HISTORY  OF  ENGLAND 


{Chap.  VI. 


but  we  may  presume,  that  if  any  such  had  ' 
been  giveu  in  favor  of  the  crown,  it  would 
have  been  made  public  ;  and  that  the  ma- 
jority of  the  bench  would  not  have  favored 
this  claim  of  the  crown,  we  may  strongly 
presume  from  their  doctrine  in  a  case  of  the 
same  description,  wherein  they  held  the 
assessment  of  treble  custom  on  aliens  for 
violation  of  letters  patent  to  be  absolutely 
against  the  law.*  The  administration, 
however,  would  not  release  this  duty,  which 
continued  to  be  paid  under  Elizabeth.  She 
also  imposed  one  upon  sweet  wines.  We 
read  of  no  complaint  in  Parliament  against 
this  novel  taxation ;  but  it  is  alluded  to  by 
Bacon  in  one  of  his  tracts  during  the  queen's 
reign,  as  a  grievance  alleged  by  her  ene- 
mies. He  defends  it,  as  laid  only  on  a  for- 
eign merchandise,  and  a  delicacy  which 
might  be  forborne. f  But,  considering  Eliz- 
abeth's unwillingness  to  require  subsidies 
from  the  Commons,  and  the  rapid  increase 
of  foreign  traffic  during  her  reign,  it  might 
be  asked  why  she  did  not  extend  these  du- 
ties to  other  commodities,  and  secure  to 

the  duty  on  cloths  is  in  the  British  Moseum,  Har- 
grave  MSS.,  32,  and  seems,  as  far  as  the  difficult 
hand-writinj  permitted  me  to  jadge,  adverse  to  the 
prerogative. 

*  This  case  I  have  had  the  good  fortune  to  dis- 
cover in  one  of  Mr.  Harsrave  s  MSS.  in  the  Mase- 
tun,  132,  fol.  66.  It  is  in  the  hand-writing  of  Chief- 
justice  Hyde  (temp.  Car.  I.),  who  has  written  in 
the  margin,  '•  This  is  the  report  of  a  case  in  my 
Lord  Byers  written  original,  hat  is  not  in  the 
printed  books."  The  reader  will  judge  for  himself 
why  it  was  omitted,  and  why  the  entry  of  the  for- 
mer case  breaks  off  so  abruptly.  "  Phihp  and 
Mary  granted  to  the  town  of  Southampton  that  all 
mahnsy  wines  should  be  landed  at  that  port  under 
penaltj-  of  paying  treble  custom.  Some  merchants 
of  Venice  having  landed  wines  elsewhere,  an  in- 
formation was  brought  against  them  in  the  Ex- 
chequer, 1  Eliz.,  and  argued  several  times  in  the 
presence  of  all  the  judges.  Eight  were  of  opinion 
against  the  letters  patent,  among  whom  Dyer  and 
Catlin,  chief-jusrices,  as  well  for  the  principal  mat- 
ter of  restraint  in  the  landing  of  malmsies  at  the 
will  and  pleasure  of  the  merchants,  for  that  it  was 
aeainst  the  laws,  statutes,  and  customs  of  the 
realm.  Magna  Charta,  c.  30 ;  9  E.  3  ;  14  E.  3 ;  25 
E.  3,  c.  2 ;  27  E.  3 ;  28  E.  3 ;  2  R.  2,  c.  1,  and  Oth- 
ers, as  also  in  the  assessment  of  treble  custom, 
which  is  mereli/  against  the  lavr;  also  the  prohibi- 
tion above  said  was  held  to  be  private,  and  not 
public.  But  Baron  Lake  e  contra,  and  Browne  J. 
censuit.  deUbei"anduni;  and  after,  at  an  after  meet- 
ins  the  same  Easter  term  at  Sergeants'  Inn,  it 
was  resolved  as  above  ;  and  after  by  Parliament,  5 
Ehz.,  the  patent  was  confirmed  and  affirmed  against 
aliens.  '  t  Bacon,  i.,  521. 


herself  no  tiifling  annual  revenue.  What 
answer  can  be  given,  except  that,  aware 
how  little  any  unparliamentaiy  levying  of 
money  could  be  supported  by  law  or  usage, 
her  ministers  shunned  to  excite  attention 
to  these  innovations,  which  wanted  hitherto 
the  stamp  of  time  to  give  them  prescriptive 
validity  ?* 

James  had  imposed  a  duty  of  five  shillings 
per  hundred  weight  on  cuirants,  over  and 
above  that  of  two  shillings  and  sixpence, 
which  was  granted  by  the  statute  of  ton- 
nage and  poundage. t  Bates,  a  Turkey 
merchant,  having  refused  payment,  an  in- 
formation was  exhibited  against  hira  in  the 
Exchequer.  Judgment  was  soon  given  for 
the  crown.  The  courts  of  justice,  it  is  hard- 
ly necessary  to  say,  did  not  consist  of  men 
conscientiously  impartial  between  the  king 
and  the  subject ;  some  comipt  with  hope 
of  promotion,  many  more  feai-fiil  of  remov- 
al, or  awe-struck  by  the  frowns  of  power. 
The  speeches  of  Chief-baron  Fleming  and 
of  Baron  Clark,  the  only  two  that  are  pre- 
sened  in  Lane's  Reports,  contain  proposi- 
tions still  worse  than  their  decision,  and 
wholly  subvei-sive  of  all  liberty.  "  The 
king's  power,"  it  was  said,  "  is  double — or- 
dinaiy  and  absolute :  and  these  have  sever- 
al laws  and  ends.  That  of  the  ordinay  is 
for  the  profit  of  particular  subjects,  exer- 
cised in  ordinary  courts,  and  called  common 
law.  which  can  not  be  changed  in  substance 
^vithout  Paj'Uament.  The  king's  absolute 
power  is  applied  to  no  particular  person's 
benefit,  but  to  the  general  safety  :  and  this 
is  not  directed  by  the  rules  of  common  law, 
but  more  properly  termed  pohcy  and  gov- 
ernment, varying  according  to  his  wisdom 
for  the  common  good ;  and  all  things  done 
within  those  rules  are  lawful.  The  matter 
in  question  is  matter  of  state,  to  be  ruled 
according  to  policy  by  the  king's  extraordi- 
nary power.  All  customs  (duties  so  called) 
are  the  effects  of  foreign  commerce,  but  all 

*  Hale's  Treatise  on  the  Customs,  part  3 ;  in 
Hargrave's  Collection  of  Law  Tracts.  See.  also, 
the  preface  by  Hargrave  to  Bate's  case,  in  the 
State  Trials,  where  this  most  important  question 
is  learnedly  argued. 

t  He  had  previously  published  letters  patent, 
setting  a  duty  of  six  shillings  and  eight-pence  a 
pound,  in  addition  to  two-pence  already  payable 
on  tobacco ;  intended,  no  doubt  to  operate  as  s 
prohibirion  of  a  drug  he  so  much  hated. — Rvmer, 
x\-i.,  602. 


James  1.] 


FROM  HEXRY  VII. 


TO  GEORGE  II. 


185 


affairs  of  commerce  and  all  tresities  with  for- 
eign nations  belong  to  the  king's  absolute 
power ;  he,  therefore,  who  has  power  over 
the  cause,  must  have  it  also  over  the  effect. 
The  sea-ports  are  the  king's  gates,  which 
he  may  open  and  shut  to  whom  he  pleases." 
The  ancient  customs  on  wine  and  wool  are 
asserted  to  have  originated  in  the  king's  ab- 
solute power,  and  not  in  a  grant  of  Parlia- 
ment ;  a  point,  whether  true  or  not,  of  no 
great  impoitance,  if  it  were  acknowledged 
that  many  statutes  had  subsequently  con- 
ti'olled  this  prerogative.  But  these  judges 
impugned  the  authority  of  statutes  deroga- 
tory to  their  idol.  That  of  45  E.  3,  c.  4, 
that  no  new  imposition  should  be  laid  on 
wool  or  leather,  one  of  them  maintains,  did 
not  bind  the  king's  successors  ;  for  the  right 
to  impose  such  duties  was  a  principal  part 
of  the  crown  of  England,  which  the  king 
could  not  diminish.  They  extolled  the 
king's  grace  in  permitting  the  matter  to  be 
argued,  commenting,  at  the  same  time,  on 
the  insolence  shown  in  disputing  so  unde- 
niable a  claim.  Nor  could  any  judges  be 
more  peremptoiy  in  resisting  an  attempt  to 
overthrow  the  most  established  pi-ecedents, 
than  were  these  barons  of  King  James's 
Exchequer,  in  giving  away  those  funda- 
mental liberties  which  were  the  inheritance 
of  eveiy  Englishman.* 

The  immediate  consequence  of  this  de- 
cision was  a  book  of  rates,  published  in  July, 
1608,  under  the  authority  of  the  great  seal, 
imposing  heavy  duties  upon  almost  all  mer- 
chandise.f  But  the  judgment  of  the  Court 
of  Exchequer  did  not  satisfy  men  jealous  of 
the  crown's  encroachments.  The  imposi- 
tion on  cuiTants  had  been  already  noticed 
as  a  gi-ievance  by  the  House  of  Commons 
in  1606 ;  but  the  king  answered  that  the 
question  was  in  a  course  for  legal  determ- 
ination ;  and  the  Commons  themselves, 
which  is  worthy  of  remark,  do  not  appear 
to  have  entertained  any  clear  persuasion 
that  the  impost  was  conti-ary  to  law.f  In 
Remonstran-  ^he  session,  however,  which  be- 
ces  against  „an  jn  February,  1610,  they  had 
in  session  of  acquu'ed  new  light  by  sifting  the 
legal  authorities,  and  instead  of 

*  State  Trials,  ii.,  371. 

t  Hale's  Treatise  on  the  Customs.  These  were 
perpetual,  "  to  be  forever  hereafter  paid  to  the  king 
and  his  successors,  on  pain  of  his  displeasure." — 
State  Trials,  481.  I  Journals,  295,  297. 


submitting  their  opinions  to  the  courts  of 
law,  which  were,  in  ti-uth,  little  worthy  of 
such  deference,  were  the  more  provoked 
to  remonstrate  against  the  novel  usurpation 
those  servile  men  had  endeavored  to  prop 
up.  Lawyers,  as  learned,  probably,  as  most 
of  the  judges,  were  not  wanting  in  their 
ranks.  The  illegality  of  impositions  was 
shown  in  two  elaborate  speeches  by  Hake- 
will  and  Yelverton  ;*  and  the  country  gen- 
tlemen, who,  though  less  deeply  versed  in 
precedents,  had  too  good  sense  not  to  dis- 
cern that  the  next  step  would  be  to  levy 
taxes  on  their  lands,  were  delighted  to  find 
that  there  had  been  an  old  Engli.sh  Consti- 
tution not  yet  abrogated,  which  would  bear 
them  out  in  their  opposition.  When  the 
king,  therefore,  had  intimated  by  a  mes- 
sage, and  afterward  in  a  speech,  his  com- 
mand not  to  enter  on  the  subject,  couched 
in  that  arrogant  tone  of  despotism  which 
this  absurd  prince  affected, f  they  present- 
ed a  strong  remonstrance  against  this  inhi- 
bition, claiming  "  as  an  ancient,  general,  and 
undoubted  right  of  Parliament  to  debate 
fi-eely  all  matters  which  do  properly  con- 
cern the  subject,  which  freedom  of  debate 

*  Mr.  Hakewrill's  speech,  though  long,  will  re- 
pay the  diligent  reader's  ti'ouble,  as  being  a  very 
luminous  aud  masterly  statement  of  this  gi-eat  ar- 
gument.— State  Trials,  ii.,  407.  The  extreme  in- 
feriority of  Bacon,  who  sustained  the  cause  of  pre- 
rogative, must  be  apparent  to  everyone. — Id.,  345. 
Sir  John  Davis  makes  somewhat  a  better  defense; 
his  argument  is,  that  the  king  may  lay  an  embargo 
on  trade,  so  as  to  prevent  it  entirely,  and  conse- 
quently may  annex  conditions  to  it. — Id.,  399.  But 
to  this  it  was  answered,  that  the  kmg  can  only 
lay  a  temporary  embargo,  for  the  sake  of  some 
public  good,  not  prohibit  foreign  trade  altogether. 

As  to  the  king's  prerogative  of  restraining  for- 
eign trade,  see  extracts  from  Hale's  MS.  Treatise 
de  Jure  Coronoe,  in  Hargrave's  Preface  to  Collec- 
tion of  Law  Tracts,  p.  xxx.,  &c.  It  seems  to  have 
been  chiefly  as  to  exportation  of  com. 

t  Aikin's  Memoirs  of  James  I.,  i.,  330.  This 
speech  justly  gave  offense.  "  The  21st  of  this 
present  (May,  1610),"  says  a  correspondent  of  Sir 
Ralph  Winwood,  "  he  made  another  speech  to  both 
the  Houses,  but  so  little  to  their  satisfaction,  that 
I  hear  it  bred  generally  much  discomfort  to  see  our 
monarchical  power  and  royal  prerogative  strained 
so  high,  and  made  so  ti'anscendent  evei'y  way,  that 
if  the  practice  should  follow  the  positions,  we  are 
not  likely  to  leave  to  our  successors  that  freedom 
we  received  from  our  forefathers ;  nor  make  ac- 
count of  any  thing  we  have  longer  than  they  list 
that  govern." — Winwood,  iii.,  17.5.  The  traces  of 
this  discontent  appear  in  short  notes  of  the  debate. 
— Jom'nals,  p.  430. 


186 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  VI. 


being  once  foreclosed,  the  essence  of  the 
liberty  of  Parliament  is  withal  dissolved. 
For  the  judgment  given  by  the  Exchequer, 
they  take  not  on  them  to  review  it,  but  de- 
sire to  know  the  reasons  whereon  it  was 
grounded,  especially  as  it  was  genei'ally  ap- 
prehended that  the  reasons  of  that  judgment 
extended  much  further,  even  to  the  utter 
ruin  of  the  ancient  liberty  of  this  kingdom, 
and  of  the  subjects'  right  of  property  in 
their  lands  and  goods."*    "The  policy  and 
Constitution  of  this  your  kingdom  (they 
say)  appropriates  unto  the  kings  of  this 
realm,  with  the  assent  of  the  Parliament,  as 
well  the  sovereign  power  of  making  laws, 
as  that  of  taxing,  or  imposing  upon  the  sub- 
jects' goods  or  merchandises,  as  may  not, 
without  their  consents,  be  altered  or  chang- 
ed.   This  is  the  cause  that  the  people  of 
this  kingdom,  as  they  ever  showed  them- 
selves faithful  and  loving  to  their  kings,  and 
ready  to  aid  them,  in  all  their  just  occasions, 
with  voluntary  contributions,  so  have  they 
been  ever  careful  to  preserve  their  own  lib- 
erties and  rights  when  any  thing  hath  been 
done  to  prejudice  or  impeach  the  same; 
and  therefore,  when  their  princes,  occa- 
sioned either  by  their  wars,  or  their  over- 
g;reat  bounty,  or  by  any  other  necessity, 
have  without  consent  of  Parliament  set  im- 
positions, either  within  the  land,  or  upon 
commodities  either  exported  or  imported  by 
the  merchants,  they  have,  in  open  Parlia- 
ment, complained  of  it,  in  that  it  was  done 
without  their  consents,  and  thereupon  nev- 
er faUed  to  obtain  a  speedy  and  full  redress, 
without  any  claim  made  by  the  kings  of  any 
power  or  prerogative  in  that  point;  and 
though  the  law  of  property  be  original,  and 
carefuUy  preserved  by  the  common  laws  of 
this  realm,  which  are  as  ancient  as  the 
kingdom  itself,  yet  these  famous  kings,  for 
the  better  contentment  and  assurance  of 
their  loving  subjects,  agreed  that  this  old 
fundamental  right  should  be  further  declar- 
ed and  established  by  act  of  Parliament, 
wherein  it  is  provided  that  no  such  charges 
should  ever  be  laid  upon  the  people  with- 
out their  common  consent,  as  may  appear 
by  sundry  records  of  former  times.  We, 
therefore,  your  majesty's   most  humble 
Commons  assembled  in  Parliament,  follow- 
ing the  example  of  this  worthy  case  of  our 
ancestors,  and  out  of  a  duty  of  those  for 


whom  we  serve,  finding  that  your  majesty, 
without  advice  or  consent  of  Parliament, 
hath  lately,  in  time  of  peace,  set  both  great- 
er impositions,  and  far  more  in  number, 
than  any  your  noble  ancestors  did  ever  in 
time  of  war,  have,  with  all  humility,  pre- 
sumed to  present  this  most  just  and  neces- 
sary petition  unto  your  majesty,  that  all 
impositions  set  without  the  assent  of  Par- 
liament may  be  quite  abolished  and  taken 
away;  and  that  your  majesty,  in  imitation 
likewise  of  your  noble  progenitors,  will  be 
pleased  that  a  law  be  made  during  this  ses- 
sion of  Parliament  to  declare  that  all  impo- 
sitions set,  or  to  be  set  upon  your  people, 
their  goods  or  merchandises,  save  only  by 
common  consent  in  Parliament,  are  and 
shall  be  void."*  They  proceeded  accord- 
ingly, after  a  pretty  long  time  occupied  in 
searching  for  precedents,  to  pass  a  bill  tak- 
ing away  impositions,  which,  as  might  be 
anticipated,  did  not  obtain  the  concuirence 
of  the  Upper  House. 

The  Commons  had  reason  for  their  ap- 
prehensions. This  doctrine  of  Doctrine  of 
the  king's  absolute  power  be-  •'■■'s'' 

,  ,  lute  power 

yond  the  law  had  become  cur-  inculcated  by 
rent  with  all  who  sought  his  fa-  '^^"sy- 
vor,  and  especially  with  the  High-Church 
party.  The  Convocation  had  in  1C06  drawn 
up  a  set  of  canons,  denouncing  as  eiToneous 
a  number  of  tenets  hostile  in  their  opinion  to 
royal  government.  These  canons,  though 
never  authentically  published  till  a  later  age, 
could  not  have  been  secret.  They  consist 
of  a  series  of  propositions  or  paragi-aphs,  to 
each  of  which  an  anathema  of  the  opposite 
error  is  attached,  deducing  the  origin  of 
government  from  the  pati-iarchal  regimen 
of  families,  to  the  exclusion  of  any  popular 
choice.  In  those  golden  daj-s,  the  func- 
tions both  of  king  and  priest  were,  as  they 
term  it,  "the  prerogatives  of  birthright," 
till  the  wickedness  of  mankind  brought  in 
usurpation,  and  so  confused  the  pure  stream 
of  the  fountain  with  its  muddy  runnels,  that 
we  must  now  look  to  prescription  for  that 
right  which  we  can  not  assign  to  primogen- 
iture. Passive  obedience  in  all  cases  with- 
out exception  to  the  established  monarch  is 
inculcated. t 


Journals,  431. 


*  Somers  Tracts,  vol.  ii.,  159 ;  in  the  Journals 
much  shorter. 

t  These  canons  were  published  in  1690.  from  a 
copy  belon2;ing  to  Bishop  Overall,  with  Saucroft's 


James  I.] 


FROM  HENilY  V: 


11.  TO  GEORGE  II. 


187 


It  is  not  impossible  that  a  man  might 
adopt  tliis  tlieoiy  of  the  original  of  govern- 
ment, unsatisfactory  iis  it  appears  on  reflec- 
tion, without  deeming  it  incompatible  with 
our  mixed  and  limited  monarchy.  But  its 
tendency  was  evidently  in  a  conti'aiy  direc- 
tion. The  king's  power  was  of  God,  that 
of  the  Parliament  only  of  man,  obtained, 
perhaps,  by  rebellion;  but  out  of  rebellion 
what  right  could  spring  ?  Or  were  it  even 
by  voluntaiy  concession,  could  a  king  alien- 
ate a  divine  gift,  and  infringe  the  order  of 
Providence  ?  Could  his  grants,  if  not  in 
themselves  null,  avail  against  his  posterity, 
heirs  like  himself  under  the  great  feoffment 
of  creation  ?  These  consequences  were  at 
least  plausible,  and  some  would  be  found 
to  draw  them.  And,  indeed,  if  they  were 
never  explicitly  laid  down,  the  mere  differ- 
ence of  respect  with  which  mankind  could 
not  but  contemplate  a  divine  and  human,  a 
primitive  or  paramount,  and  a  derivative 
authority,  would  operate  as  a  prodigious  ad- 
vantage in  favor  of  the  crown. 

The  real  aim  of  the  clergy  in  thus  enor- 
mously enhancing  the  pretensions  of  the 
crown  was  to  gain  its  sanction  and  support 
for  their  own.  Schemes  of  ecclesiastical 
jurisdiction,  hardly  less  extensive  than  had 
warmed  the  imagination  of  Becket,  now 
floated  before  tlie  eyes  of  his  successor 
Bancroft.  He  had  fallen,  indeed,  upon  evil 
days,  and  perfect  independence  on  the  tem- 
poral magistrate  could  no  longer  be  attempt- 
ed ;  but  he  acted  upon  the  refined  policy 
of  making  the  royal  supremacy  over  the 
Church,  which  he  was  obliged  to  acknowl- 
edge, and  professed  to  exaggerate,  the  veiy 
insti'ument  of  its  independence  upon  the 
law.    The  favorite  object  of  the  bishops  in 

imprimatur.  The  title-page  runs  in  an  odd  expres- 
sion :  "  Bishop  Overall's  Convocation-Book  con- 
cerning the  Government  of  God's  Catholic  Church 
and  the  Kingdoms  of  the  whole  World."  The 
second  canon  is  as  foUovv's :  "  If  any  man  shall  af- 
fii-m  that  men  at  the  first  ran  up  and  down  m  woods 
and  fields,  &c.,  until  they  wei'e  taught  by  experi- 
ence the  necessity  of  govennneut,  and  that  there- 
fore they  chose  some  among  themselves  to  order 
and  i-ule  the  rest,  giving  them  power  and  authori- 
ty so  to  do  ;  and  that,  consequently,  all  civil  power, 
jurisdiction,  and  authority  was  first  derived  from 
the  people  and  disordered  multitude,  or  either  is 
originally  still  in  them,  or  else  is  deduced  by  their 
consent  naturally  from  them,  and  is  not  God's  or- 
dinance, originally  descending  from  him  and  de- 
pending upon  him,  he  doth  gi-eatly  err." — P.  3. 


this  age  was  to  render  their  ecclesiastical 
jurisdiction,  no  part  of  which  had  been  cur- 
tailed in  our  hasty  Reformation,  as  unre- 
strained as  possible  by  the  coui'ts  of  law. 
These  had  been  wont,  down  from  the  reign 
of  Henry  H.,  to  grant  writs  of  prohibition 
whenever  the  spiritual  courts  transgressed 
their  proper  limits,  to  the  great  benefit  of 
the  subject,  who  would  otherwise  have  lost 
his  birthright  of  the  common  law,  and  been 
exposed  to  the  defective,  not  to  say  iniqui- 
tous and  corrupt,  procedure  of  the  eccle- 
siastical ti'ibunals.  But  the  civilians,  sup- 
ported by  the  prelates,  loudly  complained 
of  these  prohibitions,  which  seem  to  have 
been  much  more  frequent  in  the  latter 
years  of  Elizabeth  and  the  reign  of  James 
than  in  any  other  period.  Bancroft  accord- 
ingly presented  to  the  Star  Chamber,  in 
1605,  a  series  of  petitions  in  the 

o  ^,       ,  1  ■  1    T       1  Articuli  Cleri. 

name  oi  the  clergy,  winch  JLord 
Coke  has  denominated  Articuli  Cleri,  by 
analogy  to  some  similar  representations  of 
that  order  under  Edward  H.*  In  these  it 
was  complained  that  the  courts  of  law  in- 
terfered by  continual  prohibitions  with  a 
jurisdiction  as  estaiilished  and  as  much  de- 
rived from  the  king  as  their  own,  either  in 
cases  which  were  clearly  within  that  juris- 
diction's limits,  or  on  the  slightest  sugges- 
tion of  some  matter  belonging  to  ihe  tem- 
poral court.  It  was  hinted  that  the  whole 
course  of  granting  prohibitions  was  an  en- 
croachment of  the  King's  Bench  and  Com- 
mon Pleas,  and  that  they  could  regularly 
issue  only  out  of  Chancery.  To  each  of 
these  articles  of  complaint,  extending  to 
twenty-five,  the  judges  made  separate  an- 
swers, in  a  rough,  and,  some  might  say,  a 
rude  style,  but  pointed  and  much  to  the 
purpose,  vindicating  in  every  instance  their 
right  to  take  cognizance  of  every  collateral 
matter  springing  out  of  an  ecclesiastical 
suit,  and  repelling  the  attack  upon  their 
power  to  issue  prohibitions  as  a  strange  pre- 
sumption. Nothing  was  done,  nor,  thanks 
to  the  firmness  of  the  judges,  could  be  done, 
by  the  council  in  this  respect,  for  the  clergy 
had  begun  by  advancing  that  the  king's  au- 
thority was  sufficient  to  reform  what  was 

*  Coke's  2d  Institute,  601.  CoUier,  G88.  State 
Trials,  ii.,  131.  See,  too,  an  angry  letter  of  Ban- 
croft, written  about  1611  (Strj-pe's  Life  of  Whit- 
gift,  Append.,  227),  wherein  he  inveighs  against 
the  common  lawyers  and  the  Parliament. 


188 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


amiss  in  any  of  his  own  courts,  all  jurisdic- 
tion spiritual  and  temporal  being  annexed  to 
his  crown ;  but  it  was  positively  and  re- 
peatedly denied  in  rejily,  that  any  thing  less 
than  an  act  of  Paiiiament  could  alter  the 
course  of  justice  established  by  law.  This 
effectually  silenced  the  archbishop,  who 
knew  how  little  he  had  to  hope  from  the 
Commons.  By  the  pretensions  made  for 
the  Church  in  this  affair,  he  exasperated 
the  judges,  who  had  been  quite  sufficiently 
disposed  to  second  all  rigorous  measures 
against  the  Puritan  ministers,  and  aggi'ava- 
ted  that  jealousy  of  the  ecclesiastical  courts 
which  the  common  lawyers  had  long  enter- 
tained. 

An  opportunity  was  soon  given  to  those 
Cowell's  In-  who  disliked  the  civilians,  that  is, 
terpreter.  not  only  to  the  common  lawyers, 
but  to  all  the  pati'iots  and  Puritans  in  Eng- 
land, by  an  imprudent  publication  of  a  Doc- 
tor Cowell.  This  man,  in  a  law  dictionaiy 
dedicated  to  Bancroft,  had  thought  fit  to  in- 
sert passages  of  a  tenor  conformable  to  the 
new  creed  of  the  king's  absolute  or  arbitra- 
ly  power.  Under  the  title  King,  it  is  said, 
"  He  is  above  the  law  by  his  absolute  pow- 
er; and  though,  for  the  better  and  equal 
course  in  making  laws,  he  do  admit  the 
three  estates  unto  council,  yet  this  in  divers 
learned  men's  opinion  is  not  of  constraint, 
but  of  his  own  benignity,  or  by  reason  of 
the  promise  made  upon  oath  at  the  time  of 
his  coronation;  and  though  at  his  corona- 
tion he  take  an  oath  not  to  alter  the  laws  of 
the  land,  yet  this  oath  notwithstanding,  he 
may  alter  or  suspend  any  particular  law 
that  seemeth  hurtful  to  the  public  estate. 
Thus  much  in  short,  because  I  have  heard 
some  to  be  of  opinion  that  the  laws  are 
above  the  king."  And  in  ti-eating  of  the 
Parliament,  Cowell  observes:  "Of  these 
two  one  must  be  ti'ue,  either  that  the  king 
is  above  the  Parliament,  that  is,  the  posi- 
tive laws  of  his  kingdom,  or  else  that  he  is 
not  an  absolute  king ;  and  therefore  though 
it  be  a  merciful  policy  and  also  a  politic 
mercy,  not  alterable  without  great  peril,  to 
make  laws  by  the  consent  of  the  whole 
realm,  because  so  no  part  shall  have  cause 
to  complain  of  a  partiality,  yet  simply  to 
bind  the  prince  to  or  by  these  laws  were 
repugnant  to  the  nature  and  constitution  of 
an  absolute  monarchj'."  It  is  said  again, 
under  the  title  Prerogative,  that  "  the  king, 


by  the  custom  of  this  kingdom,  niaketh 
no  laws  without  the  consent  of  the  three 
estates,  though  he  may  quash  any  law  con- 
cluded of  by  them  ;"  and  that  he  "holds  it 
incontrollable,  that  the  King  of  England  is 
an  absolute  king."* 

Such  monstrous  positions  from  the  mouth 
of  a  man  of  learning  and  conspicuous  in  his 
profession,  who  was  surmised  to  have  been 
instigated  as  well  as  patronized  by  the  arch- 
bishop, and  of  whose  book  the  king  was 
reported  to  have  spoken  in  terms  of  eulo- 
gy, gave  very  just  scandal  to  the  House  of 
Commons.  They  solicited  and  obtained  a 
conference  with  the  Lords,  which  the  at- 
torney-general, Sir  Francis  Bacon,  man- 
aged on  the  part  of  the  Lower  House ;  a 
remarkable  proof  of  his  adroitness  and  pli- 
ancy. James  now  discovered  that  it  was 
necessary  to  sacrifice  this  too  unguarded 
advocate  of  prerogative  :  Cowell's  book  was 
suppressed  by  proclamation,  for  which  the 
Commons  returned  thanks,  with  gi'eat  joy 
at  their  victoiy.  f 

It  is  the  evident  policy  of  every  adminis- 
ti'ation,  in  dealing  with  the  House  of  Com- 
mons, to  humor  them  in  every  thing  that 
touches  their  pride  and  tenaciousness  of 
privilege,  never  attempting  to  protect  any 
one  who  incurs  their  displeasure  by  want  of 
respect.  This  seems  to  have  been  under- 
stood by  the  Earl  of  Salisbury,  the  first 
English  minister  who,  having  long  sat  in  the 
Lower  House,  had  become  skillful  in  those 
arts  of  management  Avhich  his  successors 
have  always  reckoned  so  essential  a  part  of 
their  mysteiy.    He  wanted  a  considerable 

*  Cowell's  Interpreter,  or  Law  Dictionary,  edit. 
1607.  These  passages  are  expunged  in  the  later 
editions  of  this  useful  book.  What  the  author 
says  of  the  writ  of  prohibition,  and  the  statutes  of 
praemunire,  under  these  words,  was  very  invidious 
toward  the  common  lawyers,  treating  such  re- 
straints upon  the  ecclesiastical  jurisdiction  as  nec- 
essary in  former  ages,  hut  now  become  useless 
since  the  annexation  of  the  supremacy  to  the 
crown. 

t  Commons'  Journals,  339,  and  afterward  to  415. 
The  authors  of  the  Parliamentary  History  saj-  there 
is  no  further  mention  of  the  business  after  the  con- 
ference, overlooking  the  most  important  circum- 
stance, the  king's  proclamation  suppressing  the 
book,  which  yet  is  mentioned  by  Rapin  and  Carte, 
though  the  latter  makes  a  false  and  disingenuous 
excuse  for  Cowell. — Vol.  iii.,  p.  798.  Several  pas- 
sages concerning  this  affair  occur  in  Winwood's 
Memorials,  to  which  I  refer  the  curious  reader. — 
Vol.  iii.,  p.  125,  129,  131,  136,  137,  145. 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


189 


sum  of  money  to  defray  the  king's  debts, 
which,  on  his  coming  into  the  office  of  lord- 
treasurer  after  Lord  Buckhurst's  death,  he 
had  found  to  amount  to  <€1,300,000,  about 
one  third  of  which  was  still  undischarged. 
The  ordinary  expense  also  surpassed  the 
revenue  by  c£81,000.  It  was  impossible 
that  this  could  continue,  without  involving 
the  crown  in  such  emban-assments  as  would 
leave  it  wholly  at  the  mercy  of  Parliament. 
Cecil  therefore  devised  the  scheme  of 
obtaining  a  perpetual  yearly  revenue  of 
06200,000,  to  be  granted  once  for  all  by 
Parliament ;  and  the  better  to  incline  the 
House  to  this  high  and  exti-aordinary  de- 
mand, he  promised  in  the  king's  name  to 
give  all  the  redress  and  satisfaction  in  his 
power  for  any  grievances  they  might  bring 
forward.* 

This  offer  on  the  part  of  government 
Renewed  seemed  to  make  an  opening  for 
of'the^'com-  ^  prosperous  adjustment  of  the 
mons.  differences  which  had  subsisted 
ever  since  the  king's  accession.  The  Com- 
mons accordingly,  postjioning  the  business 
of  a  subsidy,  to  which  the  courtiers  wished 
to  give  priority,  brought  forward  a  host  of 
their  accustomed  grievances  in  ecclesiastic- 
al and  temporal  concerns.  The  most  es- 
sential was  undoubtedly  that  of  impositions, 
which  they  sent  up  a  bill  to  the  Lords,  as 
above  mentioned,  to  take  away.  They 
next  complained  of  the  ecclesiastical  High 
Commission  Court,  which  took  upon  itself 
to  fine  and  imprison,  powers  not  belonging 
to  their  jm-isdiction,  and  passed  sentences 
without  appeal,  interfering  frequently  with 
civil  rights,  and  in  all  its  procedure  neglect- 
ing the  rules  and  precautions  of  the  com- 
mon law.  They  dwelt  on  the  late  abuse  of 
proclamations  assuming  the  character  of 
laws.  "  Among  many  other  points  of  hap- 
piness and  freedom,"  it  is  said,  "which 
your  majesty's  subjects  of  this  kingdom 
have  enjoyed  under  your  royal  progenitors, 
kings  and  queens  of  this  realm,  there  is 
none  which  they  have  accounted  more  dear 
and  precious  than  this,  to  be  guided  and 
governed  by  the  certain  rule  of  the  law, 
which  giveth  both  to  the  head  and  members 
tliat  which  of  right  belongeth  to  them,  and 
not  by  any  uncertain  or  arbiti*aiy  form  of 
government,  which,  as  it  hath  proceeded 
from  the  original  good  constitution  and  tem- 
*  Wiuwood,  iii.,  123. 


perature  of  this  estate,  so  hath  it  been  the 
principal  means  of  upholding  the  same,  in 
such  sort  as  that  their  kings  have  been  just, 
beloved,  happy,  and  glorious,  and  the  king- 
dom itself  peaceable,  flourishing,  and  dura- 
ble so  many  ages  ;  and  the  effect,  as  weU  of 
the  contentment  that  the  subjects  of  this 
kingdom  have  taken  in  tliis  form  of  govern- 
ment, as  also  of  the  love,  respect,  and  duty 
which  they  have,  by  reason  of  the  same, 
rendered  unto  their  princes,  may  appear  in 
this,  that  they  have,  as  occasion  hath  re- 
quired, yielded  more  extraordinary  and 
voluntaiy  contiibution  to  assist  their  kings, 
than  the  subjects  of  any  other  known  king- 
dom whatsoever.  Out  of  this  root  hath 
grown  the  indubitable  right  of  the  people 
of  this  kingdom  not  to  be  made  subject  to 
any  punishment  that  shall  extend  to  their 
lives,  lands,  bodies,  or  goods,  other  than 
such  as  are  ordained  by  the  common  laws 
of  this  land,  or  the  statutes  made  by  their 
common  consent  in  Parliament ;  neverthe- 
less, it  is  apparent,  both  that  proclamations 
have  been  of  late  years  much  more  fre- 
quent than  heretofore,  and  that  they  ai"e 
extended,  not  only  to  the  liberty,  but  also 
to  the  goods,  inheritances,  and  livelihood  of 
men ;  some  of  them  tending  to  alter  some 
points  of  the  law,  and  make  a  new ;  other 
some  made  shortly  after  a  session  of  Par- 
liament for  matter  directly  rejected  in  the 
same  session ;  other  appointing  pimish- 
ments  to  be  inflicted  before  lawful  trial  and 
conviction ;  some  containing  penalties  in 
form  of  penal  statutes  ;  some  refen-ing  the 
punishment  of  offenders  to  courts  of  arbi- 
trary discretion,  which  have  laid  heavy  and 
grievous  censm-es  upon  the  delinquents ; 
some,  as  the  proclamation  for  starch,  ac- 
companied with  letters  commanding  in- 
quiry to  be  made  against  the  transgressors 
at  the  quarter-sessions  ;  and  some  vouching 
former  proclamations  to  countenance  and 
warrant  the  later,  as  by  a  catalogue  here 
underwritten  more  particularly  appeareth ; 
by  reason  whereof  there  is  a  general  fear 
conceived  and  spread  among  your  majesty's 
people,  that  proclamations  will,  by  degrees, 
grow  up,  and  increase  to  the  sti-ength  and 
nature  of  laws,  whereby  not  only  that  an- 
cient happiness,  freedom,  wiU  be  much 
blemished  (if  not  quite  taken  away),  which 
their  ancestors  have  so  long  enjoyed,  but 
the  same  may  also  (in  process  of  time) 


190 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


bring  a  new  form  of  arbiti'ary  government 
upon  the  realm :  and  this  their  fear  is  the 
more  increased  by  occasion  of  certain  books 
lately  published,  which  ascribe  a  gi-eater 
power  to  proclamations  than  heretofore  had 
been  conceived  to  belong  unto  them,  as  also 
of  the  care  taken  to  reduce  all  the  procla- 
mations made  since  your  majesty's  reign 
into  one  volume,  and  to  print  them  in  such 
form  as  acts  of  Parliament  formerly  have 
been,  and  still  are  used  to  be,  which  seem- 
eth  to  imply  a  purpose  to  give  them  more 
reputation  and  more  establishment  than 
heretofore  they  have  had."* 

They  proceed,  after  a  list  of  these  illegal 
proclamations,  to  enumerate  other  griev- 
ances, such  as  the  delay  of  courts  of  law  in 
gi-anting  writs  of  prohibition  and  habeas  cor- 
pus, the  jurisdiction  of  the  council  of  Wales 
over  the  four  bordering  shires  of  Gloucester, 
Worcester,  Hereford,  and  Salop,  f  some 
patents  of  monopolies,  and  a  tax  under  the 
name  of  a  license  recently  set  upon  victual- 
lers. The  king  answered  these  remon- 
strances with  civility,  making,  as  usual,  no 
concession  with  respect  to  the  ecclesiastical 
commission,  and  evading  some  of  their  oth- 
er requests,  but  promising  that  his  procla- 
mations should  go  no  further  than  was  war- 

*  Somers  Tracts,  ii.,  162.    State  Trials,  ii.,  519. 

t  The  court  of  the  council  of  Wales  was  erected 
by  statute  34  H.  8,  c.  26,  for  that  principality  and 
its  marches,  with  authority  to  determine  such 
causes  and  matters  as  should  he  assig^ied  to  them 
by  the  king,  "as  heretofore  hath  been  accustomed 
and  used ;"  which  implies  a  previous  existence  of 
some  such  jmisdiction.  It  was  pretended  that  the 
four  counties  of  Hereford,  Worcester,  Gloucester, 
and  Salop  were  included  within  their  authority,  as 
marches  of  Wales.  This  was  controverted  in  the 
reign  of  James  by  the  inliahitants  of  these  counties  ; 
and  on  reference  to  the  twelve  judges,  according 
to  Lord  Coke,  it  was  resolved  that  they  were  an- 
cient English  shires,  and  not  within  the  jurisdic- 
tion of  the  council  of  Wales  ;  "  and  yet,"  he  sub- 
joins, "  the  commission  was  not  after  reformed  in 
all  points  as  it  ought  to  have  been." — Fourth  Inst., 
242.  An  elaborate  argument  in  defense  of  the  ju- 
risdiction may  be  found  in  Bacon,  ii.,  122.  And 
there  are  many  papers  on  this  subject  in  Cotton 
MSS.,  Vitellius,  C.  i.  The  complaints  of  this  en- 
actment had  begun  in  the  time  of  Elizabeth.  It 
was  alleged  that  the  four  counties  had  been  re- 
duced from  a  very  disorderly  state  to  tranquillity 
by  means  of  the  council's  jurisdiction ;  but  if  this 
were  tnie,  it  did  not  furnish  a  reason  for  continu- 
ing to  exclude  them  from  the  general  privileges  of 
the  common  law,  after  the  necessity  had  ceased. 
The  king,  however,  was  determined  not  to  concede 
this  point. — Carte,  iii.,  794. 


ranted  by  law,  and  that  the  royal  licenses 
to  victuallers  should  be  revoked. 

It  appears  that  the  Commons,  deeming 
these  enumerated  abuses  contrary  to  law, 
were  unwilling  to  chaffer  with  the  crowu 
for  the  restitution  of  their  actual  rights. 
There  were,  however,  parts  of  the  prerog- 
ative which  they  could  not  dispute,  though 
galled  by  the  burden — the  incidents  of  feu- 
dal tenure  and  purveyance.  A  Negotiatinn 
negotiation  was  accordingly  com-  [he^eudli"'' 
menced  and  cairied  on  for  some  revenue, 
time  with  the  court,  for  abolishing  both 
these,  or  at  least  the  former.  The  king, 
though  he  refused  to  part  with  tenure  by 
knight's  service,  which  he  thought  connect- 
ed with  the  honor  of  the  monarchy,  was  in- 
duced, Avith  some  real  or  pretended  reluct- 
ance, to  give  up  its  lucrative  incidents,  re- 
lief, primer  seisin,  and  wardship,  as  well  as 
the  right  of  purveyance.  But  material  dif- 
ficulties recurred  in  the  prosecution  of  this 
treaty.  Some  were  apprehensive  that  the 
validity  of  a  statute  cutting  off  such  ancient 
branches  of  prerogative  might  hereafter  be 
called  in  question,  especially  if  the  root  fi-om 
which  they  sprung,  tenure  in  capite,  should 
still  remain.  The  king's  demands,  too,  seem- 
ed exorbitant.  He  asked  d£200,000  as  a 
yearly  revenue  over  and  above  c£100,000,  at 
which  his  wardships  were  valued,  and 
which  the  Commons  were  content  to  give. 
After  some  days'  pause  upon  this  proposi- 
tion, they  represented  to  the  Lords,  with 
whom,  through  committees  of  conference, 
the  whole  matter  had  been  discussed,  that 
if  such  a  sum  were  to  be  levied  on  those 
only  who  had  lands  subject  to  wardship,  it 
would  be  a  burden  they  could  not  endure ; 
and  that,  if  it  were  imposed  equally  on  the 
kingdom,  it  would  cause  more  offense  and 
commotion  in  the  people  than  they  could 
risk.  After  a  good  deal  of  haggling,  Salis- 
bury delivered  the  king's  final  determination 
to  accept  of  c£200,000  per  annum,  Avhich 
the  Commons  voted  to  grant  as  a  full  com- 
position for  abolishing  the  right  of  wardsJiip, 
and  dissolvmg  the  court  that  managed  it,  and 
for  taking  away  all  purveyance  ;  Avith  some 
further  concessions,  and  particularly  that 
the  king's  claim  to  lands  should  be  bound 
by  sixty  years'  prescription.  Two  points 
yet  remained,  of  no  small  moment,  namely, 
by  what  assurance  they  could  secure  them- 
selves against  the  king's  prerogative,  so 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


191 


often  held  up  by  court  lawyers  as  some- 
thing uncontrollable  by  statute,  and  by  what 
means  so  great  an  imposition  should  be  lev- 
ied ;  but  the  consideration  of  these  was  re- 
served for  the  ensuing  session,  which  was 
to  take  place  in  October.*  They  were  pro- 
rogued in  July  till  that  month,  having  pre- 
viously gi-anted  a  subsidy  for  the  king's 
immediate  exigencies.  On  their  meeting 
again,  the  Lords  began  the  business  by  re- 
questing a  conference  with  the  other  House 
about  the  proposed  contract ;  but  it  appear- 
ed that  the  Commons  had  lost  their  dispo- 
sition to  comply.  Time  had  been  given 
them  to  calculate  the  disproportion  of  the 
terms,  and  the  perpetual  burden  that  lands 
held  by  knight's  service  must  endure. 
They  had  reflected,  too,  on  the  king's  prod- 
igal humor,  the  rapacity  of  the  Scots  in  his 
service,  and  the  probability  that  this  addi- 
tional revenue  would  be  wasted  without  sus- 
taining the  national  honor,  or  preventing 
future  applications  for  money.  They  saw 
that  after  all  the  specious  promises  by  which 
they  had  been  led  on,  no  redress  was  to  be 
expected  as  to  those  grievances  they  had 
most  at  heart ;  that  the  ecclesiastical  courts 
would  not  be  suffered  to  lose  a  jot  of  their 
jurisdiction  ;  that  illegal  customs  were  still 
to  be  levied  at  the  out-ports  ;  that  procla- 
mations were  still  to  be  enforced  like  acts 
of  Parliament.  Great  coldness  accordingly 
,  was  displayed  in  their  proceed- 
of  Parlia-  ings  ;  and  in  a  short  time,  this  dis- 
tinguished  Parliament,  after  sit- 
ting nearly  seven  years,  was  dissolved  by 
proclamation.! 

*  Commons'  Journals  for  1610,  passim.  Lords' 
Journals,  7th  May,  et  post.  Parliameiitaiy  His- 
tory, 1124,  et  post.  Bacou,  i.,  670.  Winwood,  iii., 
119,  et  post. 

t  It  appears  by  a  letter  of  the  king,  in  Murden's 
State  Papers,  p.  613,  that  some  indecent  allusions 
to  himself  in  the  House  of  Commons  had  in-itated 
him.  "Wherein  we  have  misbehaved  ourselves, 
we  know  not,  nor  we  can  never  yet  learn ;  but 
Bare  we  are,  we  may  say  with  Bellarmiu  in  his 
book,  that  in  all  the  lower  houses  these  seven 
years  past,  especially  these  two  last  sessions,  Ego 
pungor,  ego  cai-por.  Our  fame  and  actions  have 
been  tossed  like  tennis-balls  among  them,  and  all 
that  spite  and  malice  durst  do  to  disgrace  and  in- 
flame us  hath  been  used.  To  be  short,  this  Lower 
House  by  their  behavior  have  periled  and  annoy- 
ed our  health,  wounded  our  reputation,  imboldened 
all  ill-natured  people,  encroached  upou  many  of 
our  privileges,  and  plagued  our  people  with  their 
delays.    It  only  resteth  now,  that  you  labor  all  you 


It  was  now,  perhaps,  too  late  for  the  king, 
by  any  reform  or  concession,  to  character  of 
regain  that  public  esteem  which  James, 
he  had  forfeited.  Deceived  by  an  over- 
weening opinion  of  his  own  learning,  which 
was  not  inconsiderable,  of  his  general  abili- 
ties, which  were  fur  from  contemptible,  and 
of  his  capacity  for  government,  which  was 
very  small,  and  confirmed  in  this  delusion 
by  the  disgi'aceful  flattery  of  his  courtiers 
and  bishops,  he  had  wholly  overlooked  the 
real  difficulties  of  his  position  ;  as  a  foreign- 
ei',  rather  distantly  connected  with  the  roy- 
al stock,  and  as  a  native  of  a  hostile  and 
hateful  kingdom,  come  to  succeed  the  most 
renowned  of  sovereigns,  and  to  grasp  a 
scepter  which  deep  policy  and  long  experi- 
ence had  taught  her  admirably  to  wield.* 
The  people  were  proud  of  martial  glory,  he 
spoke  only  of  the  blessing  of  the  peace-mak- 
ers ;  they  abhorred  the  court  of  Spain,  he 
sought  its  friendship ;  they  asked  indulgence 
for  scrupulous  consciences,  he  would  bear 
no  deviation  from  confomiity ;  they  ANiithed 
under  the  yoke  of  the  bishops,  whose  pow- 
er he  thought  necessary  to  his  own ;  they 
were  animated  by  a  persecuting  temper  to- 
ward the  Catholics,  he  was  averse  to  ex- 
treme rigor ;  they  had  been  used  to  the  ut- 
most frugality  in  dispensing  the  public  treas- 
ure, he  squandered  it  on  unworthy  favor- 
ites ;  they  had  seen  at  least  exterior  decen- 
cy of  morals  prevail  in  the  queen's  court, 
they  now  heard  only  of  its  dissoluteness  and 
extravagance  ;f  they  had  imbibed  an  exclu- 
sive fondness  for  the  common  law  as  the 
somxe  of  their  liberties  and  privileges ;  his 
churchmen  and  courtiers,  but  none  more 

can  to  do  that  you  think  best  to  the  repairing  of 
our  estate." 

*  "Your  queen,"  says  Lord  Thomas  Howard,  in 
a  letter,  "  did  talk  of  her  subjects'  love  and  good 
affection,  and  in  good  truth  she  aimed  well ;  our 
king  talketh  of  his  subjects'  fear  and  subjection, 
and  herein  I  think  he  doth  well  too,  as  long  as  it 
holdeth  good." — Nugaa  AntiqufB,  i.,  395. 

t  The  court  of  James  I.  was  incomparably  the 
most  disgi-aceful  scene  of  profligacy  which  this 
country  has  ever  witnessed;  equal  to  that  of 
Charles  II.  in  the  laxity  of  female  virtue,  and  with- 
out any  sort  of  parallel  in  some  other  respects. 
Gross  drunkenness  is  imputed  even  to  some  of  the 
ladies  who  acted  in  the  court  pageants,  NugEe  An- 
tiquae,  i.,  348,  which  Mr.  Gifford,  who  seems  abso- 
lutely enraptured  with  this  age  and  its  manners, 
might  as  well  have  remembered. — Life  of  Ben 
Jonson,  p.  231,  &c.  The  king's  prodigality  is  no- 
torious. 


192 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


than  himself,  talked  of  absolute  power  and 
the  imprescriptible  rights  of  monarchy.* 

James  lost  in  IGll  his  son  Prince  Heniy, 
Death  ofLord  ^^'-^  j°  1612  the  Lord-ti'easurer 
Salisbury.  Salisbury.  He  showed  little  re- 
gret for  the  former,  whose  high  spirit  and 
great  popularity  afforded  a  mortifying  con- 
trast, especially  as  the  young  prince  had 
not  taken  sufficient  pains  to  disguise  his  con- 
tempt for  his  father.f  Salisbury  was  a 
veiy  able  man,  to  whom,  perhaps,  liis  co- 
temporaries  did  some  injustice.  The  min- 
isters of  weak  and  willful  monarchs  are 
made  answerable  for  the  mischiefs  they  are 
compelled  to  suffei-,  and  gain  no  credit  for 
those  which  they  prevent.  Cecil  had  made 
personal  enemies  of  those  who  had  loved 
Essex  or  admired  Raleigh,  as  well  as  those 
who  looked  invidiously  on  his  elevation.  It 
was  believed  that  the  desii-e  shown  by  the 
House  of  Commons  to  abolish  the  feudal 
wardships  proceeded  in  a  great  measure 
from  the  circumstance  that  this  obnoxious 
minister  was  master  of  the  Court  of  Wai'ds, 
an  office  both  luci-ative  and  productive  of 
much  influence.  But  he  came  into  the 
scheme  of  abolishing  it  with  a  readiness 
_.  ,  that  did  him  credit.    His  chief 

Foreign  pol- 
itics of  the  praise,  however,  was  his  manage- 
govemnient.  j-j^g^j.  Continental  relations. 
The  only  minister  of  James's  cabinet  who 
had  been  ti'ained  in  the  councils  of  Eliza- 
beth, he  retained  some  of  her  jealousy  of 
Spain,  and  of  her  regard  for  the  Protestant 
interests.  The  court  of  Madrid,  aware 
both  of  the  king's  pusillanimity  and  of  his 
favorable  dispositions,  affected  a  tone  in  the 
conferences  held  in  1604  about  a  treaty  of 


*  "It  is  atheism  and  blasphemy,"  he  says,  in  a 
speech  made  in  the  Star  Chamber,  1616,  "to  dis- 
pute what  God  can  do;  good  Christians  content 
themselves  with  his  will  revealed  in  his  word ;  so 
it  is  presumption  and  high  contempt  in  a  subject  to 
dispute  what  a  king  can  do,  or  say  that  a  king  can 
not  do  this  or  that." — King  James's  Works,  p.  557. 

It  is  probable  that  his  familiar  conversation  was 
full  of  this  rodomontade,  disgusting  and  contempti- 
ble from  so  wretched  a  pedant,  as  well  as  offens- 
ive to  the  indignant  ears  of  those  who  knew  and 
valued  their  liberties.  The  story  of  Bishops  NeOe 
and  Andrews  is  far  too  trite  for  repetition. 

t  Carte,  iii.,  747.  Birch's  Life  of  P.  Henry,  405. 
Rochester,  three  days  after,  directed  Sir  Thomas 
Edmondes  at  Paris  to  commence  a  negotiation  for 
a  marriage  between  Prince  Charles  and  the  sec- 
ond daughter  of  the  late  king  of  France.  But  the 
ambassador  had  more  sense  of  decency,  and  declin- 
ed to  enter  on  such  an  affair  at  that  moment. 


peace  which  Elizabeth  would  have  resent- 
ed in  a  very  different  manner.*  On  this 
occasion,  he  not  only  deserted  the  United 
Provinces,  but  gave  hopes  to  Spain  that  he 
might,  if  they  persevered  in  their  obstina- 
cy, take  part  against  them.  Nor  have  I 
any  doubt  that  his  blind  attachment  to  that 
power  would  have  precipitated  him  into  a 
ruinous  connection,  if  Cecil's  wisdom  had 
not  influenced  his  councils.  During  this 
minister's  life,  our  foreign  politics  seem  to 
have  been  conducted  vrith  as  much  firmness 
and  prudence  as  his  master's  temper  would 
allow  ;  the  mediation  of  England  was  of 
considerable  service  in  bringing  about  the 
great  truce  of  twelve  years  between  Spain 
and  Holland  in  1609  ;  and  in  the  dispute 
which  sprang  up  soon  afterward  concerning 
the  succession  to  the  duchies  of  Cleves  and 
Juliers,  a  dispute  which  threatened  to  min- 
gle in  arms  the  Catholic  and  Protestant  par- 

*  'Winwood,  vol.  ii.  Carte,  ui.,  749.  Watson's 
Hist,  of  Philip  III.,  Appendix.  In  some  passages 
of  this  negotiation  Cecil  may  appear  not  wholly  to 
have  deserved  the  character  I  have  given  him  for 
adliering  to  Elizabeth's  principles  of  policy.  But 
he  was  placed  in  a  difficult  position,  not  feeling 
himself  secure  of  the  king's  favor,  which,  notwith- 
standing his  great  previous  services,  that  capri- 
cious prince,  for  the  first  year  after  his  accession, 
rather  sparingly  afforded,  as  appears  from  the  Me- 
moirs of  Sully,  1.  14,  and  Nugae  Antiqnae,  i.,  345. 
It  may  be  said  that  Cecil  was  as  little  Spanish, 
just  as  Walpole  was  as  little  Hanoverian,  as  the 
partialities  of  their  respective  sovereigns  would 
permit,  though  too  much  so  in  appearance  for  their 
own  reputation.  It  is  hardly  necessary  to  observe 
that  James  and  the  kingdom  were  chiefly  indebted 
to  Cecil  for  the  tranqnilUtj-  that  attended  the  acces- 
sion of  the  former  to  the  throne.  I  will  take  this 
opporttmity  of  noticing  that  the  learned  and  wor- 
thy compiler  of  the  catalogue  of  the  Lansdowne 
manuscripts  in  the  Museum  has  thought  fit  not  only 
to  charge  Sir  Michael  Hicks  with  venalitj",  but  to 
add,  "  It  is  certain  that  articles  among  these  pa- 
pers contribute  to  justify  verj'  strong  suspicions, 
that  neither  of  the  secretary's  masters  [Lord  Bur- 
leigh and  Lord  SaUsbury]  was  altogether  innocent 
on  the  score  of  cormption." — Lansd.  Cat.,  vol.  xci., 
p.  45.  This  is  much  too  strong  an  accusation  to 
be  brought  forward  without  more  proof  than  ap- 
pears. It  is  absurd  to  mention  presents  of  fat 
bucks  to  men  in  power  as  bribes  ;  and  rather  more 
so  to  charge  a  man  with  being  corrupted  because 
an  attempt  is  made  to  corrupt  him,  as  the  cata- 
logue-maker has  done  in  this  place.  I  would  not 
offend  this  respectable  gentleman  ;  but  by  referring 
to  many  of  the  Lansdowne  manuscripts,  I  am  en- 
abled to  say  that  he  has  traveled  frequently  out  of 
his  province,  and  substituted  his  conjectures  for  an 
analysis  or  abstract  of  the  document  before  him. 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


193 


ties  throughout  Europe,*  our  councils  were 
full  of  a  vigor  and  promptitude  unusual  in 
this  reign  ;  nor  did  any  thing  but  the  assas- 
sination of  Hemy  IV.  prevent  the  appear- 
ance of  an  English  army  in  tlie  Netherlands. 
It  must  at  least  be  confessed  that  the  king's 
afiau's,  both  at  home  and  abroad,  were  far 
worse  conducted  after  the  death  of  the  Earl 
of  Salisbury  than  before. f 

The  administration  found  an  important 
Lord  Coke's  disadvantage,  about  this  time,  in 
from  Vhe"  defection  of  S  ir  E  d ward 

court.  Coke  (more  usually  called  Lord 
Coke),  chief-justice  of  the  King's  Bench, 
from  the  side  of  prei'ogative.  He  was  a 
man  of  strong,  though  narrow  intellect ; 
confessedly  the  greatest  master  of  English 
law  that  had  ever  appeared ;  but  proud  and 
overbearing,  a  flatterer  and  tool  of  the  court 
till  he  had  obtained  his  ends,  and  odious  to 
the  nation  for  the  biiital  manner  in  which, 
as  attorney-general,  he  had  behaved  toward 
Sir  Walter  Raleigh  on  his  trial.  In  raising 
him  to  the  post  of  chief-justice,  the  council 
had  of  course  relied  on  finding  his  unfath- 
omable stores  of  precedent  subservient  to 
their  purposes.  But  soon  after  his  promo- 
tion, Coke,  from  various  causes,  began  to 
steer  a  more  independent  course.  He  was 
little  formed  to  endure  a  competitor  in  his 
own  profession,  and  lived  on  ill  terms  both 
with  the  Lord-chancellor  Egerton,  and  with 
the  attorney-general.  Sir  Francis  Bacon. 
The  latter  had  long  been  his  rival  and  ene- 
my. Discountenanced  by  Elizabeth,  who, 
against  the  importunity  of  Essex,  had  raised 

*  A  great  part  of  Winwood's  third  volume  re- 
lates to  this  business,  which,  as  is  well  known,  at- 
tracted a  prodigious  degree  of  attention  through- 
out Europe.  The  (luestiou,  as  Wiuwood  wrote  to 
Salisburj-,  was  "  not  of  the  succession  of  Cleves 
and  Juliers,  but  whether  the  house  of  Austiia  and 
the  Church  of  Rome,  both  now  on  the  wane,  shall 
recover  their  luster  and  greatness  in  these  parts  of 
Europe." — P.  378.  James  wished  to  hare  the 
right  referred  to  his  arbitration,  and  would  have 
decided  in  favor  of  the  Elector  of  Brandenburg,  the 
chief  Protestant  competitor. 

t  Winwood,  vols.  ii.  and  iii.,  passim.  Birch, 
that  accurate  master  of  this  part  of  English  histo- 
ry, has  done  justice  to  Salisbury's  character. — 
Negotiations  of  Edmondes,  p.  347.  Miss  Aikin, 
looking  to  his  want  of  constitutional  principle,  is 
more  mifavorable,  and  in  that  respect  justly  ;  but 
■what  statesman  of  that  age  was  ready  to  admit 
the  new  creed  of  Parliamentary  control  over  the 
executive  government? — Memoirs  of  James,  i., 
395. 

N 


Coke  over  his  head,  that  great  and  aspiring 
genius  was  now  high  in  the  king's  tavor. 
The  chief-justice  alfected  to  look  down  on 
one  as  inferior  to  him  in  knowledge  of  our 
municipal  law,  as  he  was  superior  in  all 
other  learning  and  in  all  the  philosophy  of 
jurisprudence;  and  the  mutual  enmity  of 
these  illustrious  men  never  ceased  till  each, 
in  his  turn,  satiated  his  revenge  by  the  oth- 
er's fall.  Coke  was  also  much  ofiended  by 
the  attempts  of  the  bishops  to  emancipate 
their  ecclesiastical  courts  from  the  civil  ju- 
risdiction. I  have  already  mentioned  the 
peremptory  tone  in  which  he  repelled  Ban- 
croft's Articuli  Cleri;  but  as  the  king  and 
some  of  the  council  rather  favored  these 
episcopal  pretensions,  they  were  troubled 
by  what  they  deemed  his  obstinacy,  and  dis- 
covered more  and  more  that  they  had  to 
deal  with  a  most  impracticable  spirit. 

It  would  be  invidious  to  exclude  from 
the  motives  that  altered  Lord  Coke's  be- 
havior in  matters  of  prerogative  his  real  af- 
fection for  the  laws  of  the  land,  which  nov- 
el systems,  broached  by  the  churchmen 
and  civilians,  threatened  to  subvert.*  In 
Bates's  case,  which  seems  to  have  come  in 
some  shape  exti'a-judicially  before  him,  he 
had  delivered  an  opinion  in  fiivor  of  the 


*  "  On  Sunday,  before  the  king's  going  to  New- 
market (which  was  Sunday  last  was  a  se'miight), 
my  Lord  Coke  and  all  the  judges  of  the  common 
law  were  before  his  majesty  to  answer  some  com- 
plaints made  by  the  civil  lawyers  for  the  general 
granting  of  prohibitions.  I  heard  that  the  Lord 
Coke,  among  other  offensive  speech,  should  say  to 
his  majesty  that  his  highness  was  defended  by  his 
laws.  At  which  saying,  with  other  speech  then 
used  by  the  Lord  Coke,  his  majesty  was  very 
much  offended,  and  told  him  he  spoke  foolishh", 
and  said  that  he  was  not  defended  by  his  laws, 
but  by  God  ;  and  so  gave  the  Lord  Coke,  in  other 
words,  a  very  sharp  reprehension,  both  for  that 
and  other  things  ;  and  withal  told  him  that  Sir 
Thomas  Crompton  [judge  of  the  Admiralty]  was 
as  good  a  man  as  Coke,  my  Lord  Coke  having  tlien, 
by  way  of  exception,  used  some  speech  against 
Sir  Thomas  Crompton.  Had  not  my  lord- treasur- 
er, most  humbly  on  his  knee,  used  many  good 
words  to  pacify  his  majesty  and  to  excuse  that 
which  had  been  spoken,  it  was  thought  his  high- 
ness would  have  been  much  more  offended.  In 
the  conclusion,  his  majesty,  by  means  of  my  lord- 
treasurer,  was  well  paci6ed,  and  gave  a  gi-acious 
countenance  to  all  the  other  judges,  and  said  he 
would  maintain  the  common  law." — Lodge,  iii., 
364,  This  letter  is  dated  25th  of  November,  IGO^ 
which  shows  how  early  Coke  had  begun  to  give 
offense  by  his  zeal  for  the  law. 


194 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


king's  right  to  impose  at  the  out-ports ;  but 
80  cautiously  guarded,  and  bottomed  on 
such  different  gi'ounds  from  those  taken  by 
the  barons  of  the  Exchequer,  that  it  could 
not  be  cited  in  favor  of  any  fresh  enci'oach- 
ments.*  He  now  performed  a  great  serv- 
lUegai  proc-  ice  to  his  country.  The  practice 
lamations.  pf  issuing  proclamations,  by  way 
of  temporary  regulation  indeed,  but  inter- 
fering with  the  subject's  liberty,  in  cases 
unprovided  for  by  Parliament,  had  grown 
still  more  usual  than  under  Elizabeth. 
Coke  was  sent  for  to  attend  some  of  the 
council,  who  might,  perhaps,  have  reason 
to  conjecture  his  sentiments ;  and  it  was 
demanded  whether  the  king,  by  his  procla- 
mation, might  prohibit  new  buildings  about 
London,  and  whether  he  might  prohibit  the 
making  of  starch  fi-om  wheat.  This  was 
during  the  session  of  Parliament  in  1610, 
and  with  a  view  to  what  answer  the  king 
should  make  to  the  Commons'  remonsti-ance 
against  these  proclamations.  Coke  replied, 
that  it  was  a  matter  of  great  importance,  on 
which  he  would  confer  with  his  brethren. 
"  The  chancellor  said,  that  eveiy  precedent 
had  first  a  commencement,  and  he  would 
advise  the  judges  to  maintain  the  power 
and  prerogative  of  the  king ;  and  in  cases 
wherein  there  is  no  authority  and  prece- 
dent, to  leave  it  to  the  king  to  order  in  it 
according  to  his  wisdom  and  for  the  good  of 
his  subjects,  or  otherwise  the  king  would 
be  no  more  than  the  Duke  of  Venice  ;  and 
that  the  king  was  so  much  restrained  in  his 
prerogative,  that  it  was  to  be  feared  the 
bonds  would  be  broken.  And  the  lord  privy- 
seal  (Northampton)  said,  that  the  physician 
was  not  always  bound  to  a  precedent,  but  to 
apply  his  medicine  according  to  the  quali- 
ty of  the  disease  ;  and  all  concluded  that  it 
should  be  necessary  at  that  time  to  confirm 
the  king's  prerogative  with  our  opinions, 
although  there  were  not  any  former  prece- 
dent or  authority  in  law ;  for  every  prece- 
dent ought  to  have  a  commencement.  To 
which  I  answered,  that  h'ue  it  is  that  every 
precedent  ought  to  have  a  commencement ; 
but  when  authority  and  precedent  are  want- 
ing, there  is  need  of  great  consideration 

*  12  Reports.  In  his  second  Institute,  p.  57, 
■written  a  good  deal  later,  he  speaks  in  a  very  dif- 
ferent manner  of  Bates's  case,  and  declares  the 
judgTnent  of  the  Court  of  Exchequer  to  be  contra- 
ry to  law. 


before  that  any  thing  of  novelty  shall  be 
established,  and  to  provide  that  this  be  not 
against  the  law  of  the  land ;  for  I  said  that 
the  king  can  not  change  any  part  of  the 
common  law,  nor  create  any  offense  by  his 
proclamation  which  was  not  an  offense  be- 
fore, without  Parliament.  But  at  this  time 
I  only  desired  to  have  a  time  of  consulta- 
tion and  conference  with  my  brothers." 
This  was  agreed  to  by  the  council,  and 
three  judges,  besides  Coke,  appointed  to 
consider  it.  They  resolved  that  the  king, 
by  his  proclamation,  can  not  create  any  of- 
fense which  was  not  one  before,  for  then 
he  might  alter  the  law  of  the  land  in  a  high 
point ;  for  if  he  may  create  an  offense  where 
none  is,  upon  that  ensues  fine  and  imprison- 
ment. It  was  also  resolved  that  the  king 
hath  no  prerogative  but  what  the  law  of  the 
land  allows  him ;  but  the  king,  for  the  pre- 
vention of  offenses,  may  by  proclamation 
admonish  all  his  subjects  that  they  keep  the 
laws  and  do  not  offend  them,  upon  punish- 
ment to  be  inflicted  by  the  law ;  and  the 
neglect  of  such  proclamation,  Coke  says, 
aggravates  the  offense.  Lastlj',  they  re- 
solved, that  if  an  offense  be  not  punishable 
in  the  Star  Chamber,  the  prohibition  of  it 
by  proclamation  can  not  make  it  so.  After 
this  resolution,  the  report  goes  on  to  re- 
mark, no  proclamation  imposing  fine  and 
imprisonment  was  made.* 

*  12  Reports.  There  were,  however,  several 
proclamations  afterward  to  forbid  bnUding  within 
two  miles  of  London,  except  on  old  foundations, 
and  in  that  case  only  with  brick  or  stone,  under 
penalty  of  being  proceeded  against  by  the  attor- 
ney-general in  the  Star  Chamber. — Rjmer,  xvii., 
107  (1618),  144  (1619),  607  (1624).  London  never- 
theless increased  rapidly,  whicli  was  by  means  of 
licenses  to  build ;  the  prohibition  being  in  this,  as 
in  many  other  cases,  enacted  chiefly  for  the  sake 
of  the  dispensations. 

James  made  use  of  proclamations  to  infringe 
personal  Uberty  in  another  respect.  He  disliked 
to  see  any  countrj-  gentleman  come  up  to  London, 
where,  it  must  be  confessed;  if  we  trust  to  what 
those  proclamations  assert  and  the  memoirs  of  the. 
age  confirm,  neither  their  own  behavior,  nor  that 
of  their  wives  and  daughters,  who  took  the  worst 
means  of  repaiiTug  the  rain  their  extravagance 
had  caused,  redounded  to  their  honor.  The  king's 
comparison  of  them  to  ships  in  a  river  and  in  the 
sea  is  well  known.  Still,  in  a  constitutional  point 
of  view,  we  may  be  startled  at  proclamations  com- 
manding them  to  return  to  their  country  houses 
and  maintain  hospitality,  on  pain  of  condign  pun- 
ishment.—Rj-mer,  xvi.,  517  (1604) ;  xvil,  417  (1622), 
632  (1624). 


James  I.] 


FROM  HENRY  Vn.  TO  GEORGE  U. 


195 


By  the  abrupt  dissolution  of  Parliament 
James  was  left  nearly  in  the  same  necessity 
as  before,  their  subsidy  being  by  no  means 
sufficient  to  defray  his  expenses,  far  less  to 
Means  resort-  discharge  his  debts.  He  had  fre- 
ed to  in  order  quently  betaken  himself  to  the 

to  avoid  the  ,  -         ,  . 

meeting  of  usual  resource  ot  applying  to 
Parliameot.  pj-jvate  subjects,  especially  rich 
merchants,  for  loans  of  money.  These 
loans,  which  bore  no  interest,  and  for  the 
repayment  of  which  there  was  no  securitj-, 
disturbed  the  prudent  citizens,  especially 
as  the  council  used  to  solicit  them  with  a 
degree  of  importunity  at  least  bordering  on 
compulsion.  The  House  of  Commons  had 
in  the  last  session  requested  that  no  one 
should  be  bound  to  lend  money  to  the  king 
against  his  will.  The  king  had  answered 
that  he  allowed  not  of  any  precedents  from 
the  time  of  usurping  or  decaying  princes,  or 
people  too  bold  and  wanton  ;  that  he  desired 
not  to  govern  in  that  commonwealth  where 
the  people  should  be  assm'ed  of  every  thing 
and  hope  for  nothing,  nor  would  he  leave  to 
posterity  such  a  mark  of  weakness  on  his 
reign ;  yet,  in  the  matter  of  loans,  he  would 
refuse  no  reasonable  excuse.*  Forced 
loans  or  benevolences  were  directly  prohib- 
ited by  an  act  of  Richard  HI.,  whose  laws, 
however  the  court  might  sometimes  throw 
a  slur,  upon  his  usui-pation,  had  always  been 
in  the  statute-book.  After  the  dissolution 
of  1610,  James  attempted,  as  usual,  to  ob- 
tain loans,  but  the  merchants,  grown  bolder 
with  the  spirit  of  the  times,  refused  him  the 
accommodation,  f  He  had  recourse  to  an- 
other method  of  raising  money,  unprece- 
dented, I  believe,  before  his  reign,  though 
long  practiced  in  France,  the  sede  of  honors. 
He  sold  several  peerages  for  considerable 
sums,  and  created  a  new  order  of  heredita- 
ry knights,  called  baronets,  who  paid  cflOOO 
each  for  their  patents. t 


I  neglected,  in  the  first  chapter,  the  reference  I 
had  made  to  an  important  dictam  of  the  judges  in 
the  reign  of  Mary,  which  is  decisive  as  to  the  lesral 
character  of  proclamations  even  in  the  midst  of  the 
Tador  period.  "  The  king,  it  is  said,  may  make  a 
proclamation,  quoad  teiTorem  populi,  to  put  them 
in  fear  of  his  displeasure,  but  not  to  impose  any 
fine,  forfeiture,  or  imprisonment ;  for  no  proclama- 
tion can  make  a  new  law,  but  only  confirm  and 
ratify  an  ancient  one." — Dalison's  Reports,  20. 

*  Winwood,  iii.,  193.  t  Carte,  iii.,  805. 

t  The  number  of  these  was  intended  to  be  two 
hundred,  bat  only  ninety-three  patents  were  sold 
in  the  first  six  yeare. — Lingard,  is.,  203,  fi-om  Som- 


'  Such  resources,  however,  being  evidently 
insufficient  and  temporary,  it  was  almost  in- 
dispensable to  try  once  more  the  temper  of 
a  Parliament.  This  was  sti'ongly  urged  by 
Bacon,  whose  fertility  of  invention  render- 
'  ed  him  constitutionally  sanguine  of  success. 
He  submitted  to  the  king  that  there  were 
j  expedients  for  more  judiciously  managing  a 
House  of  Commons,  than  Cecil,  upon  whom 
he  was  too  willing  to  throw  blame,  had 
done  with  the  last ;  that  some  of  those  who 
'  had  been  most  forward  in  opposing  were 
j  now  won  over,  such  as  Neville,  Yelverton, 
!  Hyde,  Crew,  Dudley  Digges ;  that  much 
'  might  be  done  by  forethought  toward  filling 
the  House  with  well-affected  persons,  win- 
ning or  blinding  the  lawyers,  whom  he  calls 
"  the  literas  vocales  of  the  House,"  and 
drawing  the  chief  constituent  bodies  of  the 
assembly,  the  country  gentlemen,  the  mer- 
chants, the  com'tiers.  to  act  for  the  king's 
advantage  ;  that  it  would  be  expedient  to 
tender  voluntarily  certain  gi-aces  and  modi- 
fications of  the  king's  prerogative,  such  as 
might  with  smallest  injury  be  conceded,  lest 
they  should  be  first  demanded,  and  in  order 
to  save  more  important  points.*  This  ad- 
vice was  seconded  by  Sir  Henry  Neville,  an 
ambitious  man,  who  had  nan-owly  escaped 
in  the  queen's  time  for  having  tampered  in 
Essex's  conspiracy,  and  had  much  promoted 
the  opposition  in  the  late  Pai'liament.  but 
was  now  seeking  the  post  of  secretary  of 
state.  He  advised  the  king,  in  a  veiy  sens- 
ible memorial,  to  consider  what  had  been 
demanded  and  what  had  been  promised  in 
the  last  session,  gi-anting  the  more  reas- 
onable of  the  Commons'  requests,  and  per- 
forming all  his  own  promises  ;  to  avoid  any 
speech  likely  to  excite  irritation ;  and  to 
seem  confident  of  the  Parliament's  good  af- 
fections, not  waiting  to  be  pressed  for  what 
he  meant  to  do.f  Neville  and  others,  who, 
like  him,  professed  to  understand  the  temper 


ers  Tracts.  In  the  first  part  of  his  reign  he  had 
availed  himself  of  an  old  feudal  resource,  calling  on 
all  who  held  £iO  a  year  in  chivalry  (whether  of 
the  crown  or  not,  as  it  seems)  to  receive  knight- 
hood or  to  pay  a  composition. — Rymer,  xvi..  530. 
The  object  of  this  was  of  course  to  raise  money 
from  those  who  thought  the  honor  troublesome  and 
expensive,  but  such  as  chose  to  appear  could  not 
be  refused  ;  and  this  accounts  for  his  having  made 
many  hundred  knights  in  the  first  year  of  his  reign. 
— Harris's  Life  of  James,  69. 

*  MS.  penes  autorem.  t  Carte,  iv.,  17. 


196 


coxsrumoxAL  HsnroBY  op  exgla^d 


:cEiP.  Tx 


of  die  Cammaas,  and  to  fecifitate  the  kill's 
dBaBngB  witfa  tbcm,  were  caled  wmdatak- 

_  .    ,       en.*    TUb  cirtumstance.  Eke 

seieral  otlieis  in  me  ptesenC 
zngn,  is  carions,  as  it  shows  the  rise  irf"  a 
sy^matic  Paifiamentaij  inflneace,  wfaidi 
was  ooe  day  to  beeome  die  munqnrui^  of 
gorenuneat. 

NenHe,  however,  and  his  aaeociates,  had 
deceived  die  comtiers  with  pranees  thej 
coold  not  reafise.  It  was  resolved  to  an- , 
Boanee  certain  intended  graces  in  the 
qieech  from  the  tfarooe ;  thai  is,  to  declare 
the  king's  readiness  to  pass  bilk  dat 
remedy  some  grievances  and  retrendi  a 
pait  of  his  |Mrerogtfive.  These  pnfiered 
amendmentB  of  die  law,  fhoo^  eleven  in 
mnnber,  fiided  akogetfaer  of  g^vin^  the  coo- 
tent  diat  had  been  ftdfy  expected.  Except 
the  repeal  of  a  stnnge  act  of  Hany  VIII.. 
allowing  die  king  to  make  such  bws  as  he 
shonldthiritfitfiartheprinciprfitj  of  Wales 
without  consmt  of  Paifiament,f  none  of 
diem  could,  p«haiK,  be  reckoned  of  any  cm- 
stibdianal  impwlance.  In  aH  domanial  and 
fiscal  canses,  and  idieiev«^  die  {Hiiate  in- 
teiestB  of  the  crurwu  stood  in  conpetitioa 
with  those  of  a  solgect,  the  fismer  enjoyed 
CTormoDs  and  siqierior  advanta^s,  whereof 
what  is  strictly  called  its  prerogative  was 
ptmcqnlly  compowwL  The  tenns  of  pre- 
scription  that  faoand  other  vaea's  ri^ht,  die 
roles  of  pleading  and  procednre  estdUidied 
Cr- the  sake  of  troth  and  justice,  did  not,  in 
genefal,  oli^e  the  king.  It  was  not  by  do- 
ii^  away  a  very  few  of  diese  inridioos  and 
oppresswe  distmrtioas  that  the  cnmn  could 
be  allowed  to  ke^  on  fiiot  still  more  mo- 
...^  mratous  abases.  The  Commons 
of  1614  accordmgly  went  at  once 
to  the  chancteristic  grievance  of  this  re^n, 
the  customs  at  the  cNit-pmts.  They  had 
grown  so  eonfideot  in  fbar  cause  by  lan- 
sarkii^  ancamt  records,  that  a  nnawimoos 
vote  passed  against  the  king's  li^bt  of  im- 
poBition ;  not  that  there  were  no  cooztieis 
in  the  House,  bat  the  cry  was  too  obstrep- 
eroas  to  be  withstood.!   They  demanded 


t  Hob  adt  ^  H.  e.  was  icpealed  a  fev 
yem  ■CuawiJL— a  Jas.  I.  cl  ML 

t  CimnMf  Joanah^  466.  d,  ^  ISt.  ^ 
"Bsacs  Woona  aC  kagdi  ■iHiiii 
Cscvcftle  praqgalzve  of  fajsi^ 

14,  493.    Tils  £1_  II  ii  aeiy 


a  confexence  oo  the  sabject  with  the  L«rde, 
who  preserved  a  kind  of  mediating  neatral- 
ity  throoghoot  ths  reign-*   In  the  caone 
vi  dieir  debate,  Neyle,  biriiep  af  Lidbfield, 
threw  oat  some  asperaon  on  the  Commaas. 
They  woe  inmediately  in  a  flame,  and  de- 
manded repantkm.  ThisNeyfewBsaman 
of  ind^raent  character,  and  nerj  unpopnhr 
from  the  diare  he  had  taken  in  the  £ari  of 
E^x's  divovce,  and  from  his  severity  to- 
ward die  Paritans;  nor  £d  die  House  £ul 
to  comment  upon  aB  his  &idtx  in  their  de- 
bate.   He  had,  however,  the  pmdeoce  to 
excuse  himself  ('~  with  many  teaza,"  as  the 
Ijotds'  Joomals  infim  na),  desyiag  the 
most  ofieneive  wotds  impwted  to  him ;  and 
the  a&ir  went  no  fimher.f    This  3  hn- 
mor  of  die  Commoaa  discawf  ited  dioae 
who  had  refied  on  the  mdeztakeis;  bat  as 
the  secret  of  these  men  had  not  been  kept, 
th^  pniiect  coosidetably  aggravated  die 
preiaofii^  discontent.  1    The  king  had  pos- 
itively demed  in  his  first  qteeeh  that  dioo 
were  any  such  andertakcaB ;  and  Bacon, 
then  attorney -general,  hm^ied  at  the  chi- 
\  merical  notion  diat  priiate  men  shoidd  im- 
datake  for  aO  the  commons  of  £n^and.§ 
That  some  peisons,  however,  had  "t***"^ 
that  name  at  cooTt,  and  held  osx  such  pran- 
kes,  is  at  present  ont  of  doabt;  and,  indeed, 
^  the  king,  fiagetfid  of  his  fiarmer  denial,  ex- 
!  preafcly  confessed  it  on  opening  the  nfiVm 
;  of  1G31. 

j     Amid  diese  heats  fitlle  progreas  was 
made,  and  no  one  took  up  the 
,  boaness  of  luipply .    The  king  at 
I  sent  a  namiMge,  reqnestniig  diat  a  siq)piy 
mi^it  be  granted,  with  a  dneat  of  dissolv- 
ii^  Parliament  mdess  it  were  done.  Bat 


aad  ^'"^l^*  aasweied  Inn  fckai  fHUfHJil^. 

*  Tke  ja^es  bana^  becB  cded  ^oa  'hy  Ifce 
Omsb  of  lads  to  ddver  do-  <naMi—i  oa  the 


fciucK,  ivtfie^eti,  by?  tbe  anadb  of  ClarT jiiflirc 
Coke^  to  be  exeased.  IWs  was  frabdUr  a 
panasoat  to  IjAA-cbaaceflor  KeettDKr  vbo  m^ul 
to  r  ""1^  Aeto.  aad  paoceeded  fiaai  Coke's  £>- 
fibetoUataadtotfaeemt.  ItiBdacedtbeHoase 
to  ill  I  Tail  tbe  txmfsnmee^—ljmls  SammO^  S3d 
May. 

tlo^-JoKaafa^lfa^Sl.   Cm— r  Joaaafa. 

%  Cane^iv.,  23.  Senile's  aKfaanrial,  than  bkb- 
tUBed,  was  le^  in  die  Hoose^  Vmj  14. 
f  Caite.  ir,  14,  aOL  Bacm^  i,  <Ba>.  CJ^4K3. 


James  I.] 


FROM  HEXllY  VII.  TO  GEORGE  II. 


197 


the  days  of  intimidation  were  gone  by. 
The  House  voted  tliat  they  would  first  pro- 
ceed with  the  business  of  impositions,  and 
postpone  supply  till  their  grievances  should 
Dissolved  be  redressed.*  Aware  of  the 
sinX"sin^e  impossibility  of  conquering  their 
act.  resolution,  the  king  carried  his 

measure  into  effect  by  a  dissolution. f 
They  had  sat  about  two  months,  and,  what 
is  perhaps  unprecedented  in  our  history, 
had  not  passed  a  single  bill.  James  fol- 
lowed up  this  strong  step  by  one  still  more 
vigorous.  Several  members,  who  had  dis- 
tinguished themselves  liy  warm  language 
against  the  government,  were  an-ested  after 
the  dissolution,  and  kept  for  a  short  time  in 
custody  ;  a  manifest  violation  of  that  free- 
dom of  speech,  without  which  no  assembly 
can  be  independent,  and  wliich  is  the  stipu- 
lated privilege  of  the  House  of  Commons.t 
It  was  now  evident  that  James  could 
Benevolen-  never  cxpect  to  be  on  terms  of 
ces.  harmony  with  a  Parliament  un- 
less by  surrendering  pretensions  which  not 
only  were  in  his  eyes  indispensable  to  the 
luster  of  his  monarchy,  but  from  which  he 
derived  an  income  that  he  had  no  means  of 
replacing.  He  went  on,  accordingly,  for 
six  yeai's,  supplying  his  exigencies  by  such 
precarious  resources  as  circumstances  might 
furnish.  He  restored  the  towns  mortgaged 
by  the  Dutch  to  Elizabeth  on  payment  of 
2,700,000  florins,  about  one  third  of  the 
original  debt.  The  enormous  fines  imposed 
by  the  Star  Chamber,  though  seldom,  I  be- 
lieve, enforced  to  their  utmost  extent,  must 
have  considerably  enriched  the  Exchequer. 
It  is  said  by  Carte  that  some  Dutch  mer- 
chants paid  fines  to  the  amount  of  £133,000 
for  expoiting  gold  coin.§  But  still  gi-eater 
profit  was  hoped  from  the  requisition  of 
that  more  than  half  involuntaiy  conti-ibu- 
tion,  miscalled  a  benevolence.  It  began  by 
a  subscription  of  the  nobility  and  principal 
persons  about  the  couit.  Letters  were 
sent  written  to  the  sheriffs  and  magistrates, 

*  C.  J.,  506.  Carte,  23.  This  writer  absurdly 
defends  the  prerogative  of  laymg  impositions  on 
mercliandise  as  part  of  the  law  of  nations. 

t  It  is  said  that,  previously  to  taking  this  step, 
the  king  sent  for  the  Commons,  and  tore  all  their 
bills  before  their  faces  in  the  Banqueting  House 
at  Whitehall. — D  israeli's  Character  of  James,  p. 
158,  on  the  authority  of  an  unpublished  letter. 

t  Carte.  Wilson.  Camden's  Annals  of  James 
I.  (in  Kennet,  ii.,  6-13).  §  Carte,  iv.,  56. 


directing  them  to  call  on  people  of  ability. 
It  had  alwaj'S  been  supposed  doubtful 
whether  the  statute  of  Richard  III.  abro- 
gating "  exactions,  called  benevolences," 
should  extend  to  voluntai-y  gifts  at  the  so- 
licitation of  the  crown.  The  language  used 
in  that  act  certainly  implies  that  the  pre- 
tended benevolences  of  Edward's  reign  had 
been  extorted  against  the  subjects'  will;  yet 
if  positive  violence  were  not  employed,  it 
seems  difficult  to  find  a  legal  criterion  by 
which  to  distinguish  the  effects  of  willing 
loyalty  from  those  of  fear  or  shame.  Lord 
Coke  is  said  to  have  at  first  declared  that 
the  king  could  not  solicit  a  benevolence 
from  his  subjects,  but  to  have  afterward  re- 
tracted his  opinion  and  pronounced  in  favor 
of  its  legality.  To  this  second  opinion  he 
adheres  in  his  Reports.*  While  this  busi- 
ness Avas  pending,  Mr.  Oliver  St.  John 
wrote  a  letter  to  the  mayor  of  Marlborough, 
explaining  his  reasons  for  declining  to  con- 
tribute, foxmded  on  the  several  statutes 
which  he  deemed  api)licable,  and  on  the 
impropriety  of  particular  men  opposing 
their  judgment  to  the  Commons  in  Parlia- 
ment, who  had  refused  to  grant  any  subsi- 
dy. This  argument,  in  itself  exasperating, 
he  followed  up  by  somewhat  blunt  observa- 
tions on  the  king.  His  letter  came  under 
the  consideration  of  the  Star  Chamber, 
where  the  offense  having  been  severely 
descanted  upon  by  the  attorney-general, 
Mr.  St.  John  was  sentenced  to  a  fine  of 
c£5000,  and  to  imprisonment  during  pleas- 
ure, f 

Coke,  though  still  much  at  the  council- 
board,  was  regarded  with  in-  Prosecution 
creasing  dislike  on  account  of  his  of  Peacham. 
uncompromising  humor.  This  he  had  oc- 
casion to  display  in  perhaps  the  worst  and 
most  tyrannical  act  of  King  James's  reign, 
the  prosecution  of  one  Peacham,  a  minister 
in  Somersetshire,  for  high  ti'eason.  A  ser- 
mon had  been  found  in  this  man's  study  (it 
does  not  appear  what  led  to  the  search), 
never  preached,  nor,  if  Judge  Coke  is  right, 
intended  to  be  preached,  containing  such 
sharp  censures  upon  the  king,  and  invec- 
tives against  the  government,  as,  had  they 
been  published,  would  have  amounted  to  a 
seditious  libel.  But  common  sense  revolt- 
ed at  construing  it  into  ti'eason,  under  the 
statute  of  Edward  III.,  as  a  compassing  of 

*  12  Reports,  119.       t  State  Trials,  ii.,  839. 


198 


COXSTITUTIOXAL  HISTORY  OF  EXGI,AND 


[Chap.  VL 


the  king's  death.  James,  however,  took  it 
up  with  indecent  eagerness.  Peacham  was 
put  to  the  rack,  and  examined  upon  various 
inteiTogatories,  as  it  is  expressed  by  Secre- 
tary Winwood,  "  before  torture,  in  torture, 
betAveen  torture,  and  after  tortui-e."  Noth- 
ing could  be  drawn  from  him  as  to  any  ac- 
comphces,  nor  any  explanation  of  his  design 
in  writing  the  sermon,  which  was  probably 
but  an  intemperate  affusion,  so  common 
among  the  Puritan  clergj'.  It  was  neces- 
sary, therefore,  to  rely  on  this,  as  the  overt 
act  of  treason.  Aware  of  the  difficulties 
that  attended  this  course,  the  king  directed 
Bacon  pi-eviously  to  confer  with  the  judges 
of  the  King's  Bench,  one  by  one,  in  order 
to  secure  their  determination  for  the  crown. 
Coke  objected  that  "  such  pai'ticular,  and, 
as  he  called  it,  auricular  taking  of  opinions, 
was  not  according  to  the  custom  of  this 
realm."*  The  other  three  judges  having 
been  tampered  with,  agreed  to  answer  such 
questions  concerning  the  case  as  the  king 
might  direct  to  be  put  to  them ;  yielding  to 
the  sophism  that  every  judge  was  bound  by 
his  oath  to  give  counsel  to  his  majestj'. 
The  chief-justice  continued  to  maintain  Ms 
objection  to  this  separate  closeting  of  judges ; 
yet,  finding  himself  abandoned  by  his  col- 
leagues, consented  to  give  answers  in  writ- 
ing, which  seem  to  have  been  merely  eva- 
sive. Peachara  was  brought  to  trial,  and 
found  guiltj',  but  not  executed,  dying  in 
prison  a  few  months  after.f 

It  was  not  long  before  the  intrepid  chief- 


*  There  had,  however,  been  iustances  of  it,  as 
in  Sir  Walter  Raleigh's  case — Lodge,  iii.,  172, 
173 ;  and  I  have  found  proofs  of  it  in  the  queen's 
reign,  though  I  can  not  at  present  quote  my  author- 
ity. In  a  former  age,  the  judges  had  refused  to 
give  an  extra-judicial  answer  to  the  king. — Lin- 
gard,  v.,  382,  from  the  year-book,  Pasch.  1  H.  7, 
15.    Trin.,  1. 

t  State  Trials,  ii.,  869.  Bacon,  ii.,  483,  ace.  Dal- 
rjmple's  Memorials  of  James  I.,  vol.  i.,  p.  56.  Some 
other  very  unjustifiable  constructions  of  the  law  of 
treason  took  place  in  this  reign.  Thomas  Owen 
was  indicted  and  found  guiltj-,  under  the  statute 
of  Edward  III.,  for  saj-ing  that  "  the  king,  being 
excommunicated  (i.  c,  if  he  should  be  excommuni- 
cated) by  the  pope,  might  be  lawfully  deposed  and 
killed  by  any  one,  which  killing  would  not  be  mur- 
der, being  the  execution  of  the  supreme  sentence 
of  the  pope ;"  a  position  verj-  atrocious,  but  not 
amounting  to  treason — State  Trials,  ii.,  879 ;  and 
Williams,  another  papist,  was  convicted  of  treas- 
on by  a  still  more  violent  stretch  of  law,  for  writ- 
ing a  book  predicting  the  king's  death  in  the  year 
1621.— Id.,  1085. 


justice  incurred  again  the  coun-  Di.pote 
cil's  displeasure.    This  will  re-  about  the  ju- 

/.      .  ,  risdiction  of 

quu'e,  tor  the  sake  oi  part  of  my  the  Court  of 
readers,  some  little  previous  ex-  thancery. 
planation.  The  equitable  jurisdiction,  as 
it  is  called,  of  the  Court  of  Chanceiy  ap- 
pears to  have  been  derived  from  that  extens- 
ive judicial  power  which,  in  early  times, 
the  king's  ordinaiy  council  had  exercised. 
The  chancellor,  as  one  of  the  highest  offi- 
cers of  state,  took  a  great  share  in  the  coun- 
cil's business  ;  and  when  it  was  not  sitting, 
he  had  a  court  of  his  own,  with  jurisdiction 
in  many  important  matters,  out  of  which 
process  to  compel  appearance  of  parties 
might  at  any  time  emanate.  It  is  not  un- 
■  likely,  therefore,  that  redress,  in  matters 
•  beyond  the  legal  province  of  the  chancellor, 
j  was  occasionallj"^  given  tlirough  the  para- 
j  mount  authority  of  this  court.  We  find  the 
!  council  and  the  Chancery  named  together 
in  many  remonstrances  of  the  Commons 
against  this  interference  with  private  rights, 
from  the  time  of  Richard  II.  to  that  of 
Henry  VI.  It  was  probably  in  the  former 
reign  that  the  chancellor  began  to  estab- 
lish systematically  his  peculiar  restraining 
jurisdiction.  This  originated  in  the  prac- 
tice of  feoffments  to  uses,  by  which  the 
feoffee,  who  had  legal  seisin  of  the  land, 
stood  bound  by  private  engagement  to  suf- 
fer another,  called  the  cestui  que  use,  to 
enjoy  its  use  and  possession.  Such  fidu- 
ciarj-  estates  were  well  known  to  the  Roman 
jurists,  but  inconsistent  with  the  feudal  ge- 
nius of  our  law.  The  courts  of  justice  gave 
no  redress,  if  the  feoffee  to  uses  violated  his 
trust  by  detaining  the  land.  To  renied}' 
this,  an  ecclesiastical  chancellor  devised  the 
writ  of  subpoena,  compelling  him  to  answer 
upon  oath  as  to  his  trust.  It  was  evidently 
necessarj',  also,  to  resti'ain  him  from  pro- 
ceeding, as  he  might  do,  to  obtain  posses- 
sion ;  and  this  gave  rise  to  injunctions,  thiit 
is,  prohibitions  to  sue  at  law,  the  violation 
of  which  was  punishable  by  imprisonment 
as  a  contempt  of  court.  Other  instances 
of  breach  of  trust  occuiTcd  in  personal  con- 
tracts, and  cases  also  wherein,  without  any 
ti-ust,  there  was  a  wrong  committed  beyond 
the  competence  of  the  comts  of  l<iw  to  re- 
dress ;  to  all  which  the  process  of  subpoena 
was  made  applicable.  This  extension  of  a 
novel  jurisdiction  was  partly  owing  to  a  fun- 
damental principle  of  our  common  law,  that 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


199 


a  defendant  can  not  be  examined ;  so  that, 
if  no  witness  or  witten  instrument  could 
be  produced  to  prove  a  demand,  the  plain- 
tiff was  AvhoUy  debarred  of  justice;  but  in 
a  still  greater  degi-ee,  to  a  strange  narrow- 
ness and  scrupulosity  of  the  judges,  who, 
fearful  of  quitting  the  letter  of  their  prece- 
dents, even  with  the  cleai'est  analogies  to 
guide  them,  repelled  so  many  just  suits, 
and  set  up  rules  of  so  much  hardshij),  that 
men  were  thankful  to  embrace  the  relief 
held  out  bj^  a  tribunal  acting  in  a  more  ra- 
tional spirit.  This  error  the  common  law- 
yers began  to  discover  in  time  to  resume  a 
gi'eat  part  of  their  jurisdiction  in  matters  of 
contract,  which  would  otherwise  have  es- 
caped from  them.  They  made,  too,  an  ap- 
parently successful  effort  to  recover  their 
exclusive  authority  over  real  property,  by 
obtaining  a  statute  for  tm-ning  uses  into  pos- 
session ;  that  is,  for  annihilating  the  ficti- 
tious estate  of  the  feoffee  to  uses,  and  vest- 
ing the  legal  as  well  as  equitable  possession 
m  the  cestui  que  use.  But  this  victoiy,  if 
I  may  use  such  an  expression  (since  it 
would  have  freed  them,  in  a  most  important 
point,  from  the  chancellors  control),  they 
threw  away  by  one  of  those  timid  and  nar- 
row constructions  which  had  already  turned 
60  much  to  their  prejudice ;  and  they  per- 
mitted trust-estates,  by  the  introduction  of  a 
few  more  words  into  a  convej'ance,  to  main- 
tain their  ground,  contradistinguished  from 
the  legal  seisin,  under  the  protection  and 
guarantee,  as  before,  of  the  courts  of  equity. 

The  particular  limits  of  this  equitable  ju- 
risdiction were  as  yet  exceedingly  indefi- 
nite. The  chancellors  were  generally  prone 
to  extend  them ;  and  being,  at  the  same 
time,  ministers  of  state  in  a  government  of 
very  arbitraiy  temper,  regarded  too  little 
that  coui-se  of  precedent  by  which  the  oth- 
er judges  held  themselves  too  sti-ictly  bound. 
The  cases  reckoned  cognizable  in  Chancery 
grew  silently  more  and  more  numerous,  but 
with  little  overt  opposition  from  the  courts 
of  law  till  the  time  of  Sir  Edward  Coke. 
Tliat  great  master  of  the  common  law  was 
inspired  not  only  with  the  jealousy  of  this  ir- 
regular and  encroaching  jurisdiction,  which 
most  lawyers  seem  to  have  felt,  but  with  a 
tenaciousness  of  his  own  dignity,  and  a  per- 
sonal enmity  toward  Egerton,  who  held  the 
gi-eat  seal.  It  happened  that  an  action  was 
tried  before  him,  the  precise  circumstances 


of  which  do  not  appear,  wherein  the  plain- 
tiff' lost  the  verdict,  in  consequence  of  one 
of  his  witnesses  being  artfully  kept  away. 
He  had  recourse  to  the  Court  of  Chancery, 
fiUng  a  bill  against  the  defendant  to  make 
him  answer  upon  oath,  which  he  refused 
to  do,  and  was  committed  for  contempt. 
Indictments  were  upon  tliis  preferred,  at 
Coke's  instigation,  against  the  parties  who 
had  filed  the  bill  in  Chancery,  their  council 
and  solicitors,  for  suing  in  another  court  af- 
ter judgment  obtained  at  law,  which  was 
edleged  to  be  conti'ary  to  the  statute  of  prae- 
munire. But  the  grand  jury,  though  press- 
ed, as  is  said,  by  one  of  the  judges,  threw 
out  these  indictments.  The  king,  already 
incensed  with  Coke,  and  stimulated  by  Ba- 
con, thought  this  too  great  an  insult  upon 
his  chancellor  to  be  passed  over.  He  first 
directed  Bacon  and  others  to  search  for 
precedents  of  cases  where  relief  had  been 
given  in  Chancery  after  judgment  at  law. 
They  reported  that  there  was  a  series  of 
such  precedents  from  the  time  of  Henry 
VIH.,  and  some  where  the  chancellor  had 
entertained  suits  even  after  execution.  The 
attorney-general  was  directed  to  prosecute 
in  the  Star  Chamber  those  who  had  pre- 
ferred the  indictments  ;  and  as  Coke  had  not 
been  ostensibly  implicated  in  the  business, 
the  king  contented  himself  with  making  an 
order  in  the  council-book,  declaring  the  chan- 
cellor not  to  have  exceeded  his  jurisdiction.* 

The  chief-justice,  almost  at  the  same 
time,  gave  another  provocation,  Caseofcom- 
which  exposed  him  more  dii-ect-  mendams. 
ly  to  the  court's  resentment.  A  cause  hap- 
pened to  be  argued  in  the  Court  of  King's 
Bench,  wherein  the  validity  of  a  particular 
gi'ant  of  a  benefice  to  a  bishop  to  be  held  in 
commendam,  that  is,  along  with  his  bishop- 
ric, came  into  question  ;  and  the  counsel  at 
the  bai-,  besides  the  special  points  of  the 
case,  had  disputed  the  king's  general  pre- 
rogative of  making  such  a  gi-ant.  The  king, 
on  receiving  information  of  this,  signified  to 
the  chief-justice  through  the  attorney-gen- 
eral that  he  would  not  liave  the  court  pro- 
ceed to  judgment  till  he  had  spoken  with 
them.  Coke  requested  that  similar  letters 
might  be  written  to  the  judges  of  all  the 
courts.  This  having  been  done,  they  as- 
sembled, and  by  a  letter  subscribed  with  all 
their  hands,  certified  his  majesty  that  they 

*  Bacon,  ii.,  500,  518,  522.    Cro.  Jac,  335,  343. 


200 


COXSTITL'TIOXAL  HI: 


:STOaY  OF  EXGLAXD 


[Chap.  VL 


were  bound  by  their  oaths  not  to  regard  any 
letters  that  might  come  to  them  contrary 
to  law,  but  to  do  the  law  notwithstanding ; 
that  they  held  with  one  consent  the  attom- 
ey-general's  letter  to  be  conti'ary  to  law, 
and  such  as  they  could  not  yield  to,  and  that 
they  had  proceeded  according  to  their  oath 
to  argue  the  cause. 

The  king,  who  was  then  at  Newmarket, 
returned  answer  that  he  would  not  suffer 
his  prerogative  to  be  wounded,  under  pre- 
text of  the  interest  of  private  persons  ;  that 
it  had  ah-eady  been  more  boldly  dealt  with 
in  Westminster  Hall  than  in  the  reigns  of 
preceding  princes,  which  popular  and  un- 
lawful liberty  he  would  no  longer  endure ; 
that  their  oath  not  to  delay  justice  was  not 
meant  to  prejudice  the  king's  prerogative ; 
concluding  that  out  of  his  absolute  power 
and  authority  royal  he  commanded  them  to 
forbear  meddling  any  further  in  the  cause 
till  they  should  hear  his  pleasure  fi-om  his 
own  mouth.  Upon  his  return  to  London, 
the  twelve  judges  appeared  as  culprits  in 
the  council-chamber.  The  king  set  forth 
their  misdemeanors,  both  in  substance  and 
in  the  tone  of  their  letter.  He  observed 
that  the  judges  ought  to  check  those  advo- 
cates who  presume  to  argue  against  his  pre- 
rogative; that  the  popular  lawyers  had  been 
the  men,  ever  since  his  accession,  who  had 
trodden  in  all  Parliaments  upon  it,  though 
the  law  could  never  be  respected  if  the  king 
were  not  reverenced  ;  that  he  had  a  double 
prei'ogative,  whereof  the  one  was  ordina- 
ly,  and  had  relation  to  his  private  interest, 
which  might  be  and  was  every  day  disput- 
ed in  Westminster  Hall ;  the  other  was  of 
a  higher  natiu-e,  referring  to  his  supreme 
and  imperial  power  and  sovereignty,  which 
ought  not  to  be  disputed  or  handled  in  vul- 
gar argument ;  but  that  of  late  the  courts 
of  common  law  are  gi'own  so  vast  and  ti-ans- 
cendent,  as  they  did  both  meddle  with  the 
king's  prerogative,  and  had  encroached  upon 
all  other  courts  of  justice.  He  commented 
on  the  form  of  the  letter  as  highly  indecent, 
certifying  him  merely  what  they  had  done, 
instead  of  submitting  to  his  princely  judg- 
ment what  they  should  do. 

After  this  harangue  the  judges  fell  upon 
their  knees,  and  acknowledged  their  eiTor 
as  to  the  form  of  the  letter.  But  Coke  en- 
tered on  a  defense  of  the  substance,  main- 
taining the  delay  required  to  be  against  the 


law  and  their  oaths.  The  king  required 
the  chancellor  and  attorney-general  to  de- 
liver their  opinions,  which,  as  may  be  sup- 
posed, were  diametrically  opposite  to  those 
of  the  chief  justice.  These  being  heard, 
the  following  question  was  put  to  the  judg- 
es :  Whether,  if  at  any  time,  in  a  case  de- 
[  pending  before  the  judges,  his  majesty  con- 
ceived it  to  concern  him  either  in  power  or 
pi-ofit,  and  thereupon  required  to  consult 
with  them,  and  that  they  should  stay  pro- 
ceedings in  the  mean  time,  they  ought  not 
to  stay  accordingly  ?  They  all,  except  the 
chief-justice,  declared  that  they  would  do 
so,  and  acknowledged  it  to  be  their  duty ; 
Hobart,  chief-justice  of  the  Common  Pleas, 
adding  that  he  would  ever  trust  the  justice 
of  his  majesty's  commandment.  But  Coke 
only  answered,  tliat  when  the  case  should 
arise,  he  would  do  what  should  be  fit  for  a 
judge  to  do.  The  king  dismissed  them  all 
%^ith  a  command  to  keep  the  limits  of  their 
several  courts,  and  not  to  suffer  bis  prerog- 
ative to  be  wounded  ;  for  he  well  knew  the 
true  and  ancient  common  law  to  be  the  most 
favorable  to  kings  of  any  law  in  the  world, 
to  Avhich  law  he  advised  them  to  apply  their 
studies.* 

The  behavior  of  the  judges  in  this  inglo- 
rious contention  was  such  as  to  deprive  them 
of  eveiy  shadow  of  that  confidence  which 
ought  to  be  reposed  in  their  integiity.  Ho- 
bart, Doddridge,  and  several  more,  were 
men  of  much  consideration  for  learning,  and 
their  authoi-ity  in  ordinary  matters  of  lav? 
is  still  held  high.  But  having  been  induced 
by  a  sense  of  duty,  or  through  the  ascend- 
ancy that  Coke  had  acquired  over  them,  to 
make  a  show  of  withstanding  the  court,  they 
behaved  like  cowardly  rebels  who  surrender 
at  the  first  discharge  of  cannon,  and  prostitu- 
ted their  integrity  and  their  fame  through 
dread  of  losing  their  offices,  or  rather,  pei- 
haps,  of  incuiTing  the  unmerciful  and  raiu- 
ous  penalties  of  the  Star  Chamber. 

The  government  had  nothing  to  fear  from 
such  recreants ;  but  Coke  was  suspended 
fi-om  his  office,  and  not  long  afterward  dis- 
missed, f-    Ha\'ing  however,  fortunately  in 

*  Bacon,  ii.,  517,  &c.  Carte,  iv.,  35.  Biograph. 
Brit.,  art.  Coke.  The  kins  told  tbe  judges  he 
thoQght  his  preroeative  as  much  wounded  if  it  be 
pubhcly  disputed  upon,  as  if  any  sentence  were 
against  it. 

t  See  D'Israeli,  Char,  of  James  I.,  p.  12.^.  He 
was  too  much  affected  by  his  dismissal  bom  office. 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


201 


this  respect,  married  his  daughter  to  a 
bi-other  of  the  Duke  of  Buckingham,  he 
was  restored  in  about  three  years  to  the 
privy-council,  where  his  great  experience 
in  business  rendered  him  useful,  and  had 
the  satisfaction  of  voting  for  an  enoi-mous 
fine  on  his  enemy  the  Earl  of  Suttblk,  late 
high-treasurer,  convicted  in  the  Star  Cham- 
ber of  embezzlement.*  In  the  Parliament 
of  1621,  and  still  more  conspicuously  in  that 
of  1628,  he  became,  not  without  some  hon- 
orable inconsistency  of  doctrine  as  well  as 
practice,  the  strenuous  asserter  of  liberty 
on  the  principles  of  those  ancient  laws  which 
no  one  was  admitted  to  know  so  well  as  him- 
self; redeeming,  in  an  intrepid  and  patriot- 
ic old  age,  the  faults  which  we  can  not  avoid 
perceiving  in  his  eai'lier  life. 

The  unconstitutional  and  usurped  author- 
Arbitrary  ity  of  the  Star  Chamber  over- 
of'the'^'ta^'  every  personal  right,  though 
Chamber,  an  assembled  Parliament  might 
assert  its  general  privileges.  Several  re- 
markable instances  in  history  illustrate  its 
tyranny  and  contempt  of  all  known  laws  and 
liberties.  Two  Puritans  having  been  com- 
mitted by  the  High  Commission  Court  for 
refusing  the  oath  ex-officio,  employed  Mr. 
Fuller,  a  bencher  of  Gray's  Inn,  to  move 
for  their  habeas  corpus,  which  he  did  on  the 
ground  that  the  high  commissioners  were 
not  empowered  to  commit  any  of  his  maj- 
esty's subjects  to  prison.  This  being  reck- 
oned a  heinous  offense,  he  was  himself  com- 
mitted, at  Bancroft's  instigation  (whether 
by  the  king's  personal  waiTant,  or  that  of  i 
tlie  council-board,  does  not  appear),  and  lay 
in  jail  to  the  day  of  his  death,  the  archbish- 
op constantly  opposing  his  discharge,  for 
which  he  petitioned. f  Whitelock,  a  bar- 
rister and  afterward  a  judge,  was  brought 
before  the  Star  Chamber  on  the  charge  of 
having  given  a  private  opinion  to  his  client, 
that  a  certain  commission  issued  by  the 
crown  was  illegal.  This  was  said  to  be  a 
high  contempt  and  slander  of  the  king's  pre- 
rogative ;  but,  after  a  speech  from  Bacon  in 
aggi'avation  of  this  ofi'ense,  the  delinquent 
was  discharged  on  a  humble  submission. t 

*  Camden's  Annals  of  James  I.,  in  Kennet,  vol. 

ii.  Wilson,  ibid.,  704,  705.  Bacon's  Works,  ii., 
574.  The  fine  imposed  was  ^30,000;  Coke  voted 
for  £100,000. 

t  Fuller's  Church  Hist.,  56.  Neal,  i.,  435.  Lodge, 

iii.  ,  344.  t  State  Ti-ials,  ii.,  765. 


Such,  too,  was  the  fate  of  a  more  distin- 
guished person  on  a  still  more  preposter- 
ous accusation.  Selden,  in  his  History  of 
Tithes,  had  indirectly  weakened  the  claim 
of  divine  right,  which  the  High-Church  fac- 
tion pretended,  and  had  attacked  the  argu- 
ment from  prescription,  deriving  their  legal 
institution  from  the  age  of  Charlemagne,  or 
even  a  later  era.  Not  content  with  letting 
loose  on  him  some  stanch  polemical  writers, 
the  bishops  prevailed  on  James  to  summon 
the  author  before  the  council.  This  pro- 
ceeding is  as  much  the  disgrace  of  England, 
as  that  against  Galileo  nearly  at  the  same 
time  is  of  Italy.  Selden,  like  the  gi-eat 
Florentine  asti'onomer,  bent  to  the  rod  of 
power,  and  made  rather  too  submissive  an 
apology  for  entering  on  this  purely  histori- 
cal discussion.* 

Every  generous  mind  must  reckon  the 
treatment  of  Arabella  Stuart  among  Arabella 
the  hard  measures  of  despotism,  Stuan. 
even  if  it  were  not  also  grossly  in  violation 
of  English  law.  Exposed  by  her  high  de- 
scent and  ambiguous  pretensions  to  become 
the  victim  of  ambitious  designs  wherein  she 
did  not  participate,  that  lady  may  be  added 
to  the  sad  list  of  royal  sufferers  who  have 
envied  the  lot  of  humble  birth.  There  is 
not,  as  I  believe,  the  least  particle  of  evi- 
dence that  .she  was  engaged  in  the  intrigues 
of  the  Catholic  party  to  place  her  on  the 
throne.  It  was,  however,  thought  a  nec- 
essary precaution  to  put  her  in  confinement 
a  short  time  before  the  queen's  death. f  At 
!  the  trial  of  Raleigh  she  was  present ;  and 
Cecil  openly  acquitted  her  of  any  share  in 
the  conspiracy. t  She  enjoyed  afterward 
a  pension  from  the  king,  and  might  have 
died  in  peace  and  obscurity  had  she  not  con- 
ceived an  unhappy  attachment  for  Mr.  Sey- 
mour, grand-son  of  that  Earl  of  Hertford, 
himself  so  memorable  an  example  of  the 
perils  of  ambitious  love.  They  were  pri- 
vately married  ;  but  on  the  fact  ti'anspiring, 
the  council,  who  saw  with  jealous  eyes  the 
possible  union  of  two  dormant  pretensions 
to  the  crown,  committed  them  to  the  Tow- 
er.§  They  both  made  their  escape,  but 
Arabella  was  arrested  and  brought  back. 
Long  and  hopeless  calamity  broke  down  her 

*  Collier,  712,  717.  Selden's  Life  in  Biographia 
Brit.  t  Carte,  iii.,  G93. 

t  State  Trials,  ii.,  23.  Lodge's  Illustrations,  iij., 
217.  §  Wiuwood,  iii.,  201,  279. 


202 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


mind  ;  imploring  in  vain  the  just  privileges 
of  an  English-woman,  and  nearly  in  want 
of  necessaries,  she  died  in  prison,  and  in  a 
state  of  lunacy,  some  years  afterward  :* 
and  this  through  the  oppression  of  a  kins- 
man, ^yhose  advocates  are  always  vaunting 
his  good-nature  !  Her  husband  became  the 
famous  Marquis  of  Hertford,  the  faithful 
counselor  of  Charles  the  First,  and  partaker 
of  his  adversity.  Lady  Shrewsbury,  aunt 
to  Arabella,  was  examined  on  suspicion  of 
being  privy  to  her  escape  ;  and  for  refusing 
to  answer  the  questions  put  to  her,  or,  in 
other  words,  to  accuse  herself,  was  sen- 
tenced to  a  fine  of  c£20,000,  and  discretion- 
ary imprisonment,  f 

Several  events,  so  well  known  that  it  is 


*  Winwood,  iii.,  178.    In  this  collection  are  one 
or  two  letters  from  Arabella,  vrliich  show  her  to 
have  been  a  lively  and  accomplished  woman.  It 
is  said  in  a  manuscript  account  of  circumstances  | 
about  the  king's  accession,  which  seems  entitled  i 
to  some  credit,  that  on  its  being  proposed  that  she 
should  walk  at  the  queen's  funeral,  she  answered  ' 
with  spirit  that,  as  she  had  been  debaiTed  her  maj-  | 
esty's  presence  while  living,  she  would  not  be 
brought  on  the  stage  as  a  public  spectacle  after 
her  death. — Sloane  MSS.,  827. 

Much  occurs  on  the  subject  of  this  lady's  impris- 
onment in  one  of  the  valuable  volumes  in  Dr. 
Birch's  hand  writing,  among  the  same  MSS.,  4161. 
Those  have  akeady  assisted  Mr.  D'Israeli  in  his 
interesting  memoir  on  Arabella  Stuart,  in  the  Cu- 
riosities of  Literature,  New  Series,  vol.  i.  Thej' 
can  not  be  read  (as  I  should  conceive)  without  in- 
dignation at  James  and  his  ministers.  One  of  her 
letters  is  addressed  to  the  two  chief-justices,  beg- 
ging to  be  brought  before  them  by  habeas  corpus, 
being  iufonned  that  it  is  designed  to  remove  her 
far  from  those  comts  of  justice  where  she  ought  to 
be  tried  and  condemned,  or  cleared,  to  remote  parts, 
whose  courts  she  holds  unfitted  for  her  offense. 
"  And  if  your  lordships  may  not  or  will  not  grant 
unto  me  the  ordinary  relief  of  a  distressed  subject, 
then  I  beseech  you  become  humble  intercessors  to 
his  majestj'  that  I  may  receive  such  benefit  of  jus- 
tice as  both  his  majesty  by  his  oath  hath  promised, 
and  the  laws  of  this  realm  aflxjrd  to  all  others, 
those  of  his  blood  not  excepted.  And  though,  un- 
fortunate woman !  I  can  obtain  neither,  yet  I  be- 
seech your  lordships  retain  me  in  your  good  opin- 
ion, and  judge  charitably,  till  I  be  proved  to  have 
committed  any  offense  either  against  God  or  his 
majesty  deser\-ing  so  long  restraint  or  separation 
from  my  lawful  husband." 

Arabella  did  not  profess  the  Roman  Catholic  re- 
ligion, but  that  partj'  seem  to  have  relied  upon  her; 
and  so  late  as  1610,  she  incuiTed  some  "suspicion 
of  being  collapsed." — Winwood,  ii.,  117. 

This  had  been  also  conjectured  in  the  queen's 
lifetime. — Secret  Correspondence  of  Cecil  with 
James  I.,  p.  118.  t  State  Trials,  ii.,  769. 


hardly  necessary  to  dwell  on  them,  aggrava- 
ted the  king's  unpopularitj-  during  this  Par- 
liamentary interval.     The  mur-  Somerset  and 

der  of  Overbury  burst  into  light,  Overbury. 
and  revealed  to  an  indignant  nation  the  king's 
unworthy  favorite,  the  Earl  of  Somerset, 
and  the  hoary  pander  of  that  favorite's  vi- 
ces, the  Earl  of  Northampton,  accomplices 
in  that  deep-laid  and  deliberate  atrocity. 
Nor  was  it  only  that  men  so  flagitious  should 
have  swayed  the  councils  of  this  country, 
and  rioted  in  the  king's  favor.  Strange 
things  were  whispered,  as  if  the  death  of 
Overburj"  was  connected  with  something 
that  did  not  yet  transpire,  and  which  every 
effort  was  employed  to  conceal.  The  peo- 
ple, who  had  already  attributed  Prince  Hen- 
ry's death  to  poison,  now  laid  it  at  the  door 
of  Somerset ;  but  for  that  conjecture,  how- 
ever higlJy  countenanced  at  the  time,  there 
could  be  no  foundation.  The  symptoms  of 
the  prince's  illness,  and  the  appearances  on 
dissection,  are  not  such  as  could  result  from 
any  poison,  and  manifestly  indicate  a  malig- 
nant fever,  aggravated,  perhaps,  bj'  injudi- 
cious ti-eatment.*  Yet  it  is  certain  that  a 
mystery  hangs  over  this  scandalous  tale  of 
Overbmy's  murder.  The  insolence  and 
menaces  of  Somerset  in  the  Tower,  the 
shiinking  apprehensions  of  him  which  the 

*  Sir  Charles  Comwallis's  Memoir  of  Prince 
Henry,  repiinted  in  the  Somers  Tracts,  vol.  ii.,  and 
of  which  sufficient  extracts  may  be  found  in  Birch's 
life,  contains  a  remarkably  minute  detail  of  all  the 
symptoms  attending  the  prince's  illness,  which  was 
an  epidemic  tj'jjhus  fever.  The  report  of  his  phy- 
sicians after  dissection  may  also  be  read  in  many 
books.  Nature  might  possibly  have  overcome  the 
disorder,  if  an  empirical  doctor  had  not  insisted  on 
continually  bleeding  him.  He  had  no  other  mur- 
derer. We  need  not  even  have  recourse  to  Hume's 
acute  and  decisive  remark,  that  if  Somerset  had 
been  so  experienced  in  this  trade,  he  would  not 
have  spent  five  months  in  bungling  about  Over- 
bury's  death. 

Carte  says,  vol.  iv.,  33,  that  the  queen  charged 
Somerset  with  designing  to  poison  her.  Prince 
Charles,  and  the  elector  palatine,  in  order  to  mar- 
ry the  electress  to  Lord  Suffolk's  son.  But  this  is 
too  extravagant,  whatever  Anne  might  have  thrown 
out  in  passion  against  a  favorite  she  hated.  On 
Henrj-'s  death,  the  first  suspicion  fell  of  course  on 
the  papists. — Winwood,  iii.,  410.  Burnet  doubts 
whether  his  aversion  to  popery  did  not  hasten  his 
death.  And  there  is  a  remarkable  letter  from  Sir 
Robert  Naunton  to  Winwood,  in  the  note  of  the 
last  reference,  which  shows  that  suspicions  of  some 
such  agency  were  entertained  verj'  earh'.  But 
the  positive  evidence  we  have  of  his  disease  out- 
weighs all  conjecture. 


James  I.] 


FROM  HENRY  V: 


II.  TO  GEORGE  II. 


203 


king  could  not  conceal,  the  jmins  taken  by 
Bacon  to  prevent  his  becoming  desperate, 
and,  as  I  suspect,  to  mislead  the  hearers  by 
throwing  them  on  a  wrong  scent,  are  veiy 
remarkable  circumstances,  to  which,  after 
a  good  deal  of  attention,  I  can  discover  no 
probable  clew.  But  it  is  evident  that  he 
was  master  of  some  secret,  which  it  would 
have  highly  prejudiced  the  king's  honor  to 
divulge.* 

*  The  circumstances  to  wliicli  I  allude  are  well 
known  to  the  curious  in  English  history,  aud  miglit 
furnish  materials  for  a  separate  dissertation,  had  I 
leisure  to  stray  in  these  bj--paths.  Hume  has 
treated  them  as  quite  unimportant;  and  Carte, 
with  his  usual  honesty,  has  never  alluded  to  them. 
Those  who  read  carefully  the  new  edition  of  the 
State  Trials,  and  various  passages  m  Lord  Bacon's 
Letters,  may  fonn  for  themselves  the  best  judg- 
ment they  can.  A  few  conclusions  may,  perhaps, 
be  laid  down  as  established.  1.  That  Overbury's 
death  was  occasioned,  not  merely  by  Lady  Somer- 
set's revenge,  but  by  his  possession  of  important 
secrets,  which  in  his  passion  he  had  threatened 
Somerset  to  divulge.  2.  That  Somerset  conceived 
himself  to  have  a  hold  over  the  king  by  the  posses- 
sion of  the  same  or  some  other  secrets,  and  used 
indirect  threats  of  revealing  them.  3.  That  the 
king  was  in  the  utmost  teiTor  at  hearing  of  these 
measures,  as  is  proved  b}-  a  passage  in  Weldon's 
Memoirs,  p.  115,  which,  after  being  long  ascribed 
to  his  libelous  spirit,  has  lately  received  the  most 
entire  confirmation  by  some  letters  from  More, 
lieutenant  of  the  Tower,  published  in  the  Archaao- 
logia,  vol.  xviii.  4.  That  Bacon  was  in  the  king's 
confidence,  and  employed  by  him  so  to  manage 
Somerset's  ti-ial  as  to  prevent  him  from  making 
any  imprudent  disclosure,  or  the  judges  from  get- 
ting any  insight  into  that  which  it  was  not  meant 
to  reveal.  See  particularly  a  passage  in  his  let- 
ter to  Coke,  vol.  ii.,  51 4,  beginning,  "  This  crime 
was  second  to  none  but  the  Powder  Plot." 

Upon  the  whole,  I  can  not  satisfy  myself  in  any 
manner  as  to  this  mystery.  Prince  Heui'y's  death, 
as  I  have  observed,  is  out  of  the  question ;  nor 
does  a  different  solution,  hinted  hy  Hams  and  oth- 
ers, and  which  may  have  suggested  itself  to  the 
reader,  appear  probable  to  my  judgment  on  weigh- 
ing the  whole  case.  Overbury  was  an  ambitious,, 
unprincipled  man,  and  it  seems  more  likely  than 
any  thing  else  that  James  had  listened  too  much  to 
some  criminal  suggestion  from  him  and  Somerset, 
but  of  what  nature  I  can  not  pretend  even  to  con- 
jecture ;  and  that,  through  apprehension  of  this  be- 
ing disclosed,  he  bad  pusillanimously  acquiesced 
in  the  scheme  of  Overbury's  murder. 

It  is  a  remarkable  fact,  mentioned  by  Burnet, 
and  perhaps  little  believed,  but  which,  like  the 
former,  has  lately  been  coniinned  by  documents 
printed  in  tb'e  Archaeologia,  that  James  in  the  last 
year  of  bis  reign,  while  dissatisfied  with  Bucking- 
ham, privately  renewed  his  correspondence  with 
Somerset,  on  whom  he  bestowed,  at  the  same  time, 
a  full  pardon,  and  seems  to  have  given  him  hopes 


Sir  Walter  Raleigh's  execution  was  an- 
other stain  upon  the  reputation  of  Sir  Walter 
James  the  First.  It  is  needless  i^''ieigh. 
to  mention  that  he  fell  under  a  sentence 
passed  fifteen  years  before,  on  a  charge  of 
high  treason,  in  plotting  to  raise  Arabella 
Stuart  to  the  throne.  It  is  very  probable 
that  this  charge  was,  partly  at  least,  found- 
ed in  truth  ;*  but  his  conviction  was  obtain- 

 ?  

of  being  restored  to  his  former  favor.  A  memorial 
drawn  up  by  Somerset,  evidently  at  the  king's 
command,  and  most  pi'obably  after  the  clandestine 
interview  reported  by  Burnet,  contains  strong 
charges  against  Buckingham. — Archaeologia,  vol. 
xvii.,  280.  But  no  consequences  resulted  from 
this ;  James  was  either  reconciled  to  his  favorite 
before  his  death,  or  felt  himself  too  old  for  a  strug- 
gle. Somerset  seems  to  have  tampered  a  little 
with  the  popular  party  in  the  beginning  of  the 
next  reign.  A  speech  of  Sir  Robert  Cotton's  in 
1625,  Pari.  Hist.,  ii.,  145,  praises  him,  comparative- 
ly, at  least,  with  his  successor  in  royal  favor ;  and 
he  was  one  of  those  against  whom  informations 
were  brought  in  the  Star  Chamber  for  dispersing 
Sir  Robert  Dudley's  famous  proposal  for  bridling 
the  impertinences  of  Parliament. — Kennet,  iii.,  62. 
The  pati-iots,  however,  of  that  age  had  too  much 
sense  too  encumber  themselves  with  an  ally  equal- 
ly unsei-viceable  and  infamous.  There  can  not  be 
the  slightest  doubt  of  Somerset's  guilt  as  to  the 
murder,  though  some  have  thought  the  evidence 
insufficieut  (Carte,  iv.,  34) ;  he  does  not  deny  it  in 
his  remarkable  letter  to  James,  requesting,  or  rath- 
er demanding,  mercy,  piinted  in  the  Cabala,  aud 
in  Bacon's  Works. 

*  Raleigh  made  an  attempt  to  destroy  himself 
on  being  committed  to  the  Tower,  which  of  course 
affords  a  presumption  of  his  consciousness  that 
something  could  be  proved  against  him. — Cayley's 
Life  of  Raleigh,  vol.  ii.,  p.  10.  Hume  says,  it  ap- 
pears from  Sully's  Memoirs  that  he  had  offered  his 
services  to  the  French  ambassador.  I  can  not 
find  this  in  Sully ;  whom  Raleigh,  however,  and  his 
party  seem  to  have  aimed  at  deceiving  by  false  in- 
formation. Nor  could  there  be  any  treason  in 
making  an  interest  with  the  minister  of  a  friendly 
power.  Carte  quotes  the  dispatches  of  Beaumont, 
the  French  ambassador,  to  prove  the  comiection  of 
the  conspirators  with  the  Spanish  plenipotentiary. 
But  it  may  be  questioned  whether  he  knew  any 
more  than  the  govenunent  gave  out.  If  Raleigh 
had  ever  shown  a  discretion  bearing  the  least  pro- 
portion to  his  genius,  we  might  reject  the  whole 
story  as  improbable.  But  it  is  to  be  remembered 
that  there  had  long  been  a  Catholic  faction,  who 
fixed  their  hopes  on  Arabella ;  so  that  the  conspira- 
cy, though  extremely  injudicious,  was  not  so  per- 
fectly uninteUigible  as  it  appears  to  a  reader  of 
Hume,  who  has  overlooked  the  previous  circum- 
stances. It  is  also  to  be  considered,  that  the  king 
had  sliovra  so  marked  a  prejudice  against  Raleigh 
on  his  coming  to  England,  and  the  hostility  of  Ce- 
cil was  so  insidious  and  implacable,  as  might 
drive  a  mac  of  his  rash  and  impetuous  courage  to 


204 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VI 


ed  on  the  single  deposition  of  Lord  Cobham, 
an  accomplice,  a  prisoner,  not  examined  in 
court,  and  known  to  have  already  reti'acted 
his  accusation.    Such  a  verdict  was  thought 
contrary  to  law,  even  in  that  age  of  ready 
convictions.    It  was  a  severe  measure  to 
detain  for  twelve  years  in  prison  so  splen- 
did an  ornament  of  his  countjy,  and  to  con- 
fiscate his  whole  estate.*    For  Raleigh's 
conduct  in  the  expedition  to  Guiana,  there 
is  not  much  excuse  to  make.    Rashness  and 
want  of  foresight  were  always  among  his 
failings,  else  he  would  not  have  undertaken 
a  service  of  so  much  hazard  without  obtain-  j 
ing  a  regular  pardon  for  his  former  offense.  I 
But  it  might  surely  be  urged  that  either  his 
commission  was  absolutely  null,  or  that  it 
operated  as  a  pardon,  since  a  man  attainted 
of  ti'eason  is  incapable  of  exercising  that 
authority  which  is  conferred  upon  him.f  I 
Be  this  as  it  may,  no  technical  reasoning  [ 
could  overcome  the  moral  sense  that  revolt-  | 
ed  at  canying  the  original  sentence  into  i 
execution.    Raleigh  might  be  amenable  to 
punishment  for  the  deception  by  which  he 
had  obtained  a  commission  that  ought  never 
to  have  issued,  but  the  nation  could  not  help 
seeing  in  his  death  the  sacrifice  of  the  brav- 
est and  most  renowned  of  Englishmen  to 
the  vengeance  of  Spain.  J 

desperate  courses. — See  Cayley's  Life  of  Raleigh, 
vol.  ii. ;  a  work  containing  much  interesting  mat- 
ter,  but  unfortunately  written  too  much  in  the  spir- 
it of  an  advocate,  which,  with  so  faulty  a  client, 
must  tend  to  au  erroneous  representation  of  facts. 

*  This  estate  was  Sherbom  Castle,  which  Ra- 
leigh had  not  very  fairly  obtained  from  the  see  of 
Salisbuiy.  He  settled  this  before  his  conWction 
upon  his  son ;  but  au  accidental  flaw  in  the  deed 
enabled  the  king  to  wrest  it  from  him,  and  bestow 
it  on  the  Earl  of  Somerset.  Lady  Raleigh,  it  is 
said,  solicited  his  majesty  on  her  knees  to  spare 
it;  but  he  only  answered,  I  mun  have  the  land, 
I  mun  have  it  for  Carr."  He  gave  him,  however, 
£12,000  instead.  But  the  estate  was  worth  £5000 
per  annum.  This  ruin  of  the  prospects  of  a  man 
far  too  intent  on  aggrandizement  impelled  him  once 
more  into  the  labyrinth  of  fatal  and  dishonest  spec- 
ulations.— Caj'ley,  89,  &c.  Somers  Tracts,  ii.,  22, 
&c.  Curiosities  of  Literature,  New  Series,  vol.  ii. 
It  has  been  said  that  Raleigh's  unjust  conviction 
made  him  in  one  day  the  most  popular,  from  having 
been  the  most  odious,  man  in  England.  He  was 
certainly  such  under  Elizabeth.  This  is  a  striking, 
but  by  no  means  solitarj-,  instance  of  the  impolicy 
of  political  persecution. 

t  Rymer,  xvi.,  789.  He  was  empowered  to 
name  officers,  t)  use  martial  law,  &c. 

t  James  made  it  a  merit  with  the  court  of  Ma- 


This  unfortunate  predilection  for  the 
court  of  Madrid  had  ahvaj's  exposed  James 
to  his  subjects'  jealousy.    They  connected 
it  with  an  inclination  at  least  to  tolerate  po- 
pery, and  with  a  dereliction  of  their  com- 
mercial interests.    But  from  the  time  that 
he  fixed  his  hopes  on  the  union  of  his  son 
with  the  Infanta,*  the  popular  dislike  to 
Spain  increased  in  proportion  to  his  blind 
preference.    If  the  king  had  not  systemat- 
ically disregarded  the  public  wishes,  he 
could  never  have  set  his  heart  on  this  im- 
politic match  ;  contrarj'  to  the  wiser  maxim 
j  he  had  laid  down  in  his  own  Basilican  Do- 
!  ron,  never  to  seek  a  wife  for  his  sou  except 
in  a  Protestant  family  ;  but  his  absurd  pride 
made  him  despise  the  uncrowned  princes 
of  Germany.    This  Spanish  policy  grew 
much  more  odious  after  the  memorable 
I  events  of  1619,  the  election  of  the  king's 
[  son-in-law  to  the  throne  of  Bohemia,  his 
I  rapid  downfall,  and  the  conquest  of  the  Up- 
i  per  Palatinate  by  Austria.    If  .Tames  had 
listened  to  some  sanguine  advisers,  he  would, 
I  in  the  first  instance,  have  supported  the  pre- 
tensions of  Frederic ;  but  neither  his  own 
views  of  public  law  nor  time  policy  dictated 
such  an  interference.    The  case  was  chang- 
ed after  the  loss  of  his  hereditaiy  dominions, 
and  the  king  was  sincerely  desirous  to  re- 
store him  to  the  Palatinate  ;  but  he  unreas- 

drid  that  he  had  put  to  death  a  man  so  capable  of 
serving  him  merely  to  give  them  satisfaction. — 
Somers  Tracts,  ii.,  437.  There  is  even  reason  to 
suspect  that  he  betrayed  the  secret  of  Raleigh'a 
vo3  age  to  Goudomar  before  he  sailed.— Hardvricke, 
State  Papers,  i.,  398.  It  is  said  in  Mr.  Cayley's 
Life  of  Raleigh  that  his  fatal  mistake  in  not  secur- 
ing a  pardon  und^r  the  great  seal  was  on  account 
of  the  expense ;  but  the  king  would  have  made 
some  difficulty,  at  least,  about  granting  it. 

*  This  project  began  as  early  as  1605. — Win- 
wood,  vol.  ii.  The  king  had  hopes  that  the  United 
Provinces  would  acknowledge  the  sovereignty  of 
'  Prince  Henrj'  and  the  Infanta  on  their  marriage, 
and  Comwallis  was  directed  to  propose  this  form- 
ally to  the  court  of  Madrid. — Id.,  p.  201.  But 
Spain  would  not  cede  the  point  of  sovereicnty ;  nor 
was  this  scheme  likeh"  to  please  either  tlie  States- 
General  or  the  court  of  France. 

In  the  later  negotiation  about  the  marriage  of 
Prince  Charles,  those  of  the  council  who  were 
known  or  suspected  Catholics,  Arundel,  Worces- 
ter. Digby,  Weston,  Calvert,  as  well  as  Bucking- 
ham, whose  connections  were  such,  were  in  the 
Spanish  paity.  Those  reputed  to  be  jealous  Prot- 
estants were  all  against  it. — W'ilson,  in  Kenuet,  ii., 
725.  Many  of  the  former  were  bribed  by  Goudo- 
mar.— Id.,  and  Rushworth,  i.,  19. 


Jaues  I.] 


FROM  HENEY  VII.  TO  GEORGE  II. 


205 


onably  expected  that  he  could  effect  this 
through  the  friendly  mediatioa  of  Spain, 
while  the  nation,  not  perhaps  less  unreas- 
onably, were  clamorous  for  his  attempting 
it  by  force  of  arms.  In  this  agitation  of  the 
public  inind,  he  summoned  the  Parliament 
tliat  met  in  February,  1G21.* 

The  king's  speech  on  opening  the  session 
Parliament  was,  like  all  he  had  made  on  for- 
of  1621.  j^gj.  occasions,  full  of  hopes  and 
promises,  taking  cheerfully  his  share  of  the 
blame  as  to  past  disagreements,  and  treating 
them  as  little  Ukely  to  recur,  though  all  their 
causes  were  still  in  operation.!  He  dis- 
played, however,  more  judgment  than  usual 
in  the  commencement  of  this  Parliament. 
Among  the  methods  devised  to  compen- 
sate the  want  of  subsidies,  none  had  been 
more  injurious  to  the  subject  than  patents  of 
monopoly,  including  licenses  for  exclusive- 
Jy  carrying  on  certain  trades.  Though  the 
government  was  principally  responsible  for 
the  exactions  they  connived  at,  and  from 
which  they  reaped  a  large  benefit,  the  pop- 
ular odium  fell  of  course  on  the  monopolists. 

_  ,.  Of  these  the  most  obnoxious  was 
Proceedings  ,  , 

against  Sir  Giles  Mompesson,  who,  hav- 
Momi.esson.  j^^^  obtained  a  patent  for  gold  and 
silver  thread,  sold  it  of  baser  metal.  This 
fraud  seems  neither  veiy  extraordinary  nor 
very  important;  but  he  had  another  patent 
for  licensing  inns  and  ale-houses,  wherein 
he  is  said  to  have  used  exti'eine  violence 
and  oppression.  The  House  of  Commons 
proceeded  to  investigate  Mompesson's  de- 
linquency. Conscious  that  the  crown  had 
withdrawn  its  protection,  he  fled  beyond 
sea.  One  Micliell,  a  justice  of  peace,  who 
had  been  the  instrument  of  his  tyranny,  fell 
into  the  hands  of  the  Commons,  who  voted 

*  The  proclamation  for  this  Parliament  contains 
many  of  the  unconstitutional  directions  to  the  elect- 
ors, contained,  as  has  been  seen,  in  that  of  1604, 
though  shorter. — Rymer,  xvii.,  270. 

t  "  Deal  with  me  as  I  shall  desire  at  your  hands," 
&c.  "  He  knew  not,"  he  told  them,  "  the  laws 
and  customs  of  the  land  when  he  first  came,  and 
was  misled  by  the  old  counselors  whom  the  old 
queen  had  left."  He  owns  that  at  the  last  Parlia- 
ment there  was  "  a  strange  kind  of  beast  called 
undertaker,"  &c.— Par).  Hist.,  i..  1180.  Yet  this 
coaxing  language  was  oddly  mingled  with  sallies 
of  his  pride  and  prerogative  notions.  It  is  evident- 
ly his  own  composition,  not  Bacon's.  The  latter, 
in  granting  the  speaker's  petitions,  took  the  high 
tone  so  usual  in  this  reign,  and  directed  the  House 
of  Commons  like  a  schoolmaster. — Bacon's  Works, 
i.,  701. 


him  incapable  of  being  in  the  commis.sion 
of  the  peace,  and  sent  him  to  the  Tow- 
er.* Entertaining,  however,  upon  second 
thoughts,  as  we  must  presume,  some  doubts 
about  their  competence  to  inflict  this  pun- 
ishment, especially  the  former  part  of  it, 
they  took  the  more  prudent  course  with 
respect  to  Mompesson,  of  appointing  Noy 
and  HakewiU  to  search  for  precedents  in 
order  to  show  how  far  and  for  what  ofl'enses 
their  power  extended  to  punish  delinquents 
against  the  state,  as  well  as  those  who  of- 
fended against  that  House.  The  result  ap- 
pears some  days  after,  in  a  vote  that  "  they 
must  join  with  the  Lords  for  punishing  Sir 
Giles  Mompesson,  it  being  no  oflense  against 
our  particular  House  nor  any  member  of  it, 
but  a  general  grievance."! 

The  earliest  instance  of  Parliamentary 
impeachment,  or  of  a  solemn  accusation  of 
any  individual  by  the  Commons  at  the  bar 
of  the  Lords,  was  that  of  Lord  Latimer  in 
the  year  1376.  The  latest  hitherto  was 
that  of  the  Duke  of  Suffolk  in  1449  ;  for  a 
proceeding  against  the  Bishop  of  London  in 
1534,  which  has  sometimes  been  reckoned 
an  instance  of  Parliameutaiy  impeachment, 
does  not  by  any  means  support  that  privi- 
lege of  the  Commons. t  It  had  fallen  into 
disuse,  pai-tly  from  the  loss  of  that  control 
which  the  Commons  had  obtained  under 
Richard  II.  and  the  Lancastrian  kings,  and 
partly  from  the  preference  the  Tudor  prin- 
ces had  given  to  bills  of  attainder  or  of  pains 
and  penalties,  when  they  wished  to  turn 
the  arm  of  Parliament  against  an  obnoxious 
subject.  The  revival  of  this  ancient  mode 
of  proceeding  in  the  case  of  Mompesson, 
though  a  remarkable  event  in  our  Constitu- 
tional annals,  does  not  appear  to  have  been 


*  Debates  of  Commons  in  1G2],  vol.  i.,  p.  84.  I 
quote  the  two  volumes  published  at  Oxford  in 
17C6:  they  are  abridged  in  the  new  Parliamenta- 
ry History.  t  Id.,  103,  109. 

t  The  Commons  in  this  session  complained  to 
the  Lm-ds  that  the  Bishop  of  London  (Stokesley) 
had  imprisoned  one  Philips  on  suspicion  of  heresy. 
Some  time  afterward,  they  called  upon  him  to  an- 
swer their  complaint.  The  bishop  laid  the  matter 
before  the  Lords,  who  all  declared  that  it  was  un- 
becoming for  any  lord  of  Parliament  to  make  an- 
swer to  any  one  in  that  place  ;  "  quod  uon  consen- 
taneum  fuit  aliquem  procerum  pra^dictoram  alicui 
in  eo  loco  responsunim." — Lords'  Journals,  i.,  71. 
The  Lords,  however,  in  1701  (State  Trials,  xiv., 
275),  seem  to  have  recognized  tliis  as  a  case  of 
impeachment. 


206 


CONSTITUTIONAL  HISTORY  OF  ENGLA^^D 


[Chap.  VI. 


noticed  as  an  anomaly.  It  was  not,  indeed,  1 
conducted  according  to  all  the  forms  of  an  : 
impeachment.  The  Commons,  requesting 
a  conference  with  the  other  House,  inform- 
ed them  generally  of  that  person's  offense, 
but  did  not  exhibit  any  distinct  articles  at 
their  bar.  The  Lords  took  up  themselves 
the  inquiry  ;  and  having  become  satisfied  of 
his  guilt,  sent  a  message  to  the  Commons 
that  they  were  ready  to  pronounce  sen- 
tence. The  speaker  accordingly,  attended 
by  all  the  House,  demanded  judgment  at 
the  bar,  when  the  Lords  passed  as  heavy  a 
sentence  as  could  be  awarded  for  any  mis- 
demeanor ;  to  which  the  king,  by  a  sti'etch 
of  prerogative,  which  no  one  was  then  in- 
clined to  call  in  question,  was  pleased  to  add 
perpetual  banishment.* 

The  impeachment  of  Mompesson  was 
followed  up  by  others  against  Michell,  the 
associate  in  his  iniquities  ;  against  Sir  John 
Bennet,  judge  of  the  Prerogative  Court,  for 
corruption  in  his  ofifice  ;  and  against  Field, 
bishop  of  Llandaff,  for  being  concerned  in 
a  matter  of  bribeiy.f  The  first  of  these 
was  punished  ;  but  the  prosecution  of  Ben- 
net  seems  to  have  dropped  in  consequence 
of  the  adjournment,  and  that  of  the  bishop 
ended  in  a  slight  censure.  But  the  wrath 
of  the  Commons  was  justly  roused  against 
that  shameless  corraption,  which  character- 
izes the  reign  of  James  beyond  every  other 
in  our  history.  It  is  too  Well  known  how 
deeply  the  gi'eatest  man  of  that  age  was 
tarnished  by  the  prevailing  iniquity.  Com- 
plaints poured  in   against  the 

Proceeding    ^  '  ^ 

against  Lord  Chancellor  Bacon  for  receiving 
Bacon.  bribes  from  suitors  in  his  court. 
Some  have  vainly  endeavored  to  discover  an 
excuse  which  he  did  not  pretend  to  set  up, 
and  even  ascribed  the  prosecution  to  the 
malevolence  of  Sir  Edward  Coke.J  But 
Coke  took  no  prominent  share  in  this  busi- 
ness ;  and  though  soirie  of  the  charges 
against  Bacon  may  not  appear  very  hei- 
nous, especially  for  those  times,  I  know  not 
whether  the  unanimous  conviction  of  such 
a  man,  and  the  conscious  pusillanimity  of 
his  defense,  do  not  afford  a  more  irresistible 
presumption  of  his  misconduct  than  any 
thing  specially  alleged.  He  was  abandoned 
by  the  court,  and  had  previously  lost,  as  I 
rather  suspect,  Buckingham's  favor ;  but  the 

*  Debates  in  1621,  p.  114,  228,  229. 
t  Debates  in  1621,  passim.  t  Cavte. 


king,  who  had  a  sense  of  his  transcendent 
genius,  remitted  the  fine  of  cf 40,000  impos- 
ed by  the  Lords,  which  he  was  wholly  un- 
able to  pay.* 

*  Clarendon  speaks  of  this  impeacliment  as  an 
unhappy  precedent,  made  to  ip'atify  a  ijrivate  dis- 
pleasure. This  expression  seems  rather  to  point 
to  Buckinifliam  than  to  Coke ;  and  some  letters  of 
Bacon  to  the  favorite  at  the  time  of  his  fall  display 
a  consciousness  of  having  offended  him.  Yet  Buck- 
ingham had  much  more  reason  to  thank  Bacon  as 
his  wisest  counselor,  than  to  assist  in  crushing^ 
him.  In  his  works,  vol.  i.,  p.  712,  is  a  tract,  enti- 
tled "  Advice  to  the  Duke  of  Buckingham,  contain- 
ing instructions  for  his  governance  as  minister." 
These  are  marked  by  the  deep  sagacity  and  ex- 
tensive observation  of  the  writer.  One  passage 
should  be  quoted  in  justice  to  Bacon.  "As  far  as 
it  may  lie  in  you,  let  no  arbitrary  power  be  intrud- 
ed ;  the  people  of  this  kingdom  love  the  laws  there- 
of, and  nothing  will  oblige  them  more  than  a  con- 
fidence of  the  free  enjojing  of  them ;  what  the  no- 
bles upon  an  occasion  once  said  in  Parliament, 
'  Nolumus  leges  Angliae  mutari,'  is  imprinted  in 
the  hearts  of  all  the  people."  I  may  add,  that  with 
all  Bacon's  pliancy,  there  are  fewer  overstrained 
expressions  about  the  prerogative  in  his  political 
writings  than  we  should  expect.  His  practice 
was  servile,  but  his  principles  were  not  unconsti- 
tutional. We  have  seen  how  sti'ongly  he  urged 
the  calling  of  Parliament  in  1614 ;  and  he  did  the 
same,  uuliappily  for  himself,  in  1621. — Vol.  ii.,  p. 
580.  He  refused,  also,  to  set  the  great  seal  to  an 
office  intended  to  be  erected  for  enrolling  prentices, 
a  speculation  apparently  of  some  monopolists, 
writing  a  very  proper  letter  to  Buckingham  that 
there  was  no  gi-ound  of  law  for  it. — P.  555. 

I  am  verj-  loth  to  call  Bacon,  for  the  sake  of 
Pope's  antithesis,  "  the  meanestof  mankind."  Who 
would  not  wish  to  believe  the  feeling  langiaage  of 
his  letter  to  the  king,  after  the  attack  on  him  had 
ah'eady  begun ?  "I  hope  I  shall  not  be  found  to 
have  the  troubled  fountain  of  a  corrupt  heart,  in  a 
depraved  habit  cf  taking  rewards  to  pervert  jus- 
tice, howsoever  I  may  be  frail,  and  partake  of  the 
abuses  of  the  times."— P.  589.  Yet  the  general 
disesteem  of  his  cotemporaries  speaks  forcibly 
against  him.  Sir  Simon  d'Ewes  and  Weldon, 
both,  indeed,  bitter  men,  give  him  the  worst  of 
characters.  "Surely,"  says  the  latter,  "never  so 
many  parts  and  so  base  and  abject  a  spirit  tenant- 
ed together  in  any  one  earthen  cottage  as  in  this 
man."  It  is  a  sti-iking  proof  of  the  splendor  of  Ba- 
con's genius,  that  it  was  unanimously  acknowledg- 
ed in  his  own  age  amid  so  much  that  should  excite 
contempt.  He  had,  indeed,  ingratiated  himself 
with  everj'  preceding  Paiiiament  through  his  in- 
comparable ductility,  haWng  taken  an  active  pait 
in  their  complaints  of  giievances  in  1604,  before  he 
became  attorney-general,  and  even  on  many  occa- 
sions afterward  while  he  held  that  office,  having 
been  intrusted  with  the  management  of  confcren- 
[  ces  on  the  most  delicate  subjects.  In  1614,  the  Com- 
mons, after  voting  that  the  attorney-general  ought 
not  to  be  elected  to  Parliament,  made  an  exception 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


207 


There  was  much  to  coimiiend  in  the  se- 
verity practiced  by  the  House  toward  pub- 
lic delinquents,  such  examples  being  far 
more  likely  to  prevent  the  malversation  of 
men  in  power  than  any  law  they  could  en- 
act. But  in  the  midst  of  these  laudable 
proceedings,  they  were  hurried  In"  the  pas- 
sions of  the  moment  into  an  act  of  most 
unwarrantable  violence.  It  came  to  the 
knowledge  of  the  House  that  one  Floyd,  a 
gentleman  confined  in  the  Fleet  Prison,  had 
used  some  slighting  words  about  the  elector 
palatine  and  his  wife.  It  appeared  in  ag- 
gravation that  he  was  a  Roman  Catholic. 
Nothing  could  exceed  the  fmy  into  which 
the  Commons  were  thrown  by  this  veiy 
insignificant  story.  A  flippant  expression, 
below  the  cognizance  of  an  ordinary  court, 
grew  at  once  into  a  portentous  offense, 
which  they  ransacked  their  invention  to 
chastise.  After  sundry  novel  and  mon- 
sti'ous  propositions,  they  fixed  upon  the 
most  degrading  punishment  they  could  de- 
vise. Next  day,  however,  the  chancellor 
of  the  Exchequer  delivei'ed  a  message,  that 
the  king,  thanking  them  for  their  zeal,  but 
desiring  that  it  should  not  transport  them  to 
inconveniences,  would  have  them  consider 
whether  they  could  sentence  one  who  did 
not  belong  to  them,  nor  had  offended  against 
the  House  or  any  member  of  it;  and  wheth- 
er they  could  sentence  a  denying  party 
without  the  oath  of  witnesses  ;  referring 
them  to  an  entiy  on  the  rolls  of  Parliament 
in  the  first  year  of  Henry  IV.,  that  the  ju- 
dicial power  of  Parliament  does  not  belong 
to  the  Commons.  He  would  have  them 
consider  whether  it  would  not  be  better  to 
leave  Floyd  to  him,  who  would  punish  him 
according  to  his  fault. 

This  message  put  them  into  some  em- 
barrassment. They  had  come  to  a  vote  in 
Mompesson's  case,  in  the  very  words  era- 
ploj'ed  in  the  king's  message,  confessing 
themselves  to  have  no  jurisdiction  except 

in  favor  of  Bacon. — Jom-uals,  p.  460.  "  I  have  been 
always  gracious  iu  the  Lower  House,"  he  writes 
to  James  in  1616,  begging  for  the  post  of  chancel- 
lor ;  "  I  have  interest  in  the  gentlemen  of  England, 
and  shall  be  able  to  do  some  good  effect  in  rectify- 
ing that  body  of  Parhament-men,  wliich  is  cardo 
reroni." — Vol.  ii.,  p.  496. 

I  shall  conclude  this  note  by  observing,  that,  if 
all  Lord  Bacon's  philosophy  had  never  existed, 
there  would  be  enough  in  iiis  political  writincs  to 
place  him  among  the  greatest  men  this  country 
has  produced. 


over  offenses  against  themselves.  The 
warm  speakers  now  controverted  this  prop- 
osition with  such  arguments  as  they  could 
muster ;  Coke,  though  from  the  reported 
debates  he  seems  not  to  have  gone  the 
whole  length,  contending  that  the  House 
was  a  court  of  record,  and  that  it  conse- 
quently had  power  to  administer  an  oath.* 
They  returned  a  message  by  the  speaker, 
excepting  to  the  record  in  1  H.  4,  because 
it  was  not  an  act  of  Parliament  to  bind  them, 
and  persisting,  though  with  humility,  in  their 
first  votes. f  The  king  replied  mildly,  urg- 
ing them  to  show  precedents,  which  they 
were  manifestly  incapable  of  doing.  The 
Lords  requested  a  conference,  which  they 
managed  with  more  temper,  and,  notwith- 
standing the  solicitude  displayed  by  the 
Commons  to  maintain  their  pretended  right, 
succeeded  in  withdrawing  the  matter  to 
their  own  jurisdiction. J  This  conflict  of 
privileges  was  by  no  means  of  sei-vice  to 
the  unfortunate  culprit ;  the  Loi'ds  perceiv- 
ed that  they  could  not  mitigate  the  sentence 
of  the  Lower  House  without  reviving  their 
dispute,  and  vindicated  themselves  from  all 
suspicion  of  indiflerence  toward  the  cause 
of  the  Palatinate  by  augmented  severity. 
Floj'd  was  adjudged  to  be  degi-ad-  ...  , 

.  .  Violence  in 

ed  from  his  gentility,  and  to  be  the  case  of 
held  an  infamous  person  ;  his  test- 
imony  not  to  be  received  ;  to  ride  from  the 
Fleet  to  Cheapside  on  horseback  without  a 
saddle,  with  liis  face  to  the  horse's  tail,  and 

*  Debates  in  1621,  vol.  ii.,  p.  7. 
t  Debates,  p.  14. 

f  In  a  former  Parliament  of  this  reign,  the  Com- 
mons havmg  sent  up  a  message,  wherein  they  en- 
titled themselves  the  knights,  citizens,  burgesses, 
and  barons  of  the  Commons'  Court  of  Parliament, 
the  Lords  sent  them  word  that  they  would  never 
acknowledge  any  man  that  sitteth  in  the  Lower 
House  to  have  the  right  or  title  of  a  baron  of  Par- 
liament, nor  could  admit  the  tenn  of  the  Commons, 
Court  of  Parliament,  "  because  all  your  House  to- 
gether, without  theirs,  doth  make  no  Court  of  Par- 
liament."— 4th  March.  1606,  Lords'  Journals.  Nev- 
ertheless, the  Lords  did  not  scruple,  almost  imme- 
diately afterward,  to  denominate  their  own  House 
a  court,  as  appears  by  memoranda  of  27th  and  23th 
May;  they  even  issued  a  habeas  coi-pus  as  from 
a  court,  to  bring  a-  servant  of  the  Earl  of  Bedford 
before  them.  So,  also,  in  1609,  16th  and  17th  of 
Febraarj-;  and  on  April  14th  and  ISth,  1G14;  and 
probably  later,  if  search  were  made. 

I  need  hardly  mention,  that  the  barons  mention- 
ed above,  as  pait  of  the  Commons,  were  the  mem- 
bers for  the  Cinque  Ports,  whose  denomination  is 
recognized  in  several  statutes. 


20S 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


die  tail  iu  his  band,  and  there  to  stand  two 
hours  in  the  pillory,  and  to  be  branded  in 
the  forehead  with  the  letter  K  ;  to  ride  four 
days  afterward  in  the  same  manner  to 
Westminster,  find  there  to  stand  two  hours 
more  in  the  pillory,  with  words  in  a  paper 
in  his  hat  showing  his  offense  ;  to  be  whip- 
ped at  the  cart's  tail  from  the  Fleet  to 
Westminster  Hall ;  to  pay  a  fine  of  6C5000, 
and  to  be  a  prisoner  in  Newgate  during  his 
life.  The  whipping  was  a  few  days  after 
remitted  on  Prince  Charles's  motion,  but  he 
seems  to  have  undergone  the  rest  of  the 
sentence.  There  is  surely  no  instance  in 
the  annals  of  our  own,  and  hardly  of  any  civ- 
ilized country,  where  a  trilling  offense,  if  it 
were  one,  has  been  visited  with  such  out- 
rageous cruelty.  The  cold-blooded,  delib- 
erate policy  of  the  Lords  is  still  more  dis- 
gusting than  the  wild  fuiy  of  the  Lower 
House.* 

This  case  of  Floyd  is  an  unhappj'  proof 
of  the  disregard  that  popular  assemblies, 
when  inflamed  by  passion,  are  ever  apt  to 
show  for  those  principles  of  equity  and 
moderation  by  which,  however  the  sophis- 
tiy  of  cotemporary  factions  may  set  them 
aside,  a  calm,  judging  posterity  will  never 
fail  to  measure  their  proceedings.  It  has 
conh'ibuted  at  least,  along  with  several  oth- 
ers of  the  same  kind,  to  inspire  me  with  a 
jealous  distrust  of  that  indefinable,  uncon- 
ti'ollable  privilege  of  Parliament,  which  has 
sometimes  been  asserted,  and  perhaps  with 
rather  too  much  encouragement  from  those 
whose  function  it  is  to  restrain  all  exorbitant 
power.  I  speak  only  of  the  extent  to  which 
theoretical  principles  have  been  can-ied, 
without  insinuating  that  the  privileges  of 
the  House  of  Commons  have  been  practi- 
cally stretched  in  late  times  bej-oud  their 
constitutional  bounds.  Time  and  the  course 
of  opinion  have  softened  down  those  high 
pretensions,  which  the  dangers  of  liberty 
under  James  tho  First,  as  well  as  the  natu- 
ral character  of  a  popular  assembly,  then 
taught  the  Commons  to  assume ;  and  the 
greater  humanity  of  modern  ages  has  made 
us  revolt  from  such  disproportionate  pun- 
ishments as  were  inflicted  on  Floyd. f 

*  Debates  in  1621,  vol.  i.,  p.  355,  &c. ;  vol.  ii.,  p. 
5,  &c.  Mede  writes  to  his  con-espoudent  on  May 
11,  that  the  execution  had  not  taken  place  ;  "  bnt 
I  hope  it  will."    The  king  was  plainly  averse  to  it. 

t  The  following  obsei-vation  on  Floyd's  case, 


Every  thing  had  hitherto  proceeded  with 
harmony  between  the  king  and  Parliament. 
His  ready  concurrence  in  their  animadver- 
sion on  Mompessou  and  Michell,  delinquents 
who  had  acted  at  least  with  the  connivance 
of  government,  and  in  the  abolition  of  mo- 
nopolies, seemed  to  remove  all  discontent. 
The  Commons  granted  two  subsidies  early 
in  the  session,  without  alloying  their  bounty 
with  a  single  complaint  of  gi-ievances.  One 
might  suppose  that  the  subject  of  imposi- 
tions had  been  entirely  forgotten,  not  an  al- 
lusion to  them  occurring  in  any  debate.*  It 
was  voted,  indeed,  in  the  first  days  of  the 

written  by  Mr.  Harley,  in  a  mannscript  account  of 
the  proceeding's  (Harl.  MSS.,  6274),  is  well  wor- 
thy to  be  inserted.  I  copy  from  the  appendix  to 
the  above-mentioned  debates  of  1621.  "  The  fol- 
lowing collection,"  he  has  written  at  the  top,  "is 
an  instance  how  far  a  zeal  against  popeiy  and  for 
one  branch  of  the  royal  family,  which  was  sap- 
posed  to  be  neglected  by  King  James,  and  conse- 
quently iu  opjiosition  to  him,  will  carrj'  people 
against  common  justice  and  humanitj-."  And,  again, 
at  the  bottom :  "  For  the  honor  of  Englishmen,  and, 
indeed,  of  human  nature,  it  were  to  be  hoped 
these  debates  were  not  truly  taken,  there  being  so 
many  motions  conti'an,-  to  the  laws  of  the  land,  the 
laws  of  Parliament,  and  common  justice.  Robert 
Harley,  July  14,  1702."  It  is  remarkable,  that  this 
date  is  very  near  the  time  when  the  writer  of 
these  just  obsen'ations,  and  the  party  which  he 
led,  had  been  straining  in  more  than  one  instance 
the  privileges  of  the  House  of  Commons,  not  cer- 
tainly with  such  violence  as  in  the  case  of  Floyd, 
I  but  much  beyond  what  can  be  deemed  their  legit- 
imate extent. 

*  In  a  much  later  period  of  the  session,  when  the 
Commons  had  lost  their  good  humor,  some  heat 
was  veiy  justly  excited  by  a  petition  from  some 
brewers,  complaining  of  an  imposition  of  four-pence 
on  the  quarter  of  malt.  The  courtiers  defended 
this  as  a  composition  in  lieu  of  purveyance.  But 
it  was  answered  that  it  was  compulsory,  for  sev- 
eral of  the  principal  brewers  had  been  committed, 
and  lay  long  in  prison  for  not  yielding  to  it.  One 
said  that  impositions  of  this  nature  overthrew  the 
libert\-  of  all  the  subjects  of  this  kingdom ;  and  if 
the  king  may  impose  such  taxes,  then  are  we  but 
villains,  and  lose  all  our  liberties.  It  produced  an 
order  that  the  matter  be  examined  before  the 
House,  the  petitioners  to  be  heard  by  comicil,  and 
all  the  lawyers  of  the  House  to  be  present. — De- 
bates of  1621,  vol.  ii.,  252.  Journals,  p.  652.  But 
nothing  further  seems  to  have  taken  place,  wheth- 
er on  account  of  the  magnitude  of  the  business 
which  occupied  them  during  the  short  remainder 
of  the  session,  or  because  a  bill  which  passed  their 
House  to  prevent  illegal  imprisonment,  or  restraint 
on  the  lawful  occupation  of  the  subject,  was  sup- 
posed to  meet  this  case.  It  is  a  remarkable  in- 
stance of  arbitrai-y  taxation,  au4  preparatorj-  to  an 
excise. 


James  I.] 


FBOM  HEXHY  VII.  TO  GEORGE  II. 


209 


session,  to  petition  the  liing  about  the  breach 
of  their  privilege  of  free  speech,  by  the  im- 
prisonment of  Sir  Edwin  Sandj's,  in  1614, 
for  words  spoken  in  the  last  Parliament; 
but  the  House  did  not  prosecute  this  mat- 
ter, contenting  itself  with  some  explanation 
by  the  secretaiy  of  state.*  They  were  go- 
ing on  with  some  bills  for  reformation  of 
abuses,  to  which  the  king  was  willing  to  ac- 
cede, when  they  received  an  intimation  that 
he  expected  them  to  adjourn  over  the  sum- 
mer. It  produced  a  good  deal  of  dissatis- 
faction to  see  their  labor  so  hastily  inter- 
rupted, especially  as  they  ascribed  it  to  a 
want  of  sufficient  sympathy  on  the  court's 
part  with  their  enthusiastic  zeal  for  the 
elector  palatine. f  They  wei-e  adjourned  by 
the  king's  commission,  after  a  unanimous 
declaration  ("  sounded  forth,"  says  one 
present,  "with  the  voices  of  them  all,  with- 
al lifting  up  their  hats  in  their  hands  so  high 
as  they  could  hold  them,  as  a  visible  testi- 
mony of  their  unanimous  consent,  in  such 
sort  that  the  like  had  scarce  ever  been  seen 
in  Parliament")  of  their  resolution  to  spend 
their  lives  and  fortunes  for  the  defense  of 
their  own  religion  and  of  the  Palatinate. 
This  solemn  protestation  and  pledge  was 
entered  on  record  in  the  Journals,  t 

They  met  again  after  five  months,  with- 
out any  change  in  their  views  of  policy.  At 
a  conference  of  the  two  Houses,  Lord  Dig- 
by,  by  the  king's  command,  explained  all 
that  had  occuired  in  his  embassy  to  Ger- 
many for  the  restitution  of  the  Palatinate, 
which,  though  absolutely  ineflective,  was 
as  much  as  James  could  reasonably  expect 
without  a  war.§  He  had,  in  fact,  though, 
according  to  the  laxity  of  those  times,  with- 
out declaring  war  on  any  one,  sent  a  body 
of  troops  under  Sir  Horace  Vere,  who  still 
defended  the  Lower  Palatinate.  It  was  nec- 
essaiy  to  vote  more  money,  lest  these  should 
mutiny  for  want  of  pay ;  and  it  was  stated 
to  the  Commons  in  this  conference,  that 
to  maintain  a  sufficient  army  in  that  coun- 
try for  one  year  would  require  c£900,000, 
which  was  left  to  their  consideration. ||  But 


*  Debates  of  1621,  p.  14.  Hatsell's  Precedents, 
i.,  133.  t  Debates,  p.  114,  et  alibi,  passim. 

t  Vol.  ii.,  170,  172.  §  Id.,  p.  186. 

II  P.  189.  Lord  Cranfield  told  the  Commons 
there  were  tliree  reasons  -why  they  should  give 
liberally :  1.  That  lands  were  now  a  third  better 
than  when  the  king  came  to  the  crown.   2.  That 

o 


now  it  was  seen  that  men's  promises  to 
spend  their  fortunes  in  a  cause  not  essen- 
tially their  own  are  written  in  the  sand. 
The  Commons  had  no  reason,  perhaps,  to 
suspect  that  the  charge  of  keeping  30,000 
men  in  the  heart  of  Germany  would  fall 
much  short  of  the  estimate;  yet,  after  long 
haggling,  they  voted  only  one  subsidy, 
amounting  to  6070,000,  a  sum  manifestly 
insufficient  for  the  first  equijwnent  of  such 
a  force.*  This  parsimony  could  hardly  be 
excused  by  their  suspicion  of  the  king's  un- 
willingness to  undertake  the  war,  for  which 
it  afforded  the  best  justification. 

James  was  probably  not  much  displeased 
at  finding  so  good  a  pretext  for  Disagreement 
evading  a  compliance  with  theu-  utnganV'"' 
martial  humor ;  nor  had  there  Cummons. 
been  much  a])pearance  of  dissatisfaction  on 
either  side  (if  we  except  some  murmurs  at 
the  commitment  of  one  of  their  most  active 
members.  Sir  Edwin  Sandys,  to  the  Tow- 
er, which  were  tolerably  appeased  by  the 
secretary  Calvert's  declaration  that  he  had 
not  been  committed  for  any  Parliamentary 
matter), f  till  the  Commons  drew  up  a  pe- 
tition and  remonstrance  against  the  gi-owth 
of  popery  ;  suggesting,  among  other  rem- 
edies for  this  giievance,  that  the  prince 
should  marry  one  of  our  own  religion,  and 
that  the  king  would  direct  his  efforts  against 
that  power  (meaning  Spain)  which  first 
maintained  the  war  in  the  Palatinate.  Tliis 
petition  was  proposed  by  Sir  Edward  Coke. 
The  couitiers  opposed  it  as  without  prece- 

wools  which  were  then  '20s.,  were  now  30s.  3. 
That  com  had  risen  from  26s.  to  36s.  the  quarter. 
— Ibid.  There  had  certainly  been  a  vei-y  great  in- 
crease of  wealth  under  James,  especially  to  the 
country  gentlemen,  of  wliicli  their  style  of  building 
is  an  evident  proof.  Yet  in  this  very  session  com- 
plaints.had  been  made  of  the  want  of  money,  and 
fall  in  the  price  of  lands,  vol.  i.,  p.  16  ;  and  an  act 
was  proposed  against  the  importation  of  corn,  vol.  ii., 
p.  87.  In  fact,  rents  had  been  enormously  enhan- 
ced in  this  reig:i,  which  the  country  gentlemen  of 
course  endeavored  to  keep  up.  But  corn,  proba- 
bly through  good  seasons,  was  rather  lower  in  1621 
than  it  had  been — about  30s.  a  quarter. 
*  P.  242,  &c. 

t  Id.,  174,  200.  Compare,  also,  p.  151.  Sir 
Thomas  Wentworth  appears  to  have  discounte- 
nanced the  resenting  this  as  a  breach  of  privilege. 
Doubtless  the  House  showed  great  and  even  ex- 
cessive moderation  in  it,  for  we  can  hardly  doubt 
that  Sandys  was  really  committed  for  no  other 
cause  than  his  behavior  in  Parhament.  It  was 
taken  up  again  afterward,  p.  259. 


210 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


dent,  the  clianccllor  of  the  duchy  obsei-v- 
ing  that  it  was  of  so  high  and  transcendent 
n  nature,  he  had  never  known  the  hke  with- 
in those  walls.  Even  the  mover  defended 
It  rather  weakly,  according  to  our  notions, 
as  intended  only  to  remind  the  king,  but  re- 
quiring no  answer.  The  scruples  afl'ected 
by  the  courtiers,  and  the  real  novelty  of  the 
proposition,  had  so  great  an  effect,  that  some 
words  were  inserted,  declaring  that  the 
House  "did  not  mean  to  press  on  the  king's 
most  undoubted  and  royal  prerogative."* 
The  petition,  howevei",  had  not  been  pre- 
sented, when  the  king,  having  obtained  a 
copy  of  it,  sent  a  peremptoiy  letter  to  the 
speaker,  that  he  had  heard  how  some  fiery 
and  popular  spirits  had  been  imboldened  to 
debate  and  argue  on  matters  far  beyond 
their  reach  or  capacity,  and  directing  him 
to  acquaint  the  House  with  his  pleasure 
that  none  therein  should  presume  to  med- 
dle with  any  thing  concerning  his  govern- 
ment 01"  mysteries  of  state  ;  namely,  not  to 
speak  of  his  son's  match  with  the  Princess 
of  Spain,  nor  to  touch  the  honor  of  that 
king,  or  any  other  of  his  friends  and  con- 
federates. Sandys'  commitment,  he  bade 
them  be  informed,  was  not  for  any  misde- 
meanor in  Parliament.  But  to  ])ut  them 
out  of  doubt  of  any  question  of  that  nature 
that  may  arise  among  them  hereafter,  he 
let  them  know  that  he  thought  himself  very 
free  and  able  to  punish  any  man's  misde- 
meanors in  Parliament,  as  well  during  their 
sitting  as  after,  which  he  meant  not  to  spare 
upon  occasion  of  any  man's  insolent  behav- 
ior in  that  place.  He  assui'ed  them  that 
he  would  not  deign  to  hear  their  petition, 
if  it  touched  on  any  of  those  points  which 
he  had  forbidden. f 

The  House  received  this  message  with 
unanimous  firmness,  but  without  any  undue 
warmth.  A  committee  was  appointed  to 
draw  up  a  petition,  which,  in  the  most  dec- 
orous language,  and  with  strong  professions 
of  regret  at  his  majesty's  displeasure,  con- 
tained a  defense  of  their  former  proceed- 
ings, and  hinted  very  gently  that  they  could 
not  conceive  his  honor  and  safety,  or  the 
state  of  the  kingdom,  to  be  matters  at  any 
time  unfit  for  their  deepest  consideration  in 
time  of  Parliament.  They  adverted  more 
pointedly  to  that  part  of  the  king's  message 


which  threatened  them  for  liberty  of  speech, 
calling  it  their  ancient  and  undoubted  right, 
and  an  inheritance  received  from  their  an- 
cestors, which  they  again  prayed  him  to 
confirm.*  His  answer,  though  considera- 
bly milder  than  what  he  had  designed,  gave 
indications  of  a  resentment  not  yet  subdued. 
He  dwelt  at  length  on  their  unfitness  for 
entering  on  matters  of  government,  and 
commented  with  some  asperity  even  on 
their  present  apologetical  petition.  In  the 
conclusion,  he  observed  that  "  ahhough  he 
could  not  allow  of  the  style,  calling  their 
privileges  an  undoubted  right  and  inherit- 
ance, but  could  rather  have  wished  that 
they  had  said  that  tlieir  privileges  were  de- 
rived from  the  gi-ace  and  permission  of  his 
ancestors  and  himself  (for  most  of  them  had 
grown  from  precedent,  which  rather  shows 
a  toleration  than  inheritance),  yet  he  gave 
them  his  royal  assurance  that,  as  long  as 
they  contained  themselves  within  the  limits 
of  their  duty,  he  would  be  as  careful  to 
maintain  their  lawful  liberties  and  privileges 
as  he  would  his  own  prerogative,  so  that 
their  Elouse  did  not  touch  on  that  preroga- 
tive, which  would  enforce  him  or  any  just 
king  to  retrench  their  privileges."! 

This  explicit  assertion  that  the  privileges 
of  the  Commons  existed  only  by  sufferance, 
and  conditionally  upon  good  behavior,  exas- 
perated the  House  far  more  than  the  deni- 
al of  their  right  to  enter  on  matters  of  state. 
In  the  one,  they  were  conscious  of  having 
somewhat  transgressed  the  boundaries  of 
ordinary  precedents  ;  in  the  other,  their  in- 
dividual security,  and  their  very  existence 
as  a  deliberative  assembly,  were  at  stake. 
Calvert,  the  secretary,  and  the  other  minis- 
ters, admitted  the  king's  expressions  to  be 
incapable  of  defense,  and  called  them  a  slip 
of  the  pen  at  the  close  of  a  long  answer.} 
The  Commons  were  not  to  be  diverted  by 
any  such  excuses  from  their  necessary  du- 
ty of  placing  on  record  a  solemn  claim  of 
right.  Nor  had  a  letter  from  the  king,  ad- 
dressed to  Calvert,  much  influence;  where- 
in, while  he  reiterated  his  assurances  of  re- 
specting their  pi-ivileges,  and  tacitly  with- 
drew the  menace  that  rendered  them  pre- 
carious, he  said  that  he  could  not  with  pa- 
tience endure  his  subjects  to  use  such  anti- 
monarchical  words  to  him  concerning  their 


"  P.  261,  &c. 


t  p.  284. 


*  P.  289. 


t  P.  317.  t  P-  330. 


James  I.] 


FROM  HENRY  VII.  TO  GEORGE  U. 


211 


liberties,  as  "  ancient  and  undoubted  riglit 
and  inlieritance,"  without  subjoining  that 
they  were  granted  by  the  grace  and  fav  or  of 
his  predecessoi-s.*  After  a  long  and  warm 
debate,  they  entered  on  record  in  the  Jour- 
nals their  famous  protestation  of  December 
18th,  1G21,  in  the  follow^ing  words  : 

"  The  Commons  now  assembled  in  Pai'- 
liament,  being  justly  occasioned  thereun- 
to, concerning  sundry  liberties,  franchises, 
privileges,  and  jurisdictions  of  Parliament, 
among  others  not  herein  mentioned,  do 
make  this  protestation  following :  That  the 
liberties,  franchises,  privileges,  and  juris- 
dictions of  Parliament  are  the  ancient  and 
undoubted  birthright  and  inheritance  of  the 
subjects  of  England;  and  that  the  arduous 
and  urgent  aflairs  concerning  the  king,  state, 
and  the  defense  of  the  realm,  and  of  the 
Church  of  England,  and  the  making  and 
maintenance  of  laws,  and  redress  of  mis- 
chiefs and  grievances  which  daily  happen 
within  this  realm,  are  proper  subjects  and 
matter  of  counsel  and  debate  in  Parliament; 
and  that  in  the  handling  and  proceeding  of 
those  businesses,  every  member  of  the 
House  hath,  and  of  right  ought  to  have, 
freedom  of  speech  to  propound,  ti'eat,  reas- 
on, and  bring  to  conclusion  the  same  :  that 
the  Commons  in  Parliament  have  like  lib- 
erty and  freedom  to  ti'eat  of  those  matters 
in  such  order  as  in  their  judgments  shall 
seem  fittest :  and  that  every  such  member 
of  the  said  House  hath  like  freedom  from 
all  impeachment,  imprisonment,  and  moles- 
tation (other  than  by  the  censure  of  the 
House  itself)  for  or  concerning  any  bill, 
speaking,  reasoning,  or  declaring  of  any 
matter  or  matters  touching  the  Parliament 
or  Parliament  business ;  and  that,  if  any  of 
the  said  members  be  complained  of,  and 
questioned  for  any  thing  said  or  done  in 
Parliament,  the  same  is  to  be  showed  to 
the  king  by  the  advice  and  assent  of  all  the 
Commons  assembled  in  Parliament,  before 
the  king  give  credence  to  any  private  infor- 
mation."f 

This  protestation  was  not  likelj'  to  paci- 
Dissolution  fy  the  king's  anger.  He  had  al- 
"'ons^aVte™'  ""^^'^y  pressed  the  Commons  to 
a  strong  re-  make  an  end  of  the  business  be- 
monstrance.  f^j.^  ^Ylem,  Under  pretense  of 
wishing  to  adjourn  them  before  Christmas, 


*  P.  339.  t  P.  359. 


but  probably  looking  to  a  dissolution.  They 
were  not  in  a  temper  to  regard  any  busi- 
ness, least  of  all  to  grant  a  subsidy,  till  this 
attack  on  their  privileges  should  be  fuUy 
reti'acted.  The  king  therefore  adjourned, 
and  in  about  a  fortnight  after  dissolved  them. 
But  in  the  interval,  having  sent  for  the  jour- 
nal-book, he  erased  their  last  protestation 
with  his  own  hand,  and  published  a  decla- 
ration of  the  causes  which  had  provoked 
him  to  this  unusual  measure,  alleging  the 
unfitness  of  such  a  protest,  after  his  ample 
assurauce  of  maintaining  their  privileges, 
the  irregular  manner  in  which,  according 
to  him,  it  was  voted,  and  its  ambiguous  and 
general  wording,  which  might  serve  in  fu- 
ture times  to  invade  jnost  of  the  preroga- 
tives annexed  to  the  imperial  crown.  In 
his  proclamation  for  dissolving  the  Parlia- 
ment, James  recapitulated  all  his  gvovmds 
of  offenses,  but  finally  required  his  subjects 
to  take  notice  that  it  was  his  intention  to 
govern  them  as  his  progenitors  and  prede- 
cessors had  done,  and  to  call  a  Parliament 
again  on  the  first  convenient  occasion.*  He 
immediately  followed  up  this  dissolution  of 
Parliament  by  dealing  his  vengeance  on  its 
most  conspicuous  leaders :  Sir  Edward 
Coke  and  Sir  Kobert  Philips  were  com- 
mitted to  the  Tower;  Mr.  Pym,  and  one 
or  two  more,  to  other  prisons ;  Sir  Dudley 
Digges,  and  several  who  were  somewhat 
less  obnoxious  than  the  former,  were  sent 
on  a  commission  to  Ireland,  as  a  sort  of  hon- 
orable banishment. f  The  Earls  of  Oxford 
and  Southampton  underwent  an  examina- 
tion before  the  council ;  and  the  foniier  was 
committed  to  the  Tower  on  pretense  of 
having  spoken  words  against  the  king.  It 
is  worthy  of  observation,  that  in  this  session 
a  portion  of  the  Upper  House  had  united  in 
opposing  the  court.  Nothing  of  this  kind 
is  noticed  in  former  ParUaments,  except, 
perhaps,  a  little  on  the  establishment  of  the 
Reformation.  In  this  minority  were  con- 
siderable names:  Essex,  Southampton, 
Warwick,  Oxford,  Say,  Spencer.  Wheth- 
er a  sense  of  public  wrongs,  or  their  partic- 
ular resentments,  influenced  these  noble- 
men, their  opposition  must  be  reckoned  an 

*  R>-mer,  xvii.,  344.  Pari.  Hist.  Carte,  93. 
Wilson. 

t  Besides  the  historians,  see  Cabala,  part  ii.,  p. 
155  (4to  edit.) ;  D  israeli's  Character  of  James  I., 
p.  125;  and  Mede's  Letters,  Harl.  MSS.  3S9. 


212 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VL 


evident  sign  of  the  change  that  was  at  work 
in  the  spirit  of  the  nation,  and  by  which  no 
rank  could  be  wholly  unaffected.* 

James,  with  all  his  reputed  pusillanimity, 
Marriage  never  showed  any  signs  of  fearing 
treaty  with  popular  opinion.  His  obstinate 
Spain.  adherence  to  the  marriage  treaty 
with  Spain  was  the  height  of  political  rash- 
ness in  so  critical  a  state  of  the  public  mind. 
But  what  with  elevated  notions  of  his  pre- 
rogative and  of  his  skill  in  government  on 
the  one  hand,  what  with  a  confidence  in 
the  submissive  loyalty  of  the  English  on  the 
other,  lie  seems  constantly  to  have  fancied 
that  all  opposition  proceeded  from  a  small 
troublesome  faction,  whom  if  he  could  any 
way  silence,  the  rest  of  his  people  would 
at  once  repose  in  a  dutiful  reliance  on  his 
wisdom.  Hence  he  met  every  succeeding 
Parliament  with  as  sanguine  hopes  as  if  he 
had  suffered  no  disappointment  in  the  last. 
The  nation  was,  however,  wrought  up  at 
this  time  to  an  alarming  pitch  of  discontent. 
Libels  were  in  circulation  about  1621,  so 
bitterly  malignant  in  their  censures  of  his 
person  and  administration,  that  two  hund- 
red years  might  seem,  as  we  read  them,  to 


*  "Wilson's  History  of  James  I.,  in  Kennet,  ii., 
247,  749.  Thirty-three  peers,  Mr.  Joseph  Mede 
tells  us  in  a  letter  of  Feb.  24.  1621  (Harl.  MSS., 
369),  "  signed  a  petition  to  the  king,  which  they 
refused  to  deliver  to  the  council,  as  he  desired,  nor 
even  to  the  prince,  unless  he  would  say  he  did  not 
receive  it  as  a  counselor ;  whereupon  the  king 
.sent  for  Lord  Oxford,  and  asked  him  for  it;  he,  ac- 
cording to  previous  agreement,  said  he  had  it  not ; 
then  he  sent  for  another,  who  made  the  same  an- 
swer :  at  last  they  told  him  they  had  resolved  not 
to  deliver  it  unless  thej'  were  admitted  all  togeth- 
er ;  whereupon  his  majesty,  wonderfully  incensed, 
sent  them  all  away,  re  infectS,  and  said  that  he 
would  come  into  Parliament  himself,  and  bring 
them  all  to  the  har."  This  petition,  I  believe,  did 
not  relate  to  any  general  grievances,  but  to  a 
question  of  their  own  privileges,  as  to  their  prece- 
dence of  Scots  peers.  Wilson,  ubi  supra.  But 
several  of  this  large  number  were  inspired  by  more 
generous  sentiments ;  and  the  commencement  of 
an  aristocratic  opposition  deserves  to  be  noticed. 
In  another  letter,  written  in  March,  Mede  speaks 
of  the  good  understanding  between  the  king  and 
Parliament;  he  promised  they  should  sit  as  long 
as  they  like,  and  hereafter  he  would  have  a  Parlia- 
ment every  three  years.  "  Is  not  this  good  if  it  be 
true?  ....  But  certain  it  is  that  the  Lords  stick 
wonderful  fast  to  the  Commons,  and  all  take  great 

Tise  entertaining  and  sensible  biographer  of 
James  has  sketched  the  characters  of  these  Whig 
peers. — Aikin's  James  I.,  ii.,  233. 


have  been  mistaken  in  their  date.*  Heed- 
less, however,  of  this  growing  odium,  James 
continued  to  solicit  the  affected  coyness  of 
the  court  of  Madrid.  The  circumstances 
of  that  negotiation  belong  to  general  histo- 
ry.f  It  is  only  necessaiy  to  remind  the 
reader  that  the  king  was  induced  during  the 
residence  of  Prince  Charles  and  the  Duke 


*  One  of  these  may  be  fonnd  in  the  Somers 

Tracts,  ii.,  470,  entitled  Tom  TeU-truth,  a  most  ma- 
hgnaut  ebuUitiou  of  disloyalty,  which  the  author 
must  have  risked  his  neck  as  well  as  ears  in  pub- 
lishing. Some  outrageous  reflections  on  the  per- 
sonal character  of  the  king  could  hardly  be  excelled 
by  modem  licentiousness.  Proclamations  about  this 
time  against  excess  of  lavish  speech  in  matters  of 
state  (Kymer,  xvii.,  275,  514),  and  against  printing 
or  uttering  seditious  and  scandalous  pamphlets  (Id., 
522,  GIG),  show  the  tone  and  temper  of  the  nation. 
[See,  also,  the  extracts  from  the  reports  of  Til- 
lieres,  the  French  ambassador,  in  Raumer's  His- 
tory of  the  16th  and  17th  Centmies  illustrated,  vol. 
ii.,  p.  24C,  et  alibi.  Nothing  can  be  more  unfavor- 
able to  James  in  every  respect  than  these  reports  ; 
but  his  leaning  toward  Spanish  connections  might 
inspire  some  prejudice  into  a  French  diplomatist. 
At  a  considerably  earlier  period,  1606,  if  we  may 
trust  the  French  ambassador,  the  players  brought 
forward  "their  own  king  and  all  his  favorites  in  a 
verj'  strange  fashion.  They  made  him  curse  and 
swear  because  he  had  been  robbed  of  a  bird,  and 
beat  a  gentleman  because  he  had  called  off  the 
hounds  from  the  scent.  They  represent  him  as 
drunk  at  least  once  a  day,  &c.  He  has,  upon  this, 
made  order  that  no  play  shall  be  henceforth  acted 
in  London ;  for  the  repeal  of  which  order,  they 
have  already  offered  100,000  Uvres.  Perhaps  the 
permission  will  be  again  granted,  but  upon  condi- 
tion that  they  represent  no  recent  historj-,  nor  speak 
of  the  present  time." — Raimier,  ii.,  219.  If  such 
an  order  was  ever  issued,  it  was  speedily  repeal- 
ed, for  there  is  no  year  to  which  new  plays  are  not 
refeiTed  by  those  who  have  written  the  historj-  of 
our  drama.  But  the  offense  which  provoked  it  is 
extraordiuarv',  and  hardlj'  credible  ;  though  coming 
on  the  authority  of  a  resident  ambassador,  we  can 
not  set  it  aside.  The  satire  was  of  course  con- 
veyed under  the  character  of  a  fictitious  king,  for 
otherwise  the  players  themselves  would  have  been 
punished.  The  time  seems  to  have  been  in  March, 
1606.  The  recent  story  of  the  Due  de  Biron  had 
been  also  brought  on  the  stage,  which  seems  much 
less  wonderful.  1845.] 

t  The  letters  on  this  subject,  pubhshed  by  Lord 
Hardwicke,  State  Papers,  vol.  i.,  are  highly  im- 
portant; and  being  imknown  to  Carte  and  Hume, 
render  their  nairatives  less  satisfactorj'.  Some 
pamphlets  of  the  time,  in  the  second  volume  of  the 
Somers  Tracts,  may  be  read  with  interest;  and 
Howell's  Letters,  being  written  from  Madrid  dur- 
ing the  Prince  of  Wales's  residence,  deserve  no- 
tice. See,  also,  Wilson,  Ln  Kennet,  p.  750,  et 
post.  Dr.  Lingard  has  illustrated  the  subject 
lately,  ix.,  271. 


JA.MES  I.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


213 


of  Buckingham  "m  Spain,  to  sweai*  to  certain 
private  articles,  some  of  which  he  had  al- 
ready 2)roniised  before  their  departure,  by 
which  he  bound  himself  to  suspend  all  penal 
laws  affecting  the  Catholics,  to  permit  the 
exercise  of  their  religion  in  private  houses, 
and  to  procure  from  Parliament,  if  possible, 
a  legal  toleration.  This  toleration,  as  pre- 
liminary to  the  entire  re-establishment  of 
popery,  had  been  the  first  great  object  of 
Spain  in  the  treaty.  But  tliat  court,  hav- 
ing proti'acted  the  treaty  for  years,  in  order 
to  extort  more  favorable  terms,  and  interpos- 
ed a  thousand  pretenses,  became  the  dupe 
of  its  own  artifices ;  the  resentment  of  a 
haughty  minion  overthrowing  with  ease  the 
painful  fabric  of  this  tedious  negotiation. 

Buckingham  obtained  a  transient  and  un- 
Parliament  merited  popularity  by  thus  avert- 
ofi624.  ifig  £j  gi-eat  public  mischief,  which 
rendered  the  next  Parliainent  unexpectedly 
peaceable.  The  Commons  voted  three  sub- 
sidies and  three  fifteenths,  in  value  about 
t£300,000  ;*  but  with  a  condition,  proposed 
by  the  king  himself,  that,  in  order  to  insure 
its  application  to  naval  and  militaiy  arma- 
ments, it  should  be  paid  into  the  hands  of 
treasurere  appointed  by  themselves,  who 
should  issue  money  only  on  the  warrant  of 
the  council  of  war.  He  seemed  anxious  to 
tread  back  the  steps  made  in  the  former 
session,  not  only  referring  the  highest  mat- 
ters of  state  to  their  consideration,  but 
promising  not  to  treat  for  peace  without 
their  advice.  They,  on  the  other  hand, 
acknowledged  themselves  most  bound  to  his 
majesty  for  having  been  pleased  to  require 
their  humble  advice  in  a  case  so  important, 

*  Hume,  and  many  other  writers  on  the  side  of 
the  crown,  assert  the  value  of  a  subsidy  to  have 
fallen  from  £70,000,  at  which  it  had  hceu  under 
the  Tadors,  to  £'55,000,  or  a  less  sum.  But  though 
I  will  not  assert  a  negative  too  boldly,  I  have  no 
recollection  of  having  found  any  good  authority  for 
this ;  and  it  is  surely  too  improbable  to  be  lightly 
credited.  For  admit  that  no  change  was  made  in 
each  man's  rate  according  to  the  increase  of  wealth 
and  diminution  of  the  value  of  money,  the  amount 
must  at  least  have  been  equal  to  what  it  had  been ; 
and  to  suppose  the  contributors  to  have  prevailed 
on  the  assessors  to  undeiTate  them,  is  rather  con- 
trary to  common  fiscal  usage.  In  one  of  Mode's 
letters,  which,  of  course,  I  do  not  quote  as  decisive, 
it  is  said  that  the  value  of  a  subsidy  was  not  above 
£80,000 ;  and  that  the  assessors  were  directed 
(this  was  in  1621)  not  to  follow  former  books,  but 
value  every  man's  estate  according  to  their  knowl- 
edge, and  not  his  own  confession. 


not  meaning,  we  may  be  sure,  by  these 
courteous  and  loyal  expressions,  to  recede 
from  what  they  had  claimed  in  the  last  Par- 
liament as  their  undoubted  right.* 

The  most  remarkable  affair  in  this  ses- 
sion was  the  impeachment  of  impeachment 
the  Earl  of  Middlesex,  actually  of  Middlesex, 
lord-treasurer  of  England,  for  bribery  and 
other  misdemeanors.  It  is  well  known 
that  the  Prince  of  Wales  and  Duke  of 
Buckingham  instituted  this  prosecution  to 
gi'atify  the  latter's  private  pique,  against  the 
wishes  of  the  king,  who  warned  them  they 
would  live  to  have  their  fill  of  Parliamentary 
impeachment.  It  was  conducted  by  mana- 
gers on  the  part  of  the  Commons  in  a  very 
regular  form,  except  that  the  depositions  of 
witnesses  were  merely  read  by  the  clerk ; 
that  fundamental  rule  of  English  law  which 
insists  on  the  viva  voce  examination  being 
as  yet  unknown,  or  dispensed  with  in  politi- 
cal trials.  Nothing  is  more  wortliy  of  no- 
tice in  the  proceedings  upon  this  impeach- 
ment tlian  what  dropped  from  Sir  Edwin 
Sandys,  in  speaking  upon  one  of  the  charg- 
es. Middlesex  had  laid  an  imposition  of 
c£.3  per  ton  on  French  wines,  for  taking 
off  which  he  received  a  gratuity.  Sandys, 
commenting  on  this  offense,  protested  in 
the  name  of  the  Commons  that  they  intend- 
ed not  to  question  the  power  of  imposing 
claimed  by  the  king's  prerogative  :  this  they 
touched  not  upon  now  ;  they  continued  only 
their  claim,  and  when  they  should  have  oc- 
casion to  dispute  it,  would  do  so  with  all 
due  regard  to  his  majesty's  state  and  reve- 
nue.f  Such  cautious  and  temperate  lan- 
guage, far  from  indicating  any  disposition  to 
recede  from  their  pretensions,  is  rather  a 
proof  of  such  united  steadiness  and  discre 
tion  as  must  insure  their  success.  Mid 
dlesex  was  unanimously  convicted  by  the 
Peers. t     His  impeachment  was  of  the 

*  Pari.  Hist.,  1383,  1388,  1390.  Carte,  119.  Tha 
king  seems  to  have  acted  pretty  fairly  in  this  Par- 
hament,  bating  a  gross  falsehood  in  denying  the 
intended  toleration  of  papists.  He  wished  to  get 
further  pledges  of  support  from  Parliament  before 
he  plunged  into  a  war,  and  was  veiy  right  in  do- 
ing so.  On  the  other  hand,  the  prince  and  Duke 
of  Buckingham  behaved  in  public  toward  him  with 
great  rudeness. — Pari.  Hist.,  1396. 

t  Pari.  Hist.,  1421. 

X  Clarendon  blames  the  impeachment  of  Middle- 
sex for  the  very  reason  which  makes  me  deem  it 
a  fortunate  event  for  the  Constitution,  and  seems 
to  consider  him  as  a  sacrifice  to  Buckingham's  re- 


214 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VI. 


highest  moment  to  the  Commons,  as  it  re- 
stored forever  that  salutary  constitutional 
right  which  the  single  precedent  of  Lord 
Bacon  might  have  been  insufficient  to  estab- 
lish against  the  ministers  of  the  crown. 

The  last  two  Parliaments  had  been  dis- 
solved without  passing  a  single  act,  except 
the  subsidy  bill  of  1621.  An  interval  of 
legislation  for  thirteen  years  was  too  long 
for  any  civilized  country.  Several  statutes 
were  enacted  in  the  present  session,  but 
none  so  material  as  that  for  abolishing  mo- 
nopolies for  the  sale  of  merchandise,  or  for 
using  any  trade.*  This  is  of  a  declaratoiy 
nature,  and  recites  that  they  ai-e  already 
contrary  to  the  ancient  and  fundamental 
laws  of  the  realm.  Scarce  any  difference 
arose  bet^veen  the  crown  and  the  Com- 
mons. This  singular  calm  might  probably 
have  been  interrupted,  had  not  the  king  put 
an  end  to  the  session.  They  expressed 
some  little  dissatisfaction  at  this  step,f  and 
presented  a  list  of  gi-ievances,  one  only  of 
which  is  sufficiently  considerable  to  deserve 
notice,  namely,  the  proclamations  already 

sentment.  Hackett,  also,  the  biosrapher  of  Will- 
iams, takes  his  part.  Carte,  however,  thought 
him  ^ilty,  p.  116 ;  aud  the  imauimous  vote  of  the 
Peers  is  much  against  him,  since  that  House  was 
not  wholly  governed  by  Buckingham.  See,  too, 
the  Life  of  Nicholas  Fan-ar,  in  Wordsworth's  Ec- 
clesiastical Biography,  vol.  iv.,  where  it  appears 
that  that  pious  and  conscientious  man  was  one  of 
the  treasurer's  most  forward  accusers,  liaviug  been 
deeply  injured  by  him.  It  is  difficult  to  determine 
tlie  question  from  the  printed  trial. 

*  21  Jac.  1,  c.  3.  See  what  Lord  Coke  says  on 
this  act,  and  on  the  general  subject  of  monopolies, 
3  Inst.,  181.  t  Pari.  Hist.,  1483. 


mentioned  in  restraint  of  building  about 
London,  whereof  they  complain  in  very 
gentle  terms,  considering  their  obvious  ille- 
gality and  violation  of  private  right.* 

The  Commons  had  now  been  engaged  for 
more  than  twenty  years  in  a  sti-uggle  to  re- 
store and  to  fortify  theii'  own  and  their  fel- 
low-subjects' liberties.  They  had  obtained 
in  this  period  but  one  legislative  measure  of 
importance,  the  late  declaratory  act  against 
monopolies,  but  they  had  rescued  from  dis- 
use their  ancient  right  of  impeachment. 
They  had  placed  on  record  a  protestation 
of  their  claim  to  debate  all  matters  of  public 
concern.  They  had  remonstrated  against 
the  usurped  prerogatives  of  binding  the 
subject  by  proclamation,  and  of  levying  cus- 
toms at  the  out-poits.  They  had  secured 
beyond  controversy  then-  exclusive  privilege 
of  determining  contested  elections  of  their 
members.  Of  these  advantages,  some  Avere 
evidently  incomplete,  and  it  would  require 
the  most  vigorous  exertions  of  future  Par- 
liaments to  realize  them ;  but  such  exer- 
tions the  increased  energy  of  the  nation 
gave  abundant  cause  to  anticipate.  A  deep 
and  lasting  love  of  freedom  had  taken  hold 
of  evei'y  class,  except,  perhaps,  the  clergy ; 
from  which,  when  viewed  together  with 
the  rash  pride  of  the  court,  and  the  uncer- 
tainty^ of  constitutional  principles  and  pre- 
cedents, collected  through  our  long  and  va- 
rious history,  a  calm  by-stander  might  pre- 
sage that  the  ensuing  reign  would  not  pass 
without  disturbance,  nor  perhaps  end  with- 
out confusion. 

*  Pari.  Hist.,  p.  1480. 


Cha.  I.— 1625-29  ] 


FKOM  HENRY  VII.  TO  GEORGE  II. 


215 


CHAPTER  VTI. 


ON  THE  ENGLISH  CONSTITUTION  FROM  THE  ACCESSION  OF  CHARLES  L  TO 
THE  DISSOLUTION  OF  HIS  THIRD  PARLIAMENT. 


Parliament  of  1625.  —  Its  Dissolution.  —  Another 
Parliament  called. — Prosecution  of  Buckingham. 
—  Arbitrary  Proceedings  toward  the  Earls  of 
Arundel  and  Bristol. — Loan  demanded  by  the 
King. — Several  committed  for  Refusal  to  con- 
tribute.— They  sue  for  a  Habeas  Corpus. — Ar- 
guments on  this  Cluestion,  which  is  decided 
against  them. — A  Parliament  called  in  1628.— 
Petition  of  Right.' — King's  Reluctance  to  grant 
it.  — -  Toimage  and  Poundage  disputed. . — •  King 
dissolves  Parliament. — Religions  Differences. — 
Prosecution  of  Puritans  by  Bancroft. — Growth  of 
High-Church  Tenets. — Difl'erences  as  to  the  Ob- 
servance of  Sunday. — Arminian  Controversy. — 
State  of  CathoUcs  under  James. — Jealousy  of 
the  Court's  Favor  toward  them. — Unconstitu- 
tional Tenets  promulgated  by  the  High-Church 
Party. — General  Remarks. 

Charles  the  First  had  much  in  his  char- 
acter veiy  suitable  to  the  times  in  which  he 
lived,  and  to  the  spirit  of  tlie  people  he  was 
to  rale ;  a  stern  and  serious  deportment,  a 
disinclination  to  all  licentiousness,  and  a 
sense  of  religion  that  seemed  more  real 
than  in  his  father.*  These  qualities  we 
might  suppose  to  have  raised  some  expecta- 
tion of  him,  and  to  have  procured  at  his  ac- 
cession some  of  that  popularity  which  is 
rarely  withheld  from  untried  princes.  Yet 
it  does  not  appear  that  he  enjoyed  even  this 
first  transient  sunshine  of  his  subjects'  af- 
fection. Solely  intent  on  retrenching  the 
excesses  of  pi-erogative,  and  well  aware 
that  no  sovereign  would  voluntarily  recede 
from  the  possession  of  power,  they  seem  to 
have  dreaded  to  admit  into  their  bosoms  any 
sentiments  of  personal  loyalty  which  might 
enervate  their  resolution  :  and  Charles  took 
speedy  means  to  convince  them  that  they 
had  not  erred  in  withholding  their  confi- 
dence. 

*  The  general  temperance  and  chastity  of 
Charles,  and  the  effect  those  virtues  had  in  reform- 
ing the  outward  face  of  the  court,  are  attested  by 
many  writers,  and  especially  by  Mrs.  Hutchinson, 
whose  good  word  he  would  not  have  undesei-ved- 
ly  obtained. — Mem.  of  Col.  Hutchinson,  p.  65.  I 
am  aware  that  he  was  not  the  perfect  saint  as  well 
as  martjT  whiclj  his  panegyrists  represent  him  to 
have  been ;  but  it  is  an  unworthy  ofEce,  even  for 
the  purpose  of  throwing  ridicule  on  exaggerated 
praise,  to  turn  the  microscope  of  history  on  private 
life. 


Elizabeth  in  her  systematic  parsimony, 
James  in  his  averseness  to  war,  had  been 
alike  influenced  by  a  consciousness  that 
want  of  money  alone  could  render  a  Par- 
liament formidable  to  their  power.  None 
of  the  iiTegular  modes  of  supply  were  ever 
productive  enough  to  compensate  for  the 
clamor  they  occasioned ;  after  impositions 
and  benevolences  were  exhausted,  it  had 
always  been  found  necessary,  in  the  most 
arbitrary  times  of  the  Tudors,  to  fall  back 
on  the  representatives  of  the  people.  But 
Charles  succeeded  to  a  war,  at  least  to  the 
preparation  of  a  war,  rashly  undertaken 
through  his  own  weak  compliance,  the  ar- 
rogance of  his  favorite,  and  the  generous  or 
fanatical  zeal  of  the  last  Parliament.  He 
would  have  perceived  it  to  be  manifestly 
impossible,  if  he  had  been  capable  of  under- 
standing his  own  position,  to  continue  this 
war  without  the  constant  assistance  of  the 
House  of  Commons,  or  to  obtain  that  assist- 
ance without  very  costly  sacrifices  of  his 
royal  power.  It  was  not  the  least  of  this 
monarch's  imprudences,  or,  rather,  of  his 
blind  compliances  with  Buckingham,  to 
have  not  only  commenced  hostilities  against 
Spain  which  he  might  easily  have  avoid- 
ed,* and  persisted  in  them  for  four  years, 
but  entered  on  a  fresh  war  with  France, 
though  he  had  abundant  experience  to 
demonstrate  the  impossibility  of  defraying 
its  charges. 

The  first  Parliament  of  this  reign  has  been 
severely  censured  on  account  of  parliament 
the  penurious  supply  it  doled  out  °^ 
for  the  exigencies  of  a  war  in  which  its 
predecessors  had  involved  the  king.  I  will 
not  say  that  this  reproach  is  wholly  un- 
founded. A  more  liberal  proceeding,  if  it 
did  not  obtain  a  reciprocal  concession  from 
the  king,  would  have  put  him  more  in  the 
wrong ;  but,  according  to  the  common  prac- 
tice and  character  of  all  such  assemblies,  it 


*  War  had  not  been  declared  at  Charles's  ac- 
cession, nor  at  the  dissolution  of  the  first  Parlia- 
ment. In  fact,  lie  was  much  more  set  upon  it  than 
his  subjects.  Hume  and  all  his  school  keep  this 
out  of  sight. 


216 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VH. 


was  preposterous  to  expect  subsidies  equal  1 
to  the  occasion,  until  a  foundation  of  confi- 
dence should  be  laid  between  the  crown 
and  Parliament.  The  Commons  had  be- 
gun, i)robably,  to  repent  of  their  hastiness 
in  the  preceding  year,  and  to  discover  that 
Buckingham  and  his  pupil,  or  master  (which 
shall  we  say?),  had  conspired  to  deceive 
them.*  They  were  not  to  forget  that  none 
of  the  chief  gi'ievances  of  the  last  reign 
were  yet  redressed,  and  that  supplies  must 
be  voted  slowly  and  conditionally  if  they 
would  hope  for  reformation ;  hence  they 
made  their  gi'ant  of  tonnage  and  poundage 
to  last  but  for  a  year  instead  of  the  king's 
hfe,  as  had  for  two  centuries  been  the  prac- 
tice, on  which  account  the  Upper  House 
rejected  the  bill  :f  nor  would  they  have  re- 
fused a  further  supply,  beyond  the  two  sub- 
sidies (about  ^140,000)  which  they  had 
Its  dissolu-  granted,  had  some  tender  of  re- 
tion.  dress  been  made  by  the  crown ; 
and  they  were  actually  in  debate  upon  the 
matter  when  interrupted  by  a  sudden  disso- 
lution.J 

Nothing  could  be  more  evident,  by  the 
experience  of  the  late  reign  as  well  as  by 
observing  the  state  of  public  spirit,  than  that 
hasty  and  premature  dissolutions  or  proro- 
gations of  Parliament  served  but  to  aggra- 
vate the  crown's  embarrassments.  Every 
successive  House  of  Commons  inherited 
the  feelings  of  its  predecessor,  without 
which  it  would  have  ill  represented  the 
prevalent  humor  of  the  nation.  The  same 
men,  for  the  most  part,  came  again  to  Par- 
liament more  irritated  and  desperate  of  rec- 
onciliation with  the  sovereign  than  before. 
Even  the  politic  measure,  as  it  was  fancied 
to  be,  of  excluding  some  of  the  most  active 
members  from  seats  in  the  new  assembly, 
by  nominating  them  sheriffs  for  the  year, 
failed  altogether  of  the  expected  success,  as 

*  Hume  has  disputed  this,  but  with  little  suc- 
cess, even  on  his  own  showing.  He  observes,  on 
an  assertion  of  Wilson,  that  Buckingham  lost  his 
popularity  after  Bristol  arrived,  because  he  proved 
that  the  former,  while  in  Spain,  had  professed  him- 
self a  papist — that  it  is  false,  and  K-as  never  said 
hy  Bristol.  It  is  singular  that  Hume  should  know 
BO  positively  what  Bristol  did  not  say  in  1624, 
when  it  is  notorious  that  he  said  in  Parliament 
what  nearly  comes  to  the  same  thing  in  1626. — 
See  a  curious  letter  in  Cabala,  p.  224,  showing 
what  a  combination  had  been  formed  against  Back- 
inghara,  of  all  descriptions  of  malcontents. 

t  Pari.  Hist.,  vol.  ii.,  p.  6.  t  Id.,  33. 


it  naturally  must  in  an  age  when  all  ranks 
partook  in  a  common  enthusiasm.*  Hence 
the  prosecution  against  Buckingham,  to 
avert  which  Charles  had  dissolved  his  first 
Parliament,  was  commenced  with  redoub- 
led vigor  in  the  second.  It  was  too  late, 
after  the  precedents  of  Bacon  and  Middle- 
sex, to  dispute  the  right  of  the  Commons 
to  impeach  a  minister  of  state.  The  king, 
however,  anticipating  their  resolutions,  af- 
ter some  sharp  speeches  only  had  been  ut- 
tered against  his  favorite,  sent  a  message 
that  he  would  not  allow  any  of  his  servants 
to  be  questioned  among  them,  much  less 
such  as  were  of  eminent  place  and  near 
unto  him.  He  saw,  he  said,  that  some  of 
them  aimed  at  the  Duke  of  Buckingham, 
whom,  in  the  last  Parliament  of  his  father, 
all  had  combined  to  honor  and  respect,  nor 
did  he  know  what  had  happened  since  to 
alter  their  affections ;  but  he  assured  them 
that  the  duke  had  done  nothing  without 
his  own  special  direction  and  appointment. 
This  haughty  message  so  pro-  p,„,,,„tia» 
voked  the  Commons  that,  hav-  of  Buckiug- 
ing  no  express  testimony  against 
Buckingham,  they  came  to  a  vote  that  com- 
mon fame  is  a  good  gi-ound  of  proceeding, 
either  by  inquiiy,  or  presenting  the  com- 
plaint to  the  king  or  Lords ;  nor  did  a 
speech  from  the  lord-keeper,  severely  rat- 
ing their  presumption,  and  requiring,  on  the 
king's  behalf,  that  they  should  puni.sh  two 
of  their  members  who  had  given  him  of- 
fense by  insolent  discourses  in  the  House, 
lest  he  should  be  compelled  to  use  his  royal 
authority  against  them ;  nor  one  from  the 
king  himself,  bidding  them  "  remember 
that  Parliaments  were  altogether  in  his 
power  for  their  calling,  sitting,  and  dissolu- 
tion— therefore,  as  he  found  the  fruits  of 

*  The  language  of  Lord-keeper  Coventry  in 
opening  the  session  was  very  ill  calculated  for  the 
spirit  of  the  Commons  :  "  If  we  consider  aright,  and 
think  of  that  incomparable  distance  between  the 
supreme  height  and  majesty  of  a  mightj-  monarch 
and  the  submissive  awe  and  lowliness  of  loyal 
subjects,  we  cau  not  but  receive  exceeding  com- 
fort and  contentment  in  the  frame  and  constitution 
of  this  highest  court,  wherein  not  only  the  prelates, 
nobles,  and  grandees,  but  the  commons  of  all  de- 
crees, have  their  part ;  and  wherein  that  high  maj- 
esty doth  descend  to  admit,  or  rather  to  invite, 
the  humblest  of  bis  subjects  to  conference  and 
counsel  with  him,"  &c.  He  gave  them  a  distinct 
hint  afterward  that  they  must  not  expect  to  sit 
I  long.— Pari.  Hist.,  39. 


CH4.  I.— 1625-29.] 


FROM  HENRY  VII. 


TO  GEORGE  11. 


217 


them  good  or  evil,  they  were  to  continue 
to  be  or  not  to  be,"*  tend  to  pacify  or  to 
intimidate  the  assembly.  They  addressed 
the  king  in  veiy  decorous  language,  but 
asserting  "  the  ancient,  constant,  and  un- 
doubted right  and  usnge  of  Parliaments  to 
question  and  complain  of  all  persons,  of 
what  degree  soever,  found  grievous  to  the 
Commonwealth,  in  abusing  the  power  and 
h'ust  committed  to  thenr  by  their  sover- 
eign." The  duke  was  accordingly  im- 
peached at  the  bar  of  the  House  of  Peers 
on  eight  articles,  many  of  them  pi-obably 
well  founded ;  yet  as  the  Commons  heard 
no  evidence  in  support  of  them,  it  was 
rather  unreasonable  in  them  to  request  that 
he  might  be  committed  to  the  Tower. 

In  the  conduct  of  this  impeachment,  two 
of  the  managers,  Sir  John  Eliot  and  Sir 
Dudley  Digges,  one  the  most  illustrious 
confessor  in  the  cause  of  liberty  whom  that 
time  produced,  the  other  a  man  of  much 
ability  and  a  useful  supporter  of  the  popu- 
lar party,  though  not  free  from  some  oblique 
views  toward  promotion,  gave  such  offense 
by  words  spoken,  or  alleged  to  be  spoken, 
in  derogation  of  his  majesty's  honor,  that 
they  were  committed  to  the  Tower.  The 
Commons,  of  course,  resented  this  new 
outrage.  They  resolved  to  do  no  more 
business  till  they  were  righted  in  their  priv- 
ileges. They  denied  the  words  imputed 
to  Digges ;  and  thirty-six  peers  asserting 
that  he  had  not  spoken  them,  the  king  ad- 


•  Pari.  Hist.,  60.  I  know  of  nothing  under  the 
Tadors  of  greater  arrogance  than  this  lani^uage. 
Sir  Dudley  Carleton,  accustomed  more  to  foreign 
negotiations  than  to  an  English  House  of  Commons, 
gave  very  just  offense  by  descanting  on  tlie  misery 
of  the  people  in  other  countries.  "  He  cautioned 
them  not  to  make  tlie  king  out  of  love  with  Parlia- 
ments by  encroaching  on  his  prerogative ;  for  in 
his  messages  he  had  told  them  that  he  must  then 
use  new  councils.  In  all  Chri.stian  kingdoms  there 
were  Parliaments  anciently,  till  the  mouarchs,  see- 
ing their  turbulent  spirits,  stood  upon  their  pre- 
rogatives, and  overthrew  them  all,  except  with  ns. 
In  foreign  conntries  the  people  look  not  like  ours, 
with  store  of  flesh  on  their  backs  ;  but  Uke  ghosts, 
being  nothing  but  skin  and  bones,  with  some  thin 
cover  to  their  nakedness,  and  wearing  wooden 
shoes  on  their  feet ;  a  miseiy  beyond  expression, 
and  that  we  are  yet  fi-ee  from ;  and  let  us  not  lose 
the  repute  of  a  free-bom  nation  by  our  turbulency 
in  Parliament." — Rusliworth. 

This  was  a  hint,  in  the  usual  arrogant  stj'le  of 
courts,  that  the  liberties  of  the  people  depended 
on  favor,  and  not  on  their  own  determination  to 
maintain  them. 


mitted  that  he  was  mistaken,  and  released 
both  their  members.*    He  had  already 
broken  in  upon  the  privileges  of  ^riiitrary 
the  House  of  Lords,  by  commit-  i>roceedin;js 

,  ,  ,       towiuU  the 

tnig  the  Larl  of  Anmdel  to  the  Earls  of 
Tower  during  the  session ;  not  ^™'"'«' 
upon  any  political  charge,  but,  as  was  com- 
monly surmised,  on  account  of  a  marriage 
which  his  son  had  made  with  a  lady  of  roy- 
al blood.  Such  private  offenses  were  suf- 
ficient in  those  arbitraiy  reigns  to  expose 
the  subject  to  indefinite  imprisonment,  if 
not  to  an  actual  sentence  in  the  Star  Cham- 
ber. The  Lords  took  np  this  detention  of 
one  of  their  body,  and,  after  formal  exami- 
nation of  precedents  by  a  committee,  came 
to  a  resolution,  "that  no  lord  of  Parliament, 
the  Parliament  sitting,  or  within  the  usual 
times  of  privilege  of  Parliament,  is  to  be 
imprisoned  or  restrained  without  sentence 
or  order  of  the  House,  unless  it  be  for  trea- 
son or  felony,  or  for  refusing  to  give  surety 
for  the  peace."  This  assertion  of  privilege 
was  manifestly  warranted  by  the  co-extens- 
ive liberties  of  the  Commons.  After  vari- 
ous messages  between  the  king  and  Lords, 
Arundel  was  ultimately  set  at  liberty. f 

This  infringement  of  the  rights  of  the 
peerage  was  accompanied  by  an- 
other not  less  injurious,  the  refu- 
sal of  a  writ  of  summons  to  the  Earl  of 
Bristol.  The  Lords  were  justly  tenacious 
of  this  unquestionable  privilege  of  their  or- 
der, without  which  its  constitutional  dignity 
and  independence  could  never  be  maintain- 
ed. Whatever  irregularities  or  uncertainty 
of  legal  principle  might  be  found  in  earlier 
times  as  to  persons  summoned  only  by  -writ 
without  patents  of  creation,  concerning 
whose  hereditary  peerage  there  is  much 
reason  to  doubt,  it  was  beyond  all  contro- 


and  Bristol. 


*  Pari.  Hist.,  119.  Hatsell,  i.,  147.  Lords' 
Journals.    A  few  peers  refused  to  join  in  this. 

Dr.  Lingard  has  observed  that  the  opposition  in 
the  House  of  Lords  was  headed  by  the  Earl  of 
Pembroke,  who  had  been  rather  conspicuous  in  the 
late  reign,  and  whose  character  is  drawn  hy  Clar- 
endon in  the  first  book  of  his  history.  He  held  ten 
proxies  in  the  king's  fir.st  Paj-liament,  as  Bucking- 
ham did  thirteen. — Lingard,  ix.,  328.  In  the  sec- 
ond, Pembroke  had  only  five,  but  the  duke  still 
came  with  thirteen. — Lords'  Journals,  p.  -19] .  This 
enormous  accumulation  of  suffrages  in  one  person 
led  to  an  order  of  the  House,  which  is  now  its  es- 
tablished regulation,  that  no  peer  can  liold  more 
than  two  proxies. — Lords'  Journals,  p.  507. 

t  Pari.  Hist.,  125.    Hatsell,  141. 


218 


CONSTITUTIONAL  HISTOUY  OF  ENGLAND 


[Chap.  VIL 


versy  that  an  earl  of  Bristol  holding  his  dig- 
nity by  jjatent  was  entitled  of  right  to  attend 
Parliament.  The  House  necessarily  in- 
sisted upon  Bristol's  receiving  his  summons, 
which  was  sent  him  with  an  injunction  not 
to  comply  with  it  by  taking  his  place.  But 
the  spirited  earl  knew  that  the  king's  con- 
stitutional will  expressed  in  the  wiit  ought 
to  outweigh  his  private  command,  and  laid 
the  secretary's  letter  before  the  House  of 
Lords.  The  king  prevented  any  further 
interference  in  his  behalf  by  causing  articles 
of  charge  to  be  exhibited  against  him  by  the 
attorney-general,  whereon  he  was  commit- 
ted to  the  Tower.  These  assaults  on  the 
pride  and  consequence  of  an  aristocratic  as- 
sembly, from  whom  alone  the  king  could 
expect  effectual  support,  displaj'  his  unfit- 
ness not  only  for  the  government  of  Eng- 
land, but  of  any  other  nation.  Nor  was  his 
conduct  toward  Bristol  less  oppressive  than 
impolitic.  If  we  look  at  the  harsh  and  in- 
decent employment  of  his  own  authority, 
and  even  testimony,  to  influence  a  criminal 
process  against  a  man  of  approved  and  un- 
tainted worth,*  and  his  sanction  of  charges 
which,  if  Bristol's  defense  be  as  tnae  as  it 
is  now  generally  admitted  to  be,  he  must 
have  known  to  be  unfounded,  we  shall  hard- 
ly concur  with  those  candid  persons  who 
believe  that  Charles  would  have  been  an 
excellent  prince  in  a  more  absolute  monar- 
chy. Nothing,  in  truth,  can  be  more  pre- 
posterous than  to  maintain,  like  Clarendon 
and  Hume,  the  integi'itj-  and  innocence  of 
Lord  Bristol,  together  with  the  sincerity 
and  humanity  of  Charles  the  First.  Such 
inconsistencies  betray  a  determination  in  the 
historian  to  speak  of  men  according  to  his 
preconceived  affection  or  prejudice,  without 
so  much  as  attempting  to  reconcile  these 
sentiments  to  the  facts  which  he  can  nei- 
ther deny  nor  excuse. f 

*  Mr.  Brodie  has  commented  rather  too  severely 
on  Bristol's  conduct,  vol.  ii.,  p.  109.  That  he  was 
"actuated  merely  by  motives  of  self-aggrandize- 
ment" is  surely  not  apparent,  though  he  might  be 
more  partial  to  Spain  than  we  may  think  right,  or 
even  though  he  might  have  some  bias  toward  the 
religion  of  Rome.  The  last,  however,  is  by  no 
means  proved,  for  the  king's  word  is  no  proof  in 
niy  eyes. 

t  See  the  proceedings  on  the  mutual  charges  of 
Buckingham  and  Bristol  in  Rushworth,  or  the 
Parliamentarj'  Historj'.  Charles's  beha^nor  is 
worth  noticing.  He  sent  a  message  to  the  House, 
desiring  that  they  would  not  comply  with  the  earl's 


Though  the  Lords  petitioned  against  a 
dissolution,  the  king  was  determined  to  pro- 
tect his  favorite,  and  rescue  himself  from 
the  importunities  of  so  refractoTy  a  House 
of  Commons.*  Perhaps  he  had  already 
taken  the  resolution  of  governing  without 
the  concun-ence  of  Parliaments,  though  he 
was  induced  to  break  it  the  ensuing  year. 
For  the  Commons  having  delayed  to  pass  a 
bill  for  the  five  subsidies  which  they  had 
voted  in  this  session  till  they  should  obtain 
some  satisfaction  for  their  complaints,  he 
was  left  without  any  regular  supply.  This 
was  not  wholly  unacceptable  to  some  of  his 
counselors,  and  probably  to  himself,  as  af- 
fording a  pretext  for  those  unauthorized 
demands  which  the  advocates  of  arbitraiy 
prerogative  deemed  more  consonant  to  the 

request  of  being  allowed  counsel,  and  jaelded  un- 
graciously when  the  Lords  remonstrated  against 
the  prohibition.— Pari.  Hist  ,  97,  132.  The  attorn- 
ey-general exhibited  articles  against  Bristol  as  to 
facts  depending  in  great  measure  on  the  king's  sole 
testimony.  Bristol  petitioned  the  House  "to  take 
into  consideration  of  wliat  consequence  such  a  pre- 
cedent might  be,  and  thereon  most  humbly  to  move 
his  majesty  for  the  declining,  at  least,  of  his  majes- 
ty's accusation  and  testimony.  " — Id.,  98.  The 
House  ordered  two  questions  on  this  to  be  put  to 
the  judges :  1.  Whether,  in  case  of  treason  or  fel- 
ony, the  king's  testimony  was  to  be  admitted  or 
not  ?  2.  Whether  words  spoken  to  the  prince, 
who  is  after  king,  make  any  alteration  in  the  case  7 
They  were  ordered  to  deliver  their  opinions  three 
•lays  afterward.  But  when  the  time  came,  the  chief 
justice  informed  the  House  that  the  attorney-gen- 
eral had  communicated  to  the  judges  his  majesty's 
pleasure  that  they  should  forbear  to  give  an  an- 
swer.— Id.,  103,  106. 

Hume  says,  "  Charles  himself  was  certainly  de- 
ceived by  Buckingham,  when  he  corroborated  his 
favorite's  nan-ative  by  his  testimony."  But  no  as- 
sertion can  be  more  gratuitous ;  the  supposition, 
indeed,  is  impossible. 

*  Pari.  Hist.,  193.  If  the  following  letter  is  ac- 
curate, the  pri\'y-council  themselves  were  against 
this  dissolution  :  "  Yesterday,  the  Lords,  sitting  in 
council  at  Whitehall  to  argue  whether  the  Parlia- 
ment should  be  dissolved  or  not,  were  all  with  one 
voice  against  the  dissolution  of  it ;  and  to-day, 
when  the  lord-keeper  drew  out  the  commission  to 
have  read  it,  they  sent  four  of  their  own  body  to 
his  majestj'  to  let  him  know  how  dangerous  this 
abruption  would  be  to  the  state,  and  beseech  him 
the  Parliament  might  sit  but  two  days.  He  an- 
swered. Not  a  minute." — 13  June,  1626.  Mede's 
Letters,  ubi  supra.  The  author  expresses  great 
alarm  at  what  might  be  the  consequence  of  this 
step.  Mede  ascribes  this  to  the  council ,  but  oth- 
ers, perhaps  more  probably,  to  the  House  of  Peers. 
The  king's  expression,  "not  a  minute,"  is  men- 
tioned by  several  writers. 


Cha.  I.— 1625-29.] 


FROM  HENRY  VII. 


TO  GEORGE  11. 


219 


monarch's  honor.    He  had  issued 

Loan  de- 

mandeu  by  letters  01  privy  seal,  after  the  for- 
the  king.  Parliament,  to  those  iu  every 

county  whose  names  had  been  returned  by 
tlie  lord-lieutenant  as  most  capable,  mention- 
ing the  sum  they  were  required  to  lend,  with 
a  promise  of  repayment  in  eighteen  mouths.* 
This  specification  of  a  particular  sum  was 
reckoned  an  unusual  encroachment,  and  a 
manifest  breach  of  the  statute  against  arbi- 
trary benevolences,  especially  as  the  names 
of  those  who  refused  compliance  were  to 
be  returned  to  the  council.  But  the  gov- 
ernment now  ventured  on  a  still  more  out- 
rageous stretch  of  power.  They  first  at- 
tempted to  persuade  the  people  that,  as 
subsidies  had  been  voted  in  the  House  of 
Commons,  they  should  not  refuse  to  pay 
them,  tliough  no  bill  had  been  passed  for 
that  purpose.  But  a  tumultuous  cry  was 
raised  in  Westminster  Hall  from  those  who 
had  been  convened,  that  they  would  pay  no 
subsidy  but  by  authority  of  Parliaraent.f 

*  Rashworth.  Kennet. 

t  Mede's  Letters.  "  On  Monday  tlie  judges  sat 
in  Westminster  Hall  to  persuade  the  people  to 
pa3'  subsidies  ;  but  there  arose  a  great  tumultuous 
shont  among  them,  'A  Parliament!  a  Parliament! 
else  no  subsidies!'  The  levying:  of  the  subsidies, 
verbally  granted  in  Parliament,  being  propounded 
to  the  subsidy-men  in  Westminster,  all  of  them, 
saving  some  thirty  among  five  thousand  (and  they 
all  the  king's  servants),  cried,  '  A  Parliament !  a 
Parliament !'  &c.  The  same  was  done  in  Middle- 
sex on  Monday  also,  in  five  or  six  places,  but  far 
more  are  said  to  have  refused  the  grant.  At  Hick's 
Hall,  the  men  of  Middlesex  assembled  there,  when 
they  had  heard  a  speech  for  the  purpose,  made 
their  obeisance,  and  so  went  out  without  any  an- 
swer affirmative  or  negative.  In  Kent  the  whole 
county  denied,  saying  that  subsidies  were  matters 
of  too  high  a  nature  for  them  to  meddle  withal,  and 
that  they  durst  not  deal  therewith,  lest  hereafter 
they  inight  be  called  in  question." — July  22,  et 
post.  In  Harleian  MSS.,  vol.  xxxvii.,  fol.  192,  we 
find  a  letter  from  the  king  to  the  deputy -lieuten- 
ants and  justices  of  every  county,  informing  them 
that  he  had  dissolved  the  last  Parliament  because 
the  disordered  passion  of  some  members  of  that 
House,  contrary  to  the  good  inclination  of  the 
greater  and  wiser  sort  of  them,  had  frustrated  the 
grant  of  four  subsidies  and  three  fifteenths  which 
they  had  promised ;  he  therefore  enjoins  the  dep- 
uty-lieutenants  to  cause  all  the  troops  and  bands 
of  the  county  to  be  mustered,  trained,  and  ready 
to  march,  as  he  is  threatened  with  invasion ;  that 
the  justices  do  divide  the  county  into  districts,  and 
appoint  in  each  able  persons  to  collect  and  receive 
moneys,  promising  the  parties  to  employ  them  in 
the  common  defense  ;  to  send  a  list  of  those  who 
contribute  and  those  who  I'efuse,  "  that  we  may 


This  course,  therefore,  was  abandoned  for 
one  hardly  less  unconstitutional.  A  gener- 
al loan  was  demanded  from  every  subject, 
according  to  the  rate  at  which  he  was  as- 
sessed in  the  last  subsidy.  The  commis- 
sioners appointed  for  the  collection  of  this 
loan  received  private  instructions  to  require 
not  less  than  a  certain  proportion  of  each 
man's  property  in  lands  or  goods,  to  treat 
separately  with  every  one,  to  examine  on 
oath  such  as  should  refuse,  to  certify  the 
names  of  refractory  persons  to  the  privy- 
council,  and  to  admit  of  no  excuse  for  abate- 
ment of  the  sum  required.* 

This  arbiti'ary  taxation  (for  the  name  of 
loan  could  not  disguise  the  extreme  improb- 
ability that  the  money  would  be  repaid),  so 
general  and  systematic  as  well  as  so  weighty, 
could  not  be  endured  without  establishing  a 
precedent  that  must  have  shortly  put  an  end 
to  the  existence  of  Parliaments ;  for  if  those 
assemblies  were  to  meet  only  for  the  sake 
of  pouring  out  stupid  flatteries  at  the  foot 
of  the  throne,  of  humbly  tendering  such 
supplies  as  the  ministry  should  suggest,  or 
even  of  hinting  at  a  few  subordinate  griev- 
ances which  touched  not  the  king's  prerog- 
ative and  absolute  control  in  matters  of  state 
— functions  which  the  Tudors  and  Stuarts 
were  well  pleased  that  they  should  exercise 
— if  every  remonstrance  was  to  be  checked 
by  a  dissolution,  and  chastised  by  imprison- 
ment of  its  promoters,  every  denial  of  sub- 
sidy to  furnish  a  justification  for  extorted 
loans,  our  free-born,  high-minded  gentry 
would  not  long  have  brooked  to  give  their 
attendance  in  such  an  ignominious  assem- 
bly, and  an  English  Parliament  would  have 
become  as  idle  a  mockery  of  national  repre- 
sentation as  the  Cortes  of  Castile.  But  this 
kingdom  was  not  in  a  temper  to  put  up  with 
tyranny.  The  king's  advisers  were  as  lit- 
tle disposed  to  recede  from  their  attempt. 
They  prepared  to  enforce  it  by  the  arm  of 
power. f    The  common  people  who  refused 

hereby  be  informed  who  are  well  affected  to  our 
service,  and  who  are  otherwise." — July  7, 1626.  It 
is  evident  that  the  pretext  of  invasion,  which  was 
utterly  improbable,  was  made  use  of  in  order  to 
shelter  the  king's  illegal  proceedings. 

*  Rushworth's  Abr.,  i.,  270. 

t  The  321st  volume  of  Hargrave  MSS.,  p.  300, 
contains  minutes  of  a  debate  at  the  council-table 
during  the  interval  between  the  second  and  third 
Pai-liaments  of  Charles,  taken  by  a  counselor.  It 
was  proposed  to  lay  an  excise  on  beer;  others 


220 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIL 


to  contribute  were  impressed  to  serve  in  the  '  on  behalf  of  the  claimants,  and  by  the  At- 
Several  ccm-  navy.    The  gently  were  bound  '  tomey-general  Heath  for  the  crown, 
refusal        by  recognizance  to  apptar  at  the  '     The  counsel  for  the  prisonere  grounded 
contribute.    couDcil-table,  where   many  of  their  demand  of  liberty  on  the 
ahabeMCOT-  Aem  were  committed  to  pris 
pus.  on.* 


Armaments 

original  basis  of  Magna  Charta;  r.n  this 
Among  these  were  five  the  twenty  -ninth  section  of  which, 
knights,  Darnel,  Corbet,  Earl,  Hevening-  as  is  well  known,  provides  that  "no  free 
ham,  and  Hampden,  who  sued  the  Court  man  shall  be  taken  or  imprisoned  unless  by 
of  King's  Bench  for  their  writ  of  habeas  lawful  judgment  of  his  peers,  or  the  law  of 
corpus.  The  writ  was  granted:  but  the  the  land."'  This  principle  having  been  fre- 
warden  of  the  Fleet  made  return  that  they  quently  transgressed  by  the  king's  privy- 
were  detained  by  a  warrant  from  the  pri\-y-  council  in  earlier  times,  statutes  had  been 
council,  informing  him  of  no  particular  cause  repeatedly  enacted,  independently  of  the 
of  imprisonment,  but  that  they  were  com-  general  confirmations  of  the  charter,  to  re- 
mitted by  the  special  command  of  his  maj-  dress  this  material  grievance.  Thus,  in  the 
esty.  This  gave  rise  to  a  most  important  2.5th  of  Edward  HI.,  it  is  provided  that  "no 
question,  whether  such  a  return  was  sufld-  one  shall  be  taken  by  petition  or  suggestion 
cient  in  law  to  justify  the  court  in  remitting  to  the  king  or  his  counsel,  unless  it  be  {i.  e., 
the  parties  to  custody.  The  fundamental  but  only)  by  indictment  or  presentment,  or 
immunity  of  English  subjects  from  arbitra-  \  by  writ  original  at  the  common  law."  And 
ry  detention  had  never  before  been  so  fully  this  is  again  enacted  three  years  afterward, 
canvassed  ;  and  it  is  to  the  discussion  which  with  little  variation,  and  once  again  in  the 
arose  out  of  the  case  of  these  five  gentlemen  course  of  the  same  reign.  It  was  never 
that  we  owe  its  continual  assertion  by  Par-  '  understood,  whatever  the  loose  language  of 
liament,  and  its  ultimate  establishment  in  full  '  these  old  statutes  might  suggest,  that  no 
practical  efficacy  by  the  statute  of  Charles  man  could  be  kept  in  custody  upon  a  crim- 
II.  It  was  argued  with  great  ability  by  ^  inal  charge  before  indictment,  which  would 
Noy,  Selden,  and  other  eminent  lawyers  have  afforded  too  great  security  to  olTend- 

'  :    ;    TTT  ',  '  ers ;  but  it  was  the  regular  practice  that  ev- 

6u?2estea  that  it  should  be  on  malt,  on  account  of  i  /■  •  , 

what  was  brewed  in  private  houses.  It  was  then  ^ly  waiTant  of  commitment,  and  eveiy  re- 
debated  "how  to  overcome  difEculties,  whether  by  tiun  by  a  jailer  to  the  writ  of  habeas  cor- 
persnasion  or  force.  Persuasion,  it  was  thought,  pus.  must  express  the  nature  of  the  charge, 
would  not  eain  it ;  and  for  judicial  courses,  it  would  that  it  might  appear  whether  it  were  no 
not  hold  against  the  subject  that  would  stand  upon  j  ^^^-^^ 

the  n^ht  of  his  own  property,  and  asamst  the  Ion-  ,  ,     .  ,  ...  <-        ,  .  , 

damental  constitutions  of  the  kingdom.  The  last  [  be  mstantly  set  at  liberty,  or  one  for  which 
resort  was  to  a  proclamation  ;  for  in  the  Star  Cham-  ;  baU  ought  to  be  taken,  or  one  for  which  he 
ber  it  might  be  punishable,  and  thereupon  It  rest-  must  be  remanded  to  piison.  It  appears 
ed."    There  follows  much  more ;  it  seemed  to  be  ;  ^ave  been  admitted  without  contro- 

asreed  that  there  was  such  a  necessits"  as  misrht  ..u      u      ^        u  j-      .  »i, 

I.    ;         - .  '  \eTsy,  though  not,  perhaps,  according  to  the 
justily  the  imposition ;  yet  a  sort  ot  reluctance  is;        •'  ji-i         i        i  ■ 

visible  even  among  these  timid  counselors.  The  strict  letter  of  law,  that  the  pnvy -council 
king  pressed  it  forward  much.  In  the  same  vol-  might  commit  to  prison  on  a  criminal  charge, 
Time,  p.  393,  we  find  other  proceedings  at  the  cotm-  since  it  seemed  preposterous  to  deny  that 
cU-table,  whereof  the  snbject  was  the  censoring  or  power  to  those  intrusted  with  the  care  of 
pnnishius  of  some  one  who  had  refused  to  contrib-   ^,  i^i     i  •  u  ^ 

\  ^  ..I,"  1       /-i^-ii.      .u  J        -Ti     1    the  Commonwealth  which  every  petty  mag- 

nte  to  the  loan  of  1626,  on  the  around  of  its  mesal-  j  t      j  —9 

ity.  The  highest  language  is  held  by  some  of  the  [  istrate  enjoyed.  But  it  was  contended  that 
conclave  in  this  debate.  they  were  as  much  bound  as  every  petty 

Mr.  D  israeli  has  collected  from  the  same  copi-  magistrate  to  assign  such  a  cause  for  their 
ous  reservoir,  the  manuscripts  of  the  British  Muse- ^      -^^  ^^3^^  jj^^  q^^^ 


am,  several  more  illustrations  both  of  the  arbitrary  | 
proceedings  of  the  council,  and  of  the  bold  spirit 
with  which  they  were  resisted. — Curiosities  of  , 
Literature,  New  Series,  iii.,  381.    But  this  inge- 
nious author  is  too  much  imbued  with  "  the  mon-  j 

strous  faith  of  many  made  for  one,"  and  sets  the  pri-  ,  ^^^^j.^,  precedents,  from  the  reign  of  Hen- 
vate  feelines  of  Charles  for  an  unworthy  and  dan-         ^rr^  ,  t  j  ' 

gerous  minion  above  the  Uberries  and  interests  of  i  ^  H.  to  that  ot  James,  where  persons 
the  nation.  *  Bushworth.   Kennet.  committed  by  the  council  generally,  or  even 


of  King's  Bench  to  determme  whether 
it  should  release  or  remand  the  prisoner 
brought  before  them  by  habeas  corpus. 
The  advocates  for  this  principle  alleged 


Cha.  L— 1625-29.] 


FKOM  HENRY  VII.  TO  GEORGE  II. 


221 


by  the  special  command  of  the  king,  had 
been  admitted  to  bail  on  their  habeas  cor- 
pus. "But  I  conceive,"  said  one  of  these, 
"  that  our  case  will  not  stand  upon  prece- 
dent, but  upon  the  fundamental  laws  and 
statutes  of  this  realm ;  and  though  the  prec- 
edents look  one  way  or  the  other,  they  are 
to  be  brought  back  unto  tlie  laws  by  which 
the  kingdom  is  governed."  He  was  aware 
that  a  pretext  might  be  found  to  elude  most 
of  his  precedents.  The  warrant  had  com- 
monly declared  the  paity  to  be  charged  on 
suspicion  of  treason  or  of  felony,  in  which 
case  he  would,  of  course,  be  bailed  by  the 
court;  yet  in  some  of  these  instances  the 
words  "  by  the  king's  special  command" 
were  inserted  in  the  commitment,  so  that 
they  served  to  repel  the  j)retension  of  an  ar- 
bitrary right  to  supersede  the  law  by  his  per- 
sonal authority.  Ample  i)roof  was  brought 
from  the  old  law-books  that  the  king's  com- 
mand could  not  excuse  an  illegal  act.  "  If 
the  king  command  me,"  said  one  of  the 
judges  under  Heniy  VI.,  "to  airest  a  man, 
and  I  arrest  him,  he  shall  have  an  action  of 
false  imprisonment  against  me,  though  it 
were  done  in  the  king's  presence."  "The 
king,"  said  Chief-justice  Markliam  to  Ed- 
ward IV.,  "  can  not  ai-rest  a  man  upon  sus- 
picion of  felony  or  treason,  as  any  of  his 
subjects  may,  because  if  he  should  wrong 
a  man  by  such  arrest,  he  can  have  no  rem- 
edy against  him."  No  verbal  order  of  the 
king,  nor  any  under  his  sign  manual  or  pri\y 
signet,  was  a  command,  it  was  contended 
by  Selden,  which  the  law  would  recognize 
as  sufficient  to  arrest  or  detain  any  of  his 
subjects;  a  writ  duly  issued  under  the  seal 
of  a  court  being  the  only  language  in  which 
he  could  signify  his  will.  They  urged  fur- 
ther, that  even  if  the  first  commitment  by 
the  king's  command  were  lawful,  yet  when 
a  pally  had  continued  in  prison  for  a  reason- 
able time,  he  should  be  brought  to  answer, 
and  not  be  indefinitely  detained  ;  liberty  be- 
ing a  thing  so  favored  by  the  law  that  it  will 
not  suffer  any  man  to  remain  in  confinement 
for  any  longer  time  than  of  necessity  it  must. 

To  these  pleadings  for  liberty.  Heath,  the 
attorney-general,  replied,  in  a  speech  of 
considerable  ability,  full  of  those  high  prin- 
ciples of  prerogative  which,  trampling  as  it 
were  on  all  statute  and  precedent,  seemed 
to  tell  the  judges  that  they  were  placed 
there  to  obey  rather  than  to  determine. 


"  This  commitment,"  he  says,  "  is  not  in  a 
legal  and  ordinaiy  way,  but  by  the  special 
command  of  our  lord  the  king,  which  im- 
plies not  only  the  fact  done,  but  so  extraor- 
dinarily done,  that  it  is  notoriously  his  maj- 
esty's immediate  act  and  will  that  it  should 
be  so."  He  alludes  aftei-wai'd,  though  some- 
what obscurely,  to  the  king's  absolute  pow- 
er, as  contiadistinguished  from  that  accord- 
ing to  law  ;  a  favorite  distinction,  as  I  have 
already  obsei"ved,  with  the  supporters  of 
despotism.  "  Shall  we  make  inquiries," 
he  says,  "  whether  his  commands  are  law- 
ful ?  Who  shall  call  in  question  the  justice 
of  the  king's  actions,  who  is  not  to  give  ac- 
count for  them  ?"  He  argues  from  the  le- 
gal maxim  that  the  king  can  do  no  wong, 
that  a  cause  must  be  presumed  to  exist  for 
the  commitment,  though  it  be  not  set  forth. 
He  adverts  with  more  success  to  the  num- 
ber of  papists  and  other  state-prisoners  de- 
tained for  years  in  custody  for  mere  politi- 
cal jealousy.  "Some  there  were,"  he  says, 
"  in  the  Tower,  who  were  put  in  it  when 
very  young ;  should  they  bring  a  habeas 
corpus,  would  the  court  deliver  them  ]" 
Passing  next  to  the  precedents  of  the  other 
side,  and  condescending  to  admit  their  valid- 
ity, however  conti'ary  to  the  tenor  of  his 
fonner  argument,  he  evades  their  applica- 
tion by  such  distinctions  as  I  have  already 
mentioned. 

The  judges  behaved  during  this  gi-eat 
cause  with  apparent  moderation      .  ,  .  , 

.  Whichisde- 

and  sense  of  its  importance  to  cided  against 
the  subject's  freedom.  Their 
decision,  however,  was  in  favor  of  the 
crown,  and  the  prisoners  were  remanded 
to  custody.  In  pronouncing  this  judgment, 
the  chief  justice.  Sir  Nicholas  Hyde,  avoid- 
ing the  more  extravagant  tenets  of  absolute 
monarchy,  took  the  narrower  line  of  deny- 
ing the  application  of  those  precedents 
which  had  been  alleged  to  show  the  prac- 
tice of  the  court  in  bailing  persons  commit- 
ted by  the  king's  special  command.  He 
endeavored  also  to  prove  that,  where  no 
cause  had  been  expressed  in  the  waiTant, 
except  such  command  as  in  the  present  in- 
stance, the  judges  had  always  remanded 
the  parties,  but  with  so  little  success,  that 
I  can  not  perceive  more  than  one  case  men- 
tioned by  him,  and  that  above  a  hundred 
years  old,  which  supports  this  doctrine. 
The  best  authority  on  wliich  he  had  to  rely 


222 


CONSTITUTIONAL  HISTORY  OF  EXGLAXD 


[Chap.  VIL 


was  the  resolution  of  the  judges  in  the  34th 
of  Elizabeth,  published  in  Anderson's  Re- 
ports ;*  for,  though  this  is  not  gi-ammatical- 
ly  worded,  it  seems  impossible  to  doubt  that 
it  acknowledges  the  special  command  of  the 
king,  or  the  authority  of  the  privy-council 
as  a  body,  to  be  such  sufficient  waiTant  for  a 
commitment  as  to  requu-e  no  further  cause 
to  be  expressed,  and  to  prevent  the  judges 
from  discharging  the  party  from  custody, 
either  absolutely  or  upon  bail ;  yet  it  was 
evidently  the  consequence  of  this  decision, 
that  eveiy  statute  from  the  time  of  Magna 
Charta,  designed  to  protect  the  personal  lib- 
erties of  Englishmen,  became  a  dead  letter, 
since  the  insertion  of  four  words  in  a  war- 
rant (per  speciale  mandatum  regis),  which 
might  become  matter  of  form,  Avould  con- 
trol their  remedial  efficacy  ;  and  this  wound 
was  the  more  deadly,  in  that  the  notorious 
cause  of  these  gentlemen's  imprisonment 
was  their  withstanding  an  illegal  exaction 
of  money.  Every  thing  that  distinguished 
our  constitutional  laws,  all  that  rendered 
the  name  of  England  valuable,  was  at  stake 
in  this  issue.  If  the  judgment  in  the  case 
of  ship-money  was  moi-e  flagi-antly  iniqui- 
tous, it  was  not  so  extensively  desti'uctive 
as  the  present,  f 

Neither  these  measures,  however,  of  ille- 
gal severity  toward  the  uncompliant,  backed 
as  they  were  by  a  timid  court  of  justice, 
nor  the  exhortations  of  a  more  prostitute 
and  shameless  band  of  chmxlimen,  could 
divert  the  nation  from  its  cardinal  point  of 
faith  in  its  own  prescriptive  franchises.  To 
A  Parlia  another  Parliament  appeai-- 

ment  called  ed  the  only  practicable  means  of 
raismg  money  lor  a  war,  m  which 
the  king  persisted  witli  gi-eat  impolicy,  or, 
rather,  blind  trust  in  his  favorite.  He  con- 
sented to  this  with  extreme  unwillingness.} 
Previously  to  its  assembling,  he  released  a 

*  See  above,  in  chap.  v.  Coke  himself,  while 
chief  justice,  had  held  that  one  committed  by  the 
pri^y -council  was  not  bailable  by  any  court  in  Eng- 
land.— Pai-I.  Hist.,  310.  He  had  nothins  to  say 
when  pressed  with  this  in  the  next  Parliament, 
but  that  he  had  missrounded  his  opinion  upon  a 
certain  precedent,  which  being  nothing  to  the  pur- 
pose, he  was  now  assured  his  opinion  was  as  lit- 
tle to  the  purpose. — Id.,  .325.    State  Trials,  iii.,  81. 

t  State  Trials,  iii.,  1-234.  Pari.  Hist.,  216,  259, 
&c.  Rushworth. 

t  At  the  council-table,  some  proposing  a  Parlia- 
ment, the  king  said  be  did  abominate  the  name. 
— Mede's  Letters,  30th  Sept.,  1626. 


considerable  number  of  gentlemen  and  oth- 
ers who  had  been  committed  for  their  refu- 
sal of  the  loan.  These  were,  in  many  cases, 
elected  to  the  new  Parliament,  coming  * 
thither  with  just  indignation  at  their  coun- 
try's wrongs,  and  pai'donable  resentment  at 
their  own.  No  year,  indeed,  within  the 
memory  of  any  one  living,  had  witnessed 
such  violations  of  public  liberty  as  1627. 
Charles  seemed  born  to  carry  into  daily 
practice  those  theories  of  absolute  power 
which  had  been  promulgated  from  his  fa- 
ther's lips.  Even  now,  while  the  writs 
were  out  for  a  new  Parliament,  commis- 
sioners were  appointed  to  raise  money  "  by 
impositions  or  otherwise,  as  they  should  find 
most  convenient  in  a  case  of  such  inevitable 
necessity,  wherein  form  and  circumstance 
must  be  dispensed  with  rather  than  the 
substance  be  lost  and  hazarded  ;"*  and  the 
levying  of  ship-money  was  already  debated 
in  the  council.  Anticipating,  as  indeed  was 
natural,  that  this  House  of  Commons  would 
coiTespond  as  ill  to  the  king's  wishes  as 
their  predecessors,  his  advisers  were  pre- 
paring schemes  more  congenial,  if  they 
could  be  rendered  effective,  to  the  spirit  in 
which  he  was  to  govern.  A  conti-act  was 
entered  into  for  transporting  some  troops 
and  a  considerable  quantity  of  arms  from 
Flanders  into  England,  under  circumstances 
at  least  highlj-  suspicious,  and  which,  com- 
bined with  all  the  rest  that  appears  of  the 
court  policy  at  that  time,  leaves  no  great 
doubt  on  the  mind  that  they  were  designed 
to  keep  under  the  people  while  the  business 
of  contribution  was  going  fonvard.f  Shall 
it  be  imputed  as  a  reproach  to  the  Cokes, 
the  Seldens,  the  Glanvils,  the  Pyms,  the 
Eliots,  the  Philipses,  of  this  famous  ParUa- 
ment,  that  they  endeavored  to  devise  more 
effectual  resti-aints  than  the  law  had  hither- 
to imposed  on  a  prince  who  had  snapped 
like  bands  of  tow  the  ancient  statutes  of  the 
land,  to  remove  from  his  presence  counsel- 
ors, to  have  been  misled  by  whom  was  his 
best  apology,  and  to  subject  liim  to  an  entire 
dependence  on  his  people  for  the  expendi- 
ture of  government,  as  the  surest  pledge 
of  his  obedience  to  the  laws  ? 

*  Rushworth.    Mede's  Letters  in  Harl.  MSS., 
passim. 

t  Rushworth's  Abr.,  i.,  304.    Cabala,  part  ii, 
217.    See  what  is  said  of  this  by  Mr.  Brodie,  ii., 
I  158. 


Cha.  I.— 1623-29.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


223 


The  principal  matters  of  complaint  taken 
up  by  the  Commons  in  this  session  were, 
the  exaction  of  money  under  the  name  of 
loans  ;  the  commitment  of  those  who  refus- 
ed compliance,  and  the  late  decision  of  the 
King's  Bench,  remanding  them  upon  a  ha- 
beas corpus  ;  the  billeting  of  soldiers  on  pri- 
vate persons,  which  had  occuired  in  the 
last  year,  whether  for  convenience  or  for 
purposes  of  intimidation  and  annoyance  ; 
and  the  commissions  to  tiy  military  offend- 
ers by  martial  law  :  a  procedure  necessaiy 
within  certain  limits  to  the  discipline  of  an 
army,  but  unwaiTanted  by  the  Constitution 
of  tliis  country,  which  was  little  used  to  any 
regular  forces,  and  sti-etched  by  the  arbitra- 
ry spirit  of  the  king's  administration  beyond 
Petition  of  bounds.*  These  four  grievan- 
Right.  (.gg  or  abuses  form  the  foundation 
of  the  Petition  of  Right,  presented  by  the 
Commons  in  the  shape  of  a  declaratory 

„,  , .  ,  statute.  Charles  had  recourse  to 
The  king's  ,  .  , 

reluctance  many  subterfuges  m  hopes  to  elude 
tograniit.  ^j^^  passing  of  this  law;  rather, 
perhaps,  through  wounded  pride,  as  we  may 
judge  from  his  subsequent  conduct,  than 
much  apprehension  that  it  would  create  a 
serious  impediment  to  his  despotic  schemes. 
He  tried  to  persuade  them  to  acquiesce 
in  his  royal  promise  not  to  arrest  any  one 
without  just  cause,  or  in  a  simple  confirma- 
tion of  the  Great  Charter  and  other  statutes 
in  favor  of  liberty.  The  Peers,  too  pliant 
in  this  instance  to  his  wishes,  and  half  re- 
ceding from  the  patriot  banner  they  had 
lately  joined,  lent  him  their  aid  by  propos- 
ing amendments  (insidious  in  those  who 
suggested  them,  though  not  in  the  body  of 
the  House),  which  the  Commons  firmly 
rejected. f    Even  when  the  bill  was  tender- 


*  A  commission  addressed  to  Lord  Wimbleton, 
28th  Dec,  1625,  empowers  Iiim  to  proceed  against 
soldiers,  or  dissolute  persons  joining  with  them, 
who  should  commit  any  robberies,  &c.,  which  by 
martial  law  oaght  to  be  punished  with  death,  by 
such  summary  course  as  is  agreeable  to  martial 
law,  Icc. — R\^ner,  xviii.,  234.  Another,  in  1626, 
may  be  found,  p.  763.  It  is  unnecessary  to  point 
out  how  unlike  these  commissions  are  to  our  pres- 
ent mutiny  bills. 

t  Bishop  Williams,  as  we  are  informed  by  his 
biographer,  though  he  promoted  the  Petition  of 
Right,  stickled  for  the  additional  clause  adopted 
by  the  Lords,  reserving  the  king's  sovereign  pow- 
er, which  very  justly  exposed  him  to  suspicion  of 
being  corrupted ;  for  that  he  was  so  is  most  evi- 
dent by  what  follows,  where  we  are  told  that  he 


ed  to  him  for  that  assent,  which  it  had  been 
necessary  for  the  last  two  centuries  that  the 
king  should  gi-ant  or  refuse  in  a  word,  he 
returned  a  long  and  equivocal  answer,  from 
which  it  could  only  be  collected  that  he  did 
not  intend  to  remit  any  portion  of  what  he 
had  claimed  as  his  prerogative ;  but  on  an 
address  from  both  houses  for  a  more  explic- 
it answer,  he  thought  fit  to  consent  to  the 
bill  in  the  usual  form.  The  Commons,  of 
whose  harshness  toward  Charles  his  advo- 
cates have  said  so  much,  immediately  pass- 
ed a  bill  for  granting  five  subsidies,  about 
c£'350,000 ;  a  sum  not  too  great  for  the 
wealth  of  the  kingdom  or  for  his  exigencies, 
but  considerable  according  to  the  precedents 
of  former  times,  to  which  men  naturally 
look.* 

The  sincerity  of  Charles  in  thus  accord- 
ing his  assent  to  the  Petition  of  Right  may 
be  estimated  by  the  following  very  remark- 
able conference  which  he  held  on  the  sub- 
ject with  his  judges.  Before  the  bill  was 
passed,  he  sent  for  the  two  chief  justices, 
Hyde  and  Richardson,  to  "Wliitehall,  and 
propounded  certain  questions,  directing  that 
the  other  judges  should  be  assembled  in 
order  to  answer  them.  The  first  question 
was,  "  Whether,  in  no  case  whatsoever, 
the  king  may  not  commit  a  subject  without 
showing  cause  ?"    To  which  the  judges 

had  an  interview  with  the  Buke  of  Buckingham, 
when  they  were  reconciled;  and  "his  grace  had 
the  bishop's  consent  with  a  little  asking,  that  he 
would  be  his  grace's  faithful  servant  in  the  next 
session  of  Parliament,  and  was  allowed  to  hold  up 
a  seeming  enmity,  and  his  own  popular  estima- 
tion, that  he  might  the  sooner  do  the  work." — 
Hackett's  Life  of  Williams,  p.  77,  80.  With  such 
instances  of  baseness  and  treachery  in  the  public 
men  of  this  age,  surely  the  distrust  of  the  Com- 
mons was  not  so  extravagant  as  the  school  of 
Hume  pretend. 

*  The  debates  and  conferences  on  this  moment- 
ous subject,  especially  on  the  article  of  the  habeas 
corpus,  occupy  near  two  hundred  columns  in  the 
New  Parliamentary  Historj-,  to  which  I  refer  the 
reader. 

In  one  of  these  conferences,  the  Lords,  observ- 
ing what  a  prodigious  weight  of  legal  ability  was 
arrayed  on  the  side  of  the  petition,  very  fairly  de- 
termined to  hear  counsel  for  the  crown.  One  of 
these.  Sergeant  Ashley,  having  argued  in  behalf 
of  the  prerogative  in  a  high  tone,  such  as  had  been 
usual  in  the  late  reign,  was  ordered  into  custody; 
and  the  Lords  assured  the  other  House  that  he 
had  no  authority  from  them  for  what  he  had  said. 
—Id.,  327.  A  remarkable  proof  of  the  rapid  growth 
of  popular  pruiciples ! 


224 


COXSTITUTIOXAL  HISTORY  OF  EXGLA>'D 


[Chap.  VTL 


gave  an  answer  tbe  same  day  under  their 
bauds,  ■which  was  the  next  day  presented 
to  his  majesty  by  the  two  chief  justices  in 
these  words  :  "  We  are  of  opinion  that,  by 
the  general  rule  of  law,  the  cause  of  com- 
mitment by  his  majesty  ought  to  be  shown  ; 
yet  some  cases  may  require  such  seci'ecy 
that  the  king  may  commit  a  subject  without 
showing  the  cause  for  a  convenient  time." 
The  king  then  delivered  them  a  second 
question,  and  required  them  to  keep  it  very 
secret,  as  the  former :  "  Whether,  in  case 
a  habeas  corpus  be  brought,  and  a  wan-ant 
from  the  king  without  any  general  or  spe- 
cial cause  returned,  the  judges  ought  to  de- 
liver him  before  they  understand  the  cause 
from  the  king  ?"  Their  answer  was  as  fol- 
lows :  "Upon  a  habeas  corpus  brought  for 
one  committed  by  the  king,  if  the  cause  be 
not  specially  or  generally  returned,  so  as 
the  court  may  take  knowledge  thereof,  the 
party  ought  by  the  general  rule  of  law  to 
be  delivered  ;  but  if  the  case  be  such  that 
the  same  requireth  secrecy,  and  may  not 
presently  be  disclosed,  the  court,  in  discre- 
tion, may  forbear  to  deliver  the  prisoner  for 
a  convenient  time,  to  the  end  the  court  may 
be  advertised  of  the  truth  thereof."  On 
receiving  this  answer,  the  king  proposed  a 
third  question  :  "Whether,  if  the  king  gi-ant 
the  Commons'  petition,  he  doth  not  there- 
by exclude  himself  from  committing  or  re- 
sti'aining  a  subject  for  any  time  or  cause 
whatsoever,  without  showing  a  cause  ?" 
The  judges  returned  for  answer  to  this 
important  query  :  "  Every  law,  after  it  is 
made,  hath  its  exposition,  and  so  this  petition 
and  answer  must  have  an  exposition,  as  the 
case  in  the  nature  thereof  shall  require  to 
stand  with  justice  ;  which  is  to  be  left  to  the 
courts  of  justice  to  determine,  which  can 
not  particularly  be  discovered  until  such 
case  shall  happen ;  and  although  the  peti- 
tion be  gi'anted,  there  is  no  fear  of  conclu- 
sion as  is  intimated  in  the  question."* 

The  king,  a  very  few  days  afterward, 
gave  his  first  answer  to  the  Petition  of 
Right;  for  even  this  indirect  promise  of 
compliance,  which  the  judges  gave  him,  did 
not  relieve  him  from  apprehensions  that  he 
might  lose  the  prerogative  of  arbiti-aiy  com- 
mitment ;  and  though,  after  being  beaten 
from  this  evasion,  he  was  compelled  to  ac- 
cede in  general  terms  to  the  petition,  he 
*  Hargrave  MSS.,  xxsii.,  97. 


had  the  insincerity  to  circulate  one  thou- 
sand five  hundred  copies  of  it  through  the 
country  after  the  prorogation,  with  his  first 
answer  annexed  :  an  attempt  to  deceive 
without  the  possibility  of  success.*  But  in- 
stances of  such  ill  faith,  accumulated  as  they 
are  through  the  life  of  Charles,  render  the 
assertion  of  his  sincerity  a  proof  either  of 
historical  ignorance  or  of  a  want  of  moral 
delicacy. 

The  Petition  of  Right,  as  this  statute  is 
still  called,  from  its  not  being  drawn  in  the 
common  form  of  an  act  of  Parliament,  after 
reciting  the  various  laws  which  have  estab- 
lished certain  essential  privileges  of  the  sub- 
ject, and  enumerating  the  violations  of  them 
which  had  recently  occurred,  in  the  four 
points  of  Ulegal  exactions,  arbitrary  com- 
mitments, quartering  of  soldiers  or  sailors, 
and  infliction  of  punishment  by  martial  law, 
prays  the  king,  "  That  no  man  hereafter 
be  compelled  to  make  or  yield  any  gift,  loan, 
benevolence,  tax,  or  such  like  charge,  with- 
out common  consent  by  act  of  Parliament ; 
and  that  none  be  called  to  answer  or  take 
such  oath,  or  to  give  attendance,  or  be  con- 
fined, or  otherwise  molested  or  disquieted 
concerning  the  same,  or  for  refusal  thereof; 
and  that  no  freeman  in  any  such  manner  as 
is  before  mentioned  be  imprisoned  or  de- 
tained ;  and  that  your  majesty  would  be 
pleased  to  remove  the  said  soldiers  and  ma- 
rines, and  that  your  people  may  not  be  so 
burdened  in  time  to  come ;  and  that  the 
aforesaid  commissions  for  proceeding  by 
martial  law  may  be  revoked  and  annulled ; 
and  that  hereafter  no  commissions  of  the 
like  nature  may  issue  forth  to  any  person  or 
persons  whatever,  to  be  executed  as  afore- 
said, lest  by  color  of  them  any  of  your  maj- 
esty's subjects  be  destroyed  or  put  to  death 
contrary  to  the  laws  and  fi-anchises  of  the 
land."t 

It  might  not  unreasonably  be  questioned 
whether  the  language  of  this  statute  were 
sufficiently  general  to  comprehend  duties 
charged  on  merchandise  at  the  out-ports, 
as  well  as  internal  taxes  and  exactions,  espe- 
cially as  tlie  former  had  received  a  sort  of 
sanction,  though  justly  deemed  contrary  to 

*  Pari.  Hist,  436. 

t  Stat.  3  Car.  I.,  c.  1.  Home  has  printed  in  a 
note  the  whole  statute  with  the  preamble,  which 
I  omit  for  the  sake  of  brevity,  and  because  it  may 
be  found  in  so  common  a  book. 


Cha.  I.— 1625-29.]  FEOM  HENRY  VII.  TO  GEORGE  II. 


225 


law,  by  the  judgment  of  the  Court  of  Ex- 
chequer in  Bates's  case.  The  Commons, 
however,  were  steadily  detenniued  not  to 
desist  till  they  should  have  rescued  their 
fellow-subjects  from  a  burden  as  unwarrant- 
ably imposed  as  those  specifically  enume- 
„  .  rated  in  their  Petition  of  Right. 

Tonnage  and  i  i  t 

poundage  Tonnage  and  poundage,  the  cus- 
djsputed.  tomary  grant  of  every  reign,  had 
been  taken  by  the  present  king  without  con- 
sent of  Parliament,  the  Lords  having  reject- 
ed, as  before  mentioned,  a  b'Jl  that  limited 
it  to  a  single  year.  The  House  now  pre- 
pared a  bill  to  gi'ant  it,  but  purposely  delay- 
ed its  passing,  in  order  to  remonstrate  with 
tlie  king  against  his  unconstitutional  antici- 
pation of  their  consent.  They  declared 
"  that  there  ought  not  any  imposition  to  be 
laid  upon  the  goods  of  merchants,  exported 
or  imported,  without  common  consent  by 
act  of  Parliament ;"  that  tonnage  and  pound- 
age, like  other  subsidies,  sprung  from  the 
free  gi-ant  of  the  people ;  that  "  when  im- 
positions had  been  laid  on  the  subjects' 
goods  and  merchandises  without  authority 
of  law,  which  had  very  seldom  occurred, 
they  had,  on  complaint  in  Parliament,  been 
forthwith  relieved  ;  except  in  the  late  king's 
reign,  who,  through  evil  counsel,  had  raised 
the  rates  and  charges  to  the  height  at  which 
they  then  wei-e."  They  conclude,  after 
repeating  their  declaration  that  the  receiv- 
ing of  tonnage  and  poundage,  and  other  im- 
positions not  granted  by  Pai'liameut,  is  a 
breach  of  the  fundamental  liberties  of  this 
kingdom,  and  contrai-y  to  the  late  Petition 
of  Right,  with  most  humbly  beseeching  his 
majestj'  to  forbear  any  further  receiving  of 
the  same,  and  not  to  take  it  in  ill  part  from 
those  of  his  loving  subjects  who  should  re- 
fuse to  make  payment  of  any  such  charges 
without  waiTant  of  law.* 

The  king  anticipated  the  deliveiy  of  this 
remonstrance  by  proroguing  Parliament. 
Tonnage  and  poundage,  he  told  them,  was 
■what  he  had  never  meant  to  give  away,  nor 
could  possibly  do  without.  By  this  abnipt 
prorogation  while  so  great  a  matter  was  un- 
settled, he  trod  back  his  late  footsteps,  and 
dissipated  what  little  hopes  might  have  aris- 
en from  his  tardy  assent  to  the  Petition  of 
Right.  During  the  interval  before  the  en- 
suing session,  those  merchants,  among  whom 
Chambers,  Rolls,  and  Vassal  are  particular- 


Parl.  Hist,  431. 
P 


ly  to  be  remembered  with  honor,  who  gal- 
lantly refused  to  comply  with  the  demands 
of  the  custom-house,  had  theu*  goods  dis- 
trained, and  on  suing  writs  of  replevin,  were 
told  by  the  judges  that  the  king's  right,  hav- 
ing been  established  in  the  case  of  Bates, 
could  no  longer  be  disputed.*  Thus  the 
Commons  reassembled,  by  no  means  less 
inflamed  against  the  king's  administration 
than  at  the  commencement  of  the  preceding 
session.  Their  proceedings  were  conduct- 
ed with  more  than  usual  warmth. f  Buck- 
ingham's death,  which  had  occurred  since 
the  prorogation,  did  not  allay  then-  resent- 
ment against  the  advisers  of  the  crown. 
But  the  king,  who  had  very  much  lowered 
his  tone  in  speaking  of  tonnage  and  pound- 
age, and  would  have  been  content  to  receive 
it  as  their  gi'ant,  perceiving  that  they  were 
bent  on  a  fuU  statutoiy  recognition  of  the 
illegality  of  impositions  without  their  con- 
sent, and  that  they  had  opened  a  fresh  bat- 
tery ou  another  side,  by  mingling  in  certain 
religious  disputes,  in  order  to  attack  some 
of  his  favorite  prelates,  took  the       , . 

'  '  .       The  king 

Step,  to  which  he  was  always  in-  dissolves  the 
clined,  of  dissolving  this  third 
Parliament. 

The  religious  disputes  to  which  I  have 
just  alluded  are  chiefly  to  be  con-  Religious 
sidered,  for  the  present  purpose,  diaferences. 
in  their  relation  to  those  jealousies  and  re- 
sentments springing  out  of  the  ecclesiastical 
administration,  which  during  the  reigns  of 
the  first  two  Stuarts  furnished  unceasing 
food  to  political  discontent.  James  having 
early  shown  his  inflexible  determination  to 
restrain  the  Puritans,  the  bishops  proceed- 
ed with  still  more  rigor  than  under  Eliza- 
beth. No  longer  thwarted,  as  in  her  time, 
by  an  unwilling  council,  they  succeeded  in 
exacting  a  general  conformity  to  the  ordi- 
nances of  the  Church.  It  had  been  sol- 
emnly decided  by  the  judges  in  the  queen's 
reign,  and  in  1604,  that  although  the  stat- 
ute establishing  the  High  Commission  Court 
did  not  authorize  it  to  deprive  ministers  of 
their  benefices,  yet  this  law  being  only  in 
affirmation  of  the  queen's  inherent  suprem- 
acy, she  might,  by  virtue  of  that,  regulate 
all  ecclesiastical  matters  at  her  pleasure,  and 
erect  com'ts  with  such  powers  as  she  should 
think  fit.    Upon  this  somewhat  dangerous 


*  Rushworth,  Abr.,  i.,  409. 
t  Pari.  Hist.,  441,  &c. 


226 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIL 


principle,  Archbishop  Bancroft 
of  Puritans  deprived  a  considerable  number  ; 
by  Bancroft.  Puritan  clergj-men  ;*  while 
many  more,  finding  that  the  interference 
of  the  Commons  in  their  behalf  was  not  re- 
garded, and  that  all  schemes  of  evasion  were 
come  to  an  end,  were  content  to  submit  to 
the  obnoxious  discipline;  but  their  affections 
being  very  little  conciliated  by  this  coercion, 
there  remained  a  large  party  within  the  bo- 
som of  the  Established  Church  prone  to 
watch  for  and  magnify  the  eiTors  of  their 
spiritual  nilers.  These  men  preserved  the 
name  of  Puritans.  Austere  in  their  lives, 
while  many  of  the  others  were  careless  or  : 
irregular,  learned  as  a  body  comparatively 
with  the  opposite  party,  implacably  averse 
to  every  thing  that  could  be  constraed  into  ■ 
an  approximation  to  popery,  they  acquired 
a  degree  of  respect  from  grave  men,  which 
would  have  been  much  more  general  had 
they  not  sometimes  given  offense  by  a  mo- 
roseness  and  even  malignity  of  disposition, 
as  well  as  by  a  certain  tendency  to  equivo- 
cation and  deceitfulness  ;  faults,  however, 
which  so  frequently  belong  to  the  weaker 
pai1y  under  a  rigorous  government,  that 
they  scarcely  afford  a  marked  reproach ! 
against  the  Puritans.  They  naturally  fell 
in  with  the  patriotic  party  in  the  House  of 
Commons,  and  kept  up  throughout  the  king- 
dom a  distrust  of  the  crown,  which  has  nev- 
er been  so  general  in  England  as  when  con- 
nected with  some  religious  apprehensions. 

The  system  pursued  by  Bancroft  and  his 
•Growth  of  imitators.  Bishops  Neyle  and 
High-charch  Laud,  with  the  approbation  of 
tenets.  ^.j^^  j.  j^^^^  opposed  to  the  heal- 
ing counsels  of  Burleigh  and  Bacon,  was 

*  Cawdrey's  Case,  5  Reports.  Cro.  Jac.,  37. 
Neal,  p.  432.  The  latter  says  above  three  hun- 
dred were  deprived ;  but  Collier  reduces  them  to 
forty-nine,  p.  687.  The  former  writer  states  the 
non-conformist  ministers  at  this  time  in  twenty -four 
counties  to  have  been  754 ;  of  course  the  whole 
number  was  much  greater,  p.  434.  This  minority 
was  considerable ;  but  it  is  chiefly  to  be  noticed 
that  it  contained  the  more  exemplarj-  portion  of 
the  clergy,  no  scandalous  or  absolutely  iUiterate  in- 
cumbent, of  whom  there  was  a  verj-  large  number, 
being  a  non-conformist.  This  general  enforcement 
of  conformity,  however  it  might  compel  the  major- 
itj"'s  obedience,  rendered  the  separation  of  the  in- 
compUaut  more  decided. — Neal,  446.  Many  retir- 
ed to  Holland,  especially  of  the  Brownist  or  Inde- 
pendent denomination — Id  ,  436 —  and  B  ancroft, 
like  his  successor  Laud,  interfered  to  stop  some 
who  were  setting  out  for  Virginia. — Id.,  454. 


just  such  as  low-bom  and  little-minded 
men,  raised  to  power  by  fortune's  caprice, 
are  ever  found  to  pursue.  They  studiously 
aggravated  every  difference,  and  in-itated 
every  wound.  As  the  characteristic  prej- 
udice of  the  Puritans  was  so  bigoted  an  ab- 
horrence of  the  Pvomish  faith  that  they 
hardly  deemed  its  followers  to  deserve  the 
name  of  Christians,  the  prevailing  High- 
Church  party  took  care  to  shock  that  prej- 
udice by  somewhat  of  a  retrograde  move- 
ment, and  various  seeming,  or  indeed  real, 
accommodations  of  their  tenets  to  those  of 
the  abjured  religion.  They  began  by 
preaching  the  divine  right,  as  it  is  called,  or 
absolute  indispensability,  of  episcopacy ;  a 
doctrine  of  which  the  first  traces,  as  I  ap- 
prehend, are  found  about  the  end  of  Eliza- 
beth's reign.*    They  insisted  on  the  neces- 

*  Lord  Bacon,  in  his  advertisement  respecting 
the  Controversies  of  the  Church  of  England,  writ- 
ten under  EUzabeth,  speaks  of  this  notion  as  new- 
ly broached.  "Yea,  and  some  indiscreet  persona 
have  been  bold  in  open  preaching  to  use  dishonor- 
able and  derogatory  speech  and  censure  of  the 
churches  abroad ;  and  that  so  far,  as  some  of  our 
men  ordained  in  foreign  parts  have  been  pronounc- 
en  to  be  no  lawful  ministers,"  vol  i.,  p.  382.  It  is 
evident,  by  some  passages  in  Strype,  attentively 
considered,  that  natives  regularly  ordained  abroad 
in  the  Presbyterian  churches  were  admitted  to 
hold  preferment  in  England ;  the  first  bishop  who 
objected  to  them  seems  to  have  been  Aylmer.  In- 
stances, however,  of  foreigners  holding  preferment 
without  any  reordination,  may  be  found  down  to 
the  ci\il  wars. — Annals  of  Reformation,  ii.,  522, 
and  Appendix,  116.  Life  of  Grindal,  271.  Collier, 
ii.,  594.  Neal,  i.,  258.  The  cases  of  lajTnen,  such 
as  Casanbon,  holding  prebends  by  dispensation, 
are  not  in  point. 

The  divine  right  of  episcopacy  is  said  to  have 
been  laid  down  by  Bancroft,  in  bis  famous  sermon 
at  Paul's  Cross,  in  1588.  But  I  do  not  find  any 
thing  in  it  to  that  effect.  It  is,  however,  pretty 
distinctly  asserted,  if  I  mistake  not  the  sense,  in 
the  canons  of  1606. — Overall's  Convocation  Book, 
179,  &c.  Y'et  Laud  had  been  reproved  by  the  Uni- 
versity of  Oxford,  in  1604,  for  maintaining,  in  hia 
exercise  for  bachelor  of  divinity,  that  there  could 
be  no  true  church  without  bishops,  which  was 
thought  to  cast  a  bone  of  contention  between  the 
Church  of  England  and  the  Reformed  upon  the  Con- 
tinent.— Heyliu's  Life  of  Land,  54. 

Cranmer  and  some  of  the  original  founders  of 
the  Anglican  Church,  far  from  maintaining  the  di- 
vine and  indispensable  right  of  episcopal  govern- 
ment, held  bishops  and  priests  to  be  the  same  or- 
der. 

[A  learned  and  candid  Oxford  writer  (Cardwell's 
Annals  of  the  Church,  vol.  ii.,  p.  5)  has  supposed 
me  to  have  overlooked  a  passage  in  Bancroft's 
Sermon  at  Paul's  Cross,  p.  97,  where  he  asserts 


Cha.  I.— 1625-29.]  FROM  HENRY  VU.  TO  GEORGE  II. 


227 


sity  of  episcopal  succession  regularly  de- 
rived from  the  apostles.  They  drew  an  in- 
ference from  this  tenet,  that  ordinations  by 
presbyters  were  in  all  cases  null ;  and  as 
this  affected  all  the  Reformed  churches  in 
Europe  except  their  own,  the  Lutherans 
not  having  presei'ved  the  succession  of  their 
bishops,  while  the  Calvinists  had  altogether 
abolished  that  order,  they  began  to  speak 
of  them,  not  as  brethren  of  the  same  faith, 
united  in  the  same  cause,  and  distinguished 
only  by  differences  little  more  material  than 
those  of  political  commonwealths  (which 
had  been  the  language  of  the  Church  of 
England  ever  since  the  Reformation),  but 
as  aliens  to  whom  they  were  not  at  all  re- 
lated, and  schismatics  with  whom  they  held 
no  communion ;  nay,  as  wanting  the  very 
essence  of  a  Christian  society.  This  again 
brought  them  nearer,  by  irresistible  conse- 
quence, to  the  disciples  of  Rome,  whom, 
with  becoming  charity,  but  against  the  re- 
ceived creed  of  the  Puritans,  and  perhaps 
against  their  own  Articles,  they  all  acknowl- 
edged to  be  a  part  of  the  Catholic  Church, 
while  they  were  withholding  that  appella- 
tion, expressly  or  by  inference,  from  Hei- 
delberg and  Geneva. 

The  foundei-s  of  the  English  Reforma- 
Diffcrences  tion,  after  abolishing  most  of  the 
'erl«,lceof"  festivals  kept  before  that  time, 
Sunday.  had  made  little  or  no  change  as 
to  the  mode  of  obsei-vance  of  those  they  re- 
tained. Sundays  and  holydays  stood  much 
on  the  same  footing  as  days  on  which  no 
work  except  for  good  cause  was  to  be  per- 
formed, the  sen'ice  of  the  Church  was  to 
be  attended,  and  any  lawful  amusement 
might  be  indulged  in.*  A  just  distinction, 
however,  soon  grew  up ;  an  industrious 
people  could  spare  time  for  very  few  ho- 
lydays ;  and  the  more  scrupulous  party, 
while  they  slighted  the  Church-festivals  as 
of  human  appointment,  presci'ibed  a  sti'ict- 
er  observance  of  the  Lord's  day.  But  it 
was  not  till  about  1595  that  they  began  to 

the  divine  right  of  episcopacy.  Bat,  on  referring 
again  to  this  passage,  it  is  perfectly  evident  that 
he  says  nothing  about  what  is  commonly  meant  by 
the  jnre  diviiio  doctrine,  the  perpetual  and  indis- 
pensable government  by  bishops,  confining  himself 
to  an  assertion  of  the  fact,  and  that  in  no  strong 
terms.  1845.] 

*  See  the  queen's  injunctions  of  1559,  Somers 
Tracts,  i.,  65,  and  compare  preamble  of  5  and  6  of 
Ed.  VI.,  c.  3. 


place  it  veiy  nearly  on  the  footing  of  the 
Jewish  Sabbath,  interdicting  not  only  the 
slightest  action  of  worldly  business,  but 
even  every  sort  of  pastime  and  recreation ; 
a  system  which,  once  promulgated,  soon 
gained  ground,  as  suiting  their  ati'abilious 
humor,  and  affording  a  new  theme  of  cen- 
sure on  the  vices  of  the  great.*  Those 
who  opposed  them  on  the  High- Church 
side  not  only  derided  the  extravagance  of 
the  Sabbatarians,  as  the  others  were  caUed, 
but  pretended  that  the  commandment  hav- 
ing been  confined  to  the  Hebrews,  the  mod- 
ern observance  of  the  first  day  of  the  week 
as  a  season  of  rest  and  devotion  was  an  ec- 
clesiastical institution,  and  in  no  degree  moi'e 
venerable  than  that  of  the  other  festivals  or 
the  season  of  Lent,  which  the  Pm-itans 
stubbornly  despised.f    Such  a  controversy 

*  The  first  of  these  Sabbatarians  was  a  Dr. 
Bound,  whose  sermon  was  suppressed  by  Whit- 
gift's  order.  But  some  years  before,  one  of  Mar- 
tin Mar-prelate's  charges  against  Aylmer  was  for 
playing  at  bowls  on  Sundays ;  and  the  word  Sab- 
bath, as  applied  to  that  day,  may  be  found  occa- 
sionally under  Elizabeth,  though  by  no  means  so 
usual  as  afterward :  it  is  even  recognized  in  the 
Homilies.  Cue  of  Bound's  recommendations  was 
that  no  feasts  should  be  given  on  that  daj-,  "  ex- 
cept by  lords,  knights,  and  persons  of  quality  ;''  for 
which  unlucky  reservation  his  adversaries  did  not 
forget  to  deride  him. — Fuller's  Church  History,  p. 
227.  This  writer  describes,  in  his  quaint  style,  the 
abstinence  from  sports  produced  by  this  new  doc- 
trine ;  and  remarks,  what  a  slight  acquaintance 
with  human  nature  would  have  taught  Archbishop 
Laud,  that  "the  more  liberty  people  were  oflfered, 
the  less  they  used  it ;  it  was  sport  for  them  to  re- 
frain from  sport." — See,  also,  Colher,  643.  Neal, 
386.  Strype's  Whitgift,  530.  May's  Hist,  of  Par- 
liament, 16. 

t  Heylin's  Life  of  Laud,  15.  Fuller,  part  ii.,  p. 
76. 

The  regulations  enacted  at  various  times  since 
the  Reformation  for  the  observance  of  abstinence 
in  as  strict  a  manner,  though  not  ostensibly  on  the 
same  grounds,  as  it  is  enjoined  in  the  Church  of 
Rome,  may  deserve  some  notice.  A  statute  of 
1548  (2  and  3  Edward  VI.,  c.  19),  after  reciting 
that  one  day  or  one  kind  of  meat  is  not  more  holy, 
pure,  or  clean  than  another,  and  much  else  to  the 
same  effect,  yet,  "forasmuch  as  divers  of  the  king's 
subjects,  turning  their  knowledge  therein  to  gi-ati- 
fy  their  sensuality,  have  of  late,  more  than  in  times 
past,  broken  and  contemned  such  abstinence,  which 
hath  been  used  in  this  realm  upon  the  Fridays  and 
Saturdays,  the  embering  days,  and  other  days  com- 
monly called  vigils,  au4  in  the  time  commonly 
called  Lent,  and  other  accustomed  times ;  the 
king's  majesty,  considering  that  due  and  godly  ab- 
stinence is  a  mean  to  virtue,  and  to  subdue  men's 
bodies  to  their  soul  and  spirit,  and  considering, 


22S 


COXSTITUTIOXAL  HISTORY  OP  EN&I/AND 


[Chap.  VIL 


might  well  have  been  left  to  the  usual  weap- 
ons.   But  James  I.,  or  some  of  the  bishops 

also,  especially  that  fishers  and  men  using  the 
trade  of  fishing  in  the  sea  may  thereby  the  rather 
be  set  on  work,  and  that  by  eating  of  fish  much 
flesh  shall  be  saved  and  increased,"  enacts,  after 
repealing  all  existing  lavrs  on  the  subject,  that 
such  as  eat  flesh  at  the  forbidden  seasons  shall  in- 
cur a  penalty  of  ten  shillings,  or  ten  days'  impris- 
onment without  Jiesh,  and  a  double  penalty  for  the 
second  offense. 

The  next  statute  relating  to  abstinence  is  one 
(.5th  Eliz.,  c.  .5)  entirely  for  the  increase  of  the  fish- 
erj'.  It  enacts,  $  15,  &c.,  that  no  one,  unless  hav- 
ing a  license,  shall  eat  flesh  on  fish-days,  or  on 
Wednesdays,  now  made  an  additional  fish-day,  un- 
der a  penalty  of  £3,  or  three  months'  imprison- 
ment ;  except  that  every  one  having  three  dishes 
of  sea-fish  at  his  table,  might  have  one  of  flesh  also. 
But  "  because  no  manner  of  person  shall  misjudge 
of  the  intent  of  this  statute,"  it  is  enacted,  that 
■whosoever  shall  notify  that  any  eating  of  fish  or  for- 
bearing of  flesh  mentioned  therein  is  of  any  neces- 
%  sit3^  for  the  saving  of  the  soul  of  man,  or  that  it  is  the 

service  of  God,  otherwise  than  as  other  politic  laws 
are  and  be,  that  then  such  persons  shall  be  punish- 
ed as  spreaders  of  false  news,  §  39  and  40.  The 
act  27th  Eliz.,  c.  11,  repeals  the  prohibition  as  to 
■Wednesday,  and  provides  that  no  victuallers  shall 
vend  flesh  in  Lent,  nor  upon  Fridays  or  Saturdays, 
tmder  a  penaltj-.  The  3.5th  Eliz.,  c.  7,  {  22,  reduces 
the  penalty  of  £3,  or  three  months'  imprisonment, 
enacted  by  5th  of  Eliz.,  to  one  third.  This  is  the 
latest  statute  that  appears  on  the  subject. 

Many  proclamations  appear  to  have  been  issued 
in  order  to  enforce  an  observance  so  little  congeni- 
al to  the  propensities  of  Englishmen.  One  of  those 
in  the  first  year  of  Edward  was  before  any  stat- 
ute ;  and  its  very  words  respecting  the  indiffer- 
ence of  meats  in  a  religious  sense  were  adopted 
by  the  Legislature  the  next  year. — Strype's  Ec- 
cles.  Memor.,  ii.,  81.  In  one  of  Elizabeth's,  A.D. 
1572,  as  in  the  statute  of  Edward,  the  political  mo- 
tives of  the  prohibition  seem  in  some  measure  as- 
sociated with  the  superstition  it  disclaims  ;  for  eat- 
ing in  the  season  of  Lent  is  called  '•  licentious  and 
carnal  disorder,  in  contempt  of  God  and  man,  and 
only  to  the  satisfaction  of  devilish  and  canial  appe- 
tite ;"  and  butchers,  &c.,  "ministering  to  such  fonl 
lust  of  the  flesh,"  were  severely  mulcted. — Strj-pe's 
Annals,  ii.,  208.  But  in  1576  another  proclamation 
to  the  same  effect  Uses  no  such  hard  words,  and 
protests  strongly  against  any  superstitious  inter- 
pretation of  its  motives. — Life  of  Grindal,  p.  226. 
So,  also,  in  1579,  Stiype's  Annals,  ii.,  608,  and,  as 
far  as  I  have  observed,  in  all  of  a  later  date,  the 
encouragement  of  the  navy  and  fishery  is  set  forth 
as  their  sole  ground.  In  1596,  Whitgift,  by  the 
queen's  command,  issued  letters  to  the  bishops  of 
his  province,  to  take  order  that  the  fasting  days, 
Wednesday  and  Friday,  should  be  kept,  and  no 
suppers  eaten,  especially  on  Friday  evens.  This 
was  on  account  of  the  great  dearth  of  that  and  the 
preceding  year. — Strj-pe's  Whitgift.  p.  490.  These 
proclamations  for  the  obser\-ance  of  Lent  continu- 


to  whom  he  listened,  bethought  themselves 
that  this  might  serve  as  a  test  of  Puritan 
ministers.  He  published,  accordingly,  a 
declaration  to  be  read  in  churches,  permit- 
ting all  lawful  recreations  on  Sunday  after 
divine  service,  such  as  dancing,  archery, 
May-games,  and  momce-dances,  and  other 
usual  sports  ;  but  with  a  proliibition  of  bear- 
baiting  and  other  vmlawful  games.  No  re- 
cusant, or  any  one  who  had  n9t  attended  the 
Church-service,  was  entitled  to  this  privi- 
lege ;  which  might  consequently  be  regard- 
ed as  a  bounty  on  devotion.  The  severe 
Puritan  saw  it  in  no  such  point  of  view. 
To  his  cynical  temper.  May-games  and 
mon-ice-dances  were  hardly  tolerable  on 
six  days  of  the  week ;  they  were  now  rec- 
ommended for  the  seventh.  And  this  im- 
pious license  was  to  be  promulgated  in  the 
Church  itself.  It  is  indeed  difficult  to  ex- 
plain so  unnecessary  an  insult  on  the  pre- 

ed  under  James  and  Charles,  as  late,  I  presume, 
as  the  commencement  of  the  civil  war.  They  were 
diametrically  opposed  to  the  Puritan  tenets  ;  for, 
notwithstanding  the  pretext  about  the  fishery, 
there  is  no  doubt  that  the  dominant  ecclesiastics 
maintained  the  obserN-ance  of  Lent  as  an  ordinance 
of  the  Church  ;  but  I  suspect  that  httle  regard  was 
paid  to  Friday  and  Saturday  as  days  of  weekly  fast. 
— RjTuer,  xvii.,  131,  134,  349  ;  xviii.,  268,  282,  961. 

This  abstemious  sj-stem,  however,  was  only  com- 
pulsory on  the  poor.  Licenses  were  easily  obtain- 
ed by  others  from  the  privj--council  in  Edward's 
daj-s,  and  afterward  from  the  bishop.  They  were 
empowered,  with  their  guests,  to  eat  flesh  on  all 
fasting  days  for  life.  Sometimes  the  number  of 
guests  was  limited.  Thus  the  Marquis  of  Win- 
chester had  permission  for  twelve  friends ;  and 
John  Sandford,  draper  of  Gloucester,  for  two. — 
Strj-pe's  Memorials,  ii.,  82.  The  act  above  men- 
tioned for  encouragement  of  the  fishery,  5th  Eliz., 
c.  5,  provides  that  £.\  6s.  8(i.  shall  be  paid  for 
granting  every  license,  and  6s.  8d.  annually  after- 
ward, to  the  poor  of  the  parish ;  but  no  license 
was  to  be  granted  for  eating  beef  at  any  time  of 
the  year,  or  veal  from  Michaelmas  to  the  1st  of 
Maj".  A  melancholy  privation  to  our  countrjTnen ! 
but,  I  have  no  doubt,  little  regarded.  Strype 
makes  known  to  ns  the  interesting  fact,  that  Am- 
brose Potter,  of  Gravesend,  and  his  wife,  had  per- 
mission fi-om  Archbishop  Whitgift  "  to  eat  flesh 
and  white  meats  in  Lent,  during  their  lives  :  so  that 
it  was  done  soberly  and  frugally,  cautiously,  and 
avoiding  public  scandal  as  much  as  might  be,  and 
giving  6s.  Bd.  annually  to  the  poor  of  the  parish." 
—Life  of  Whitgift,  246. 

The  civil  wars  did  not  so  put  an  end  to  the  com- 
pulsory observance  of  Lent  and  fish-days  but  that 
similar  proclamations  are  found  after  the  Restora- 
tion, I  know  not  how  long. — Kennet's  Register,  p. 
367  and  588. 


Cha.  I.— 1625-29.]  FROM  HENRY  VII.  TO  GEORGE  11. 


229 


cise  clergy,  but  by  supposing  an  intention 
to  harass  those  who  should  refuse  compli- 
ance.* But  this  intention,  from  whatever 
cause,  perhaps  thi'ough  the  influence  of 
Archbishop  Abbot,  was  not  carried  into  ef- 
fect, nor  was  the  declaration  itself  enforced 
till  the  following  reign. 

The  House  of  Commons  displayed  their 
attachment  to  the  Puritan  maxims,  or  theu" 
dislike  of  the  prclatical  clergy,  by  bringing 
in  bills  to  enforce  a  greater  strictness  in  this 
respect.  A  circumstance  that  occurred  in 
the  session  of  1621  will  serve  to  prove 
their  fanatical  violence.  A  bill  having  been 
brought  in  "  for  the  better  observance  of 
the  Sabbath,  usually  called  Sunday,"  one 
Mr.  Shepherd,  sneering  at  the  Puritans, 
remarlvcd  that,  as  Saturday  was  dies  Sab- 
bati,  this  might  be  entitled  a  bill  for  the  ob- 
servance of  Saturday,  commonly  called  Sun- 
day. This  witticism  brought  on  his  head 
the  wrath  of  that  dangerous  assembly.  He 
was  reprimanded  on  his  knees,  expelled  the 
House,  and  when  he  saw  what  befell  poor 
Floyd,  might  deem  himself  cheaply  saved 
from  their  fangs  with  no  worse  chastise- 
ment.f  Yet  when  the  Upper  House  sent 
down  their  bill  with  "  the  Lord's  day"  sub- 
stituted for  "  the  Sabbath,"  observing  "  that 
people  do  now  much  incUne  to  words  of 
Judaism,"  the  Commons  took  no  excep- 
tion.t  The  use  of  the  word  Sabbath  in- 
stead of  Sunday  became  in  that  age  a  dis- 
tinctive mark  of  the  Puritan  party. 


*  Wilson,  709. 

t  Debates  in  Parliament,  1621,  vol.  i.,  p.  45,  52. 
The  king  requested  tliem  not  to  pass  this  bill,  be- 
ing so  directly  again.?!  his  proclamation. — Id.,  60. 
Shepherd's  expulsion  is  mentioned  in  Mede's  Let- 
ters, Harl.  MSS.,  389. 

X  Vol.  ii.,  97.  Tvro  acts  were  passed,  1  Car.  I., 
c.  1,  and  3  Car.  I.,  c.  2,  for  the  better  observance 
of  Sunday,  the  former  of  which  gave  great  annoy- 
ance, it  seems,  to  the  orthodox  party.  "  Had  any 
such  bill,"  says  Heylin,  "been  offei'ed  in  King 
James's  time,  it  would  have  found  a  sony  welcome ; 
but  this  king,  being  under  a  necessity  of  compli- 
ance with  them,  resolved  to  grant  them  their  de- 
sires in  that  parliculai-,  to  the  end  that  they  might 
grant  his  also  in  the  aid  required,  when  that  ob- 
struction was  removed.  The  Sabbatarians  took 
the  benefit  of  this  opportunity  for  the  obtaining  of 
this  grant,  the  &st  that  ever  they  obtained  by  all 
their  strugglings,  which  of  what  consequence  it 
was  we  shall  see  hereafter." — Life  of  Laud,  p.  129. 
Vet  this  statute  permits  the  people  lawful  sports 
and  pastimes  on  Sundays  within  their  own  par- 
ishes. 


A  far  more  permanent  controversy  sprang 
up  about  the  end  of  the  same  Arminian 
reign,  which  afforded  a  new  pre-  onro^'ersy. 
text  for  intolerance,  and  a  fresh  source  of 
mutual  hatred.  Every  one  of  my  readers 
is  acquainted  more  or  less  with  the  theolog- 
ical tenets  of  original  sin,  free  will,  and  pre- 
destination, variously  taught  in  the  schools, 
and  debated  by  polemical  writers  for  so 
many  centuries ;  and  few  can  be  ignorant 
that  the  articles  of  our  own  Church,  as  they 
relate  to  these  doctrines,  have  been  very 
differently  interpreted,  and  that  a  conti'o- 
versy  about  their  meaning  has  long  been 
carried  on  with  a  pertinacity  which  could 
not  have  continued  on  so  limited  a  topic, 
had  the  combatants  been  merely  influenced 
by  the  love  of  truth.  Those  who  have  no 
bias  to  warp  their  judgment,  will  not,  per- 
haps, have  much  hesitation  in  drawing  their 
line  between,  though  not  at  an  equal  dis- 
tance between,  the  conflicting  parties.  It 
appears,  on  the  one  hand,  that  the  articles 
are  worded  on  some  of  these  doctrines  with 
considerable  ambiguity,  whether  we  attrib- 
ute this  to  the  intrinsic  obscurity  of  the 
subject,  to  the  additional  difficulties  with 
which  it  had  been  entangled  by  theological 
systems,  to  discrepancy  of  opinion  in  the 
compilers,  or  to  their  solicitude  to  prevent 
disunion  by  adopting  formularies  which  men 
of  different  sentiments  might  subscribe.  It 
is  also  manifest  that  their  framers  came,  as 
it  were,  with  averted  eyes  to  the  Augus- 
tinian  docti-ine  of  predestination,  and  wisely 
reprehended  those  who  turned  their  atten- 
tion to  a  system  so  pregnant  with  objec- 
tions, and  so  dangerous,  when  needlessly 
dwelt  upon,  to  all  practical  piety  and  virtue. 
But,  on  the  other  hand,  this  very  reluctance 
to  inculcate  the  tenet  is  so  expressed  as  to 
manifest  their  undoubting  belief  in  it ;  nor 
is  it  possible  either  to  assign  a  motive  for 
inserting  the  seventeenth  article,  or  to  give 
any  reasonable  interpretation  to  it,  upon  the 
theory  which  at  present  passes  for  orthodox 
in  the  English  Church.  And  upon  other 
subjects  intimately  related  to  the  former, 
such  as  the  penalty  of  original  sin  and  the 
depravation  of  human  nature,  the  articles, 
after  making  every  allowance  for  want  of 
precision,  seem  totally  iireconcilable  with 
the  scheme  usually  denominated  Arminian. 

The  force  of  those  conclusions,  which  we 
must,  in  my  judgment,  deduce  from  the 


230 


CONSTITUTIONAL  HISTORY  OF  EXGLAXD 


[Chap.  VIL 


language  of  these  articles,  will  be  material- 
ly increased  by  that  appeal  to  cotemporary 
and  other  early  authorities,  to  which  re- 
course has  been  had  in  order  to  invalidate 
them.  Whatever  doubts  may  be  raised  as 
to  the  Calvinism  of  Cranmer  and  Ridley, 
there  can  surely  be  no  room  for  any  as  to 
the  chiefs  of  the  Anglican  Church  under 
Elizabeth.  We  find  explicit  proofs  that 
Jewell,  Nowell,  Sandys,  Cox,  professed  to 
concur  with  the  Reformers  of  Zurich  and 
Geneva  in  every  point  of  doctrine.*  The 
works  of  Calvin  and  Bullinger  became  text- 
books in  the  English  universities. f  Those 
who  did  not  hold  the  predestinarian  theoiy 
were  branded  with  reproach  by  the  names 
of  freewillers  and  Pelagians. J  And  when 
the  opposite  tenets  came  to  be  advanced, 
as  they  were  at  Cambridge  about  1590,  a 
clamor  was  raised  as  if  some  unusual  here- 
sy had  been  broached.  Whitgift,  with  the 
concurrence  of  some  other  prelates,  in  or- 
der to  withstand  its  progress,  published 
what  were  called  the  Lambeth  Articles, 
containing  the  broadest  and  most  repulsive 
declaration  of  all  the  Calvinistic  tenets :  but. 
Lord  Bm-leigh  having  shown  some  disap- 
probation, these  articles  never  obtained  any 
legal  sanction. § 

These  more  rigorous  tenets,  in  fact,  espe- 
cially when  so  crudely  announced,  were 
beginning  to  give  way.  They  had  been  al- 
ready abandoned  by  the  Lutheran  Church. 
They  had  long  been  opposed  in  that  of 
Rome  by  the  Franciscan  order,  and  latter- 
ly by  the  Jesuits.  Above  all.  the  study  of 
the  Greek  fathers,  with  whom  the  first  Re- 
formers had  been  little  conversant,  taught 
the  divines  of  a  more  learned  age,  that  men 
of  as  high  a  name  as  Augustin,  and  whom 
they  were  prone  to  overvalue,  had  enter- 
tained very  different  sentiments.  ||  Still  the 
novel  opinions  passed  for  heterodox,  and 

*  Without  loading  the  pa?e  with  too  many  ref- 
erences on  a  suhject  so  little  connected  with  this 
work,  I  mention  Strype  s  .Annals,  vol.  i.,  p.  118, 
and  a  letter  from  Jewell  to  P.  Martyr,  in  Bamet, 
voL  iii.,  Appendix.  275.  f  Collier,  568. 

t  Strype  s  Annals,  i.,  207,  294. 

9  Strype  s  Whitgift,  434-472. 

11  It  is  admitted  on  all  hands  that  the  Greek  fa- 
thers did  not  inculcate  the  predestinarian  system. 
Elizabeth  having  begun  to  read  some  of  the  fathers. 
Bishop  Cox  writes  of  it  with  some  disapprobation, 
adverting  especially  to  the  Pelagianism  of  Chrj-s- 
ostom  and  the  other  Greeks. — Strype's  Annals,  i., 
324. 


were  promulgated  with  much  vacillation 
and  indistinctness.    When  they  were  pub- 
lished in  unequivocal  propositions  by  Ar- 
minius  and  his  school,  James  declared  him- 
self with  vehemence  against  this  heresy.* 
He  not  only  sent  English  divines  to  sit  in 
the  Synod  of  Dort,  where  the  Calvinistic 
I  system  was  fully  established,  but  instigated 
,  the  proceedings  against  the  remonstranta 
j  with  more  of  theological  pedantry  than 
charity  or  decorum. f    Yet  this  inconsist- 
'  ent  monarch  within  a  very  few  years  was 
j  so  wrought  on  by  one  or  two  favorite  ec- 
I  clesiastics,  who  inclined  toward  the  doc- 
trines condemned  in  that  assembly,  that 
openly  to  maintain  the  Augustinian  system 
became  almost  a  sure  means  of  exclusion 
from  preferment  in  our  Church.    This  was 
carried  to  its  height  under  Charles.  Laud, 
his  sole  counselor  in  ecclesiastical  matters, 
advised  a  declaration  enjoining  silence  on 
the  controverted  points ;  a  measure  by  no 
means  unwise,  if  it  had  been  fairly  acted 
upon.     It  is  alleged,  however,  that  the 
preachers  on  one  side  only  were  silenced, 
'  the  printers  of  books  on  one  side  censured 
]  in  the  Star  Chamber,  while  full  scope  was 
indulged  to  the  opposite  sect.  J 


*  Winwood,  iii.,  293.    The  intemperate  and 
even  impertinent  behavior  of  James,  in  pressing 
the  States  of  Holland  to  inflict  some  censure  or 
[  punishment  on  Vorstius,  is  well  known.  But, 
1  though  Vorstius  was  an  Arminiau,  it  was  not  pre- 
'  cisely  on  accoimt  of  those  opinions  that  he  incurred 
the  king's  peculiar  displeasure,  bat  for  certain 
propositions  as  to  the  nature  of  the  Deity,  which 
James  called  atheistical,  but  which  were,  in  fact, 
Arian.    The  letters  on  this  subject  in  Winwood 
.  are  curious.    Even  at  this  time  the  king  is  said  to 
I  have  spoken  moderately  of  predestination  as  a  du- 
bious point,  p.  452,  thoTigh  he  had  treated  Armini- 
j  us  as  a  mischievous  innovator  for  raising  a  ques- 
.  tion  about  it ;  and  this  b  confirmed  by  his  letter  to 
'  the  States  in  1613 — Brandt,  iii.,  129,  and  see  p. 

138.  See  Collier,  p.  711,  for  the  king's  sentiments 
I  in  1616 ;  also,  Brandt,  iii..  313. 
I  t  Sir  Dudley  Carleton's  Letters  and  Negotia- 
tions, passim.  Brandt's  History  of  Reformation  in 
Low  Countries,  vol.  iii  The  English  divines  sent 
to  this  synod  were  decidedly  inclined  to  Calvinism, 
but  they  spoke  of  themselves  as  deputed  by  the 
kin^'.  not  by  the  Church  of  England,  which  they 
did  not  represent. 

t  There  is  some  obscurity  about  the  rapid  tran- 
sition of  the  court  from  Calvinism  to  the  opposite 
I  side.  It  has  been  supposed  that  the  part  taken  by 
I  James  at  the  Synod  of  Dort  was  chiefly  political, 
with  a  view  to  support  the  house  of  Orange  against 
the  party  headed  by  Bamevelt.  But  he  was  so 
much  more  of  a  theolosian  than  a  statesman,  that 


t 


Cha.  I. -1625-29.] 


PnOM  HEXRY  VU.  TO  GEOKGE  II. 


231 


The  House  of  Commons,  especially  in 
their  last  session,  took  up  the  increase  of 
Arminianism  as  a  public  gi-ievance.  It  was 
coupled  in  their  remonstrances  with  po- 
pery, as  a  new  danger  to  religion,  hardly 
less  terrible  than  the  former.  This  bigoted 
clamor  arose  in  part  from  the  nature  of 
their  own  Calvinistic  tenets,  which,  being 
still  prevalent  in  the  kingdom,  would,  iude- 
pendently  of  all  political  motives,  predomi- 
nate in  any  popular  assembly.  But  they 
had  a  sort  of  excuse  for  it  in  the  close, 
though  accidental  and  temporary,  connec- 
tion that  subsisted  between  the  partisans  of 
these  new  speculative  tenets  and  those  of 
arbitrary  power,  the  churchmen  who  re- 

I  mach  doubt  whether  this  will  account  satisfacto- 
rily for  his  zeal  in  behalf  of  the  Gomarists.  He 
wrote  on  the  subject  with  much  polemical  bitter- 
ness, but  without  reference,  so  far  as  I  have  ob- 
served, to  any  political  faction ;  though  Sir  Dudley 
Carleton's  letters  show  that  he  contemplated  the 
matter  as  a  minister  ought  to  do.  Heyliu  intimates 
that  the  king  grew  "  more  moderate  afterward, 
and  into  a  better  liking  of  those  opinions  which  he 
had  labored  to  condemn  at  the  Synod  of  Dort." — 
Life  of  Laud,  120.  The  court  language,  indeed, 
shifted  so  very  soon  after  this,  that  Antonio  de 
Dominis,  the  famous  half-converted  Archbishop  of 
Spalato,  is  said  to  have  invented  the  name  of  Doc- 
trinal Puritans  for  those  who  distinguished  them- 
selves by  holding  the  Calvinistic  tenets.  Yet  the 
Synod  of  Dort  was  in  1613,  while  De  Dominis  left 
England  not  later  than  1622.  Buckingham  seems 
to  have  gone  very  warmly  into  Laud's  scheme  of 
excluding  the  Calvinists.  The  latter  gave  him  a 
list  of  divines  on  Charles's  accession,  distinguishing 
their  names  by  O.  and  P.  for  Orthodox  and  Puri- 
tan, including  several  tenets  in  the  latter  denomi- 
nation besides  those  of  the  quinquarticular  contro- 
versy, such  as  the  indispensable  observance  of  the 
Lord's  day,  the  indiscrimination  of  bishops  and 
presbyters,  4cc. — Life  of  Laud,  119.  The  influence 
of  Laud  became  so  great,  that  to  preach  in  favor  of 
Calvinism,  though  commonly  reputed  to  be  the 
doctrine  of  the  Church,  incurred  punishment  in  any 
rank.  Davenant,  bishop  of  Sahsburj',  one  of  the 
divines  sent  to  Dort,  and  reckoned  among  the  prin- 
cipal theologians  of  that  age,  was  reprimanded  on 
bis  knees  before  the  pri\'y-council  for  this  offense. 
— Collier,  p.  750.  But  in  James's  reign,  the  Uni- 
versity of  Oxford  was  decidedly  Cal\-inistia  A 
preacher  about  1633.  having  used  some  suspicious 
expressions,  was  compelled  to  recant  them,  and  to 
maintaia  the  following  theses  in  the  di\-inity  school : 
Decretum  praedestinationis  non  est  conditionale. — 
Gracia  sufEciens  ad  salutem  non  conceditur  omni- 
bus.— Wood,  ii..  348.  And  I  suppose  it  continued 
BO  in  the  next  reign,  so  far  as  the  university's  opin- 
ions could  be  manifested.  But  Laud  took  care 
that  no  one  should  be  promoted,  as  far  as  he  could 
help  it,  who  held  these  tenets. 


ceded  most  from  Calvinism  being  generally 
the  zealots  of  prerogative.    They  conceiv- 
ed, also,  that  these  theories,  conformable  in 
j  the  maui  to  those  most  countenanced  in  the 
1  Church  of  Rome,  might  pave  the  way  for 
j  that  restoration  of  her  faith  which  from  so 
many  other  quarters  appeared  to  thi-eatea 
them.    Nor  was  this  last  apprehension  so 
destitute  of  all  plausibility  tis  the  advocates 
of  the  first  two  Stuaits  have  always  pre- 
tended it  to  be. 

James,  well  instructed  in  the  theology  of 
the  Reformers,  and  inured  himself  state  of 
to  controversial  dialectics,  was  far 
removed  in  point  of  opinion  from  James, 
any  bias  toward  the  Romish  creed.  But 
he  had,  while  in  Scotland,  given  rise  to 
some  suspicions  at  the  court  of  Elizabeth, 
by  a  Uttle  clandestine  coquetiy  with  the 
pope,  wlilch  he  fancied  to  be  a  politic  means 
of  disarming  enmity.*    Some  knowledge 

*  'Wmwood,  vol.  i.,  p.  1,  52,  388.  Lettres  d'Os- 
sat,  i.,  221.  Birch's  Negotiations  of  Edmondes,  p. 
36.  These  references  do  not  relate  to  the  letter 
said  to  have  been  forged  in  the  king's  name,  and 
addressed  to  Clement  VIII.  by  Lord  Balmerino. 
But  Laing,  Hist,  of  Scotland,  iii.,  59,  and  Birch's 
Negotiations,  &c.,  177,  render  it  almost  certain  that 
this  letter  was  genuine,  which,  indeed,  has  been 
generally  believed  by  men  of  sense.  James  was 
a  man  of  so  little  consistency  or  sincerity,  that  it 
is  difficult  to  solve  the  problem  of  this  clandestine 
intercourse.  But  it  might  verj-  likely  proceed 
from  his  dread  of  being  excommunicated,  and,  in 
consequence,  assassinated.  In  a  proclamation, 
commanding  all  Jesuits  and  priests  to  quit  the 

[  realm,  dated  in  1603,  he  declares  himself  personal- 
ly "  so  much  beholden  to  the  new  Bishop  of  Home 

I  for  his  kind  office  and  private  temporal  carriage  to- 
ward us  in  many  things,  as  we  shall  ever  be  ready 

:  to  requite  the  same  toward  lika  as  Bishop  of  Rome 
in  state  and  condition  of  a  secular  prince." — Ry- 
mer,  xvi.,  573.  This  is  explained  by  a  passage  in 
the  memoirs  of  Sully  (1. 15).  Clement  VLII.,  though 
before  EUzabeth's  death  he  had  abetted  the  proj- 
ect of  placing  Arabella  on  the  throne,  thought  it 
expedient,  after  this  design  had  failed,  to  pay  some 
court  to  James,  and  had  refused  to  accept  the  ded- 
ication of  a  work  written  against  him,  besides, 
probably,  some  other  courtesies.  There  is  a  letter 
fi-om  the  king  addressed  to  the  pope,  and  probably 
written  in  1603,  among  the  Cottouian  MSS.,  Nero, 
B.  vi.,  9,  which  shows  his  disposition  to  coax  and 
coquet  with  the  Babylonian,  against  whom  he  so 
much  inveighs  in  liis  printed  works.  It  seems  that 
Clement  had  so  far  presumed  as  to  suggest  that 
the  Prince  of  Wales  should  be  educated  a  Catho- 
lic, which  the  king  refuses,  but  not  in  so  strong  a 
manner  as  he  should  have  done.  I  can  not  recol- 
lect whether  this  letter  has  been  printed,  though  I 
can  scarcely  suppose  the  contrarj'.   Persons  him- 


232 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  VIL 


ofthis,  probably,  as  well  as  his  avowed  dis- 
like of  saDgainary  persecution,  and  a  fool- 
ish reliance  on  the  trifling  circumstance  that 
one,  if  not  both,  of  his  parents  had  profess- 
ed their  religion,  led  the  English  Catholics 
to  expect  a  great  deal  of  indulgence,  if  not 
support,  at  his  hands.  This  hope  might  re- 
ceive some  encoui-agement  from  his  speech 
on  opening  the  Parliament  of  1604.  wherein 
he  intimated  his  design  to  revise  and  explain 
the  penal  laws,  '-which  the  judges  might 
perhaps,"  he  said.  ••  in  times  past  have  too 
rigorously  interpreted."  But  the  temper 
of  those  he  addressed  was  very  different. 
The  Catholics  were  disappointed  by  an  act 
inflicting  new  penalties  on  recusants,  and 
especially  debarring  them  from  educating 
their  children  according  to  their  conscien- 
ces.* The  administration  took  a  sudden 
turn  toward  severity ;  the  prisons  were 
filled,  the  penalties  exacted,  several  suffer- 
JeaionsT  of  ed  death.'  and  the  general  help- 
fltoT^  ^  lessness  of  their  condition  impell- 
ward:iiem.  ed  a  few  persons  (most  of  whom 
had  belonged"  to  what  was  called  the  Span- 
ish party  in  the  last  reign)  to  the  gmjpow- 
der  conspiracy,  unjustly  imputed  to  the 
majority  of  Catholics,  though  perhaps  ex- 
self  befan  to  praise  the  works  of  James,  and  show 
mncb  hope  of  what  he  would  do. — Cotton,  Jul.,  B. 
vi.,  77. 

The  severities  against  Catholics  seem  at  first  to 
have  been  practically  mitigated. — Win  wood.  ii.. 
78.  Archbishop  Hatton  wrote  to  Cecil,  complain- 
ing of  the  toleration  CTanted  to  papists,  while  the 
Pmitans  were  severely  treated. — Id.,  p.  40.  Lodse, 
iii.,  2-51.  "The  former."  he  says,  "partly  by  this 
roond  dealing  with  the  Puritans,  and  partly  by 
Eome  extraordinary  favor,  had  grown  mightily  in 
number,  courage,  and  influence."  '"If  the  Gospel 
shall  quail,  and  popery  prevail,  it  will  be  imputed 
principfHy  unto  your  great  counselors,  who  either 
procure  or  yield  to  grant  toleration  to  some.'' 
James  told  some  gentlemen  who  petitioned  for  tol- 
eration, diat  the  utmost  they  could  expect  was 
connivance. — Carte,  iii..  711.  This  seems  to  have 
been  what  he  intended  through  his  reign,  till  im- 
portuned by  Spain  and  France  to  promise  more. 

*  1  Jac-  I.,  c.  4.  The  penalties  of  recusancy 
were  particularly  hard  upon  women,  wha  as  I 
have  observed  in  another  place,  adhered  longer  to 
the  old  religion  than  the  other  sex :  and  still  more 
so  upon  those  who  had  to  pay  for  their  scruples.  It 
was  proposed  in  Parliament,  but  with  the  usual 
fate  of  humane  suggestions,  that  husbands  going  to 
church  should  not  be  Kable  for  their  wives'  recusan- 
cy.— Carte.  754.  But  they  had  the  alternative  af- 
terward, by  7  Jac.  L.  c.  6,  of  letting  their  wives  lie 
in  prison  or  paying  XlO  a  month. 

t  Linsard,  ix.,  41,  55. 


I  tending  beyond  those  who  appeared  in  it,* 

We  can  not  wonder  that  a  Parliament  so 

I  

!  *  From  comparing  some  passages  in  Sir  Charles 
[  Comwallis's  dispatches,  Winwood,  vol  ii.,  p.  143, 
I  144, 15-3,  with  others  in  Birch's  account  of  Sir  Thom- 
as Edmondes's  negotiations,  p.  233,  et  seq..  it  ap- 
pears that  the  English  Catholics  were  looking  for- 
ward at  this  time  to  some  crisis  in  their  favor,  and 
that  even  the  court  of  Spain  was  influenced  by 
their  hopes.  A  letter  from  Sir  Thomas  Parry  to 
Edmondes,  dated  at  Paris,  lOtii  Oct..  1603,  is  re- 
markable :  ■'  Our  priests  are  very  busy  about  pe- 
titions to  be  exhibited  to  the  king's  majesty  at  this 
Parliament,  and  some  further  designs  upon  refusal 
These  matters  are  secretly  managed  by  iutelli- 
!  gence  with  their  colleagues  in  those  parts  where 
you  reside,  and  with  the  two  nuncios.  I  think  it 
were  necessary  for  his  majesty's  service  that  yoa 
found  means  to  have  privy  spies  among  diem,  to 
discover  their  negotiations.  Something  is  at  pres- 
ent in  hand  among  these  desperate  hypocrites, 
which  I  trust  God  shall  divert  by  the  vigilant  care 
of  his  majesty's  faithful  servants  and  friends  abroad, 
and  prudence  of  his  council  at  home." — Birch,  p. 
233.  There  seems,  indeed,  some  ground  for  suspi- 
'  cion  that  the  nuncio  at  Brussels  was  privy  to  the 
conspiracy,  though  this  ought  not  to  be  asserted  as 
an  historical  fact.  'Whether  the  offense  of  Garnet 
went  beyond  misprision  of  treason  has  been  much 
controverted.  The  Catholic  writers  maintain  that 
he  had  no  knowledge  of  the  conspiracy,  except  by 
having  heard  it  in  confession.  But  this  rests  alto- 
gether on  his  word  :  and  the  prevarication  of  which 
he  has  been  proved  to  be  guilty  (not  to  raentioa 
the  damning  circumstance  that  he  was  taken  at 
^  Hendlip  in  concealment  along  with  the  other  con- 
spirators i  makes  it  difBcult  for  a  candid  man  to  ac- 
quit him  of  a  thorough  participation  in  their  gailt. 
Compare  Townsend's  Accusations  of  History 
against  the  Church  of  Rome  (  l*-25'.  p.  247,  costaki- 
ing  extracts  from  some  important  documents  in  the 
State  Paper  Office,  not  as  yet  published,  with 
State  Trials,  vol.  iL :  and  see  Lingard,  ix.,  160,  ic. 
Yet  it  should  be  kept  in  mind  that  it  was  easy  for 
a  few  artful  persons  to  keep  on  the  alert  by  indis- 
tinct communications  a  credulous  multitude  whose 
daily  food  was  rumor:  and  the  general  hopes  rf 
the  English  Romanists  at  the  moment  are  not  evi- 
dence of  their  privity  to  the  gunpowder  treason, 
which  was  probably  contrived  late,  and  imparted 
to  very  few.  But  to  deny  that  there  was  such  a 
plot,  or,  which  is  the  same  thing,  to  throw  the 
whole  on  the  contrivance  and  management  of  Ce- 
cil, as  has  sometimes  been  done,  argues  great  et 
fiontery  in  those  who  lead,  and  great  stupidity  in 
those  who  follow.  The  letter  to  Lord  Monteagle, 
the  discovery  of  the  powder,  the  simultaneous  ris- 
ing in  arms  in  Warwickshire,  are  as  indisputable 
as  any  facts  in  history.  What.  then,  had  Cecil  to 
'  do  with  the  plot  except  that  he  hit  upon  the  clew 
'  to  tbe  dark  allusions  in  the  letter  to  Monteagle.  of 
I  which  he  was  courtier  enough  to  let  the  king  take 
I  the  credit  ?  James's  admirers  have  always  reck- 
oned this,  as  he  did  himself  a  vast  proof  of  sagac- 
I  itv :  vet  there  seems  no  sreat  acuteness  in  tbe  dis- 


Cha.  I.— 1G25-29.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


233 


narrowly  rescued  from  personal  destructiou 
endeavored  to  draw  the  cord  still  tighter 
round  these  dangerous  enemies.  The  stat- 
ute passed  on  this  occasion  is  by  no  means 
more  harsh  than  might  be  expected.  It  re- 
quired not  only  attendance  on  worship,  but 
participation  in  the  communion,  as  a  test  of 
conformity,  and  gave  an  option  to  the  king 
of  taking  a  penalty  of  a  month  from 
recusants,  or  two  thirds  of  their  lands.  It 
prescribed  also  an  oath  of  allegiance,  the 
refusal  of  which  incurred  the  penalties  of  a 
praemunire.  This  imported  that,  notwith- 
standing any  sentence  of  deprivation  or 
excommunication  by  the  pope,  the  taker 
would  bear  true  allegiance  to  the  king,  and 
defend  him  against  any  conspiracies  which 
should  be  made  by  reason  of  such  sentence 
or  othei"wise,  and  do  his  best  endeavor  to 
disclose  them ;  that  he  from  his  heart  ab- 
horred, detested,  and  abjured  as  impious 
and  heretical,  the  damnable  doctrine  and 
position  that  princes,  excommunicated  or 
deprived  by  the  pope,  may  be  deposed  or 
murdered  by  their  subjects,  or  any  other 
whatsoever ;  and  that  he  did  not  believe 
that  the  pope  or  any  other  could  absolve 
him  from  this  oath.* 

Except  by  cavilling  at  one  or  two  words, 
it  seemed  impossible  for  the  Roman  Catho- 
lics to  decline  so  reasonable  a  test  of  loyal- 

covery,  even  if  it  had  been  his  own.  He  might 
have  recollected  the  circumstance  of  his  father's 
catastrophe,  wliich  would  naturally  put  him  on  the 
scent  of  gTinpowder.  In  point  of  fact,  however,  the 
liappy  conjecture  appears  to  be  Cecil's. — Win- 
wood,  ii.,  170.  But  had  he  no  previous  hint  ?  See 
Lo<lge,  iii.,  301. 

The  Earl  of  Northumberland  was  not  only  com- 
mitted to  the  Tower  on  suspicion  of  privity  in  the 
plot,  but  lay  fourteen  years  there,  and  paid  a  fine 
of  £11,000  (by  composition  for  £30,000)  before  he 
was  released. — Lingard,  ix.,  89.  It  appears  almost 
incredible  that  a  man  of  his  ability,  though  certain- 
ly of  a  dangerous  and  discontented  spirit,  and  rath- 
er destitute  of  religion  than  a  zealot  for  popery, 
which  he  did  not,  I  believe,  openly  profess,  should 
have  mingled  in  so  flagitious  a  design.  There  is, 
indeed,  a  remarkable  letter  in  Winwood,  vol.  iii., 
p.  287,  which  tends  to  corroborate  the  suspicions 
entertained  of  him ;  but  this  letter  is  from  Sahs- 
burj',  his  inveterate  enemj'.  Eveiy  one  must 
agree,  that  the  fine  imposed  on  this  nobleman  was 
preposterous.  'Were  we  even  to  admit  that  suspi- 
cion might  justify  his  long  imprisonment,  a  partic- 
ipation in  one  of  the  most  atrocious  conspiracies 
recorded  in  history  was,  if  proved,  to  be  more  se- 
verely punished  ;  if  unproved,  not  at  all. 

*  3  Jac.  I.,  c.  4,  5. 


ty,  without  justifying  the  worst  suspicions 
of  Protestant  jealousy.  Most  of  the  secu- 
lar priests  in  England,  asking  only  a  conniv- 
ance in  the  exercise  of  their  ministry,  and 
aware  how  much  the  good  work  of  re- 
claiming their  apostate  countrymen  Avas  re- 
tarded by  the  political  obloquy  they  incur- 
red, would  have  willingly  acquiesced  in  the 
oath.  But  the  court  of  Rome,  not  yet  re- 
ceding an  inch  from  her  proudest  claims, 
absolutely  forbade  all  Catholics  to  abjure 
her  deposing  power  by  this  test,  and  em- 
ployed Bellarmine  to  prove  its  unlawful- 
ness. The  king  stooped  to  a  literai-y  con- 
ti'oversy  with  this  redoubted  champion,  and 
was  prouder  of  no  exploit  of  his  life  than 
his  answer  to  the  cardinal's  book,  by  which 
he  incurred  the  contempt  of  foreign  courts 
and  of  all  judicious  men.*  Though  neither 
the  murderous  conspiracy  of  1605,  nor  this 
refusal  to  abjure  the  principles  on  which  it 
was  founded,  could  dispose  James  to  per- 
secution, or  even  render  the  Papist  so  ob- 
noxious in  his  eyes  as  the  Puritan,  yet  he 
was  long  averse  to  any  thing  like  a  general 
remission  of  the  penal  laws.  In  sixteen 
instances  after  this  time,  the  sanguinai-y 
enactments  of  his  predecessor  were  enfor- 
ced, but  only,  perhaps,  against  priests  who 
refused  the  oath  ;f  the  Catholics  enjoyed, 
on  the  whole,  somewhat  more  indulgence 
than  before  in  respect  to  tlie  private  exer- 
cise of  their  religion ;  at  least  enough  to 
offend  narrow-spirited  zealots,  and  furnish 
pretext  for  the  murmurs  of  a  discontented 
Parliament,  but  under  condition  of  paying 
compositions  for  recusancy ;  a  regular  an- 
nual source  of  revenue,  which,  though  ap- 
parently trifling  in  amount,  the  king  was 
not  likely  to  abandon,  even  if  his  notions  of 


*  Carte,  iii.,  782.  Collier,  690.  Butler's  Me- 
moirs of  Catholics.  Lingard,  vol.  ix.,  97.  Aikin, 
i.,  319.  It  is  observed  by  Collier,  ii.,  695,  and  in- 
deed by  the  king  himself  in  his  Apology  for  the 
Oath  of  Allegiance,  edit.  1619,  p.  46,  that  Bellar- 
mine plainly  confounds  the  oath  of  allegiance  with 
that  of  supremacy.  But  this  can  not  be  the  whole 
of  the  case ;  it  is  notorious  that  Bellarmine  pro- 
tested against  any  denial  of  the  pope's  deposing 
power. 

t  Lingard,  ix.,  215.  Drary,  executed  in  1607, 
was  one  of  the  twelve  priests  who,  in  1602,  had 
signed  a  declaration  of  the  queen's  right  to  the 
crown,  notwithstanding  her  excommunication. 
But,  though  he  evidently  wavered,  he  could  not 
be  induced  to  say  as  much  now  in  order  to  save 
his  life.— State  Trials,  ii.,  358. 


234 


C0X3TITUTI0XAL  HISTORY  OF  EXGL^VXD 


fCHAP.  vn. 


prerogative,  and  the  generally'  received  prej- 
udices of  that  age,  had  not  determined  him 
against  an  express  toleration.* 

In  the  course,  however,  of  that  impolitic 
negotiation,  which  exposed  him  to  all  eyes 
as  the  dupe  and  tool  of  the  court  of  Madrid, 
James  was  led  on  to  promise  concessions 
for  which  his  Protestant  subjects  were  ill 
prepared.  That  court  had  wrought  on  his 
feeble  mind  by  affected  coyness  about  the 
Infanta's  marriage,  with  two  private  aims : 
to  secure  his  neuti'ality  in  the  war  of  the 
Palatinate,  and  to  obtain  better  terms  for 
the  English  Catholics.  Fully  successful  in 
both  ends,  it  would  probably  have  at  length 
permitted  the  union  to  take  place,  had  not 
Buckingham's  rash  insolence  broken  off  the 
treaty ;  but  I  am  at  a  loss  to  perceive  the 
sincere  and  even  generous  conduct  which 
some  have  found  in  the  Spanish  council 
during  this  negotiation. f    The  king  acted 


*  LorJ  Bacon,  wise  in  all  tilings,  alw^ays  recom- 
mended mildness  tovrard  recusants.  In  a  letter 
to  ViUiers  iu  1C16,  he  advises  that  the  oath  of  sa- 
premacy  should  by  no  means  be  tendered  to  recu- 
sant magistrates  in  Ireland  ;  "  the  new  plantation 
of  Protestants,"  he  says,  "must  mate  the  other 
party  in  time.'' — Vol.  ii-,  p.  530.  This  has  not,  in- 
deed, proved  true,  yet  as  much,  perhaps,  for  want 
of  following  Bacon's  ad%dce  as  for  any  other  cause. 
He  wished  for  a  like  toleration  in  England ;  but 
the  king,  as  Buckingham  lets  him  know,  was  of  a 
quite  couti'ary  opinion ;  for.  "  though  he  would  not 
by  any  means  have  a  more  severe  course  held  than 
his  laws  appoint  in  that  case,  yet  there  are  many 
reasons  why  there  should  be  no  mitigation  above 
that  which  his  laws  have  exerted,  and  his  own 
conscience  telleth  hira  to  be  fit."  He  afterward 
professes  "to  account  it  a  baseness  in  a  prince  to 
ehow  such  a  desire  of  the  match  [this  was  in  1617] 
as  to  slack  any  thing  in  his  course  of  government, 
much  more  in  propagation  of  the  religion  he  pro- 
fesseth,  for  fear  of  giving  hinderance  to  the  match 
thereby." — Page  562.  What  a  contrast  to  the  be- 
havior of  tliis  same  king  six  years  afterward  !  The 
Commons  were  always  dissatisfied  with  lenity, 
and  complained  that  the  lands  of  recusants  were 
undervalued  ;  as  they  must  have  been,  if  the  king 
got  only  X6000  per  annum  by  the  compositions. — 
Debates  in  16-21,  vol.  i.,  p.  2-1,  91.  But  he  valued 
those  in  England  and  Ireland  at  £36,000.— Lin- 
g£ird,  215,  from  Hardwicke  Papers. 

t  The  absurd  and  highly  blamable  conduct  of 
Buckingham  has  created  a  prejudice  in  favor  of  the 
court  of  Madrid.  That  they  desired  the  marriage 
is  easy  to  be  believed  ;  but  that  they  would  have 
ever  sincerely  co-operated  for  the  restoration  of  the 
Palatinate,  or  even  withdrawn  the  Spanish  troops 
from  it,  is  neither  rendered  probable  by  the  gener- 
al policy  of  that  government,  nor  by  the  conduct  it 
pursued  in  the  negotiation.  Compare  Hardwicke 
State  Papers,  voL  i.    Cabala,  1,  et  post.  Howell's 


with  such  culpable  weakness  as  even  in 
him  excites  our  astonishment.  Bucking- 
ham, in  his  first  eagerness  for  the  marriage, 
on  arriving  in  Spain,  wrote  to  ask  if  the 
king  would  acknowledge  the  pope's  spirit- 
ual supremacy  as  the  surest  means  of  suc- 
cess. James  professed  to  be  shocked  at 
this,  but  offered  to  recognize  his  jurisdiction 
as  Patriarch  of  the  West,  to  whom  eccle- 
siastical appeals  might  ultimately  be  made ; 
a  concession  as  incompatible  with  the  code 
of  our  Protestant  laws  as  the  former.  Yet 
with  this  knowledge  of  his  favorite's  dispo- 
sition, he  gave  the  prince  and  him  a  WTitten 

Letters.  Clarendon  State  Papers,  vol.  i.,  ad  initi- 
um,  especially  p.  13. 

A  very  curious  paper  in  the  latter  collection,  p. 
14,  may  be  thought,  perhaps,  to  throw  a  light  on 
Buckingham's  projects,  and  account,  in  some  meas- 
ure, for  his  sudden  enmity  to  Spain.  During  his 
residence  at  Madrid  in  1623,  a  secretary  who  had 
been  dissatisfied  with  the  court  revealed  to  him  a 
pretended  secret  discovery  of  gold  mines  in  a  part 
of  America,  and  suggested  that  they  might  be  eas- 
ily possessed  by  any  association  that  could  com- 
mand seven  or  eight  hondred  men;  and  that  after 
having  made  such  a  settlement,  it  would  be  easy 
to  take  the  Spanish  flotilla  and  attempt  the  con- 
quest of  Jamaica  and  St.  Domingo.  Tliis  made  bo 
great  an  impression  on  the  mind  of  Buckingham, 
that,  long  afterward,  in  1628,  he  entered  into  a  con- 
tract with  Gustavus  Adolphus,  who  bound  himself 
to  defend  him  against  all  opposers  in  the  posses- 
sion of  these  mines,  as  an  absolute  prince  and  sov- 
ereign, on  condition  of  receiving  one  tenth  of  the 
profits ;  promising  especially  his  aid  against  any 
Puritans  who  might  attack  him  from  Barbadoes  or 
elsewhere,  and  to  furnish  him  with  four  thousand 
men  and  six  ships  of  war,  to  be  paid  out  of  the 
revenue  of  the  mines. 

This  is  a  very  strange  document,  if  genuine.  It 
seems  to  show  that  Buckingham,  aware  of  his  un- 
popularity in  England,  and  that  sooner  or  later  he 
must  fall,  and  led  away,  as  so  many  were,  by  the 
expectation  of  immense  wealth  in  America,  had 
contrived  this  arrangement,  which  was  probably  in- 
tended to  take  place  only  in  the  event  of  his  banish- 
ment from  England.  The  share  that  Gustavus  ap- 
pears to  have  taken  in  so  wild  a  plan  is  rather  ex- 
traordinary, and  may  expose  the  whole  to  some 
suspicion.  It  is  not  clear  how  this  came  among  the 
Clarendon  papers  ;  hot  the  endorsement  runs,  "  Pre- 
sented, and  the  design  attempted  and  in  some  meas- 
ure attained  by  Cromwell,  anno  1652.  '  I  should 
conjecture,  therefore,  that  some  spy  of  the  king" s 
procm-ed  the  copy  from  Cromwell's  papers. 

I  have  since  found  that  Harte  had  seen  a  sketch 
of  tliis  treaty,  but  he  does  not  tell  us  by  what 
means.— Hist.  Gust.  Adolph.,  i.,  130.  But  that 
prince,  in  1627,  laid  before  the  diet  of  Sweden  a 
plan  for  establishing  a  commerce  with  the  West 
Indies,  for  which  sums  of  money  were  subscribed 
—Id.,  143. 


Cha.  I.— 1625-29.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


235 


promise  to  penorm  whatever  they  should 
agree  upon  with  the  court  of  Madrid.*  On 
the  treaty  being  ahnost  concluded,  the  king, 
prince,  and  privy-council  swore  to  observe 
certain  stipulated  aiticles,  by  which  the  In- 
fanta was  not  only  to  have  the  exercise  of 
her  x'eligion,  but  the  education  of  her  chil- 
dren till  ten  years  of  age.  But  the  king 
was  also  sworn  to  private  articles :  that  no 
penal  laws  should  be  put  in  force  against 
the  Catholics ;  that  there  should  be  a  per- 
petual toleration  of  their  religion  in  private 
houses ;  that  he  and  his  son  would  use 
their  authority  to  make  Parliament  con- 
firm and  ratify  these  articles,  and  revoke  all 
laws  (as  it  is  with  sti-ange  latitude  express- 
ed) containing  any  thing  repugnant  to  the 
Roman  Catholic  religion ;  and  that  they 
would  not  consent  to  any  new  laws  against 
them.  The  Prince  of  Wales  separately 
engaged  to  procure  tlie  suspension  or  abro- 
gation of  tlie  penal  laws  within  three  years, 
and  to  lengthen  the  term  for  the  mother's 
education  of  their  children  from  ten  to 
twelve  years,  if  it  should  be  in  his  own 
power.  He  promised,  also,  to  listen  to 
Catholic  divines,  whenever  the  Infanta 
should  desire  it.f 

These  secret  assurances,  when  they 
were  whispered  in  England,  might  not  un- 
reasonably excite  suspicion  of  the  prince's 
wavering  in  his  religion,  which  he  conti'ived 
to  aggravate  by  an  act  as  imprudent  as  it 
was  reprehensible.  During  his  stay  at  Ma- 
drid, while  his  inclinations  were  still  bent 
on  concluding  the  marriage,  the  sole  appa- 
rent obstacle  being  the  pope's  delay  in  for- 
warding the  dispensation,  he  wrote  a  letter 
to  Gregory  XV.,  in  reply  to  one  received 
from  him,  in  language  evidently  intended  to 
give  an  impression  of  his  favorable  disposi- 
tions toward  the  Roman  faith.  The  whole 
tenor  of  his  subsequent  life  must  have  sat- 
isfied every  reasonable  inquirer  into  our 

*  Hardwicke  Papers,  p.  402,  411,  417.  The  very 
curioos  letters  in  this  collection  relative  to  the 
Spanish  match  are  the  vouchers  for  my  text.  It 
appears  by  one  of  Secretary  Conway's,  since  pub- 
lished, ElUs,  iii.,  154,  that  the  king  was  in  great 
distress  at  the  engagement  for  a  complete  immu- 
nitj-  from  penal  laws  for  the  Catholics,  entered  in- 
to by  the  prince  and  Buckingham ;  but,  on  full  de- 
liberation in  the  council,  it  was  agreed  that  he 
must  adhere  to  his  promise.  This  rash  promise 
was  the  cause  of  his  subsequent  prevarications. 

t  Hardwicke  Papers.  Rushworth. 


history  of  Charles's  real  attachment  to  the 
Anglican  Church ;  nor  could  he  have  had 
any  other  aim  than  to  facilitate  his  arrange- 
ments with  the  court  of  Rome  by  this  de- 
ception. It  would,  perhaps,  be  uncandid 
to  judge  severely  a  want  of  ingenuousness, 
which  youth,  love,  and  bad  counsels  may 
extenuate ;  yet  I  can  not  help  remarking 
that  the  letter  is  written  with  the  precau- 
tions of  a  veteran  in  dissimulation  ;  and, 
while  it  is  full  of  what  might  raise  expec- 
tation, contains  no  special  pledge  that  he 
could  be  called  on  to  redeem.  But  it  was 
rather  presumptuous  to  hope  that  he  could 
foil  the  subtlest  masters  of  artifice  with 
their  own  weapons.* 

James,  impatient  for  this  ill-omened  alli- 
ance, lost  no  time  in  fulfilling  his  private 
stipulations  with  Spain.  He  published  a 
general  pardon  of  all  penalties  already  in- 
curred for  recusancy.  It  was  designed  to 
follow  this  up  by  a  proclamation  prohibiting 
the  bishops,  judges,  and  other  magisti-ates 
to  execute  any  penal  statute  against  the 
Catholics.  But  the  Lord-keeper,  Bishop 
WiUiaras,  hesitated  at  so  unpopular  a  stretch 
of  power;!  and,  the  rupture  with  Spain 
ensuing  almost  immediately,  the  king,  with 
a  singular  defiance  of  all  honest  men's  opin- 
ions, though  the  secret  articles  of  the  late 

*  Hardwicke  Papers,  p.  452,  where  the  letter  is 
printed  in  Latin.  The  translation  in  Wilson,  Rush- 
worth,  and  Cabala,  p.  214,  is  not  by  any  means  ex- 
act, going  in  several  places  much  beyond  the  orig- 
inal. If  Hume  knew  nothing  but  the  translation, 
as  is  most  probable,  we  may  well  be  astonished  at 
his  way  of  dismissing  this  business ;  that  '■  the 
prince  having  received  a  very  civil  letter  from  the 
pope,  he  was  induced  to  return  a  verj'  civil  an- 
swer." Clarendon  saw  it  in  a  different  light. — 
Clar.  State  Papers,  ii.,  337. 

Urban  VIII.  had  succeeded  Gregory  XV.  before 
the  arrival  of  Charles's  letter.  He  answered  it,  of 
course,  in  a  stjle  of  approbation,  and  so  as  to  give 
the  utmost  meaning  to  the  prince's  compliments, 
expressing  his  satisfaction,  "cum  pontificem  Ro- 
manum  ex  ofiicii  genere  colere  princeps  Britannus 
inciperet,"  4cc. — Rushworth,  vol.  i.,  p.  98. 

It  is  said  by  Howell,  who  was  then  on  the  spot, 
that  the  prince  never  used  the  service  of  the  Church 
of  England  while  he  was  at  Madrid,  though  two 
chaplains,  church-plate,  &c.,  had  been  sent  over. — 
Howell's  Letters,  p.  140.  Bristol  and  Buckingham 
charged  each  other  with  advising  Charles  to  em- 
brace the  Romish  religion ;  and  he  himself,  in  a 
letter  to  Bristol,  Jan.  21,  1625-C,  imputes  this  to 
him  in  the  most  positive  tei-ms. — Cabala,  p.  17,  4to 
edit.  As  to  Buckingham's  willingness  to  see  this 
step  taken,  there  can,  I  presume,  be  little  doubt. 

t  Rushworth.    Cabala,  p.  19. 


236 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  VIL 


ti-eaty  had  become  generally  kno-vvn,  de- 
clared, in  his  first  speech  to  Parliament  in 
1624,  that  "  he  had  only  thought  good  some- 
times to  wink  and  connive  at  the  execution 
of  some  penal  laws,  and  not  to  go  on  so  rig- 
orously as  at  other  times,  but  not  to  dispense 
with  any,  or  to  forbid  or  alter  any  that  con- 
cern religion  :  he  never  permitted  or  yield- 
ed, he  never  did  think  it  with  his  heart,  nor 
spoke  it  with  his  mouth."* 

When  James  soon  after  this,  not  yet 
taught  by  expei-ience  to  avoid  a  Romish 
alliance,  demanded  the  hand  of  Henrietta 
Maria  for  his  son,  Richelieu  thought  him- 
self bound  by  policy  and  honor,  as  well  as 
religion,  to  obtain  the  same  or  gi-eater  ad- 
vantages for  the  English  Catholics  than  had 
been  promised  in  tlie  former  negotiation. 
Henrietta  was  to  have  the  education  of  her 
children  till  they  reached  the  age  of  twelve; 
thus  were  added  two  years,  at  a  time  of 
hfe  when  the  mind  becomes  susceptible  of 
lasting  impressions,  to  the  term  at  which, 
by  the  ti-eatj'  with  Spain,  the  mother's  su- 
perintendence was  to  cease. f  Yet  there 
is  the  strongest  reason  to  believe  that  this 
condition  was  merely  inserted  for  the  honor 
of  the  French  crown,  with  a  secret  under- 
standing that  it  should  never  be  executed,  f 
In  fact,  the  royal  children  were  placed  at  a 
veiy  early  age  under  Protestant  governors 
of  the  king's  appointment ;  nor  does  Hen- 
rietta appear  to  have  ever  insisted  on  her 
right.  That  James  and  Charles  should 
have  incuiTed  the  scandal  of  this  engage- 
ment, since  the  articles,  though  called  pi-i- 
vate,  must  be  expected  to  transpire,  without 
any  real  intentions  of  performing  it,  is  an 
additional  instance  of  that  aiTogant  contempt 
of  public  opinion  which  distinguished  the 
Stuart  family.  It  was  stipulated  in  the 
same  private  articles,  that  prisoners  on  the 
score  of  religion  should  be  set  at  liberty,  and 
that  none  should  be  molested  in  future. § 

*  Pari.  Hist.,  1375.  Both  Hoases,  however,  join- 
ed in  an  address  that  the  laws  against  recusants 
might  he  put  in  execution. — Id.,  1-108;  and  the 
Commons  returned  again  to  the  charge  afterward. 
— Idem,  1484.  t  Rushworth. 

t  See  a  series  of  letters  from  Lord  Kensington 
(hetter  known  afterward  as  Earl  of  Holland),  the 
king's  ambassador  at  Paris  for  this  marriage-treaty, 
in  the  appendix  to  Clarendon  State  Papers,  vol.  ii., 
p.  v.,  viii.,  ix. 

§  Hardwicke  Papers,  i.,  536.  Birch,  in  one  of 
those  volumes  given  by  liim  to  the  British  Museum 
(and  which  ought  to  be  published  according  to  his 


These  promises  were  irregularly  fulfilled, 
according  to  the  terms  on  which  Charles 


own  intention),  has  made  several  extracts  from  tJie 
MS.  dispatches  of  Tillieres,  the  French  ambassa- 
dor, which  illusti-ate  this  negotiation.  The  pope, 
it  seems,  stood  off  from  granting  the  dispensation, 
requiring  that  the  English  Catholic  clergy  should 
represent  to  him  their  approbation  of  the  marriage. 
He  was  informed  that  the  cardinal  had  obtained 
terms  much  more  favorable  for  the  Catholics  than 
in  the  Spanish  treaty.  In  short,  they  evidently 
fancied  themselves  to  have  gained  a  full  assurance 
of  toleration  ;  nor  could  the  match  have  been  effect- 
ed on  any  other  terms.  The  French  minister 
writes  to  Louis  XIII.  from  London,  October  6, 
1C24,  that  he  had  obtained  a  supersedeas  of  all 
prosecutions,  more  than  themselves  expected  or 
cotild  have  beUeved  possible  ;  "  en  somme,  un  acte 
tres  pnblique,  et  qui  fut  resolu  en  plein  conseil,  le 
dit  roi  I'ayant  assemble  expres  pour  cela  le  jour 
d'hier."  The  pope  agreed  to  appoint  a  bishop  for 
England,  nominated  by  the  King  of  France,  Oct, 
22.  The  oath  of  allegiance,  however,  was  a  stum- 
bling-block ;  the  king  could  not  change  it  by  his 
own  authority,  and  establish  another  in  Parliament, 
"oil  la  faction  des  Puritains  predomine,  de  sorte 
j  qu'ils  peuvent  ce  qu'ils  veulent."  Buckingham, 
j  however,  promised  "de  nous  faire  obtenir  I'assa- 
j  ranee  que  votre  majeste  desire  tant,  que  les  Cath- 
oliques  de  ce  pais  ne  seront  jamais  inquietes  pour 
le  raison  du  serment  de  fidelite,  du  quel  votre  maj- 
este a  si  souvent  oui  parler,"  Dec.  22.  He  speaks 
the  same  day  of  an  audience  he  had  of  King  James, 
who  promised  never  to  persecute  his  Catholic  sub- 
jects, nor  desire  of  them  any  oath  which  spoke  of 
the  pope's  spiritual  authority,  "  mais  seulement  un 
acte  de  la  reconnoissance  de  la  domination  tempo- 
relle  qui  Dieu  lui  a  donnee,  et  qu'ils  auroient  en 
consideration  de  votre  majeste,  et  de  la  confiance 
que  vous  prenez  en  sa  parole,  beaucoup  plus  de  lib- 
erte  qu'ils  n'auroient  eu  en  vertu  des  articles  du 
traite  d'Espagne."  The  French  advised  that  no 
Parliament  should  be  called  till  Henrietta  should 
come  over,  "  de  qui  la  presence  ser\-iroit  de  bride 
aux  Puritains."  It  is  not  wonderful,  with  all  this 
good-will  on  the  part  of  their  court,  that  the  Eng- 
lish Catholics  should  now  send  a  letter  to  request 
the  granring  of  the  dispensation.  A  few  days  af- 
ter, Dec.  26,  the  ambassador  announces  the  king's 
letter  to  the  archbishops,  directing  them  to  stop  the 
prosecution  of  Catholics,  the  enlargement  of  pris- 
oners on  the  score  of  religion,  and  the  written  prom- 
ises of  the  king  and  prince  to  let  the  Catholics  en- 
joy more  libertj'  than  they  would  have  had  by  vir- 
tue of  the  treaty  with  Spain.  On  the  credit  of  this, 
Louis  wrote  on  the  23d  of  January  to  request  six 
or  eight  ships  of  war  to  employ  against  Soubise, 
the  chief  of  the  Huguenots  ,  with  which,  as  is  well 
known,  Charles  complied  in  the  ensuing  summer. 

The  king's  letter  above  menrioned  does  not,  I  be- 
lieve, appeal';  but  his  ambassadors,  Carlisle  and 
Holland,  had  promised  in  his  name  that  he  would 
irive  a  written  promise,  on  the  word  and  honor  of 
a  king,  which  the  prince  and  secretarj-  of  state 
should  also  sign,  that  all  his  Roman  Catholic  sub- 


Cha.  I.— 1625-29.] 


raOM  HENRY  VII.  TO  GEORGE  II. 


237 


Stood  with  his  brother-in-law.  Sometimes 
general  orders  were  issued  to  suspend  all 
penal  laws  against  papists ;  again,  by  capri- 
cious change  of  policy,  all  officers  and  judg- 
es are  directed  to  proceed  iu  their  execu- 
tion ;  and  this  severity  gave  place,  in  its 
turn,  to  a  renewed  season  of  indulgence. 
If  these  alterations  were  not  very  satisfac- 
tory to  the  Catholics,  the  whole  scheme  of 
lenity  displeased  and  alarmed  the  Protes- 
tants. Tolerance,  in  any  extensive  sense, 
of  that  proscribed  worship,  was  equally  ab- 
horrent to  the  prelatist  and  the  Puritan ; 
though  one  would  have  winked  at  its  peace- 
able and  domestic  exei'cise,  which  the  other 
was  zealous  to  eradicate.  But,  had  they 
been  capable  of  more  liberal  reasoning  upon 
this  subject,  there  was  enough  to  justify 
their  indignation  at  this  attempt  to  sweep 
away  the  restrictive  code  established  by  so 


jects  should  enjoy  more  freedom  as  to  their  relig- 
ion than  they  could  have  had  hy  any  articles  agreed 
on  with  Spain  ;  not  heing  molested  in  their  persons 
or  property  for  their  profession  and  exercise  of  their 
religion,  provided  they  used  their  libei-ty  with  mod- 
eration, and  rendered  due  submission  to  the  king, 
who  would  not  force  them  to  any  oath  contrary  to 
their  religion.  This  was  signed  18th  Nov. — Hardw. 
Pap.,  546. 

Yet  after  this  concession  on  the  king's  part,  the 
French  cabinet  was  encouraged  by  it  to  ask  for 
"  a  direct  and  public  toleration,  not  by  connivance, 
promise,  ov  ecrit  secret,  but  by  a  public  notification 
to  all  the  Roman  Catholics,  and  that  of  all  his  maj- 
estj-'s  kingdoms  whatsoever,  confirmed  by  his 
majesty's  and  the  prince's  oath,  and  attested  by  a 
public  act,  whereof  a  copy  to  be  dehvered  to  the 
pope  or  his  minister,  and  the  same  to  bind  his  maj- 
esty and  the  prince's  successors  forever." — Id.,  p. 
552.  The  ambassadors  expressed  the  stiongest  in- 
dignation at  this  proposal,  on  which  the  French 
did  not  think  fit  to  insist.  In  all  this  wretched  ne- 
gotiation, James  was  as  much  the  dupe  as  he  had 
been  in  the  former,  expecting  that  France  would 
assist  in  the  recovery  of  the  Palatinate,  toward 
which,  in  spite  of  promises,  she  took  no  steps. 
Richelieu  b,id  said,  "Donnez-nous  des  pretrcs,  et 
nous  vous  donnerons  des  colonels." — Id.,  p.  538. 
Charles  could  hardly  be  expected  to  keep  his  en- 
•  gagements  as  to  the  Catholics,  when  he  found  him- 
self so  grossly  outwitted. 

It  was  during  this  marriage-treaty  of  1G24  that 
the  Archbishop  of  Embi-un,  as  he  relates  himself, 
in  the  course  of  several  conferences  with  the  king 
on  that  subject,  was  assured  by  him  that  he  was 
desirous  of  re-entering  the  fold  of  the  Church. — 
Wilson  in  Kennet,  p.  786,  note  by  Wellwood.  I 
have  not  seen  the  original  passage ;  but  Dr.  Lin- 
gard  puts  by  no  means  so  sti"ong  an  intei'pretation 
on  the  king's  words  as  related  by  the  ai-chbishop, 
vol.  ix.,  323. 


many  statutes,  and  so  long  deemed  essen- 
tial to  the  security  of  their  church,  by  an 
unconstitutional  exertion  of  the  prerogative, 
prompted  by  no  more  worthy  motive  than 
compliance  with  a  foreign  power,  and  tend- 
ing to  confirm  suspicions  of  the  liing's  wa- 
vering between  the  two  religions,  or  his 
indifference  to  either.  In  the  very  first 
months  of  his  reign,  and  while  that  Parlia- 
ment was  sitting  which  has  been  reproach- 
ed for  its  parsimony,  he  sent  a  fleet  to  assist 
the  French  king  in  blocking  up  the  port  of 
Rochelle  ;  and,  with  utter  disregard  of  the 
national  honor,  ordered  the  admiral,  who 
reported  that  the  sailors  would  not  fight 
against  Protestants,  to  sail  to  Dieppe,  and 
give  up  his  ships  into  the  possession  of 
France.*  His  subsequent  alliance  with  the 
Huguenot  party  in  consequence  merely  of 
Buckingham's  unwairantable  hostility  to 
France,  founded  on  the  most  exti'aordinary 
motives,  could  not  redeem,  in  the  eyes  of 
the  nation,  this  instance  of  lukewarmness, 
to  say  the  least,  in  the  general  cause  of  the 
Reformation.  Later  ages  have  had  means 
of  estimating  the  attachment  of  Charles  the 
First  to  Protestantism,  which  his  cotempo- 
raries  in  that  early  period  of  his  reign  did 
not  enjoy ;  and  this  has  led  some  to  treat 
the  apprehensions  of  Parliament  as  either 
insincere  or  preposterously  unjust.  But 
can  this  bo  fairly  pretended  by  any  one 
who  has  acquainted  himself  with  the  course 
of  proceedings  on  the  Spanish  marriage,  the 
whole  of  which  was  revealed  by  the  Earl 
of  Bristol  to  the  House  of  Lords  ?  Was 
there  nothing,  again,  to  excite  alann  in  the 
frequent  conversions  of  persons  of  high  rank 
to  popery,  in  the  more  dangerous  partiali- 
ties of  many  more,  in  the  evident  bias  of 
certain  distinguished  churchmen  to  tenets 
rejected  at  the  Reformation?  The  course 
pui-sued  with  respect  to  religious  matters 
after  the  dissolution  of  Parliament  in  1629, 
to  which  I  shall  presently  advert,  did  by  no 
means  show  the  misgivings  of  that  assem- 
bly to  have  been  ill  founded. 

It  was  neither,  however,  the  Arminian 
opinions  of  the  higher  clergy,  nor  u„„„nstitu- 
even  their  supposed  leaning  to-  '"nots 
ward  those  oi  Rome,  that  chiefly  by  the  High- 
rendered  them  obnoxious  to  the  thuich  party. 
Commons.    They  had  studiously  inculca- 

*  Kennet,  p.  vi.  Rushworth.  Lingard,  ix.,  353. 
Cabala,  p.  144. 


238 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  Vn. 


ted  that  resistance  to  the  commands  of  rul- 
ers was  in  every  conceivable  instance  a  hei- 
nous sin ;  a  tenet  so  evidently  subversive  of 
all  civil  liberty,  that  it  can  be  little  worth 
while  to  argue  about  right  and  privilege, 
wherever  it  has  obtained  a  real  hold  on  the 
understanding  and  conscience  of  a  nation. 
This  had  very  early  been  adopted  by  the 
Anglican  Reformers,  as  a  barrier  against 
the  disaffection  of  those  who  adhered  to 
the  ancient  rehgion,  and  in  order  to  exhibit 
their  own  loyalty  in  a  more  favorable  light. 
The  homily  against  wilful  disobedience  and 
rebellion  was  written  on  occasion  of  the  ris- 
ing of  the  northern  earls  in  1569,  and  is  full 
of  temporary  and  even  personal  allusions.* 
But  the  same  doctrine  is  enforced  in  others 
of  those  compositions,  which  enjoy  a  kind 
of  half  authority  in  the  English  Church :  it 
is  laid  down  in  the  canons  of  convocation  in 
1606  ;  it  is  very  frequent  in  the  writings  of 
English  divines,  those  especially  who  were 
much  about  the  court;  and  an  luilucky 
preacher  at  Oxford,  named  Knight,  about 

*  "  God  allowetli  (it  is  said  in  this  homily,  among 
other  passages  to  the  same  effect)  neither  the  dig- 
nity of  any  person,  nor  the  multitude  of  any  peo- 
ple, nor  the  weight  of  any  cause,  as  sufficient  for 
the  wliich  the  subjects  may  move  rebellion  against 
their  princes."  The  next  sentence  contains  a  bold 
position.  "Turn  over  and  read  the  histories  of  all 
nations,  look  over  the  chronicles  of  our  own  conn- 
trj-,  call  to  mind  so  many  rebellions  of  old  time,  and 
some  yet  fresh  in  memory  ;  ye  shall  not  find  that 
God  ever  prospered  any  rebellion  against  their  nat- 
ural and  lawful  prince,  but  contrariwise,  that  the 
rebels  were  overthrown  and  slain,  and  such  as 
Were  taken  prisoners  dreadfully  executed."  They 
illustrate  their  doctrine  by  the  most  preposterous 
examples  I  have  ever  seen  alleged  in  any  book: 
that  of  the  Virgin  Mary,  who,  "  being  of  the  royal 
blood  of  the  ancient  natural  kings  of  Jewrj',  obey- 
ed the  proclamation  of  Augustus  to  go  to  Bethle- 
hem. Tliis  obedience  of  this  most  noble  and  most 
virtuous  lady  to  a  foreign  and  pagan  prince  doth 
well  teach  us,  who  in  comparison  of  her  are  both 
base  and  vile,  what  ready  obedience  we  do  owe  to 
our  natui'al  and  gracious  sovereign." 

In  another  homily,  entitled  "  On  Obedience," 
the  duty  of  non-resistance,  even  in  defense  of  relig- 
ion, is  most  decidedly  maintained,  and  in  such  a 
manner  as  might  have  been  inconvenient  in  case 
of  a  popish  successor.  Nor  was  this  theorj-  very 
consistent  witli  the  aid  and  countenance  given  to 
the  United  Provinces.  Our  learned  churchmen, 
however,  cared  very  little  for  the  Dutch.  They 
were  more  puzzled  about  the  Maccabees.  But 
that  knot  is  cut  in  Bishop  Overall  s  Convocation 
Book,  by  denying  that  Antiochus  Epiphanes  had 
lawful  possession  of  Palestine ;  a  proposition  not 
easy  to  be  made  out. 


1622,  having  thrown  out  some  intimation 
that  subjects  oppressed  by  their  prince  on 
account  of  religion  might  defend  themselves 
by  arms,  that  university,  on  the  king's  high- 
ly resenting  such  heresy,  not  only  censured 
the  preacher  (who  had  the  audacity  to  ob- 
serve that  the  king  by  then  sending  aid  to 
the  French  Huguenots  of  Rochelle,  as  was 
rumored  to  be  designed,  had  sanctioned  his 
position),  but  pronounced  a  solemn  decree 
that  it  is  in  no  case  lawful  for  subjects  to 
make  use  of  force  against  their  princes,  nor 
to  appear  offensively  or  defensively  in  the 
field  against  them.  All  persons  promoted 
to  degrees  were  to  subscribe  this  article, 
and  to  take  an  oath  that  they  not  only  at 
present  detested  the  opposite  opinion,  but 
would  at  no  future  time  entertain  it.  A  lu- 
dicrous display  of  the  foUy  and  despotic 
spirit  of  learned  academies  !* 

Those,  however,  who  most  strennously 
denied  the  abstract  right  of  resistance  to  un- 
lawful commands,  were  by  no  means  obliged 
to  maintain  the  duty  of  yielding  them  an  ac- 
tive obedience.  In  the  case  of  religion,  it 
was  necessary  to  admit  that  God  was  rath- 
er to  be  obeyed  than  man.  Nor  had  it  been 
pretended,  except  by  the  most  servUe 
churchmen,  that  subjects  had  no  positive 
rights,  in  behalf  of  which  they  might  de- 
cline compliance  with  illegal  requisitions. 
This,  however,  was  openly  asserted  in  the 
reign  of  Charles.  Those  who  refused  the 
general  loan  of  1626  had  to  encounter  as- 
saults from  very  different  quarters,  and  were 
not  only  imprisoned,  but  preached  at.  Two 
sermons  by  Sibthorp  and  3Iainwaring  excit- 
ed particular  attention.  These  men,  eager 
for  preferment,  which  they  knew  tlie  read- 
iest method  to  attain,  taught  that  the  king 
might  take  the  subject's  money  at  his  pleas- 
ure, and  that  no  one  might  refuse  his  de- 
mand, on  penalty  of  damnation.  "  Parlia- 
ments," said  Mainwaring,  "  were  not  or- 
dained to  contribute  any  right  to  the  king, 
but  for  the  more  equal  imposing  and  more 
easy  exacting  of  that  which  imto  kings  doth 
appertain  by  natural  and  original  law  and 
justice,  as  their  proper  inheritance  annexed 

*  Collier,  72-1.  Neal,  495.  Wood's  History  of 
the  Universit>-  of  Oxford,  ii.,  341.  Knight  was 
sent  to  the  Gate-house  Prison,  where  he  remained 
two  years.  Laud  was  the  chief  cause  of  lliis  se- 
veritj-,  if  we  may  believe  Wood;  and  his  own  dia- 
ry" seems  to  confirm  this. 


Cha.  I.— 1625-29.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


239 


to  their  imperial  crowns  from  their  birth."* 
These  extravagances  of  rather  obscure  men 
would  have  passed  with  less  notice,  if  the 
government  had  not  given  them  the  most 
indecent  encouragement.  Abbot,  archbish- 
op of  Canterbuiy,  a  man  of  integrity,  but 
upon  that  account,  as  well  as  for  his  Calvin- 
istic  partialities,  long  since  obnoxious  to  the 
courtiers,  refused  to  license  Sibthorp's  ser- 
mon, alleging  some  unwarrantable  passages 
which  it  contained.  For  no  other  cause 
than  this,  he  was  sequestered  from  the  ex- 
ercise of  his  archiepiscopal  jurisdiction,  and 
confined  to  a  countiy-house  in  Kent.f  The 
House  of  Commons,  after  many  complaints 
of  those  ecclesiastics,  finally  proceeded 
against  Mainwaring  by  impeachment  at  the 
bar  of  the  Lords.  He  was  condemned  to 
pay  a  fine  of  c£1000,  to  be  suspended  for 
three  years  from  his  ministiy,  and  to  be  in- 
capable of  holding  any  ecclesiastical  dignity. 

•  Pari.  Hist.,  877,  395,  410,  Sec.  Kennet,  p.  30. 
Collier,  740,  743.  This  historian,  though  a  non  ju- 
ror, is  Englishman  enough  to  blame  the  doctrines 
of  Sibthorp  and  Mainwaring,  and,  consistently  with 
his  High-Churcli  principles,  is  displeased  at  the 
suspension  of  Abbot  by  the  king's  authority. 

t  State  Trials,  ii.,  1449.  A  few  years  before 
this,  Abbot  had  tlie  misfortune,  while  hunting  deer 
in  a  nobleman's  park,  to  shoot  one  of  the  keepers 
with  his  cross-bow.  Williams  and  Laud,  who  then 
acted  together,  with  some  others,  affected  scruples 
at  the  archbishop's  continuance  in  his  function,  on 
pretense  that,  by  some  old  canon,  he  had  become 
irregular  in  consequence  of  this  accidental  homi- 
cide ;  and  Spclman  disgraced  himself  by  writing  a 
treatise  in  support  of  this  doctrine.  James,  how- 
ever, liad  more  sense  than  the  antiquary,  and  less 
ill-nature  than  the  churclmien ;  and  tlie  civilians 
gave  no  countenance  to  Williams's  hypocritical 
scruples. — Racket's  Life  of  Williams,  p.  651.  Bi- 
ograph.  Britann.,  art.  Abbot.  Spelman's  Works, 
part  ii.,  p.  3.  Aikin's  James  I.,  ii.,  259.  Williams's 
real  object  was  to  succeed  the  archbishop  on  his 
degradation. 

It  may  be  remarked  that  Abbot,  though  a  very 
•worthy  man,  had  not  always  been  untainted  by  the 
air  of  a  court.  He  had  not  scrupled  grossly  to  flat- 
ter the  king  (see  his  article  in  Biograph.  Brit.,  and 
Aikin,  i.,  368) ;  and  tells  us  himself  that  he  introdu- 
ced 'Villiers  in  order  to  supplant  Somerset,  which, 
though  well  meant,  did  not  become  his  function. 
Even  in  the  delicate  business  of  promising  tolera- 
tion to  the  Catholics  by  the  secret  articles  of  the 
treaty  with  Spain,  he  gave  satisfaction  to  the  king 
(Hardwicke  Papers,  i.,  428),  which  could  only  be 
by  comi)liance.  This  shows  that  the  letter  in  Rush- 
worth,  ascribed  to  the  archbishop,  deprecating  all 
such  concessions,  is  not  genuine.  In  Cabala,  p.  13, 
it  is  printed  with  the  name  of  the  Archbishop  of 
York,  Mathews. 


Yet  the  king  almost  immediately  pardoned 
Mainwaring,  who  became  in  a  few  years  a 
bishop,  as  Sibthorp  was  promoted  to  an  in- 
ferior dignity.* 

There  seems,  on  the  whole,  to  be  very 
little  ground  for  censure  in  the  pro-  General 
ceedings  of  this  illustrious  Parlia-  f^n'^rks. 
ment.  I  admit  that,  if  we  believe  Charles 
the  First  to  have  been  a  gentle  and  benefi- 
cent monarch,  incapable  of  harboring  any 
design  against  the  liberties  of  his  people,  or 
those  who  stood  forward  in  defense  of  their 
privileges,  wise  in  the  choice  of  his  coun- 
selors, and  patient  in  listening  to  them,  the 
Commons  may  seem  to  have  carried  their 
opposition  to  an  unreasonable  length  ;  but  if 
he  had  shown  himself  possessed  with  such 
notions  of  his  own  prerogative,  no  matter 
how  derived,  as  could  bear  no  effective  con- 
trol fi'om  fixed  law  or  from  the  nation's  rep- 
resentatives ;  if  he  was  hasty  and  violent  in 
temper,  yet  stooping  to  low  arts  of  equivo- 
cation and  insincerity,  whatever  might  be 
his  estimable  qualities  in  other  respects, 
they  could  act,  in  the  main,  no  othenvise 
than  by  endeavoring  to  keep  him  in  the 
power  of  Parliament,  lest  his  power  should 
make  Parliament  but  a  name.  Eveiy  pop- 
ular assembly,  tinly  zealous  in  a  great  cause, 
will  display  more  heat  and  passion  than  cool- 
blooded  men  after  the  lapse  of  centuries 
may  wholly  approve. |    But  so  far  were 

*  The  bishops  were  many  of  them  mere  syco- 
phants of  Buckingham.  Besides  Laud,  Williams, 
and  Neyle,  one  Field,  bishop  of  Llandaff',  was  an 
abject  courtier.  See  a  letter  of  his  in  Cabala,  p. 
118,  4to  edit.  Mede  says  (27th  May,  162G),  "  I  am 
sorry  to  hear  they  (the  bishops)  are  so  habituated 
to  flattery  that  they  seem  not  to  know  of  any  oth- 
er duty  that  belongs  to  them." — See  Ellis's  Let- 
ters, iii.,  228,  for  the  account  Mede  gives  of  the 
manner  in  which  the  heads  of  houses  forced  the 
election  of  Buckingham  as  Chancellor  of  Carabridge, 
while  the  impeachment  was  pending  against  him. 
The  junior  masters  of  arts,  however,  made  a  good 
stand,  so  that  it  was  carried  against  the  Earl  of 
Berkshire  only  by  three  voices. 

t  Those  who  may  be  inclined  to  dissent  from  my 
text  will  perhaps  bow  to  their  favorite  Clarendon. 
He  says  that  in  the  first  three  Parliaments,  though 
there  were  "several  distempered  speeches  of  par- 
ticular persons,  not  fit  for  the  reverence  due  to  his 
majesty,"  yet  he  "does  not  know  any  fomied  act 
of  either  House  (for  neither  the  remonstrance  nor 
votes  of  the  last  day  were  such)  that  was  not  agree- 
able to  the  wisdom  and  justice  of  great  courts  upon 
those  extraordinary  occasions  ;  and  whoever  con- 
siders the  acts  of  power  and  injustice  in  the  inter- 
vals of  Parliament,  wiU  not  be  much  scandalized  at 


240 


COXSTITUTIOXAL  HISTOEY  OF  EXGIAND 


[Chap.  VIIL 


they  from  encroaching,  as  our  Tory  writ- 
ers pretend,  on  the  just  powers  of  a  limited 
monarch,  that  they  do  not  appear  to  have 
conceived,  they  at  least  never  hinted  at,  the 
securities  without  which  all  they  had  ob- 
tained or  attempted  Avould  become  ineffect- 
ual. No  one  member  of  that  House,  in  the 
utmost  warmth  of  debate,  is  recorded  to 
have  suggested  the  abolition  of  the  Court 
of  Star  Chamber,  or  any  provision  for  the 
periodical  meeting  of  Parhament.  Though 
such  remedies  for  the  gi'eatest  abuses  were 
in  reality  consonant  to  the  actual  unrepealed 
law  of  the  land,  yet,  as  they  implied,  in  the 
apprehension  of  the  generality,  a  retrench- 
ment of  the  king's  prerogative,  they  had  not 
yet  become  familiar  to  their  hopes.    In  as- 


serting the  illegality  of  arbitraiy  detention, 
of  compulsory  loans,  of  tonnage  and  pound- 
age levied  without  consent  of  Parliament, 
they  stood  In  defense  of  positive  rights  won 
by  their  fathers,  the  prescriptive  inheritance 
of  Enghshmen.  Twelve  years  more  of  re- 
peated aggi'essions  taught  the  Long  Parlia- 
ment what  a  few  sagacious  men  might  per- 
haps have  already  suspected,  that  tliey  must 
recover  more  of  their  ancient  Constitution 
from  oblivion ;  that  they  must  sustain  its 
partial  weakness  by  new  securities  ;  that, 
in  order  to  render  the  existence  of  monar- 
chy compatible  with  that  of  freedom,  they 
must  not  only  strip  it  of  all  it  had  usurped, 
but  of  something  that  was  its  own. 


CHAPTER  VIII. 


FROM  THE  DISSOLUTION  OF  CHARLES'S  THIRD  PARLIAMENT  TO  THE  MEET- 
ING OF  THE  LONG  PARLIAMENT. 


Declaration  of  the  King  after  the  Dissolution. — 
Prosecutions  of  Ehot  and  others  for  Conduct  in 
Parliament. — Of  Chambers  for  refusing  to  pay 
Customs. — Commendable  Beha%'ior  of  Judges  in 
Bome  Instances.  —  Means  adojited  to  raise  the 
Revenue. — Compositions  for  Knighthood. — For- 
est L  aws. — Monopolies. — Ship-money  —  E  xten- 
sion  of  it  to  inland  Places. — Hampden's  Refusal 
to  pay. — Arguments  on  the  Case. — Proclama- 
tions.—  Various  arbitrarj-  Proceedings.  —  Star 
Chamber  Jurisdiction.  —  Punishments  inflicted 
Ijy  it. — Cases  of  Bishop  Williams,  Prynne,  ic. 
— Laud,  his  Character. —  Lord  Strafford. —  Cor- 
respondence between  these  two. — Conduct  of 
Laud  in  the  Church  Prosecution  of  Puritans. — 
Favor  sliown  to  Catholics. — Tendency  to  their 
ReUgion. — Expectations  entertained  by  them— 
Mission  of  Panzani. — Intrigue  of  Bishop  Mon- 
tagu with  him.  —  ChUliugworth.  —  Hales.  — 
Character  of  Clarendon's  Writings. — Animad- 
versions on  his  Account  of  this  Period. — Scots 
Troubles,  and  Distress  of  the  Government. — 
Parliament  of  April,  1640.— Council  of  York. — 
Convocation  of  Long  Parliament. 

The  dissolution  of  a  Parliament  was  al- 
Declaration  ways  to  the  prerogative  what  the 
afte^^the"^  dispersion  of  clouds  is  to  the  sun. 
dissolution.  As  if  in  mockcry  of  the  transient 
obstraction,  it  shone  forth  as  splendid  and 
scorching  as  before.  Even  after  the  exer- 
tions of  the  most  popular  and  intrepid  House 
of  Commons  that  had  ever  met,  and  after 

the  warmth  and  vivacity  of  thoee  meetings." — 
Vol.  i.,  p.  8,  edit.  1826. 


the  most  important  statute  that  had  been 
passed  for  some  hundred  years,  Charles 
found  himself  in  an  instant  unshackled  by 
his  law  or  his  word — once  more  that  abso- 
lute king,  for  whom  his  sycophants  had 
preached  and  pleaded,  as  if  awakened  from 
a  fearful  dream  of  sounds  and  sights  that 
such  monarchs  hate  to  endure,  to  the  full 
enjoyment  of  an  unrestrained  prerogative. 
He  announced  his  intentions  of  government 
for  the  future  in  a  long  declaration  of  the 
causes  of  the  late  dissolution  of  Parliament, 
which,  though  not  without  the  usual  prom- 
ises to  maintain  the  laws  and  liberties  of 
the  people,  gave  evident  hints  that  his  own 
interpretation  of  them  must  be  humbly  ac- 
quiesced in.*  This  was  followed  up  by  a 
proclamation  that  he  "  should  account  it 
presumption  for  any  to  prescribe  a  time  to 
him  for  Parliament,  the  calling,  continuing, 
or  dissolving  of  which  was  always  in  his 
own  power ;  and  he  should  be  more  inclin- 
able to  meet  Parliament  again,  when  his 
people  should  see  more  clearly  into  his  in- 


•  "  It  hath  so  happened,"  he  says,  "  by  the  dis- 
obedient and  seditious  carriage  of  those  said  ill- 
affected  persons  of  the  House  of  Commons,  that  we 
and  our  regal  authority  and  commandment  have 
been  so  highly  contenmed  as  our  kingly  office  can 
not  bear,  nor  any  former  age  can  parallel.'' — Ry- 
mer,  xix.,  30. 


Cha.  1.-1629-40  ]  FBOM  HENRY  VII.  TO  GEOHGE  U. 


241 


tents  and  actions,  when  such  as  have  bred 
this  iuterruptiou  shall  have  received  their 
condign  punishment."  He  aftemard  de- 
clai'es  that  he  should  "  not  overcharge  his 
subjects  by  any  more  burdens,  but  satisfy 
himself  with  those  duties  that  were  receiv- 
ed by  his  father,  which  he  neither  could 
nor  would  dispense  with,  but  should  esteem 
them  unworthy  of  his  protection  who  should 
deny  them."* 

The  king  next  turned  his  mind,  according 
Prosecutions  ^0  his  owu  and  his  father's  prac- 
of  Eliot  and  tjce,  to  take  vengeance  on  those 

others  for  i     i     t  i  -      •      i  • 

conduct  in  who  had  been  most  active  in  their 
Parliament,  opposition  to  him.  A  few  days 
after  tlie  dissolution,  Sii-  John  Eliot,  HoUis, 
Selden,  Long,  Strode,  and  other  eminent 
members  of  the  Commons,  were  commit- 
ted, some  to  the  Tower,  some  to  the  King's 
Bench,  and  their  papers  seized.  Upon  su- 
ing for  tlieir  habeas  corpus,  a  return  was 
made  that  they  were  detained  for  notable 
contempts,  and  for  stirring  up  sedition,  al- 
leged in  a  warrant  under  tlie  king's  sign 
manual.  Their  counsel  argued  against  the 
sufficiency  of  this  return,  as  well  on  the 
principles  and  precedents  employed  in  the 
former  case  of  Sir  Thomas  Darnel  and  his 
colleagues,  as  on  the  late  explicit  confirma- 
tion of  them  in  the  Petition  of  Right.  The 
king's  counsel  endeavored,  by  evading  the 
authority  of  that  enactment,  to  set  up  anew 
that  alarming  pretense  to  a  power  of  arbi- 
trary imprisonment,  which  the  late  Parlia- 
ment had  meant  to  silence  forever.  "  A 
petition  in  Parliament,"  said  the  Attorney- 
general  Heath,  "  is  no  law,  yet  it  is  for  the 
honor  and  dignity  of  the  king  to  observe  it 
faithfully :  but  it  is  the  duty  of  the  people 
not  to  stretch  it  beyond  the  words  aud  in- 
tention of  the  king.  And  no  other  con- 
stniction  can  be  made  of  the  petition,  than 
that  it  is  a  confirmation  of  the  ancient  liber- 
ties and  rights  of  the  subjects  :  so  that  now 
the  case  remains  in  the  same  quality  and  de- 
gree as  it  was  before  the  petition."  Thus, 
by  dint  of  a  sophism  which  turned  into  rid- 
icule the  whole  proceedings  of  the  late  Par- 
liament, he  pretended  to  recite  afresh  the 
authorities  on  which  he  had  formerly  re- 
lied, in  order  to  prove  that  one  committed 
by  the  command  of  the  king  or  privy  coun- 
cil is  not  bailable.  The  judges,  timid  and 
servile,  yet  desirous  to  keep  some  measures 
*  Bymer,  xix.,  62. 

Q 


with  their  own  consciences,  or  looking  for- 
ward to  the  wrath  of  future  Parliaments, 
wrote  what  Whitelock  calls  "a humble  and 
stout  letter"  to  the  king,  that  they  were 
bound  to  bail  the  prisoners,  but  requested 
that  he  would  send  his  direction  to  do  so.* 
The  gentlemen  in  custody  were,  on  this  in- 
timation, removed  to  the  Tower;  and  the 
king,  in  a  letter  to  the  court,  refused  per- 
mission for  them  to  appear  on  the  day  when 
judgment  was  to  be  given.  Their  restraint 
was  thus  proti'acted  through  the  long  vaca- 
tion, toward  the  close  of  which,  Charles, 
sending  for  two  of  the  judges,  told  them  he 
was  content  the  prisoners  should  be  bailed, 
notwithstanding  their  obstinacy  in  refusing 
to  present  a  petition,  declaring  their  sorrow 
for  having  olfended  him.  In  the  ensuing 
Michaelmas  term,  accordingly,  they  were 
brought  before  the  court,  and  ordered  not 
only  to  find  bail  for  the  present  charge,  but 
sureties  for  their  good  behavior.  On  refus- 
ing to  comply  with  this  requisition,  they 
were  remanded  to  custody. 

The  attoi'ney-general,  dropping  the 
charge  against  the  rest,  exhibited  an  infor- 
mation against  Su"  John  Eliot  for  words  ut- 
tered in  the  House,  namely,  That  the  coun- 
cil and  judges  had  conspired  to  trample  un- 
der foot  the  liberties  of  the  subject;  and 
against  Mr.  Denzil  Hollis  and  Mr.  Valen- 
tine for  a  tumult  on  the  last  day  of  the  ses- 
sion, when  the  speaker  having  attempted 
to  adjourn  the  House  by  the  king's  com- 
mand, had  been  forcibly  held  down  in  the 
chair  by  some  of  the  members  while  a  re- 
monsti-ance  was  voted.  They  pleaded  to 
the  court's  jurisdiction,  because  their  offens- 
es were  supposed  to  be  committed  in  Par- 
liament, and  consequently  not  punishable 
in  any  other  place.  This  brought  forward 
the  great  question  of  privilege,  on  the  de- 
termination of  which  the  power  of  the 
House  of  Commons,  and,  consequently,  the 
character  of  the  English  Constitution,  seem- 
ed evidently  to  depend. 

*  Whitelock's  Memorials,  p.  14.  Whitelock's 
father  was  oue  of  the  judges  of  the  King's  Bench: 
his  son  takes  pains  to  excalpate  him  from  the 
charge  of  too  much  compliance,  and  succeeded  so 
veell  with  the  Long  Parliament,  that  when  they 
voted  Chief-justice  Hyde  and  Justice  Jones  guilty 
of  delay  in  not  bailing  these  gentlemen,  they  voted 
also  that  Croke  and  Whitelock  were  not  guilty  of 
it.  The  proceedings,  as  we  now  read  them,  hard- 
ly warrant  this  favorable  distinction. — Pari.  Hist., 
,  ii.,  869,  876. 


242 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  Vin. 


Freedom  of  speech,  being  applied  in  the 
nature  of  a  representative  assembly  called 
to  present  gi'ievances  and  suggest  reme- 
dies, could  not  stand  in  need  of  any  special 
law  or  privilege  to  support  it ;  but  it  was 
also  sanctioned  by  positive  authority.  The 
speaker  demands  it  at  the  beginning  of  ev- 
ery Parliament  among  the  standing  privi- 
leges of  the  House  ;  and  it  had  received  a 
sort  of  confirmation  from  the  Legislature 
by  an  act  passed  in  the  fourth  year  of  Hen- 
ry VHI.,  on  occasion  of  one  Strode,  who 
had  been  prosecuted  and  imprisoned  in  the 
Stannaiy  Court  for  proposing  in  Parliament 
some  regulations  for  the  tinners  in  Corn- 
wall ;  which  annuls  all  that  had  been  done, 
or  might  hereafter  be  done,  toward  Strode, 
for  any  matter  relating  to  the  Parliament, 
in  words  so  strong  as  to  form,  in  the  opin- 
ion of  many  lawyers,  a  general  enactment. 
The  judges,  however,  held,  on  the  question 
being  privately  sent  to  them  by  the  king, 
that  the  statute  concerning  Strode  was  a 
particular  act  of  Parliament,  extending  only 
to  him  and  those  who  had  joined  with  him 
to  prefer  a  bUl  to  the  Commons  concerning 
tinners;  but  that,  although  the  act  were 
private  and  extended  to  them  alone,  yet  it 
was  no  more  than  all  other  Parliament-men, 
by  privilege  of  the  House,  ought  to  have — 
namely,  freedom  of  speech  concerning  mat- 
ters there  debated.* 

It  appeared  by  a  constant  series  of  prece- 
dents, the  counsel  for  Eliot  and  his  friends 
argued,  that  the  liberties  and  privileges  of 
Parliament  could  only  be  determined  there- 
in, and  not  by  any  inferior  court;  that  the 
judges  had  often  declined  to  give  theu'  opin- 
ions on  such  subjects,  alleging  tliat  they 
were  beyond  theu-  jurisdiction ;  that  the 
words  imputed  to  Eliot  were  in  the  nature 
of  an  accusation  of  persons  in  power  which 
the  Commons  had  an  undoubted  right  to 
prefer ;  that  no  one  would  venture  to  com- 
plain of  gi-ievances  in  Parliament,  if  he 
should  be  subjected  to  punishment  at  the 
discretion  of  an  inferior  tribunal ;  that  what- 
ever instances  had  occurred  of  punishing 
the  alleged  offenses  of  members  after  a  dis- 

*  Strode's  act  is  printed  in  Hatsell's  Precedents, 
vol.  i.,  p.  80,  and  in  several  other  books,  as  well  as 
in  the  great  edition  of  Statutes  of  the  Realm.  It 
is  worded,  like  many  of  our  ancient  laws,  so  con- 
fasedly  as  to  make  its  application  uncertain ;  but 
it  rather  appears  to  me  not  to  have  been  intended 
as  a  public  act. 


solution  were  but  acts  of  power,  which  no 
attempt  had  hitherto  been  made  to  sanction  ; 
finally,  that  the  offenses  imputed  might  be 
punished  in  a  future  Parliament. 

The  attorney-general  replied  to  the  last 
point,  that  the  king  was  not  bound  to  wait 
for  another  Parliament ;  and,  moreover,  that 
the  House  of  Commons  was  not  a  court  of 
justice,  nor  had  any  power  to  proceed  crim- 
inally, except  by  imprisoning  its  own  mem- 
bers. He  admitted  that  the  judges  had 
sometimes  declined  to  give  their  judgment 
upon  matters  of  privilege,  but  contended  that 
such  cases  had  happened  during  the  session 
of  Parliament,  and  that  it  did  not  follow  but 
that  an  offense  committed  in  the  House 
might  be  questioned  after  a  dissolution. 
He  set  aside  the  application  of  Strode's  case 
as  being  a  special  act  of  Parliament,  and 
dwelt  on  the  precedent  of  an  information 
preferred  in  the  reign  of  Mary  against  cer- 
tain members  for  absenting  themselves  from 
their  duty  in  Parliament,  w-hich,  though  it 
never  came  to  a  conclusion,  was  not  disput- 
ed on  the  ground  of  right. 

The  court  were  unanimous  in  holding 
that  they  had  jurisdiction,  though  the  alleg- 
ed offenses  were  committed  in  Parliament, 
and  that  the  defendants  were  bound  to  an- 
swer. The  privileges  of  Parliament  did 
not  extend,  one  of  them  said,  to  breaches 
of  the  peace,  which  was  the  present  case ; 
and  all  offenses  against  the  cro^vn,  said  an- 
other, were  punishable  in  the  Court  of 
King's  Bench.  On  the  parties  refusing  to 
put  in  any  other  plea,  judgment  was  given 
that  they  should  be  imprisoned  during  the 
king's  pleasure,  and  not  released  without 
giving  surety  for  good  behavior,  and  making 
submission ;  that  Eliot,  as  the  greatest  of- 
fender and  ringleader,  should  be  fined  in 
d£2000,  Hollis  and  Valentine  to  a  smaller 
amount.* 

Eliot,  the  most  distinguished  leader  of  the 
popular  party,  died  in  the  Tower  without 
yielding  to  the  submission  required.  In  the 
Long  Pai'liament,  the  Commons  came  to 
several  votes  on  the  illegality  of  all  these 
proceedings,  both  as  to  the  delay  in  grant- 
ing theii'  habeas  corpus,  and  the  overruling 
their  plea  to  the  jurisdiction  of  the  King's 
Bench.  But  the  subject  was  revived  again 
in  a  more  distant  and  more  tranquil  period. 
In  the  year  1667,  the  Commons  resolved 

*  State  Trials,  vol.  iii.,  from  Rushworth. 


Cha.  L— 1629-40.] 


FROM  HENRY  V: 


11.  TO  GEORGE  II. 


243 


that  the  act  of  4  Hen.  VIII.  concerning 
Sti-ode  was  a  general  law,  "  extending  to 
indemnify  all  and  every  the  members  of 
both  Houses  of  Parliament,  in  all  Parlia- 
ments, for  and  touching  any  bills,  speaking, 
reasoning,  or  declaring  of  any  matter  or  mat- 
tei-s  in  and  concerning  the  Parliament  to  be 
communed  and  ti-eated  of,  and  is  a  declara- 
tory law  of  the  ancient  and  necessary  rights 
and  privileges  of  Parliament."  They  re- 
solved, also,  that  the  judgment  given  5  Car. 
1.  against  Sir  John  Eliot,  Denzil  Hollis, 
and  Benjamin  Valentine  is  an  illegal  judg- 
ment, and  against  the  freedom  and  privilege 
of  Parliament.  To  these  resolutions  the 
Lords  gave  their  concurrence ;  and  Hollis, 
then  become  a  peer,  having  bi'ought  the 
record  of  the  King's  Bench  by  writ  of  error 
before  them,  they  solemnly  reversed  the 
judgment.*  An  important  decision  with 
respect  to  our  Constitutional  law,  which  has 
established  beyond  controversy  the  gi'eat 
privilege  of  unlimited  freedom  of  speech  in 
Parliament;  unlimited,  I  mean,  by  any  au- 
thority except  that  by  which  the  House  it- 
self ought  always  to  restrain  indecent  and 
disorderly  language  in  its  members.  It 
does  not,  however,  appear  to  be  a  necessary 
consequence  from  the  reversal  of  this  judg- 
ment, that  no  actions  committed  in  the  House 
by  any  of  its  members  are  punishable  in  a 
court  of  law.  The  argument  in  behalf  of 
Hollis  and  Valentine  goes,  indeed,  to  this 
length ;  but  it  was  admitted  in  the  debate 
on  the  subject  in  1667,  that  their  plea  to  the 
jurisdiction  of  the  King's  Bench  could  not 
have  been  supported  as  to  the  imputed  riot 
in  detaining  the  speaker  in  the  chair,  though 
the  judgment  was  en'oneous  in  extending 
to  words  spoken  in  Parliament;  and  it  is 
obvious  that  the  House  could  inflict  no  ad- 
equate punishment  in  the  possible  case  of 
treason  or  felony  committed  within  its  walls, 
nor,  if  its  power  of  imprisonment  be  limited 
to  the  session,  in  that  of  many  smaller  of- 
fenses. 

The  customs  on  imported  merchandises 
Prosecution  ^^^re  now  rigorously  enforced,  f 
of  Chambers  gut  the  late  discussions  in  Par- 

for  refusing  . 

to  pay  cus-  liament,  and  the  growmg  disposi- 
tion  to  probe  the  legality  of  all 
acts  of  tile  crown,  rendered  the  merchants 
more  discontented  than  ever.  Richard 
Chambers,  having  refused  to  pay  any  fur- 
*  Hatsell,  I).  212,  242.         t  Rushworth. 


ther  duty  for  a  bale  of  silks  than  might  be 
required  by  law,  was  summoned  before 
the  privy-council.  In  the  presence  of  that 
board  he  was  provoked  to  exclaim,  that  in 
no  part  of  the  world,  not  even  in  Turkey, 
were  the  merchants  so  screwed  and  \vi-ung 
as  in  England.  For  these  hasty  words  an 
informatiom  was  preferred  against  him  in 
the  Star  Chamber  ;  and  the  court,  being  of 
opinion  that  the  words  were  intended  to 
make  the  people  believe  that  his  majesty's 
happy  government  might  be  termed  Turk- 
ish tyranny,  manifested  their  laudable  ab- 
horrence of  such  tyi-anny  by  sentencing 
him  to  pay  a  fine  of  t£2000,  and  to  make  a 
humble  submission.  Chambers,  a  sturdy 
Puritan,  absolutely  refused  to  subscribe  the 
form  of  submission  tendei'ed  to  him,  and 
was,  of  course,  committed  to  prison ;  but 
the  Court  of  King's  Bench  admitted  him  to 
bail  on  a  habeas  corpus,  for  which,  as  White- 
lock  tells  us,  they  were  reprimanded  by  the 
council.* 

There  were  several  instances,  besides 
this  just  mentioned,  wherein  the  commenda- 
judges  manifested  a  more  cour-  bie  behavior 

...         .  ,  ,     of juUees  in 

ageous  spn-it  than  they  were  able  some  mstan- 
constantly  to  preserve ;  and  the 
odium  under  which  their  memoiy  labors  for 
a  servile  compliance  with  the  court,  espe- 
cially in  the  case  of  ship-money,  renders  it 
but  an  act  of  justice  to  record  those  testi- 
monies they  occasionally  gave  of  a  nobler 
sense  of  duty.  They  unanimously  declar- 
ed, when  Charles  expressed  a  desire  that 
Felton,  the  assassin  of  the  Duke  of  Buck- 
ingham, might  be  put  to  the  rack  in  order 
to  make  him  discover  his  accomplices,  that 
the  law  of  England  did  not  allow  the  use 
of  torture.  This  is  a  remarkable  proof  that, 
amid  all  the  arbiti'ary  principles  and  arbiti-a- 
ry  measures  of  the  time,  a  ti'uer  sense  of 
the  inviolability  of  law  had  begun  to  prevail, 
and  that  the  free  Constitution  of  England 
was  working  off  the  impurities  with  which 
violence  had  stained  it ;  for  though  it  be 
most  certain  that  the  law  never  recognized 
the  use  of  torture,  there  had  been  many 
instances  of  its  employment,  and  even  with- 

*  Rushworth.  State  Trials,  iii.,  373.  White- 
lock,  p.  12.  Chambers  applied  several  times  for 
redress  to  the  Long  Parliament  on  account  of  tliis 
and  subsequent  injuries,  but  seems  to  have  been 
cruelly  neglected,  vphile  tJiey  were  voting  large 
sums  to  those  wrho  had  suffered  much  less,  and  he 
died  in  poveity. 


244 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  Vm. 


in  a  few  years.*  In  this  public  assertion 
of  its  illegality,  the  judges  conferred  an  em- 
inent service  on  their  country,  and  doubt- 
less saved  the  king  and  his  council  much 
additional  guUt  and  infamy  which  they 
would  have  incurred  in  the  course  of  their 
career.  They  declared  about  the  same 
time,  on  a  reference  to  them  concerning 
certain  disrespectful  words  alleged  to  have 
been  spoken  by  one  Pine  against  the  king, 
that  no  words  can  of  themselves  amount  to 
treason  within  the  statute  of  Edward  Ill.f 
They  resolved,  some  years  after,  that 
Prynne's,  Burton's,  and  Bastwick's  libels 
against  the  bishops  were  no  treason.J  In 
their  old  controversy  with  the  ecclesiastical 
jurisdiction,  they  were  inflexibly  tenacious. 
An  action  having  been  brought  against  some 
members  of  the  High  Commission  Court 

*  I  have  remarked  in  former  passages  that  the 
rack  was  much  employed,  especially  against  Ro- 
man Catholics,  under  Elizabeth.  Those  accused 
of  the  gunpowder  conspiracy  were  also  severely 
tortured ;  and  others  in  the  reign  of  James.  Coke, 
in  the  Countess  of  Shrewsbur}  's  case,  1612,  State 
Trials,  ii.,  1773,  inentions  it  as  a  privilege  of  the 
nobiUty,  that  "their  bodies  are  not  subject  to  tor- 
ture in  causi  criminis  laesse  majestatis."'  Yet,  in 
his  third  Institute,  p.  35,  he  says,  the  rack  in  the 
Tower  was  brought  in  by  the  Duke  of  Exeter, 
under  Henry  VI.,  and  is,  therefore,  familiarly  call- 
ed the  Duke  of  Exeter's  daughter ;  and  after  quot- 
ing Fortescue  to  prove  the  practice  illegal,  con- 
cludes, "  There  is  no  law  to  warrant  tortures  in 
this  land,  nor  can  they  be  justified  by  any  pre- 
scription, being  so  lately  brought  in."  Bacon  ob- 
serves, in  a  tract  written  in  1603,  "In  the  highest 
cases  of  treason,  torture  is  used  for  discovery,  and 
not  for  evidence,"  i.,  393.  See,  also,  Miss  Aikin's 
Memoirs  of  James  I.,  ii.,  158. 

[This  subject  has  been  learnedly  elucidated  by 
Mr.  Jardine,  in  his  "  Reading  on  the  Use  of  Torture 
in  the  Criminal  Law  of  England,"  1837.  The  his- 
torical facts  are  very  well  brought  together  in  this 
essay ;  but  I  can  not  agree  with  this  highly  intel- 
ligent author  in  considering  the  use  of  torture  as 
having  been  "lawful  as  an  act  of  prerogative, 
though  not  so  by  the  common  and  statute  law,''  p. 
59.  The  whole  tenor  of  my  own  views  of  the  Con- 
stitution, as  developed  in  this  and  in  former  works, 
forbids  my  acquiescence  in  a  theory,  which  does, 
as  it  seems  to  me,  go  the  fall  length  of  justift-ing, 
in  a  legal  sense,  the  violent  proceedings  of  the 
crown  under  all  the  Plantagenets,  Tudors,  and 
Stuarts.  1845.] 

t  State  Trials,  iiL,  359.  This  was  a  very  im- 
portant determination,  and  put  an  end  to  such  ty- 
rannical persecution  of  Roman  Catholics  for  bare 
expressions  of  opinion  as  had  been  used  under 
Elizabeth  and  James. 

}  Rushworth  (abridged),  ii.,  253.  Strafford's  Let- 
ters, ii.,  74. 


for  false  imprisonment,  the  king,  on  Laud's 
remonstrance,  sent  a  message  to  desire  that 
the  suit  might  not  proceed  tiD  he  should 
have  conversed  with  the  j  udges.  The  chief 
justice  made  answer  that  tliey  were  bound 
by  their  oaths  not  to  delay  the  course  of 
justice ;  and  after  a  contention  before  the 
privy-council,  the  commissioners  were  com- 
pelled to  plead.* 

Such  instances  of  firmness  serve  to  ex- 
tenuate those  unhappy  deficiencies  which 
are  more  notorious  in  history.  Had  the 
judges  been  as  numerous  and  independent 
as  those  of  the  Parliament  of  Paris,  they 
would  not  probably  have  been  wanting  in 
equal  vigor ;  but,  holding  their  offices  at  the 
king's  will,  and  exposed  to  the  displeeisure 
of  his  councU  whenever  they  opposed  any 
check  to  the  prerogative,  they  held  a  vacil- 
lating course,  which  made  them  obnoxious 
to  those  who  sought  for  despotic  power, 
while  it  forfeited  the  esteem  of  the  nation. 

In  pm-suance  of  the  system  adopted  by 
Charles's  ministers,  they  had  re-  „ 

Means  adopt- 

course  to  exactions,  some  odious  ej  to  raise 
and  obsolete,  some  of  very  ques- 
tionable  legalitj-,  and  others  clear-  fox  knight- 
ly aga'mst  law.  Of  the  former 
class  may  be  reckoned  the  compositions  for 
not  taking  the  order  of  knighthood.  The 
early  kings  of  England,  Heniy  III.  and 
Edward  I.,  very  Uttle  in  the  spirit  of  chiv- 
alry, had  introduced  the  practice  of  sum- 
moning their  military  tenants,  holding  d£20 
per  smnum,  to  receive  knighthood  at  their 
hands.  Those  who  declined  this  honor 
were  permitted  to  redeem  their  absence 
by  a  moderate  fine.f  Elizabeth  once  in 
her  reign,  and  James,  had  availed  them- 
selves of  this  ancient  right;  but  the  change 
*  Whitelock,  16.  Kennet,  63.  We  find  in  Ry- 
mer,  xix.,  279,  a  commission,  dated  May  6,  1631, 
enabling  the  privy -council  at  all  times  to  come, 
"  to  hear  and  examine  all  differences  which  shall 
arise  betwixt  any  of  our  courts  of  justice,  especial- 
ly between  the  civil  and  ecclesiastical  jurisdic- 
tions,'' &c.  This  was,  in  all  probability,  contrived 
by  Laud,  or  some  of  those  who  did  not  favor  the 
common  law.  But  I  do  not  find  that  any  thing  was 
done  tmder  this  commission,  which,  I  need  hardly 
say,  was  as  illegal  as  most  of  the  king's  other  pro- 
ceedings. 

t  2  Inst.,  593.  The  regulations  contained  in  the 
statute  de  militibus,  1  Ed.  II.,  though  apparently 
a  temporary  law,  seem  to  have  been  considered  by 
Coke  as  permanently  binding.  Yet  in  this  stattite 
the  estate  requiring  knighthood,  or  a  ccmpositioa 
for  it,  is  fixed  at  £20  per  annum. 


Cha.  I.— 1629-40.] 


FEOM  HENKY  VII.  TO  GEORGE  II. 


245 


Forest  la^¥S. 


in  the  value  of  money  rendered  it  far  more 
oppressive  than  formerly,  though  limited  to 
tlie  holders  of  £40  per  annum  in  military 
tenure.  Commissioners  were  now  appoint- 
ed to  compound  with  those  who  had  neg- 
lected some  years  before  to  obey  the  procla- 
mation, summoning  them  to  receive  knight- 
hood at  the  king's  coronation.*  In  partic- 
ular instances,  very  severe  fines  are  record- 
ed to  have  been  imposed  upon  defaulters, 
probably  from  some  political  resentment. f 
Still  gi'eater  dissatisfaction  attended  the 
king's  attempt  to  revive  the  an- 
cient laws  of  the  forests  ;  those 
laws  of  which,  in  elder  times,  so  many  com- 
plaints had  been  heard,  exacting  money  by 
means  of  pretensions  which  long  disuse  had 
rendered  dubious,  and  showing  himself  to 
those  who  lived  on  the  borders  of  those  do- 
mains in  the  hateful  light  of  a  litigious  and 
encroaching  neighbor.  The  Earl  of  Hol- 
land held  a  court  almost  every  year,  as 
chief-justice  in  eyre,  for  the  recoveiy  of 
the  king's  forestal  rights,  which  made  gi'eat 
havoc  with  private  property.  No  prescrip- 
tion could  be  pleaded  against  the  king's  title, 
which  was  to  be  found,  indeed,  by  the  in- 
quest of  a  jury,  but  under  the  direction  of 
a  veiy  partial  tribunal.  The  royal  forests 
in  Essex  were  so  enlarged  that  they  were 
hyperbolically  said  to  include  the  whole 
county. t  The  Earl  of  Southampton  was 
neai-ly  ruined  by  a  decision  that  stripped 
him  of  his  estate  near  the  New  Forest. § 
The  boundaries  of  Rockingham  forest  were 
increased  from  six  miles  to  sixty,  and  enor- 
mous fines  imposed  on  the  ti-espassers,  Lord 
Salisbuiy  being  amerced  in  =£20,000,  Lord 
Westmoreland  in  d€19,000,  Sir  Christopher 


*  According  to  a  speech  of  Mr.  Hyde  in  the 
Long  ParUament,  not  only  military  tenants,  hut  all 
others,  and  even  lessees  and  merchants,  were 
summoned  before  the  council  on  this  account. — 
Pari.  Hist.,  ii.,  948.  This  was  evidently  illegal, 
especially  if  the  Statutum  de  militibus  was  in 
force,  which  by  express  words  exempts  them.  See 
Mr.  Brodie's  History  of  British  Empire,  ii.,  282. 
There  is  still  some  difficulty  about  this,  whicli  I 
can  not  clear  up,  nor  comprehend  why  the  title,  if 
it  could  be  had  for  asking,  was  so  continually  de- 
clined, unless  it  were,  as  Mr.  B.  hints,  that  the  fees 
of  knighthood  greatly  exceeded  the  composition. 
Perhaps  none  who  could  not  prove  their  gentility 
were  admitted  to  the  honor,  though  the  fine  was 
extorted  from  them.  It  is  said  that  the  king  got 
jElOO.OOO  by  this  resource. — Macaulay,  ii.,  107. 

t  Rushworth  Abr.,  ii.,  102. 

t  Strafford's  Letters,  i.,  335.     §  Id.,  p.  463,  467. 


Monopolies. 


Hatton  in  6612,000.*  It  is  probable  that 
much  of  these  was  remitted. 

A  greater  profit  was  derived  from  a  still 
more  pernicious  and  indefensible 
measure,  the  establishment  of  a 
cliartered  company,  with  exclusive  privile- 
ges of  making  soap.  The  recent  statute 
against  monopolies  seemed  to  secure  the 
public  against  this  species  of  gi-ievance. 
Noy,  however,  the  attorney-general,  a  law- 
yer of  uncommon  eminence,  and  lately  a 
strenuous  asserter  of  popular  rights  in  the 
House  of  Commons,  devised  this  project, 
by  which  he  probably  meant  to  evade  the 
letter  of  the  law,  since  every  manufacturer 
was  permitted  to  become  a  member  of  the 
company.  They  agreed  to  pay  eight 
pounds  for  eveiy  ton  of  soap  made,  as  well 
as  d€10,000  for  their  charter.  For  this 
they  were  empowered  to  appoint  search- 
ers, and  exercise  a  sort  of  inquisition  over 
the  trade.  Those  dealers  who  resisted 
their  interference  were  severely  fined,  on 
informations  in  the  Star  Chamber.  Some 
years  afterward,  however,  the  king  receiv- 
ed money  from  a  new  corporation  of  soap- 
makers,  and  revoked  the  patent  of  the  for- 
mer.f 

This  precedent  was  followed  in  the  erec- 
tion of  a  similar  company  of  starch-makers, 
and  in  a  great  variety  of  other  grants,  which 
may  be  traced  in  Rymer's  Foedera,  and  in 
the  proceedings  of  the  Long  Parhament; 
till  monopolies,  in  ti'ansgi-ession  or  evasion 
of  the  late  statute,  became  as  common  as 
they  had  been  under  .Tames  or  Elizabeth. 
The  king,  by  a  proclamation  at  York  in 
1639,  beginning  to  feel  the  necessity  of  di- 
minishing the  public  odium,  revoked  all 
these  grants. t  He  annulled,  at  the  same 
time,  a  number  of  commissions  that  had 
been  issued  in  order  to  obtain  money  by 
compounding  with  offenders  against  penal 


*  Strafford's  Letters,  ii.,  117.  It  is  well  known 
that  Charles  made  Richmond  Park  by  means  of  de- 
priving many  proprietors  not  only  of  common  rights, 
but  of  their  freehold  lands. — Clarendon,  i.,  176.  It 
is  not  clear  that  they  were  ever  compensated  ;  but 
I  think  this  probable,  as  the  matter  excited  no 
great  clamor  in  the  Long  Parliament.  And  there 
is  in  Rymer,  xx.,  585,  a  commission  to  Cottington, 
and  others,  directing  them  to  compound  with  the 
owners  of  lands  within  the  intended  inclosures. 
Dec.  12,  1634. 

t  Kennet,  64.  Rushworth  Abrldg.,  ii.,  132. 
Strafford's  Letters,  i.,  446.  Rymer,  xix.,  323. 
Laud's  Diary,  51.  t  Rymer,  xx.,  340. 


246 


CONSTITUTIONAL  HISTORY  OF  EXGLAXD 


[Chap.  VIIL 


statutes.  The  catalogue  of  these,  as  well 
as  of  the  monopolies,  is  very  curious.  The 
former  were,  in  truth,  rather  vexatious  than 
illegal,  and  sustained  by  precedents  in  what 
were  called  the  golden  ages  of  Elizabeth 
and  James,  though  at  all  times  the  source 
of  gi-eat  and  just  discontent. 

The  name  of  Koy  has  acquired  an  unhap- 
py celebrity  by  a  far  more  famous 

Ship-money,  f*^        .  ,  .  ,  .  , 

mveution,  which  promised  to  re- 
alize the  most  sanguine  liopes  that  could 
have  been  formed  of  carrying  on  the  govern- 
ment for  an  indefinite  length  of  time  with- 
out the  assistance  of  Parliament.  Shaking 
off  the  dust  of  ages  from  parchments  in  the 
Tower,  this  man  of  venal  diligence  and  pros- 
tituted learning  discovered  that  the  sea-ports 
and  even  maritime  counties  had  in  early 
times  been  sometimes  called  upon  to  fur- 
nish ships  for  the  public  service ;  nay,  there 
were  instances  of  a  similar  demand  upon 
some  inland  places.  Noy  himself  died  al- 
most immediately  afterward.  Notwith- 
standing his  apostasy  from  the  public  cause, 
it  is  just  to  remark  that  we  have  no  right 
to  impute  to  him  the  more  extensive  and 
more  unprecedented  scheme  of  ship-money 
as  a  general  tax,  M  hich  was  aftenvard  car- 
ried into  execution ;  but  it  sprang  by  natu- 
ral consequence  from  the  former  measure, 
according  to  the  invariable  course  of  en- 
croachment, which  those  who  have  once 
bent  the  laws  to  then-  will  ever  continue  to 
pursue.  The  first  writ  issued  from  the 
council  in  October,  1634.  It  was  directed 
to  the  magistiates  of  London  and  other 
sea-port  towns.  Reciting  the  depredations 
lately  committed  by  pirates,  and  slightly  ad- 
verting to  the  dangers  imminent  in  a  season 
of  general  war  on  the  Continent,  it  enjoins 
them  to  provide  a  certain  number  of  ships 
of  war  of  a  prescribed  tonnage  and  equi- 
page, empowering  them  also  to  assess  all 
the  inhabitants  for  a  contribution  toward 
this  armament  according  to  then'  substance. 
The  citizens  of  London  humbly  remonsti'a- 
ted  that  they  conceived  themselves  exempt, 
by  sundiy  charters  and  acts  of  Parliament, 
from  bearing  such  a  chai-ge.  But  the  coun- 
cil peremptorily  compelled  their  submission ; 
and  the  murmurs  of  inferior  towns  were 
still  more  easily  suppressed.  This  is  said 
to  have  cost  the  city  of  London  c£35,000.* 

*  Kennet,  74,  Tj.  Strafford  Letters,  i.,  358. 
Some  pettj-  sea-ports  in  Sussex  refused  to  pay 


There  wanted  not  reasons  in  the  cabinet 
of  Charles  for  placing  the  navy  at  this  time 
on  a  respectable  footing.  Algerine  pirates 
had  become  bold  enough  to  infest  tlie  Chan- 
nel ;  and  what  was  of  more  serious  import- 
ance, the  Dutch  were  rapidly  acquiring  a 
maritime  preponderance,  which  excited  a 
natural  jealousy,  both  for  our  commerce, 
and  the  honor  of  our  flag.  This  commer- 
cial rivahy  conspu'ed  with  a  far  more  pow- 
ei-ful  motive  at  court,  an  abhoiTence  of  ev- 
eiy  thing  Repubhcan  or  Calvinistic,  to  make 
our  course  of  poUcy  toward  Holland  not 
only  unfriendly,  but  insidious  and  inimical 
in  the  highest  degree.  A  secret  treaty  is 
extant,  signed  in  1631,  by  which  Charles 
engaged  to  assist  the  King  of  Spain  in  the 
conquest  of  that  great  Protestant  common- 
wealth, retaining  the  isles  of  Zealand  as  the 
price  of  his  co-operation.* 

Yet,  with  preposterous  inconsistency  as 
well  as  ill  faith,  the  two  characteristics  of 
all  this  unhappy  prince's  foreign  policy,  we 
find  him  in  the  next  year  canying  on  a 
negotiation  with  a  disaffected  pai-ty  in  the 
Netherlands,  in  some  strange  expectation 
of  obtaining  the  sovereignty  on  their  sepa- 
ration from  Spain.  Lord  Cottington  be- 
trayed this  intrigue  (of  which  one  whom 
we  should  little  expect  to  find  in  these  paths 
of  conspiracy,  Peter  Paul  Rubens,  was  the 
negotiator)  to  the  court  of  Madrid,  f  It 
was,  in  fact,  an  unpardonable  and  unpro- 
voked breach  of  faith  on  the  king's  part, 
and  accounts  for  the  indifference,  to  say  no 
more,  which  that  government  always  show- 
ed to  his  misfortunes.  Charles,  whose  do- 
mestic position  rendered  a  pacific  system  ab- 
solutelj'  necessaiy,  busied  himself,  far  more 
than  common  history  has  recorded,  with 
the  affairs  of  Europe.  He  was  engaged  in 
a  tedious  and  unavailing  negotiation  with 
both  branches  of  the  house  of  Austria,  espe- 
cially with  the  court  of  Madrid,  for  the  res- 
ship-moDey ;  but,  finding  that  the  sheriff  had  au- 
thoritj"  to  distrain  on  them,  submitted.  The  depu- 
tj' lieutenants  of  Devonshire  wrote  to  the  council 
in  behalf  of  some  towns  a  few  miles  distant  from 
the  sea,  that  they  might  be  spared  from  this  tax. 
sajTng  it  was  a  noveltj'.  But  they  were  summon- 
ed to  Loudon  for  this,  and  received  a  reprimand 
for  their  interference. — Id.,  372. 

*  Clarendon  State  Papers,  i.,  49,  and  ii.,  Append., 
p.  xxvi. 

t  This  curious  intrigue,  before  unknown,  I  be- 
lieve, to  historj-,  was  brought  to  light  by  Lord 
Hardwicke. — State  Papers,  ii.,  54. 


Cha.  I.— 1629-40.] 


FEOM  HENRY  VII.  TO  GEORGE  II. 


247 


titution  of  the  Palatinate.  He  took  a  much 
greater  interest  than  his  father  had  done  in 
the  fortunes  of  his  sister  and  her  familj'; 
but,  liive  his  father,  he  fell  into  the  delusion 
tliat  the  cabinet  of  Madrid,  for  whom  he 
could  effect  but  little,  or  that  of  Vienna,  to 
whom  he  could  offer  nothing,  would  so  far 
realize  the  cheap  professions  of  friendship 
they  were  always  making,  as  to  sacrifice  a 
conquest  wherein  the  preponderance  of  the 
house  of  Austi-ia  and  the  Catholic  religion 
in  Germany  was  so  deeply  concerned. 
They  drew  him  on,  accordingly,  through 
the  labyrinths  of  diplomacy,  assisted,  no 
doubt,  by  that  ])arty  in  his  council,  composed 
at  this  time  of  Lord  Cottington,  Secretary 
Windebank,  and  some  others,  who  had  al- 
ways favored  Spanish  connections.*  It  ap- 
peal's that  the  fleet  mised  in  1634  was  in- 
tended, according  to  an  agreement  entered 
into  with  Spain,  to  restrain  the  Dutch  from 
fishing  in  the  English  seas ;  nay,  even,  as  op- 
portunities sliould  ai-ise,  to  co-operate  hos- 
tilely  with  that  of  Spain. f  After  above  two 
years  spent  in  these  negotiations,  Charles 
■discovered  that  the  house  of  Austria  were 
deceiving  him ;  and,  still  keeping  in  view 
the  restoration  of  his  nephew  to  the  elect- 
oral dignity  and  territoi'ies,  entered  into 
stricter  relations  with  France  ;  a  policy 
which  might  be  deemed  congenial  to  the 

.  *  See  Clareudou  State  Papers,  i.,  430,  for  a  proof 
of  tbe  mamier  in  which,  througli  the  Hispano-popish 
party  in  the  cabinet,  the  house  of  Austria  lioped  to 
dupe  and  dishonor  Charles. 

t  Clarendon  State  Papers,  i.,  109,  et  post.  Five 
English  ships  out  of  twenty  were  to  be  at  tlie 
charge  of  the  King  of  Spain.  Besides  this  agree- 
ment, according  to  which  the  English  were  only 
bound  to  protect  the  ships  of  Spain  within  their 
own  seas,  or  the  limits  claimed  as  such,  there  were 
certain  secret  articles,  signed  Dec.  16,  1634,  by  one 
of  which  Charles  bound  himself,  in  case  the  Dutch 
should  not  make  restitution  of  some  Spanish  ves- 
sels taken  by  them  within  the  English  seas,  to  sat- 
isfy the  court  of  Spain  himself  out  of  ships  and 
goods  belonging  to  the  Dutch ;  and  by  the  second, 
to  give  secret  instructions  to  the  commanders  of 
his  ships,  that  when  those  of  Spain  and  Fliuiders 
should  encounter  their  enemies  at  open  sea,  far 
from  his  coasts  and  limits,  they  should  assist  thera 
if  over-matched,  and  should  give  tbe  like  help  to 
tlie  prizes  which  they  should  meet,  taken  by  the 
Dutch,  that  they  might  be  freed  and  set  at  liberty ; 
taking  some  convenient  pretext  to  justify  it,  that 
tlie  Hollanders  might  not  hold  it  an  act  cf  hostility. 
Hut  no  part  of  this  treaty  wag  to  take  effect  till 
the  imperial  ban  upon  the  Elector  Palatine  should 
be  removed. — Id.,  213. 


queen's  inclinations,  and  recommended  by 
her  party  in  his  council,  the  Earl  of  Holland, 
Sir  Henry  Vane,  and  perhaps  by  the  Earls 
of  Northumberland  and  Arundel.  In  the 
first  impulse  of  indignation  at  the  duplicity 
of  Spain,  the  king  yielded  so  far  to  their 
counsels  as  to  meditate  a  declaration  of  war 
against  that  power.*  But  his  own  cooler 
judgment,  or  the  sti-ong  dissuasions  of  Straf- 
ford, who  saw  that  external  peace  was  an 
indispensable  condition  for  the  security  of 
despotism,!  ^  ^nd  to  so  imprudent  a 
project,  though  he  preserved,  to  the  very 
meeting  of  the  Long  Parliament,  an  inti- 
mate connection  with  France,  and  even 
continued  to  carry  on  negotiations,  tedious 
and  insincere,  for  an  ofteusive  alliance. t 
Yet  he  stiU  made,  from  time  to  time,  simi- 
lar overtures  to  Spain  ;§  and  this  unsteadi- 
ness, or  rather  duplicitj',  which  could  not 
easily  bo  concealed  from  two  cabinets  emi- 
nent for  their  secret  intelligence,  rendered 
both  of  them  his  enemies,  and  the  instru- 
ments, as  there  is  much  reason  to  believe, 
of  some  of  his  greatest  calamities.  It  is 
well  known  that  the  Scots  Covenanters 
were  in  close  connection  with  Richelieu ; 
and  many  circumstances  render  it  probable 
that  the  Irish  rebellion  was  countenanced 
and  instigated  both  by  him  and  by  Spain. 
This  desire  of  being  at  least  prepared  for 

*  Clarendon  State  Papers,  i.,  721,  761. 

t  Sti'afford  Papers,  ii.,  5-2,  53,  60,  66.  Richelieu 
sent  D'Estrades  to  Loudon  in  1637,  according  to 
Pere  Orleans,  to  secure  tho  neutrality  of  England 
in  case  of  his  attacking  the  maritime  towns  of 
Flanders  conjointly  with  the  Dutch.  But  the  am- 
bassador was  received  haughtily,  and  the  neutral- 
ity refused ;  which  put  an  end  to  the  scheme,  and 
so  iiTitated  Richelieu,  that  he  sent  a  pi'iest  named 
Chamberlain  to  Edinburgh  the  same  year,  in  order 
to  foment  troubles  in  Scotland. — Rcvol.  d'Anglet., 
iii.,  42.  This  is  confirmed  by  D'Estrades  himself 
See  note  in  Sidney  Papers,  ii.,  447,  and  Harris's 
Life  of  Charles,  189  ;  also,  Lingard,  x.,  69.  The 
connection  of  the  Scotch  leaders  with  Richelieu  iii 
1639  is  matter  of  notorious  history.  It  has  lately 
been  confirmed  and  illustrated  by  an  important 
note  in  Mazure,  Hist,  de  la  Revolution  en  1688,  ii., 
402.  It  appears  by  the  above-mentioned  note  of 
M.  Mazure,  that  the  celebrated  letter  of  the  Scotch 
lords,  addressed  "Au  Roy,"  was  really  sent,  and 
is  extant.  There  seems  reason  to  think  that  Hen- 
rietta joined  the  Austrian  faction  about  1639,  her 
mother  being  then  in  England,  and  very  hostile  to 
Richelieu.  This  is  in  some  degree  corroborated 
by  a  passage  in  a  letter  of  Lady  Carlisle. — Sidney 
Papers,  ii.,  614.  {  Sidney  Papers,  ii.,  613. 

§  Clarendon  State  Papers,  ii.,  10. 


248 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIIL 


Extension  of  War,  as  well  as  the  general  sys- 
r,''n'v",''„tn''"  tem  of  stretching  the  preroga- 

money  to  m-  o  r  & 

laud  places,  tive  beyond  all  limits,  suggested 
an  extension  of  the  former  writs  from  the 
sea-ports  to  the  whole  kingdom.  Finch, 
chief  justice  of  the  Common  Pleas,  has  the 
honor  of  this  improvement  on  Noy's  scheme. 
He  was  a  man  of  little  learning  or  respect- 
ability, a  servile  tool  of  the  despotic  cabal, 
who,  as  speaker  of  the  last  Parliament,  had, 
in  obedience  to  a  command  from  the  king 
to  adjourn,  refused  to  put  the  question  upon 
a  remonstrance  moved  in  the  House.  By 
the  new  writs  for  ship-money,  properly  so 
denominated,  since  the  former  had  only  de- 
manded the  actual  equipment  of  vessels,  for 
which  inland  counties  were  of  course  oblig- 
ed to  compound,  the  sheriffs  were  directed 
to  assess  eveiy  land-holder  and  other  in- 
habitant according  to  their  judgment  of  his 
means,  and  to  enforce  the  payment  by  dis- 
tress.* 

This  extraordinaiy  demand  startled  even 
those  who  had  hitheito  sided  with  the  court. 
Some  symptoms  of  opposition  were  shown 
in  different  places,  and  actions  were  brought 
against  those  who  had  collected  the  money. 
But  the  greater  part  yielded  to  an  over- 
bearing power,  exercised  with  such  rigor 
that  no  one  in  this  king's  reign,  who  had 
ventured  on  the  humblest  remonstrance 
against  any  illegal  act,  had  escaped  without 
punishment.  Indolent  and  improvident  men 
satisfied  themselves  that  the  imposition  was 
not  very  heavy,  and  might  not  be  repeated. 
Some  were  content  to  hope  that  their  con- 
tribution, however  unduly  exacted,  would 
be  faithfullj'  applied  to  public  ends.  Oth- 
ers were  overborne  by  the  authority  of  pre- 
tended precedents,  and  could  not  yet  be- 
lieve that  the  sworn  judges  of  the  law  would 
pervert  it  to  its  own  destruction.  The  min- 
isters prudently  resolved  to  secure,  not  the 
law,  but  its  interpreters  on  their  side.  The 
judges  of  assize  were  directed  to  inculcate 
on  their  circuits  the  necessaiy  obligation  of 
forwarding  the  king's  sei-vice  by  complying 
with  his  writ.  But,  as  the  measure  grew 
more  obnoxious,  and  strong  doubts  of  its  le- 
gality came  more  to  prevail,  it  was  thought 
expedient  to  publish  an  exti-a-judicial  opin- 
ion of  the  twelve  judges,  taken  at  the  king's 
special  command,  according  to  the  perni-  i 
cious  custom  of  that  age.    They  gave  it  as 

*  See  the  instructions  in  Rushworth,  ii.,  214.  | 


their  unanimous  opinion,  that  "  when  the 
good  and  safety  of  the  kingdom  in  general 
is  concerned,  and  the  whole  kingdom  in 
danger,  his  majesty  might,  by  writ  under 
the  great  seal,  command  all  his  subjects,  at 
their  charge,  to  provide  and  furnish  such 
number  of  ships,  with  men,  munition,  and 
victuals,  and  for  such  time  as  he  should 
think  fit,  for  the  defense  and  safeguard  of 
the  kingdom ;  and  that  by  law  he  might 
compel  tlie  doing  thereof,  in  case  of  refusal 
or  refractoriness ;  and  that  he  was  the  sole 
judge  both  of  the  danger,  and  when  and 
how  the  same  was  to  be  prevented  and 
avoided." 

This  premature  declaration  of  the  judges, 
which  was  publicly  read  by  the  Lord-keep- 
er Coventiy  in  the  Star  Chamber,  did  not 
prevent  a  few  intrepid  persons  from  bring- 
ing the  question  solemnly  before  them,  that 
the  liberties  of  their  country  might  at  least 
not  perish  silentlj',  nor  those  who  had  be- 
ti-ayed  tliem  avoid  the  responsibility  of  a 
pubUc  avowal  of  their  shame.  The  first 
that  resisted  was  the  gallant  Richard  Cham- 
bers, who  brought  an  action  against  the 
lord-mayor  for  irapi-isoning  him  on  account 
of  his  refusal  to  pay  his  assessment  on  the 
former  writ.  The  magisti-ate  pleaded  the 
writ  as  a  special  justification ;  when  Berk- 
ley, one  of  the  judges  of  the  King's  Bencli, 
declared  that  there  was  a  rule  of  law  and 
a  rule  of  government ;  that  many  things 
which  could  not  be  done  by  the  first  rule, 
might  be  done  by  the  other,  and  would  not 
suffer  counsel  to  argue  against  the  lawful- 
ness of  ship-money.*  The  next  were  Lord 
Say  and  Mr.  Hampden,  both  of  whom  ap- 
pealed to  the  justice  of  their  countiy ;  but 
the  famous  decision  which  has  made  the  lat- 
ter so  illusti'ious,  put  an  end  to  all  attempts 
at  obtaining  redress  by  course  of  law. 

Hampden,  it  seems  hardly  necessary  to 
mention,  was  a  gentleman  of  good  „     ,  , 

'  _  o         Hampden  fl 

estate  in  Buckinghamshire,  whose  refusal  to 
assessment  to  the  contribution  for 
ship-money  demanded  from   his  county 
amounted  only  to  twenty  shillings. f  The 

*  Rushworth,  253.  The  same  judge  declared 
aflenvard,  in  a  cliarje  to  the  grand  jury  of  York, 
that  ship-money  was  an  inseparable  flower  of  the 
crown,  glancing  at  Hutton  and  Croke  for  their  op- 
position to  it— Id.,  267. 

t  As  it  is  impossible  to  reconcile  the  trifling 
amount  of  this  demand  with  Hampden's  known 
estate,  the  tax  being  probably  not  much  less  than 


Cha.  I.— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


249 


cause,  though  properly  belonging  to  the 
Court  of  Exchequer,  was  heard,  on  account 
of  its  magnitude,  before  all  the  judges  in  the 
Exchequer  Chamber.*  The  precise  ques- 
tion, so  far  as  related  to  Mr.  Hampden,  was. 
Whether  the  king  had  a  right,  on  his  own 
allegation  of  public  danger,  to  require  an  in- 
land county  to  furnish  ships,  or  a  prescribed 
sum  of  money  by  way  of  commutation,  for 
the  defense  of  the  kingdom  ?  It  was  ar- 
gued by  St.  John  and  Holborne  in  behalf 
of  Hampden,  and  by  the  Solicitor-general 
Littleton  and  tlie  Attoraey-general  Banks 
for  the  crown,  t 

The  law  and  Constitution  of  England,  the 
Arguments  former  maintained,  had  provided 
on  the  case,  various  Ways  for  the  public  safe- 
ty and  protection  against  enemies.  First, 
there  were  the  military  tenures,  which 
bound  great  part  of  the  kingdom  to  a  stipu- 
lated service  at  the  charge  of  the  possess- 
ors. The  cinque  ports  also,  and  several 
other  towns,  some  of  them  not  maritime, 
held  by  a  tenure  analogous  to  this,  and  were 
bound  to  furnish  a  quota  of  ships  or  men,  as 
the  condition  of  their  possessions  and  privi- 
leges. These,  for  the  most  part,  are  re- 
corded in  Domesday  Book,  though  now,  in 
general,  grown  obsolete.  Next  to  this  spe- 
cific seiTice,  our  Constitution  had  bestowed 
on  the  sovereign  his  certain  revenues,  the 
fruits  of  tenure,  the  profits  of  his  various 

sixpence  in  the  pound,  it  has  been  conjectured  that 
his  propertj'  was  purposely  rated  low.  But  it  is 
hard  to  perceive  any  motive  for  this  indulgence ; 
End  it  seems  more  likely  tliat  a  nominal  sum  was 
fixed  upon,  in  order  to  try  the  question ;  or  that  it 
was  only  assessed  on  a  part  of  his  estate. 

[Lord  Nugent  has  published  a  fac  simile  of  the 
return  made  by  the  assessors  of  ship-money  for  the 
parish  of  Great  Kimble,  wherein  Mr.  Hampden  is 
set  down  for  31s.  6d.,  and  is  returned,  with  many 
others,  as  refusing  to  pay. — Memoirs  of  Hampden 
and  his  Times,  vol.  i.,  p.  230.  But  the  suit  in  the 
Exchequer  was  not  on  account  of  this  demand,  but 
for  20s.,  as  stated  in  the  text,  due  for  property  sit- 
uate in  the  parish  of  Stoke  Mandevile.  This  ex- 
plains the  smallness  of  the  sum  immediately  in 
question ;  it  was  assessed  only  on  a  portion  of 
Hampden's  lands.  1845.] 

*  There  seems  to  have  been  something  unusual, 
if  not  irregular,  in  this  part  of  the  proceeding.  The 
barons  of  the  Exchequer  called  in  the  other  judges, 
not  only  by  way  of  advice,  but  direction,  as  the 
chief  baron  declares. — State  Trials,  1203.  And  a 
proof  of  this  is,  that  the  Court  of  Exchequer  being 
equally  divided,  no  judgment  could  have  been  giv- 
en by  the  barons  alone. 

t  State  Trials,  iii.,  826-1252. 


minor  prerogatives ;  whatever,  in  short,  he 
held  in  right  of  his  crown,  was  applicable, 
so  far  as  it  could  be  extended,  to  the  public 
use.  It  bestowed  on  him,  moreover,  and 
perhaps  with  more  special  application  to 
maritime  purposes,  the  customs  on  impor- 
tation of  merchandise.  These,  indeed,  had. 
been  recently  augmented  far  beyond  ancient 
usage.  "  For  these  modern  impositions," 
says  St.  John,  "  of  the  legality  thereof  1 
intend  not  to  speak  ;  for  in  case  his  majesty 
may  impose  tipon  merchandise  what  him- 
self pleaseth,  there  wiD  be  less  cause  to  tax 
the  inland  counties  ;  and  in  case  he  can  not 
do  it,  it  will  be  strongly  presumed  that  he 
can  much  less  tax  them." 

But  £is  the  ordinaiy  revenues  might  prove 
quite  unequal  to  great  exigencies,  the  Con- 
stitution has  provided  another  means,  as 
ample  and  sufficient  as  it  is  lawful  and  reg- 
ular. Parliamentary  supply.  To  this  the 
kings  of  England  have  in  all  times  had  re- 
course ;  j'et  princes  are  not  apt  to  ask  as  a 
concession  what  they  might  demand  of 
right.  The  frequent  loans  and  benevolen- 
ces which  they  have  required,  though  not 
always  defensible  by  law,  are  additional 
proofs  that  they  possessed  no  general  right 
of  taxation.  To  borrow  on  promise  of  re- 
payment— to  solicit,  as  it  were,  alms  from 
their  subjects,  is  not  the  practice  of  sover- 
eigns whose  prerogatives  entitle  them  to 
i  exact  money.  Those  loans  had  sometimes 
j  been  repaid,  expressly  to  discharge  the 
king's  conscience.  And  a  very  arbitrary 
prince,  Henry  VIII.,  had  obtained  acts  of 
Parliament  to  release  him  from  the  obliga- 
tion of  repayment. 

These  merely  probable  reasonings  pre- 
pare the  way  for  that  conclusive  and  irre- 
sistible argument  that  was  foimded  on  stat- 
ute law.  Passing  slightly  over  the  charter 
of  the  Conqueror,  that  his  subjects  shall  hold 
their  lands  free  from  all  unjust  tallage,  and 
the  clause  in  John's  Magna  Charta,  that  no 
aid  or  scutage  should  be  assessed  but  by 
consent  of  the  gi-eat  council  (a  provision  not 
repeated  in  that  of  Henry  HI.),  the  advo- 
cates of  Hampden  relied  on  the  2.5  Edw.  I., 
commonly  called  the  Confirmatio  Charta- 
rum,  which  forever  abrogated  all  taxation 
without  consent  of  Parliament ;  and  this 
statute  itself,  they  endeavored  to  prove,  was 
gi-ounded  on  requisitions  veiy  like  the  pres- 
ent, for  the  custody  of  the  sea,  which  Ed- 


250 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  VIIL 


ward  had  issued  the  year  before.  Hence 
it  was  evident  that  the  saving  contained  in 
that  act  for  the  accustomed  aids  and  prizes 
could  not  possibly  be  intended,  as  the  oppo- 
site counsel  would  suggest,  to  preserve  such 
exactions  as  ship-money,  but  related  to  the 
established  feudal  aids,  and  to  the  ancient 
customs  on  merchandise.  They  dwelt  less, 
however  (probably  through  fear  of  having 
this  exception  turned  against  them),  on  this 
important  statute  than  on  one  of  more  ce- 
lebrity, but  of  veiy  equivocal  genuineness, 
denominated  De  Tallagio  non  Concedendo, 
which  is  nearly  in  the  same  words  as  the 
Confinnatio  Chartarum,  with  the  omission 
of  the  above-mentioned  saying.  More  than 
one  law,  enacted  under  Edward  III.,  reas- 
serts the  necessity  of  Parliamentary  con- 
sent to  taxation.  It  was,  indeed,  the  sub- 
ject of  frequeut  I'emonsti'ance  in  that  reign, 
and  the  king  often  infringed  this  right.  But 
the  perseverance  of  the  Commons  was  suc- 
cessful, and  ultimately  rendered  the  prac- 
tice conformable  to  the  law.  In  the  second 
year  of  Richard  II.,  the  realm  being  in  im- 
minent danger  of  invasion,  the  privy-council 
convoked  an  assembly  of  peers  and  other 
gi-eat  men,  probably  with  a  view  to  avoid 
the  summoning  of  a  Parliament.  This  as- 
sembly lent  their  own  money,  but  declared 
that  they  could  not  provide  a  remedy  with- 
out charging  tlie  Commons,  which  could 
not  be  done  out  of  Parliament,  advising  that 
one  should  be  speedily  summoned.  This 
precedent  was  the  more  important,  as  it 
tended  to  obviate  that  argument  from  peril 
and  necessity,  on  which  the  defenders  of 
ship-money  were  wont  to  rely.  But  they 
met  that  specious  plea  more  directly. 
They  admitted  that  a  paramount  overruling 
necessity  silences  the  voice  of  law ;  that  in 
actual  invasion,  or  its  immediate  pi-ospect, 
tlie  rights  of  private  men  must  yield  to  the 
safety  of  the  whole  ;  that  not  only  the  sov- 
ereign, but  each  man  in  respect  of  his  neigh- 
bor, might  do  many  things  absolute!}"  illegal 
at  other  seasons ;  and  this  served  to  distin- 
guish the  present  case  from  some  strong 
acts  of  prerogative  exerted  by  Elizabeth  in 
1588,  when  the  liberties  and  religion  of  the 
people  were  in  the  most  apparent  jeopardy. 
But  here  there  was  no  ovei-whelming  dan- 
ger; the  nation  was  at  peace  with  all  the 
world :  could  the  piracies  of  Turkish  cor- 
sau'S,  or  even  the  insolence  of  rival  neigh- 


bors, be  reckoned  among  those  instant  per- 
ils for  which  a  Parliament  would  provide  too 
late  ? 

To  the  precedents  alleged  on  the  other 
side,  it  was  replied,  that  no  one  of  them 
met  the  case  of  an  inland  county  ;  that  such 
as  were  before  the  25  Edw.  I.  were  suf- 
ficiently repelled  by  that  statute,  such  as 
occuned  under  Edwaid  III.  by  the  later 
statutes,  and  by  the  remonstrances  of  Par- 
liament dming  his  reign ;  and  there  were 
but  veiy  few  afterward.  But  that,  in  a 
matter  of  statute  law,  they  ought  not  to 
be  governed  by  precedents,  even  if  such 
could  be  adduce'd.  Befoi-e  the  latter  end  of 
Edward  I.'s  reign,  St.  John  observes,  "  All 
things  concerning  the  king's  prerogative 
and  the  subject's  liberties  were  upon  un- 
certainties." "  The  government,"  says 
Holborne  ti'uly,  "was  more  of  force  than 
law."  And  this  is  unquestionably  applica- 
ble, in  a  less  degree,  to  many  later  ages. 

Lastly,  the  Petition  of  Right,  that  noble 
legacy  of  a  slandered  Parliament,  reciting 
and  confirming  the  ancient  statutes,  had  es- 
tablished that  no  man  thereafter  be  com- 
pelled to  make  or  yield  any  gift,  loan,  be- 
nevolence, tax,  or  such  Uke  charge,  without 
common  consent  by  act  of  Parliament. 
This  latest  and  most  complete  recognition 
must  sweep  away  all  contrary  precedent, 
and  could  not,  without  a  glaring  violation  of 
its  obvious  meaning,  be  stretched  into  an 
admission  of  ship-money. 

The  king's  counsel,  in  answer  to  these 
arguments,  appealed  to  that  series  of  records 
which  the  diligence  of  Noy  had  collected. 
By  far  the  greater  part  of  these  were  com- 
missions of  array.  But  several,  even  of 
those  addressed  to  inland  towns  (and,  if 
there  were  no  sei-vice  by  tenure  in  the 
case,  it  does  not  seem  easy  to  distinguish 
these  in  principle  from  counties),  bore  a 
very  sti'ong  analogy  to  the  present.  They 
were,  however,  in  early  times.  No  suffi- 
cient answer  could  be  offered  to  the  stat- 
utes that  had  prohibited  unpariiamentary 
taxation.  The  attempts  made  to  elude 
their  force  were  utterly  ineffectual,  as 
those  who  are  acquainted  with  their  em- 
phatic language  may  well  conceive.  But 
the  council  of  Charles  the  First,  and  the 
hirelings  who  ate  their  bread,  disdained  to 
rest  their  claim  of  ship-money  (big  as  it  was 
1  with  other  aud  stiU  more  novel  schemes)  on 


ClIA.  I.— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


251 


obscure  records,  or  on  cavils  about  the 
meauing  of  statutes.  They  resorted  rath- 
er to  the  favorite  topic  of  the  times,  the  in- 
trinsic, absolute  authority  of  the  king.  This 
the  Attorney-general  Banks  placed  in  the 
very  front  of  his  argument.  "  This  pow- 
er," says  he,  "  is  innate  in  the  person  of  an 
absolute  king,  and  in  the  persons  of  the 
kings  of  England.  All  magisti-acy  it  is  of 
nature,  and  obedience  and  subjection  it  is 
of  nature.  This  power  is  not  any  waj  s 
derived  from  the  people,  but  reserved  unto 
the  king  when  positive  laws  fii'st  began. 
For  the  King  of  England,  ho  is  an  absolute 
monarch ;  nothing  can  be  given  to  an  abso- 
lute prince  but  what  is  inherent  in  his  per- 
son. He  can  do  no  wrong.  He  is  the  sole 
judge,  and  we  ought  not  to  question  him. 
Where  the  law  trusts,  we  ought  not  to  dis- 
trust. The  acts  of  Parliament,"  he  ob- 
served, "  contained  no  express  words  to 
take  away  so  high  a  prerogative ;  and  the 
king's  prerogative,  even  in  lesser  matters, 
is  always  saved,  wherever  express  words 
do  not  restrain  it." 

But  this  last  argument  appearing  too  mod- 
est for  some  of  the  judges  who  pronounced 
sentence  in  this  cause,  they  denied  the 
power  of  Parliament  to  limit  the  high  pre- 
rogatives of  the  crown.  "  This  imposition 
without  Parliament,"  says  Justice  Craw- 
Icy,  "appertains  to  the  king  originally,  and 
to  the  successor  ipso  facto,  if  he  be  a  sov- 
ereign in  right  of  his  sovereignty  from  the 
crown.  You  can  not  have  a  king  without 
these  royal  rights,  no,  not  by  act  of  Parlia- 
ment." "  Where  Mr.  Holborne,"  says 
Justice  Berkley,  "  supposed  a  fundamental 
policy  in  the  creation  of  the  frame  of  this 
kingdom,  that  in  case  the  monarch  of  Eng- 
land should  be  inclined  to  exact  from  his 
subjects  at  his  pleasure,  he  should  be  re- 
strained, for  that  he  could  have  nothing 
from  them  but  upon  a  common  consent  in 
Parliament;  he  is  utterly  mistaken  herein. 
The  law  knows  no  such  king-yoking  policj-. 
The  law  is  itself  an  old  and  trusty  servant 
of  the  king's  ;  it  is  his  instrument  or  means 
which  he  useth  to  govern  his  people  by :  I 
never  read  nor  heard  that  lex  was  rex  ;  but 
it  is  common  and  most  ti-ue  that  rex  is  lex." 
Vernon,  another  judge,  gave  his  opinion  in 
few  words  :  "  That  the  king,  pro  bono  pub- 
lico, may  charge  his  subjects  for  the  safety 
and  defense  of  the  kingdom,  notwithstand- 


ing any  act  of  Parliament,  and  that  a  stat- 
ute derogatory  from  the  prerogative  doth 
not  bind  the  king ;  and  the  king  may  dis- 
pense with  any  law  in  cases  of  necessity." 
Finch,  the  adviser  of  the  ship-money,  was 
not  backward  to  employ  the  same  argument 
in  its  behalf.  "  No  act  of  Parliament,"  he 
told  them,  "  could  bar  a  king  of  his  regality, 
as  that  no  land  should  hold  of  him,  or  bar 
him  of  the  allegiance  pf  his  subjects  or  the 
relative  on  his  part,  as  U'ust  and  power  to 
defend  his  people  ;  therefore  acts  of  Parlia- 
ment to  take  away  his  royal  power  in  the 
defense  of  his  kingdom  are  void  ;  they  are 
void  acts  of  Parliament  to  bind  the  king  not 
to  command  the  subjects,  their  persons, 
and  goods,  and  I  say,  their  money  too,  for 
no  acts  of  Parliament  make  any  difference." 

Seven  of  the  twelve  judges,  namely, 
Finch,  chief  justice  of  the  Common  Pleas, 
Jones,  Berkley,  Vernon,  Crawley,  Trevor, 
and  Weston,  gave  judgment  for  the  crown. 
Brampston,  chief  justice  of  the  King's 
Bench,  and  Davenport,  chief  baron  of  the 
Exchequer,  pronounced  for  Hampden,  but 
on  technical  reasons,  and  adhering  to  the 
majoiity  on  the  principal  question.  Den- 
ham,  another  judge  of  the  same  court,  be- 
ing exti'emely  ill,  gave  a  short  written  judg- 
ment in  favor  of  Hampden ;  but  Justices 
Croke  and  Hutton,  men  of  considerable 
reputation  and  experience,  displayed  a  most 
praiseworthy  intrepiditj'-  in  denying,  with- 
out the  smallest  qualitication,  the  alleged 
prerogative  of  the  crown  and  the  lawful- 
ness of  the  writ  for  ship-money.  They 
had  unfortunately  signed,  along  with  the 
other  judges,  the  above-mentioned  opinion 
in  favor  of  the  right.  For  this  they  made 
the  best  apology  they  could,  that  their  voice 
was  concluded  by  the  majoritj' ;  but,  in 
tiTith,  it  was  the  ultimate  success  that 
sometimes  attends  a  struggle  between  con- 
science and  self-interest  or  timidity.* 

The  length  to  which  this  important  cause 
was  protracted,  six  months  having  elapsed 

*  Croke,  whose  conduct  on  the  bench  in  other 
pohtical  questions  was  not  without  blemish,  had 
resolved  to  give  judgment  for  the  king,  but  was 
withheld  by  his  wife,  who  implored  him  not  to 
sacrifice  his  conscience  for  fear  of  any  danger  or 
prejudice  to  his  family,  being  content  to  suffer  any 
misery  with  him,  rather  than  to  be  an  occasion  for 
him  to  violate  his  integrity. — Whitelock,  p.  25. 
Of  such  high-minded  and  inflexible  women  our 
British  historj-  produces  many  examples. 


252 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  Vllt, 


from  the  opening  speech  of  Mr.  Hampden's 
counsel  to  the  final  judgment,  was  of  infi- 
nite disservice  to  the  crown.  During  this 
long  period,  every  man's  attention  was  di- 
rected to  the  Exchequer  Chamber.  The 
convincing  arguments  of  St.  John  and  Hol- 
borne,  but  still  more  the  division  on  the 
bench,  increased  their  natural  repugnance 
to  so  unusual  and  dangerous  a  prerogative.* 
Those  who  had  trusted  to  the  faith  of  the 
judges  were  undeceived  by  the  honest  re- 
pentance of  some,  and  looked  with  indigna- 
tion on  so  prostituted  a  crew.  That  re- 
spect for  courts  of  justice,  wliich  the  happy 
structure  of  our  judicial  administration  has 
in  general  kept  inviolate,  was  exchanged  for 
distrust,  contempt,  and  desire  of  vengeance. 
They  heard  the  speeches  of  some  of  the 
judges  with  more  displeasure  than  even 
their  final  decision.  Ship-money  was  held 
lawful  by  Finch  and  several  other  judges, 
not  on  the  authority  of  precedents,  which 
must,  in  their  nature,  have  some  bounds,  but 
on  principles  subversive  of  any  property  or 
privilege  in  the  subject.  Those  paramount 
rights  of  monarchy,  to  which  they  appealed 
to-day  in  justification  of  ship-money,  might 
to-moiTow  seiTe  to  supersede  other  laws, 
and  maintain  new  exertions  of  despotic  pow- 
er. It  was  manifest,  by  the  whole  sti-ain 
of  the  court  lawyers,  that  no  limitations  on 
the  king's  authority  could  exist  but  by  the 
king's  sufferance.  This  alarming  tenet, 
long  bruited  among  the  churchmen  and 
courtiers,  now  resounded  in  the  halls  of 
justice.  But  ship-money,  in  consequence, 
was  paid  with  far  less  regularity  and  more 
reluctance  than  before. f  The  discontent 
that  had  been  tolei-ably  smothered,  was  now 
displayed  in  eveiy  county ;  and  though  the 

*  Laud  writes  to  Lord  Wentworth,  that  Croke 
and  Hutton  had  both  gone  against  the  king  very 
Bourly.  "  The  accidents  which  liave  followed  upon 
it  already  are  these :  First,  the  faction  are  grown 
very  bold.  Secondly,  the  king's  moneys  come  in 
a  great  deal  more  slowly  than  they  did  in  fonner 
years,  and  that  to  a  vevy  considerable  sum.  Third- 
ly, it  puts  thoughts  into  wise  and  moderate  men's 
heads,  which  were  bettor  out ;  for  they  think  if  the 
judges,  which  are  behind,  do  not  their  parts  both 
exceeding  well  and  thoroughly,  it  may  much  dis- 
temper this  extraordinary  and  great  service." — 
Strafford  Letters,  ii.,  170. 

t  It  is  notoriously  known  that  pressure  was 
borne  with  much  more  cheerfulness  before  the 
judgment  for  the  king  than  ever  it  was  after. — 
Clai-eudon,  p.  122. 


council  did  not  flinch  in  the  least  from  ex- 
acting payment,  nor  willingly  remit  any  part 
of  its  rigor  toward  the  uncomplying,  it  was 
impossible  either  to  punish  the  great  body 
of  the  country  gentlemen  and  citizens,  or  to 
restiain  their  murmurs  by  a  few  examples. 
Wliether  in  consequence  of  this  unwilling- 
ness, or  for  other  reasons,  the  revenue  lev- 
ied in  different  years  under  the  head  of  ship- 
money  is  more  fluctuating  than  we  should 
expect  from  a  fixed  assessment,  but  may  be 
reckoned  at  an  average  sum  of  c£'200,000.* 

It  would  doubtless  be  unfair  to  pass  a  se- 
vere censure  on  the  government  Proclama- 
of  Charles  the  First  for  transgres- 
sions  of  law,  which  a  long  course  of  prece- 
dents might  render  dubious,  or  at  least  ex- 
tenuate. But  this  common  apology  for  his 
administration,  on  which  tiie  artful  defense 
of  Hume  is  almost  entirely  grounded,  must 
be  admitted  cautiously,  and  not  until  wo 
have  well  considered  how  far  such  prece- 
dents could  be  brought  to  support  it.  This 
is  particularly  applicable  to  his  proclama- 
tions. I  have  already  pointed  out  the  com- 
parative novelty  of  these  unconstitutional 
ordinances,  and  their  great  increase  under 
James.  They  had  not  been  fuUy  acquies- 
ced in ;  the  Commons  had  remonstrated 
against  their  abuse ;  and  Coke,  with  other 
judges,  had  endeavored  to  fix  limits  to  their 
authority,  veiy  far  within  that  which  they 
aiTogated.  It  can  hardly,  therefore,  be  said 
that  Charles's  council  were  ignorant  of  their 
illegality ;  nor  is  the  case  at  all  parallel  to 
that  of  general  warrants,  or  any  similar  ir-* 
regularity  into  which  an  honest  government 
may  inadvertently  be  led.  They  serve  at 
least  to  display  the  practical  state  of  the 
Constitution,  and  the  necessity  of  an  entire 
reform  in  its  spirit. 

The  proclamations  of  Charles's  reign  are 
far  more  numerous  than  those  of  . 

Various  ar- 

his  father.  They  imply  a  pre-  Utrary  pro- 
rogative  of  intermeddling  with  all  '^^''^"'ss- 
matters  of  trade,  prohibiting  or  putting  un- 
der restraint  the  importation  of  various  ar- 
ticles, and  the  home  growth  of  others,  or 
establishing  regulations  for  manufactures.! 
Prices  of  several  minor  articles  were  fixed 
by  proclamation,  and  in  one  instance  this 

*  Rushworth  Abr.,  ii.,  341.  Clarendon,  State 
Papers,  i.,  600.  It  is  said  by  Heylin  that  the  clergy 
were  much  spared  in  the  assessment  of  ship  money 
— Life  of  Laud,  302.  t  Rymer,  passim. 


Cha.  I.— 1629-40.]  FROM  HENRY  VII.  TO  GEORGE  II. 


253 


was  extended  to  poultiy,  butter,  and  coals.* 
The  king  declares  by  a  proclamation  that 
he  had  incorporated  all  tradesmen  and  artifi- 
cers within  London  and  three  miles  round, 
so  that  no  person  might  set  up  any  ti-ade 
without  having  served  a  seven  years'  ap- 
prenticeship, and  without  admission  into 
such  corporation,  f  He  prohibits,  in  lilie 
manner,  any  one  from  using  the  trade  of  a 
maltster,  or  that  of  a  brewer,  without  ad- 
mission into  the  corporations  of  maltsters  or 
brewers  erected  for  every  county. t  I  know 
not  whether  these  projects  were  in  any  de- 
gree founded  on  the  alleged  pretext  of  cor- 
recting abuses,  or  were  solely  designed  to 
raise  money  by  means  of  these  corporations. 
We  find,  liowever,  a  revocation  of  the  re- 
sti-aint  on  malting  and  brewing  soon  after. 
The  illegality  of  these  proclamations  is  most 
unquestionable. 

The  rapid  increase  of  London  continued 
to  disquiet  the  court.  It  was  the  sti'ong- 
hold  of  political  and  religious  disaffection. 
Hence  the  prohibitions  of  erecting  new 
houses,  which  had  begun  under  Elizabeth, 
were  continually  repeated. §  They  had, 
indeed,  some  laudable  objects  in  view ;  to 
render  the  city  more  healthy,  cleanly,  and 
magnificent,  and  by  prescribing  the  general 
use  of  brick  instead  of  wood,  as  well  as  by 
im])roving  the  width  and  regularity  of  the 
sti'eets,  to  afford  the  best  security  against 
fires,  and  against  those  epidemical  diseases 
which  visited  the  metropolis  with  unusual 
severity  in  the  earlier  years  of  this  reign. 
The  most  jealous  censor  of  royal  encroach- 
ments will  hardly  object  to  the  proclama- 
tions enforcing  certain  regulations  of  police 
in  some  of  those  alarming  seasons. 

It  is  probable,  from  the  increase  which 
we  know  to  have  taken  place  in  London 
during  this  reign,  that  licenses  for  building 

*  Id.,  xix.,  512.  It  may  be  curious  to  mention 
some  of  these.  The  best  turkey  was  to  be  sold  at 
4s.  6d. ;  the  best  goose  at  2s.  id. ;  the  best  pullet, 
Is.  Sd. ;  three  eggs  for  a  penny ;  fresh  butter  at  5d. 
in  summer,  and  Gd.  in  winter.    This  was  in  1634. 

t  Id.,  XX.,  113.  t  Id.,  157. 

§  Kymcr,  xviii.,  33,  et  alibi.  A  commission  was 
granted  to  the  Earl  of  Arundel  and  others,  May  30, 
1625,  to  inquire  what  houses,  shops,  &c.,  had  been 
built  for  ten  yeai-s  past,  especially  since  the  last 
proclamation,  and  to  commit  the  offenders.  It  re- 
cites the  care  of  Elizabeth  and  James  to  have  the 
city  built  in  a  uniform  manner  with  brick,  and  also 
to  clear  it  from  under-tenants  and  base  people  who 
live  by  begging  and  stealing.- — Id.,  xviii.,  07. 


were  easily  obtained.  The  same  supposi- 
tion is  applicable  to  another  class  of  procla- 
mation, enjoining  all  persons  who  had  resi- 
dences in  the  country  to  quit  the  capital  and 
repair  to  them.*  Yet,  that  these  were  not 
always  a  dead  letter,  appears  from  an  in- 
foi'mation  exhibited  in  the  Star  Chamber 
against  seven  lords,  sixty  knights,  and  one 
hundred  esquires,  besides  many  ladies,  for 
disobeying  the  king's  proclamation,  either 
by  continuing  in  London,  or  returning  to  it 
after  a  short  absence,  f  The  result  of  this 
prosecution,  which  was  probably  only  in- 
tended to  keep  them  in  check,  does  not  ap- 
pear. No  proclamation  could  stand  in  need 
of  support  from  law,  while  this  arbitrary 
tribunal  assumed  a  right  of  punishing  mis- 
demeanors. It  would  have  been  a  danger- 
ous aggravation  of  any  delinquent's  offense 
to  liave  questioned  the  authority  of  a  proc- 
lamation, or  the  jurisdiction  of  the  council. 

The  security  of  freehold  rights  had  been 
the  peculiar  boast  of  the  English  law.  The 
very  statute  of  Hemy  VIII.,  which  has 
been  held  up  to  so  much  infamy,  while  it 
gave  the  force  of  law  to  his  proclamations, 
interposed  its  barrier  in  defense  of  the  sub- 
ject's property.  The  name  of  freeholder, 
handed  down  with  religious  honor  from  an 
age  when  it  conveyed  distinct  privileges, 
and,  as  it  were,  a  sort  of  popular  nobility, 
protected  the  poorest  man  against  the 
crown's  and  the  lord's  rapacity.  He  at 
least  was  recognized  as  the  liber  homo  of 
Magna  Charta,  who  could  not  be  disseised 
of  his  tenements  and  franchises.  His  house 
was  liis  castle,  which  the  law  respected, 
and  which  the  king  dared  not  enter.  Even 
the  public  good  must  give  way  to  his  obsti- 
nacy ;  nor  had  the  Legislature  itself  as  yet 
compelled  any  man  to  part  with  his  lands 
for  a  compensation  which  he  was  loth  to 
accept.  The  council  and  Star  Chamber 
had  very  rarely  presumed  to  meddle  with 
his  right ;  never,  perhaps,  where  it  was  ac- 
knowledged and  ancient.  But  now  this 
reverence  of  the  common  law  for  the  sa- 
credness  of  real  property  was  derided  by 
those  who  revered  nothing  as  sacred  but 
the  interests  of  the  Church  and  crown. 
The  privy-council,  on  a  suggestion  that  the 
demolition  of  some  houses  and  shops  in  the 
vicinity  of  St.  Paul's  would  show  the  Ca- 
thedral to  more  advantage,  directed  that  the 

*  Rymer,  xix.,  375.    t  Rushworth  Abr.,  ii.,  232. 


254 


COXSTITUTIOXAL  HI; 


;STORY  OF  ENGLAND 


[Chap.  VI ir. 


owners  should  receive  such  satisfaction  as 
should  seem  reasonable  ;  or,  on  their  refu- 
sal, the  sheriff  was  required  to  see  the  build- 
ings puUed  down,  "  it  not  being  thought  fit 
the  obstinacy  of  those  persons  should  hin- 
der so  considerable  a  work."*  By  another 
order  of  council,  scarcely  less  oppressive 
and  illegal,  all  shops  in  Cheapside  and  Lom- 
bard-street, except  those  of  goldsmiths,  were 
directed  to  be  shut  up,  that  the  avenue  to 
St.  Paul's  might  appear  more  splendid  ; 
and  the  mayor  and  aldermen  were  repeat- 
edly threatened  for  remissness  in  executing 
this  mandate  of  tyranny.f 

In  the  great  plantation  of  Ulster  by  James, 
the  city  of  London  had  received  a  gi-ant  of 
extensive  lands  in  the  county  of  Deny,  on 
certain  conditions  prescribed  in  their  char- 
ter. The  settlement  became  flourishing, 
and  enriched  the  city ;  but  the  wealth  of 
London  was  always  invidious  to  the  crown, 
as  well  as  to  the  needy  couitiers.  On  an 
information  filed  in  the  Star  Chamber  for 
certain  alleged  breaches  of  their  charter,  it 
was  not  only  adjudged  to  be  forfeited  to  the 
king,  but  a  fine  of  ^70,000  was  imposed  on 
the  city.  They  paid  this  enormous  mulct, 
but  were  kept  out  of  their  lands  till  restored 
by  the  Long  Parliament. t  In  this  proceed- 
ing Charles  forgot  his  duty  enough  to  take 
a  very  active  share,  personaUy  exciting  the 
court  to  give  sentence  for  himself.§  Is  it 
then  to  be  a  matter  of  surprise  or  reproach, 
that  the  citizens  of  London  refused  him  as- 
sistance in  the  Scottish  war,  and  through 
the  ensuing  times  of  confusion  harbored  an 
implacable  resentment  against  a  sovereign 
who  had  so  deeply  injured  them  ? 

We  may  advert  in  this  place  to  some  oth- 

*  Rnshworth  Abr.,  ii.,  79.  t  Id.,  p.  313. 

i  Rushworth  Abr.,  iii.,  123.  Whitelock,  p.  35. 
Strafford  Letters,  i.,  374,  et  alibi.  See  what  Clar- 
endon says,  p.  293  (ii.,  151,  edit.  1826).  The  sec- 
ond of  these  tells  us  that  the  city  offered  to  bnild 
for  the  kinij  a  palace  in  St.  James's  Park  by  way 
of  composition,  which  was  refused.  If  this  be  true, 
it  must  allude  to  the  palace  already  projected  by 
him,  the  magnificent  designs  for  which  by  Inigo 
Jones  are  well  known.  Had  they  been  executed, 
the  metropolis  would  have  possessed  a  splendid 
monument  of  Palladian  architecture,  and  the  re- 
proach sometimes  thrown  on  England,  of  wanting 
a  fit  mansion  for  its  monarchs,  would  have  been 
prevented.  But  the  Exchequer  of  Charles  I.  had 
never  been  in  such  a  state  as  to  render  it  at  all 
probable  that  he  could  undertake  so  costly  a  work. 

§  Strafford  Letters,  i.,  340. 


er  sti'etches  of  power,  which  no  one  can 
pretend  to  justify,  though  in  general  they 
seem  to  have  escaped  notice  amid  the  enor- 
mous mass  of  national  grievances.  A  com- 
mission was  issued  in  16.3-5,  to  the  recorder 
of  London  and  others,  to  examine  all  per- 
sons going  beyond  seas,  and  tender  to  them 
an  oath  of  the  most  inquisitorial  nature.* 
Certain  privy-counselors  were  empowered 
to  enter  the  House  of  Sir  Robert  Cotton, 
and  search  his  books,  records,  and  papers, 
setting  down  such  as  ought  to  belong  to  the 
crown,  f  This  renders  probable  what  we 
find  in  a  writer  who  had  the  best  means  of 
infoi-mation,  that  Secretary  Windebank,  by 
virtue  of  an  order  of  council,  entered  Sir 
Edward  Coke's  house  while  he  lay  on  his 
death-bed,  and  took  away  his  manuscripts, 
together  with  his  last  will,  which  was  nev- 
er returned  to  his  family.}  The  High 
Commission  Court  were  enabled,  by  the 
king's  "  supreme  power  ecclesiastical,"  to 
examine  such  as  were  charged  with  offens- 
es cognizable  by  them  on  oath,  which  many 
had  declined  to  take,  according  to  the  known 
maxims  of  English  law.§ 

It  would  be  improper  to  notice  as  illegal 
or  irregular  the  practice  of  granting  dispen- 
sations in  particular  instances,  either  from 
general  acts  of  Parliament  or  the  local  stat- 
utes of  colleges.  Such  a  prerogative,  at 
least  in  the  former  case,  was  founded  on 
long  usage  and  judicial  recognition.  Charles, 
however,  ti'ansgressed  its  admitted  bounda- 
ries when  he  empowered  othei-s  to  dispense 
with  them  as  thei'e  might  be  occasion. 
Thus,  in  a  commission  to  the  president  and 
council  of  the  North,  directing  them  to  com- 
pound with  recusants,  he  in  effect  suspends 
the  statute  which  provides  that  no  recusant 
shall  have  a  lease  of  tliat  portion  of  his  lands 
which  the  law  sequestered  to  die  king's  use 
dming  his  recusancy ;  a  clause  in  this  pat- 
ent enabling  the  commissioners  to  grant 
such  leases,  notwithstanding  any  law  or 
statute  to  the  conti'aiy.  This  seems  to  go 
beyond  the  admitted  limits  of  the  dispens- 
ing prerogative.  II 

The  levies  of  tonnage  and  poundage  with- 
out authoiity  of  Parliament;  the  exaction 

*  Rymer,  xix.,  699.  t  Id.,  198. 

i  Roger  Coke's  Detection  of  the  Court  of  Eng- 
land, i.,  309.    He  was  Sir  Edward's  grand-son. 
§  Rymer,  xx.,  190. 
II  Id.,  six.,  740.    See,  also,  82. 


Cha.  I.— 1629-40.]  FROM  HENRY  VII.  TO  GEORGE  II. 


255 


of  monopolies ;  the  extension  of  the  forests ; 
the  arbitrary  restraints  of  proclamations  ; 
above  all,  the  general  exaction  of  ship-mon- 
ey, form  the  principal  articles  of  charge 
against  the  government  of  Charles,  so  far 
as  relates  to  its  inroads  on  the  subject's 
property.  These  were  maintained  by  a 
vigilant  and  unsparing  exercise  of  jurisdic- 
tion in  the  Court  of  Star  Chamber.  I  have, 
in  another  chapter,  ti'aced  the  revival  of  this 
great  tribunal,  probably  under  Heniy  VIII., 
in  at  least  as  formidable  a  shape  as  befoi'e 
the  now-neglected  statutes  of  Edwfird  III. 
and  Richard  II.,  which  had  placed  barriers 
in  its  way.  It  was  the  great  weapon  of  ex- 
ecutive power  under  Elizabeth  and  James ; 
nor  can  we  reproach  the  present  reign  with 
innovation  in  this  respect,  though  in  no  for- 
mer period  had  the  proceedings  of  this  court 
been  accompanied  with  so  much  violence 
and  tyranny.  But  this  will  require  some 
fuller  explication. 

I  hardly  need  remind  tlie  reader  that  the 

Star  Chamber  jurisdiction  of  the  ancient  Con- 
jurisdiction,  cilium  regis  ordinarium,  or  Court 
of  Star  Chamber,  continued  to  be  exercised, 
more  or  less  frequently,  not^vithstandingthe 
various  statutes  enacted  to  repress  it ;  and 
that  it  neither  was  supported  by  the  act 
erecting  a  new  coiut  in  the  third  of  Hemy 
VII.,  nor  originated  at  that  time.  The  rec- 
ords show  the  Star  Chainber  to  have  taken 
cognizance  both  of  civil  suits  and  of  oflenses 
throughout  the  time  of  the  Tudors.  But 
precedents  of  usurped  power  can  not  estab- 
lish a  legal  authority  in  defiance  of  the  ac- 
knowledged law.  It  appears  that  the  law- 
yers did  not  admit  any  jurisdiction  in  the 
council,  except  so  far  as  the  statute  of  Hen- 
ry VII.  was  supposed  to  have  given  it. 
"  The  famous  Plowden  put  his  hand  to  a 
demuiTer  to  a  bill,"  says  Hudson,  "because 
the  matter  was  not  within  the  statute  ;  and, 
although  it  was  then  oveiTuled,  yet  Mr. 
Sergeant  Richardson,  thirty  years  after,  fell 
again  upon  the  same  rock,  and  was  sharply 
rebuked  for  it."*    The  chancellor,  who  was 

*  Hudson's  Treatise  of  the  Court  of  Star  Cham- 
ber, p.  .51.  This  valuable  work,  written  about  the 
end  of  James's  reigii,  is  pubUshed  in  Collectanea 
Jnridica,  vol.  ii.  There  is  more  than  one  manu- 
script of  it  in  the  British  Museum. 

In  another  treatise,  written  by  a  clerk  of  the 
Council  about  1500  (Hargrave  MSS.,  ccxvi.,  195), 
the  author  says :  "  There  was  a  time  when  there 
grew  a  controversy  between  the  Star  Chamber 


the  standing  president  of  the  Court  of  Star 
Chamber,  would  always  find  pretenses  to 
elude  the  existing  statutes,  and  justify  the 
usurpation  of  this  tiibunal. 

The  civil  jurisdiction  claimed  and  exerted 
by  the  Star  Chamber  was  only  in  particular 
cases,  as  disputes  between  alien  merchants 
and  Englishmen,  questions  of  prize  or  un- 
lawful detention  of  ships,  and,  in  general, 
such  as  now  belong  to  the  Court  of  Admi- 
ralty ;  some  testamentary  matters,  in  order 
to  prevent  appeals  to  Rome,  which  might 
have  been  brought  fi'om  the  ecclesiastical 
courts ;  suits  between  coiijorations,  "  of 
which,"  says  Hudson,  "  I  dare  undertake 
to  show  above  a  hundred  in  the  reigns  of 
Hemy  VII.  and  Hemy  VIII.,  or  some- 
times between  men  of  great  power  and  in- 
terest, which  could  not  be  ti'ied  with  fair- 
ness by  the  common  law  for  the  coiTup- 
tion  of  sherifi's  and  juries  furnished  an  apol- 
ogy for  the  iiTegular,  but  necessary,  inter- 
ference of  a  controlling  authority.  The  an- 
cient remedy,  by  means  of  attaint,  which 
renders  a  jury  responsible  for  an  unjust 


and  the  King's  Bench  for  their  jurisdiction  in  a 
cause  of  perjui-y  concerning  tithes.  Sir  Nicholas 
Bacon,  that  most  grave  and  worthy  counselor,  then 
being  lord-keeper  of  the  great  seal,  and  Sir  Robert 
Catlyn,  knight,  then  lord-chief-justice  of  the  bench. 
To  the  deciding  thereof  were  called  by  the  plaintiff 
and  defendant  a  great  number  of  the  leanied  coun- 
selors of  the  law:  they  were  called  into  the  inner 
Star  Chamber  after  dinner,  where  before  the  lords 
of  the  council  they  argued  the  cause  on  both  sides, 
but  could  not  find  the  court  of  creator  antiquity  by 
all  their  books  than  Henry  VII.  and  Richard  III. 
On  this  I  fell  in  cogitation  how  to  find  some  further 
knowledge  thereof."  He  proceeds  to  inform  us, 
that  by  search  into  records  he  traced  its  jurisdic- 
tion much  higher.  This  shows,  however,  the  doubts 
entertained  of  its  jurisdiction  in  the  queen's  time. 
This  writer,  extolling  the  court  highly,  admits  that 
"some  of  late  have  deemed  it  to  be  new,  and  put 
the  same  in  print,  to  the  blemish  of  its  beautiful 
antiquity."  He  then  discusses  the  question  (for 
such  it  seems  it  was)  whether  any  peer,  though 
not  of  the  council,  might  sit  in  the  Star  Chamber, 
and  decides  in  the  negative.  "  A".  5'°.  of  her  maj- 
esty," he  says,  in  the  case  of  the  Earl  of  Hertford, 
"  there  were  assembled  a  great  number  of  the  no- 
ble barons  of  this  realm,  not  being  of  the  council, 
who  offered  there  to  sit;  but  at  that  time  it  was 
declared  unto  them  by  the  lord-keeper  that  they 
were  to  give  place,  and  so  they  did,  and  divers  of 
them  tanied  the  heaiing  of  the  cause  at  the  bar." 

This  note  ought  to  have  been  inserted  in  Chap- 
ter I.,  where  the  antiquity  of  the  Star  Chamber  is 
mentioned,  but  was  accidentally  overlooked. 

'  P.  5G. 


256 

verdict,  was  almost  gone  into  disuse,  and, 
depending  on  the  integrity  of  a  second  juiy, 
not  always  easy  to  be  obtained ;  so  that  in 
many  parts  of  the  kingdom,  and  especially 
in  Wales,  it  was  impossible  to  find  a  jury 
who  would  return  a  verdict  against  a  man 
of  good  family,  either  in  a  civil  or  criminal 
proceeding. 

The  statutes,  however,  restraining  the 
council's  jurisdiction,  and  the  strong  prepos- 
session of  the  people  as  to  the  sacredness 
of  freehold  rights,  made  the  Star  Chamber 
cautious  of  determining  questions  of  inher- 
itance, which  they  commonly  remitted  to 
the  judges;  and  from  the  early  part  of 
Elizabeth's  reign  they  took  a  direct  cogni- 
zance of  any  civil  suits  less  frequently  than 
before,  partly,  I  suppose,  from  the  increas- 
ed business  of  the  Court  of  Chancery  and 
the  Admiralty  Court,  which  took  awaj- 
much  wherein  they  had  been  wont  to  med- 
dle, partly  from  their  own  occupation  as  a 
coui't  of  criminal  judicature,  which  became 
more  conspicuous  as  the  other  went  into 
disuse.*  This  criminal  jurisdiction  is  that 
which  rendered  the  Star  Chamber  so  potent 
and  so  odious  an  auxiliary  of  a  despotic  ad- 
ministration. 

The  offenses  principally  cognizable  in  this 
court  were  forgery,  perjuiy,  riot,  mainte- 
nance, fraud,  libel,  and  conspiracy.f  But, 
besides  these,  eveiy  misdemeanor  came 
within  the  proper  scope  of  its  inquiiy ; 
those  especially  of  public  importance,  and 
for  which  the  law,  as  then  understood,  had 
provided  no  sufficient  punishment ;  for  the 
judges  interpreted  the  law  in  early  times 
with  too  gi'eat  naiTowness  and  timidity  ; 
defects  which,  on  the  one  hand,  raised  up 
the  overruling  authority  of  the  Court  of 
Chancery  as  the  necessary  means  of  re- 
dress to  the  civil  suitor  who  found  the  gates 
of  justice  barred  against  him  by  technical 
pedantry,  and  on  the  other,  brought  this 
usurpation  and  tyranny  of  the  Star  Cham- 
ber upon  the  kingdom  by  an  absurd  scru- 
pulosity about  punishing  manifest  offenses 

*  P.  62.  Lord  Bacou  observes,  that  the  council 
in  his  time  did  not  meddle  with  mcum  and  tunm 
as  formerly,  and  that  such  causes  ought  not  to  be 
entertained— Vol.  i.,  720 ;  vol.  ii.,  208.  "  The  king," 
he  says,  "  should  be  sometimes  present,  yet  not  too 
often."  James  was  too  often  present,  and  took  one 
well-known  criminal  proceeding,  that  against  Sir 
Tliomas  Lake  and  his  family,  entirely  into  lus  own 
hands.  t  P.  82. 


[Chap.  VIIL 

against  the  public  good.  Thus  con'uption, 
breach  of  trust,  and  malfeasance  in  public 
affairs,  or  attempts  to  commit  felonj',  seem 
to  liave  been  reckoned  not  indictable  at 
common  law,  and  came,  in  consequence, 
under  the  cognizance  of  the  Star  Cham- 
ber.* In  other  cases  its  jurisdiction  was 
merely  concuirent ;  but  the  greater  cer- 
tainty of  conviction,  and  the  greater  severi- 
ty of  punishment,  rendered  it  incomparably 
more  formidable  than  the  ordinary  benches 
of  justice.  The  law  of  libel  grew  up  in  this 
unwholesome  atmosphere,  and  was  molded 
by  the  plastic  hands  of  successive  judges 
and  attorneys-general.  Prosecutions  of 
this  kind,  according  to  Hudson,  began  to  be 
more  frequent  from  the  last  years  of  Eliz- 
abeth, when  Coke  was  attorney-general; 
and  it  is  easy  to  conjecture  what  kind  of 
interpretation  they  received.  To  hear  a 
libel  sung  or  read,  says  that  writer,  and  to 
laugh  at  it,  and  make  merriment  with  it, 
has  ever  been  held  a  publication  in  law. 
The  gross  error  that  it  is  not  a  libel  if  it  be 
true,  has  long  since,  he  adds,  been  exploded 
out  of  this  court. f 

Among  the  exertions  of  authority  prac- 
tised in  the  Star  Chamber  which  no  posi- 
tive law  could  be  brought  to  warrant,  he 
enumerates  "  punishments  of  breach  of 
proclamations  before  they  have  the  strength 
of  an  act  of  Parliament ;  which  this  court 
hath  stretched  as  far  as  ever  any  act  of  Par- 
liament did.  As  in  the  41st  of  Elizabeth, 
builders  of  houses  in  London  were  senten- 
ced, and  their  houses  ordered  to  be  pulled 
down,  and  the  materials  to  be  distributed  to 
the  benefit  of  the  parish  where  the  build- 
ing was  ;  which  disposition  of  the  goods 
soundeth  as  a  great  extremity,  and  beyond 
the  wairant  of  our  laws ;  and  yet,  surely, 
very  necessary,  if  any  thing  would  deter 
men  from  that  hon  ible  mischief  of  increas- 
ing that  head  which  is  swoln  to  a  great 
hugeness  already. "'J: 

*  p.  108.  t  P.  100,  102. 

X  P.  107.  The  following  case  in  the  queen's 
reign  goes  a  great  way :  An  information  was  pre- 
ferred in  the  Star  Chamber  against  Griffin  and  an- 
other  for  erecting  a  tenement  in  Hog  Lane,  which 
he  diN-ided  into  several  rooms,  wherein  were  in- 
habiting two  poor  tenants,  that  only  lived  and  were 
maintained  by  the  relief  of  their  neighbors,  Ac. 
The  attorney-general,  and  also  the  lord-mayor  and 
aldermen,  prayed  some  condign  punishment  on 
Grifiiu  and  the  other,  and  that  the  com-t  would  be 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


Cha.  I.— 1629-40,]  FIIOM  HEXRY  VII.  TO  GEORGE  II. 


257 


The  mode  of  process  was  sometimes  of  a 
summaiy  nature  ;  the  accused  person  being 
privately  examined,  and  his  examination 
read  in  tiie  court,  if  he  was  thouglit  to  have 
confessed  sufficient  to  deserve  sentence,  it 
was  immediately  awarded  without  any  form- 
al trial  or  wi'itten  process.  But  the  move 
regular  course  was  by  information  filed  at 
the  suit  of  the  attorney-general,  or  in  cer- 
tain cases,  of  a  private  relator.  The  party 
was  brought  before  the  court  by  writ  of 
subpcena ;  and  having  given  bond,  with  sure- 
ties, not  to  depart  without  leave,  was  to  put 
in  his  answer  upon  oath,  as  well  to  the  mat- 
ters contained  in  the  information,  as  to  spe- 
cial interrogatories.  Witnesses  were  ex- 
amined upon  inteiTogatories,  and  their  dep- 
ositions read  in  court.  The  course  of  pro- 
ceeding, on  the  whole,  seems  to  have  near- 
ly resembled  that  of  the  Chancery.* 

It  was  held  competent  for  the  court  to 
Punishments  adjudge  any  punishment  short  of 
ihe'sta'r''^  death.  Fine  and  imprisonment 
Chamber.  were  of  course  the  most  usual. 
The  pillory,  whipping,  branding,  and  cut- 
ting off  the  ears,  gi-ew  into  use  by  degi'ees. 
In  the  reign  of  Henry  VII.  and  Henry 
VIII.,  we  are  told  by  Hudson,  the  fines 
were  not  so  ruinous  as  they  have  been 
since,  which  he  ascribes  to  the  number  of 
bishops  who  sat  in  the  court,  and  inclined 
to  mercy;  "  and  I  can  well  remember,"  he 
says,  "  that  the  most  reverend  Archbishop 
Whitgift  did  ever  constantly  maintain  the 
liberty  of  the  free  Charter,  that  men  ought 
to  bo  fined,  salvo  contenemento.    But  they 

pleased  to  set  down  and  decree  some  general  order 
in  this  and  other  like  cases  of  new  building  and 
division  of  tenements ;  whereupon  the  court,  gen- 
erally considering  the  great  growing  evils  and  in- 
conveniences tliat  continually  breed  and  happen  by 
this  new  erected  building  and  divisions  made  and 
divided  contrary  to  her  majesty's  said  proclama- 
tion, commit  the  ofifenders  to  the  Fleet,  and  fine 
them  X20  each  ;  but  considering  that  if  the  hoases 
be  pulled  down,  other  habitations  must  be  found, 
did  not,  as  requested,  order  tliis  to  be  done  for  the 
present,  but  that  the  tenants  should  continue  for 
their  lives  without  payment  of  rent,  and  the  land- 
lord is  directed  not  to  molest  them,  and  after  the 
death  or  departure  of  the  tenants  the  houses  to  be 
palled  down.— Harl.  MSS.,  N.  299,  fol.  7. 

*  Harl.  MS.S.,  p.  142,  &c.  It  appears  that  the 
court  of  Star  Chamber  could  not  sentence  to  pun- 
ishment on  the  deposition  of  an  eye-witness 
(Rushw.  Abr.,  ii.,  114) :  a  rule  which  did  not  pre- 
vent their  receiving  the  most  impefect  and  incon- 
closive  testimony. 

R 


have  been  of  late  imposed  according  to  the 
nature  of  the  offense,  and  not  the  estate  of 
the  person.  The  slavish  punishment  of 
whipping,"  he  proceeds  to  obseiTe,  "  was 
not  introduced  till  a  great  man  of  the  com- 
mon law,  and  otherwise  a  worthy  justice, 
forgot  his  place  of  session,  and  brought  it  in 
this  place  too  much  in  use."*  It  would  be 
difficult  to  find  precedents  for  the  aggi-ava- 
ted  cruelties  inflicted  on  Leighton,  Lil- 
burne,  and  others ;  but  instances  of  cutting 
off  the  ears  may  be  found  under  Elizabeth. f 
The  reproach,  therefore,  of  arbitrary  and 
illegal  jurisdiction  does  not  wholly  fall  on 
the  government  of  Charles.  They  found 
themselves  in  possession  of  this  almost  un- 
limited authority.  But  doubtless,  as  far  as 
die  histoiy  of  proceedings  in  the  Star 
Chamber  ai'e  recorded,  they  seem  much 
more  numerous  and  violent  in  the  present 
reign  than  in  the  two  pi'eceding.  Rush- 
worth  has  preserved  a  copious  selection 
of  cases  determined  before  this  tribunal. 
They  consist  principally  of  misdemeanors, 
rather  of  an  aggravated  nature,  such  as  dis- 
turbances of  the  public  peace,  assaults  ac- 
companied with  a  good  deal  of  violence, 
conspiracies,  and  libels.  The  necessity, 
however,  for  such  a  paramount  court  to 
restrain  the  excesses  of  powerful  men  no 
longer  existed,  since  it  can  hardly  be  doubt- 
ed that  the  common  administi-ation  of  the 
law  was  sufficient  to  give  redress  in  the 
time  of  Charles  the  First,  though  we  cer- 
tainly do  find  several  instances  of  violence 
and  outrage  by  men  of  a  superior  station  ia 
life,  which  speak  unfavorably  for  the  state 
of  manners  in  the  kingdom.    But  the  ob- 


*  P.  36,  224.  Instead  of  "  the  slavish  punish- 
ment of  whipping,"  the  piiuted  book  has  "the 
slavish  speech  of  whispering,"  wliich  of  course  en- 
tii-ely  alters  the  sense,  or,  rather,  makes  nonsense. 
I  have  followed  a  MS.  in  the  Museum  (Hargrave, 
vol.  250),  which  agrees  with  the  abstract  of  tliis 
ti'eatise  by  Rushworth,  ii.,  348. 

t  Vallenger,  author  of  seditious  libels,  was  sen- 
tenced in  the  queen's  reign  to  stand  twice  in  the 
pillorj',  and  lose  both  his  ears. — Harl.  MSS.,  6265, 
fol.  373.  So,  also,  the  conspirators  who  accused 
Archbishop  Sandys  of  adulterj-. — Id.,  376.  And 
Mr.  Pound,  a  Roman  Catholic  gentleman,  who  had 
suffered  much  before  for  his  religion,  was  sentenced 
by  that  court,  in  1603,  to  lose  both  his  ears,  to  be 
lined  £1000,  and  imprisoned  for  life,  unless  he  de- 
clared who  instigated  him  to  charge  Sergeant  Phil- 
ips with  injustice  in  condemning  a  neighbor  of  his 
to  death. — Winwood,  ii.,  36. 


258 


COXSTITUTIOXAL  HISTORY  OF  ENGLAXB 


[Chap.  Vm 


ject  of  drawing  so  large  a  number  of  crim- 
inal cases  into  the  Star  Chamber  seems  to 
have  been  twofold  :  first,  to  inure  men's 
minds  to  an  authority  more  immediately 
connected  with  the  crown  than  the  ordi- 
naiy  courts  of  law,  and  less  tied  down  to 
any  rules  of  pleading  or  evidence  ;  second- 
ly, to  eke  out  a  scanty  revenue  by  penalties 
and  foi-feitures.  Absolutely  regardless  of 
the  provision  of  the  Great  Chaiter,  that  no 
man  shall  be  amerced  even  to  the  full  ex- 
tent of  his  means,  the  counselors  of  the 
Star  Chamber  inflicted  such  fines  as  no 
court  of  justice,  even  in  the  present  redu- 
ced value  of  money,  would  think  of  impos- 
ing. Little  objection,  indeed,  seems  to  lie, 
in  a  free  country,  and  with  a  well-regulated 
administi-ation  of  justice,  against  the  impo- 
sition of  weighty  pecuniary  penalties,  due 
consideration  being  had  of  the  offense  and 
the  criminal.  But,  adjudged  by  such  a  tri- 
bunal as  the  Star  Chamber,  where  those 
who  inflicted  the  punishment  reaped  the 
gain,  and  sat,  like  famished  bu'ds  of  prey, 
with  keen  eyes  and  bended  talons,  eager  to 
supply  for  a  moment,  by  some  wretch's 
ruin,  the  craving  emptiness  of  the  Excheq- 
uer, this  scheme  of  enormous  penalties 
became  more  dangerous  and  subversive  of 
justice,  though  not  more  odious,  than  cor- 
poreal punishment.  A  gentleman  of  the 
name  of  AUington  was  fined  c£l2,000  for 
mairying  his  niece.  One,  who  had  sent  a 
challenge  to  the  Earl  of  Northumberland, 
was  fined  d£ 5000  ;  another,  for  saying  the 
Earl  of  Suffolk  was  a  base  lord,  ^£4000  to 
him,  and  a  like  sum  to  the  king.  Sir  David 
Forbes,  for  opprobrious  words  against  Loi-d 
Wentworth,  incurred  o£5000  to  the  king, 
and  c£3000  to  the  partj-.  On  some  soap- 
boilers, who  had  not  complied  with  the  req- 
uisitions of  the  newly-incorporated  com- 
pany, mulcts  were  imposed  of  =£1500  and 
dElOOO.  One  man  was  fined  and  set  in  the 
pillory  for  engi-ossing  corn,  though  he  only 
kept  what  grew  on  his  own  land,  asking 
more  in  a  season  of  dearth  than  the  over- 
:seers  of  the  poor  thought  proper  to  give.* 
Some  arbitrary  regulations  with  respect  to 
prices  may  be  excused  by  a  well-intention- 
ed, though  mistaken  policy.  The  charges 
of  inns  and  taverns  were  fixed  by  the  judg- 

*  The  ecarcitj'  must  have  been  very  CTeat  this 
season  (1631),  for  he  refused  £2  18s.  for  the  quarter 
of  rye.— Rashworth.  ii..  110. 


es ;  but  even  in  those  a  corrupt  motive  was 
sometimes  blended.  The  company  of  vint- 
ners, or  victualers,  having  refused  to  pay  a 
demand  of  the  lord-treasurer,  one  penny  a 
quart  for  all  wine  drank  in  their  houses,  the 
Star  Chamber,  without  information  filed  or 
defense  made,  interdicted  them  from  sell- 
ing or  dressing  victuals  till  they  submitted 
to  pay  forty  shillings  for  each  tun  of  wine 
to  the  king.*  It  is  evident  that  the  sti-ong 
interest  of  the  court  in  these  fines  must  not 
only  have  had  a  tendency  to  aggravate  the 
punishment,  but  to  induce  sentences  of  con- 
demnation on  inadequate  proof.  From  all 
that  remains  of  proceedings  in  the  Star 
Chamber,  they  seem  to  have  been  very 
frequently  as  iniquitous  as  they  were  se- 
vere. In  many  celebrated  instances,  the 
accused  party  suflfered  less  on  the  score  of 
any  imputed  offense  than  for  having  provok- 
ed the  malice  of  a  powerful  adversary,  or 
for  notorious  dissatisfaction  with  the  exist- 
ing government.  Thus  Williams, 
bishop  of  Lincoln,  once  lord-keep-  Bishop 
er,  the  favorite  of  King  James,  the 
possessor  for  a  season  of  the  power  that 
was  turned  against  him,  experienced  the 
rancorous  and  ungi-ateful  malignity  of  Laud, 
who,  having  been  brought  fol•^vard  by  Will- 
iams into  the  favor  of  the  court,  not  only 
supplanted  by  his  intrigues,  and  incensed 
the  king's  mind  against  his  benefactor,  but 
haraissed  his  retirement  by  repeated  perse- 
cutions.f  It  will  sufficiently  illustrate  the 
spirit  of  these  times  to  mention  that  the 
sole  oflTense  imputed  to  the  Bishop  of  Lin- 
coln in  the  last  information  against  him  in 
the  Stai-  Chamber  was,  that  he  had  receiv- 
ed certain  letters  from  one  Osbaldiston,  mas- 
ter of  Westminster  school,  wherein  some 
contemptuous  nickname  was  used  to  denote 
Laud.t  It  did  not  appear  that  Williams 
had  ever  divulged  these  letters ;  but  it  was 


*  Rashworth,  ii.,  340.  Garrard,  the  correspond- 
ent of  Weutwoi'th,  who  sent  him  all  London  news, 
writes  about  this  :  "  The  attorney-general  hath  sent 
to  all  taverns  to  prohibit  them  to  dress  meat;  some- 
what was  required  of  them,  a  halfpenny  a  quart  for 
French  wine,  and  a  penny  for  sack  and  other  richer 
wines,  for  the  king :  the  gentlemen  vintners  grew 
sullen,  £md  would  not  give  it,  so  they  are  all  well 
enough  ser\-ed." — Strafford  Letters,  i.,  507. 

t  Racket's  Life  of  Williams.  Rashworth  Abr., 
ii.,  315,  et  post.    Brodie,  ii.,  363. 

+  Osbaldiston  swore  that  he  did  not  mean  Laud ; 
an  imdoubted  perjurj-. 


Cha.  L— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


259 


held  that  the  concealment  of  a  libelous  let- 
ter was  a  high  misdemeanor.  Williams 
was  therefore  adjudged  to  pay  c£oOOO  to 
the  king,  and  d63000  to  the  archbishop,  to  be 
imprisoned  during  pleasure,  and  to  make  a 
submission  ;  Osbaldiston  to  pay  a  still  heav- 
ier fine,  to  bo  deprived  of  all  his  benefices, 
to  be  imprisoned  and  make  submission ; 
and,  moreover,  to  stand  in  the  pilloiy  before 
his  school  in  Dean's-yard,  with  his  ears 
nailed  to  it.  This  man  had  the  good  foi-- 
tune  to  conceal  himself;  but  the  Bishop  of 
Lincoln,  refusing  to  make  the  required  apol- 
ogy, lay  about  three  years  in  the  Tower, 
till  released  at  the  beginning  of  the  Long 
Parliament. 

It  might  detain  me  too  long  to  dwell  par- 
ticularly on  the  punishments  inflicted  by  the 
Court  of  Star  Chamber  in  this  reign.  Such 
historians  as  have  not  written  in  order  to 
palliate  the  tyranny  of  Charles,  and  espe- 
cially Rushworth,  will  fiu-nish  abundant  de- 
tails, with  all  those  circumstances  that  por- 
tray the  baibarous  and  tyrannical  spirit  of 
those  who  composed  that  tribunal.  Two 
or  three  instances  are  so  celebrated  that  I 
can  not  pass  them  over.  Leighton,  a  Scots 
divine,  having  published  an  angry  libel 
against  the  hierarchy,  was  sentenced  to  be 
publicly  whipped  at  Westminster  and  set 
in  the  pilloiy,  to  have  one  side  of  his  nose 
slit,  one  ear  cut  off,  and  one  side  of  his 
cheek  branded  with  a  hot  iron  ;  to  have  the 
whole  of  this  repeated  the  next  week  at 
Cheapside,  and  to  suffer  perpetual  impris- 
onment in  the  Fleet.*  Lilburne,  for  dis- 
persing pamphlets  against  the  bishops,  was 
whipped  from  the  Fleet  Prison  to  West- 
minster, there  set  in  the  pillory,  and  ti-eat- 
Case  of  ed  afterward  with  gi-eat  cruelty,  f 
Prynne.  Prynne,  a  lawyer  of  uncommon  eru- 
dition and  a  zealous  Puritan,  had  printed  a 
bulky  volume,  called  Histi-iomastix,  full  of 
invectives  against  the  theater,  which  he 
sustained  by  a  profusion  of  learning.  In 
the  course  of  this,  he  adverted  to  the  ap- 
peai'ance  of  courtesans  on  the  Roman  stage, 

*  Mr.  Brodie  (Hist,  of  Brit.  Emp.,  vol.  ii.,  p.  309) 
observes,  tliat  lie  can  not  find  in  Leighton's  book 
(which  I  have  never  seen)  the  passage  constantly 
brought  forward  by  Laud's  apologists,  wherein  he 
is  supposed  to  have  recommended  the  assassina- 
tion of  the  bishops.  He  admits,  indeed,  as  does 
Harris,  that  the  book  was  violent;  bat  what  can 
be  said  of  the  punishment  ? 

t  Rushworth.    State  Trials. 


and  by  a  satirical  reference  in  his  index, 
seemed  to  range  all  female  actors  in  the 
class.*  The  queen,  unfortunately,  six  weeks 
after  the  publication  of  Frynne's  book,  had 
performed  a  part  in  a  mask  at  court.  This 
passage  was  accordingly  dragged  to  light  by 
the  malice  of  Peter  Heylin,  a  chaplain  of 
Laud,  on  whom  the  archbishop  devolved 
the  burden  of  reading  this  heavy  volume  in 
order  to  detect  its  offenses.  Heylin,  a  big- 
oted enemy  of  eveiy  thing  Puritanical,  and 
not  scrupulous  as  to  veracity,  may  be  sus- 
pected of  having  aggi'avated,  if  not  misrep- 
resented, the  tendency  of  a  book  much  more 
tiresome  than  seditious.  Prynne,  however, 
was  already  obnoxious,  and  the  Star  Cham- 
ber adjudged  him  to  stand  twice  in  the  pil- 
lory, to  be  branded  in  the  forehead,  to  lose 
both  his  ears,  to  pay  a  fine  of  t£5000,  and 
to  suflfer  perpetual  imprisonment.  The 
dogged  Puritan  employed  the  leisure  of  a 
jail  in  writing  a  fresh  libel  against  the  hie- 
rarchy. For  thi.s,  with  two  other  delin- 
quents of  the  same  class.  Burton  a  divine, 
and  Bastwick  a  physician,  he  stood  again  at 
the  bar  of  that  terrible  tribunal.  Their  de- 
meanor was  what  the  comt  deemed  intol- 
erably contumacious,  arising,  in  fact,  from 
the  despair  of  men  who  knew  that  no  hu- 
miliation would  procure  them  mercy.f 
Prynne  lost  the  remainder  of  his  ears  in 
the  piUory ;  and  the  punishment  was  in- 
flicted on  them  all  with  extreme  and  de- 
signed cruelty,  which  they  endured,  as  mar- 
tyrs always  endure  sulTering,  so  heroically 
as  to  excite  a  deep  impression  of  sympathy 

*  Id.  Whitelock,  p.  18.  Harris's  Life  of  Charles, 
p.  262.  The  unfortimate  words  in  the  index, 
"  Women  actors  notorious  whores,"  cost  Prytme 
half  his  ears  ;  the  remainder  he  saved  by  the  hang- 
man's mercy  for  a  second  harvest.  When  he  was 
brought  again  before  the  Star  Chamber,  some  of 
the  lords  turned  up  his  hair,  and  expi-essed  great  in- 
dignation that  his  ears  had  not  been  better  cropped. 
— State  Trials,  717.  The  most  brutal  and  servile 
of  these  courtiers  seems  to  have  been  the  Earl  of 
Dorset,  though  Clarendon  speaks  well  of  him.  He 
was  also  impudently  corrupt,  declaring  that  he 
thought  it  no  crime  for  a  courtier  that  lives  at  a 
great  expense  in  his  attendance,  W  receive  a  re- 
ward to  get  a  business  done  by  a  great  man  in  fa- 
vor.— Rush.  Abr.,  ii.,  246.  It  is  to  be  observed  that 
the  Star  Chamber  tribunal  was  almost  as  infamous 
for  its  partiality  and  con-uption  as  its  cnieltj-.  See 
proofs  of  this  in  the  same  work,  p.  241. 

t  The  intimidation  was  so  great,  that  no  counsel 
dared  to  sign  Pi-ynne's  plea ;  yet  the  court  refused 
to  receive  it  without  such  signature. — Rushworth, 
ii.,  277.    Strafford  Letters,  ii.,  74. 


260 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIIL 


and  resentment  iu  the  assembled  multi- 
tude.* They  were  sentenced  to  perpetual 
confinement  in  distant  prisons.  But  their 
departure  from  London,  and  their  reception 
on  the  road,  were  marked  by  signal  expres- 
sions of  pojmlar  regard ;  and  their  friends 
resorting  to  them  even  in  Launceston, 
Chester,  and  CarnaiTon  Castles,  whither 
they  were  sent,  an  oi-der  of  council  was 
made  to  transport  them  to  the  isles  of  the 
Channel.  It  was  the  very  first  act  of  the 
Long  Parliament  to  restore  these  victims 
of  tyranny  to  their  families.  Punishments 
by  mutilation,  though  not  quite  unknown  to 
the  English  law,  had  been  of  rare  occur- 
rence ;  and  thus  inflicted  on  men  whose 
station  appeared  to  render  the  ignominy  of 
whipping  and  branding  more  intolerable, 
they  produced  much  the  same  effect  as  the 
still  greater  cruelties  of  Mary's  reign,  in 
exciting  a  detestation  for  that  ecclesiastical 
dominion  which  protected  itself  by  means 
so  atrocious. 

The  person  on  whom  public  hati'ed  chief- 
Character  ly  fell,  and  who  proved,  in  a  far 
of  Laud,  more  eminent  degi'ee  than  any  oth- 
er individual,  the  evil  genius  of  this  unhappy 
sovereign,  was  Laud.  His  talents,  though 
enabling  him  to  acquire  a  largo  portion  of 
theological  learning,  seem  to  have  been  by 
no  means  considerable.  There  can  not  be 
a  more  contemptible  work  than  his  Diary  ;t 
and  his  letters  to  Strafford  display  some 
smartness,  but  no  great  capacity.  He  man- 
aged, indeed,  his  own  defense,  when  im- 
peached, with  some  ability ;  but  on  such 
occasions  ordinary  men  are  apt  to  put  forth 
a  remarkable  readiness  and  energy.  Laud's 
inherent  ambition  had  impelled  him  to  comt 
the  favor  of  Buckingham,  of  Williams,  and 
of  both  the  kings  under  whom  he  hved,  till 
he  rose  to  the  see  of  Canterbuiy  on  Ab- 
bot's death,  in  1C33.  No  one  can  deny  that 
he  was  a  generous  patron  of  letters,  and  as 
■warm  in  friendship  as  in  enmity.  But  he 
had  placed  before  his  eyes  the  aggrandize- 
ment, first  of  the  Church,  and  next  of  the 

*  Id.,  85.  Rushw.,  295.  State  Trials.  Claren- 
don, who  speaks  in  a  very  unbecoming  manner  of 
this  sentence,  admits  that  it  excited  general  disap- 
probation.— P.  73. 

t  [This  has  lately  been  republished  at  Oxford, 
1939,  under  the  title,  "  Autobioiyi-aphy  of  Arch- 
bishop Laud,"  with  a  preface,  sufScieutly  charac- 
teristic of  its  celebrated  editor,  who  has  subjoined 
tlie  "Acts  of  his  Martyrdom."] 


royal  prerogative,  as  his  end  and  aim  in  ev- 
ery action.  Though  not  literally  destitute 
of  rehgion,  it  was  so  subordinate  to  worldly 
interest,  and  so  blended  in  his  mind  with 
the  impure  alloy  of  temporal  pride,  that  he 
became  an  intolei-ant  persecutor  of  the  Pu- 
ritan clergy,  not  fi'om  bigotiy,  which  in  its 
usual  sense  he  never  displayed,  but  syste- 
matic policy.  And  being  subject,  as  his 
friends  call  it,  to  some  infirmities  of  tem- 
per, that  is,  choleric,  vindictive,  harsh,  and 
even  cruel  to  a  great  degree,  he  not  only 
took  a  prominent  share  in  the  severities  of 
the  Star  Chamber,  but,  as  his  correspond- 
ence shows,  perpetually  lamented  that  he 
was  restrained  from  going  further  lengths.* 
Laud's  extraordinary  favor  with  the  king, 
through  which  he  became  a  prime  adviser 
in  matters  of  state,  rendered  him  secretly 
obnoxious  to  most  of  the  council,  jeiilous,  as 
ministers  must  always  be,  of  a  churchman's 
overweening  ascendency.  His  faults,  and 
even  his  virtues,  contributed  to  this  odium; 
for,  being  exempt  from  the  thirst  of  lucre, 
and,  though  in  the  less  mature  state  of  his 
fortunes,  a  subtle  intriguer,  having  become 
frank  through  heat  of  temper  and  self-con- 
fidence, he  discountenanced  all  schemes  to 
serve  the  private  interest  of  courtiers  at  the 
expense  of  his  master's  exhausted  treasury, 
and  went  right  onward  to  his  object,  the 
exaltation  of  the  Church  and  crown.  He 
aggi'avated  the  invidiousness  of  his  own  sit- 
uation, and  gave  an  astonishing  proof  of  his 
influence,  by  placing  Juxon,  bishop  of  Lon- 
don, a  creature  of  his  ov\ti,  in  the  gi-eatest 
of  all  posts,  that  of  lord-high-treasurer. 
Though  Williams  had  lately  been  lord- 
keeper  of  the  seal,  it  seemed  more  prepos- 
terous to  place  the  treasurer's  staflf  in  the 
hands  of  a  churchman,  and  of  one  so  little 

*  Laud's  character  is  justly  and  fairly  drawn  by 
May,  neither  iu  tlie  coarse  caricature  stjle  of 
Piynne,  nor  with  the  absurdly  flattering  pencil  of 
Clarendon.  "  The  Archbishop  of  Canterbury  was 
a  main  agent  in  this  fatal  work ;  a  man  vigilant 
enough,  of  an  active,  or,  rather,  of  a  restless  mind  ; 
more  ambitious  to  undertake  than  politic  to  carry 
on ;  of  a  disposition  too  tierce  and  cruel  for  his  coat; 
which  notwithstanding  he  was  so  far  from  conceal- 
ing in  a  subtle  wa}-,  that  he  increased  the  en\'y  of 
it  by  insolence.  He  had  few  vulgar  and  private 
vices,  as  being  neither  taxed  of  covetonsness,  in- 
temperance, nor  incontinence ;  and,  in  a  word,  a  man 
not  altogether  so  bad  in  his  personal  character,  as 
unfit  for  the  state  of  England." — History  of  Parlia- 
ment, 19. 


Cha.  I.— 1629-40.]  FROM  HEXRY  VII.  TO  GEOUGE  II. 


261 


distinguished  even  in  his  own  profession, 
that  the  archbishop  displayed  his  contempt 
of  the  rest  of  the  council,  especially  Cotting- 
ton,  who  aspired  to  it,  by  such  a  recom- 
mendation.* He  had  previously  procured 
the  office  of  secretary  of  state  for  Winde- 
bank.  But,  though  overawed  by  the  king's 
infatuated  partiality,  the  faction  adverse  to 
Laud  were  sometimes  able  to  gi-atify  their 
dislike,  or  to  manifest  their  greater  discre- 


*  The  following  entry  appears  in  Land's  Diary 
(March  6,  1636):  "Sunday,  William  Juxon,  lord- 
bishop  of  London,  made  lord-high-treasurer  of  Eng- 
land: DO  churchman  had  it  since  Henry  VII.  s 
time.  I  pray  God  bless  him  to  cany  it  so  that  the 
Church  may  have  honor,  and  the  king  and  the  state 
service  and  contentment  by  it.  And  now,  if  the 
Church  will  not  hold  themselves  up  under  God,  I 
can  do  no  more. " 

Those  who  were  far  from  Puritanism  could  not 
digest  this  strange  elevation.  James  Howell  writes 
to  Wentworth  :  •'  The  news  that  keeps  greatest 
noise  here  at  this  present,  is  that  there  is  a  new 
lord-treasurer ;  and  it  is  news  indeed,  it  being  now 
twice  time  out  of  mind  since  the  white  robe  and 
tho  white  staff  marched  together;  we  begin  to 
live  here  in  the  church  triumphant ;  and  there 
wants  but  one  more  to  keep  the  king's  conscience, 
which  is  more  proper  for  a  churchman  than  his 
coin,  to  make  it  a  triumvirate." — Straff.  Letters, 
i.,  5i-i.  Garrard,  another  correspondent,  expresses 
his  surprise,  and  thinks  Straflbrd  himself,  or  Cot- 
tington,  would  have  done  better,  p.  523.  And  after- 
ward, vol.  ii.,  p.  2,  "  The  clergy  are  so  high  here 
since  the  joining  of  the  white  sleeves  with  the 
white  staff,  that  thei'e  is  much  talk  of  having  as 
secretary  a  bishop,  Dr.  Wren,  bishop  of  Norwich, 
and  as  chancellor  of  the  Exchequer,  Dr.  Bancroft, 
bishop  of  Oxford ;  but  this  comes  only  from  the 
young  fry  of  the  clergy ;  little  credit  is  given  to  it, 
but  it  is  observed  they  swarm  mightily  about  the 
court."  The  tone  of  these  letters  shows  that  the 
writer  suspected  that  Wentworth  would  not  be 
well  pleased  at  seeing  a  churchman  set  over  his 
head ;  but  in  several  of  his  own  letters  he  posi- 
tively declares  his  aversion  to  the  office,  and  per- 
haps with  sinceritj-.  Ambition  was  less  predomi- 
nant in  his  mind  than  pride,  and  impatience  of  op- 
position. He  knew  that  as  lord-treasurer  he  would 
be  perpetually  thwarted  and  undemiined  by  Cot- 
tincton  and  others  of  the  council.  They,  on  the 
other  hand,  must  have  dreaded  that  such  a  col- 
league might  become  their  master.  Laud  himself 
in  his  correspondence  with  Sti  afford,  never  throws 
out  the  least  hint  of  a  wish  that  he  should  succeed 
Weston,  which  would  have  interfered  with  his 
own  views. 

It  must  be  added  that  Juxon  redeemed  the 
scandal  of  his  appointment  by  an  unblemished 
probity,  and  gave  so  little  offense  in  this  invidious 
greatness,  that  the  Long  Parliament  never  attack- 
ed him,  and  he  remained  in  his  palace  at  Fulham 
witliout  molestation  till  1617. 


tion,  by  opposing  obstacles  to  his  impetuous 
spirit. 

Of  these  impediments,  which  a  rash  and 
ardent  man  calls  lukewarmness,  in-  l^^j 
dolence,  and  timidity,  he  frequent-  Strafford, 
ly  complains  in  his  correspondence  with  the 
lord-deputy  of  Ireland — that  Lord  "Went- 
worth, so  much  better  known  by  the  title  of 
Earl  of  Strafford,  which  he  only  obtained 
tho  year  before  his  death,  that  we  may 
give  it  him  by  anticipation,  whose  doubtful 
fame  and  memorable  end  have  made  him 
nearly  the  most  conspicuous  character  of  a 
reign  so  fertile  in  recollections.  Sti'afford 
had  in  his  early  years  sought  those  local 
dignities  to  which  his  ambition  probably 
was  at  that  time  limited,  the  representation 
of  the  county  of  York  and  the  post  of  cus- 
tos  rotulorura,  through  the  usual  channel  of 
court  favor.  Slighted  by  the  Duke  of  Buck- 
ingham, and  mortified  at  the  preference 
shown  to  the  head  of  a  rival  family.  Sir 
John  SaviUe,  he  began  to  quit  the  cautious 
and  middle  course  he  had  pursued  in  Par- 
liament, and  was  reckoned  among  the  oppos- 
ers  of  the  administration  after  the  accession 
of  Charles.*  He  was  one  of  those  who 
were  made  sheriffs  of  their  counties  in  or- 
der to  excludo  them  from  the  Parliament  of 
1626.  This  inspired  so  much  resentment, 
tliat  he  signalized  himself  as  a  refuser  of 
the  arbiti'ary  loan  exacted  the  next  year, 
and  was  committed,  in  consequence,  to  pris- 
on. He  came  to  the  third  Parliament  with 
a  detennination  to  make  the  court  sensible 

*  Strafford's  Letters,  i.,  33,  &c.  The  letters  of 
Wentworth  in  this  period  of  his  life  show  a  good 
deal  of  ambition  and  resentment,  but  no  great  por- 
tion of  public  spirit.  This  collection  of  the  Straf- 
ford letters  forms  a  very  important  portion  of  our 
historical  documents.  Hume  had  looked  at  them 
very  superficiaUj',  and  quotes  them  but  twice. 
They  furnished  materials  to  Harris  and  Macaulay  ; 
but  the  first  is  little  read  at  present,  and  the  sec- 
ond not  at  all.  In  a  recent  and  deservedly  popular 
publication,  Macdiarmid's  Lives  of  British  States- 
men, the  work  of  a  young  man  of  letters,  who  did 
not  live  to  struggle  through  the  distresses  of  that 
profession,  the  character  of  Strafford  is  drawn  from 
the  best  authorities,  and  with  abundant,  perhaps 
excessive  candor.  Mr.  Brodie  has  well  pointed 
out  that  he  has  obtained  more  credit  for  the  early 
period  of  his  Parliamentarj-  life  than  he  deserves, 
by  being  confounded  with  Mr.  Wentworth,  mem- 
ber for  Oxford,  vol.  ii.,  p.  249.  Rusbworth  has 
even  ascribed  to  Sir  Thomas  Wentworth  the 
speeches  of  this  Mr.  Wentworth  in  the  second 
Parliament  of  Charies,  from  which  it  is  notorious 
that  the  former  had  been  excluded. 


262 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  VIII. 


of  his  power,  and  possibly  with  some  real 
zeal  for  the  liberties  of  his  countiy ;  but 
patriotism  unhappily,  in  his  self-interested 
and  ambitious  mind,  was  the  seed  sown 
among  thorns.  He  had  never  lost  siglit  of 
his  hopes  from  the  court ;  even  a  tempora- 
ry  reconciliation  with  Buckingham  had  been 
effected  in  1627,  which  the  favorite's  levity 
soon  broke  ;  and  he  kept  up  a  close  connec- 
tion with  the  treasurer  Weston.  Always 
jealous  of  a  rival,  ho  contracted  a  dislike  for 
Sir  John  Eliot,  and  might  suspect  that  he 
was  likely  to  be  anticipated  by  that  moi'e 
distinguished  patriot  in  royal  favors.*  The 
hour  of  Wentworth's  glory  was  when 
Charles  assented  to  the  Petition  of  Right, 
in  obtaining  which,  and  in  overcoming  the 
king's  chicane  and  the  hesitation  of  the 
Lords,  he  had  been  pre-eminently  conspic- 
uous. From  this  moment  he  started  aside 
from  the  path  of  tnie  honor ;  and  being  sud- 
denly elevated  to  the  peei'age  and  a  great 
post,  the  presidency  of  the  council  of  the 
North,  commenced  a  splendid  but  baleful 
career,  that  terminated  at  the  scaffold,  f  Af- 
ter this  fatal  apostasy  he  not  only  lost  all 
solicitude  about  those  liberties  which  the 
Petition  of  Right  had  been  designed  to  se- 
cure, but  became  their  deadliest  and  most 
shameless  enemy. 

The  council  of  the  North  was  erected  by 


*  Racket  tells  us,  in  his  elegant  style,  that  "  Sir 
John  Eliot  of  the  vpest,  and  Sir  Thomas  Went- 
worth  of  the  nortli,  hoth  in  the  prime  of  their 
age  and  wits,  hoth  conspicuous  for  able  speakers, 
clashed  so  often  in  the  House,  and  cudgeled  one 
another  with  such  strong  contradictious,  that  it 
grew  from  an  emulation  between  them  to  an  en- 
mity. The  Lord-treasurer  Weston  picked  out  the 
northern  cock,  Sir  Thomas,  to  make  hira  the  king's 
creature,  and  set  him  upon  the  fu'st  step  of  his 
rising,  which  was  wormwood  in  the  taste  of  Eliot, 
who  revenged  himself  upon  the  king  in  the  bill  of 
tonnage,  and  then  fell  upon  the  treasurer,  and  de- 
claimed against  him,  that  he  was  the  author  of  all 
the  evils  under  which  the  kingdom  was  oppressed." 
He  proceeds  to  inform  us,  that  Bishop  Williams 
offered  to  bring  Eliot  over,  for  which  Wentworth 
never  forgave  him. — Life  of  Williams,  p.  82.  The 
magnanimous  fortitude  of  Eliot  forbids  us  to  give 
credit  to  any  surmise  unfavorable  to  his  glory,  upon 
Buch  indifferent  authority  ;  but  several  passages  in 
Wentworth's  letters  to  Laud  show  his  malice  to- 
ward one  who  had  perished  in  the  great  cause 
which,  he  had  so  basely  forsaken. 

t  Wentworth  was  brought  over  before  the  as- 
sassination of  Buckingham.  His  patent  in  Il3  mer 
bears  date  22d  July,  1G28,  a  month  previous  to  that 
event. 


Henry  VHI.  after  the  suppression  of  the 
gi-eat  insurrection  of  153C.  It  had  a  crim- 
inal jurisdiction  in  Yorkshire  and  the  four 
more  northern  counties  as  to  riots,  conspira- 
cies, and  acts  of  violence.  It  had  also,  by 
its  original  commission,  a  jurisdiction  in  civil 
suits,  where  either  of  the  parties  were  too 
poor  to  bear  the  expenses  of  a  process  at 
common  law,  in  which  case  the  council 
might  determine,  as  it  seems,  in  a  summa- 
ry manner,  and  according  to  equity.  But 
this  latter  authority  had  been  held  illegal  by 
the  judges  under  Elizabeth.*  In  fact,  the 
lawfulness  of  this  tribunal  in  any  respect 
was,  to  say  the  least,  highly  pi-oblematical. 
It  was  regulated  by  instructions  issued  from 
time  to  time  under  the  great  seal.  Went- 
worth spared  no  pains  to  enlarge  the  juris- 
diction of  his  court.  A  commission  issued 
in  1G32,  empowering  the  council  of  the 
North  to  hear  and  determine  all  offenses, 
misdemeanors,  suits,  debates,  controversies, 
demands,  causes,  things,  and  matters  what- 
soever therein  contained,  within  certain  pre- 
cincts, namely,  from  the  Humber  to  the 
Scots  frontier.  They  were  specially  ap- 
pointed to  hear  and  determine  divers  of- 
fenses, according  to  the  course  of  the  Star 
Chamber,  whether  provided  for  by  act  of 
Parliament  or  not ;  to  hear  complaints  ac- 
cording to  the  rules  of  the  Court  of  Chan- 
ceiy,  and  stay  proceedings  at  common  law 
by  injunction ;  to  attach  persons  by  their 
sergeant  in  any  part  of  the  realm. f 

These  inordinate  poAvers,  the  soliciting 
and  procuring  of  which,  especially  by  a  per- 
son so  well  versed  in  the  laws  and  Consti- 
tution, appears  to  be  of  itself  a  sufficient 
ground  for  impeachment,  were  abused  by 
Sti'afford  to  gratify  his  own  pride,  as  well 
as  to  intimidate  the  opposers  of  arbitrary 
measures.  Proofs  of  this  occur  in  the  pros- 
ecution of  Sir  David  Foulis,  in  that  of  Mr. 
Bellasis,  in  that  of  Mr.  Maleverer,  for  the 
circumstances  of  which  I  refer  the  reader 
to  more  detailed  histoiy.t 

*  Fourth  Inst.,  c.  49.    See,  also,  13  Reports,  31. 

t  Rymer,  xis.,  9.    Rushworth,  ii.,  127. 

t  Rushworth.  Strafford's  Trial,  &c.  Brodie,  ii., 
319.  Straff.  Letters,  i.,  145.  In  a  letter  to  Lord 
Doncaster,  pressing  for  a  severe  sentence  on  Fonlis, 
who  had  been  guilty  of  some  disrespect  to  himself 
as  president  of  the  North,  Wentworth  shows  his 
abhorrence  of  liberty  with  all  the  bitterness  of  a 
renegado;  and  urges  the  "  seasonable  correcting  a 
humor  and  liberty  I  find  reign  in  these  parts,  of 


Cha.  I— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


263 


Without  resigning  liis  presidency  of  the 
northern  council,  Wentworth  was  ti'ans- 
plauted  in  1633  to  a  still  more  extensive 
sphere,  as  lord-deputy  of  Ireland.  This 
was  the  great  scene  on  which  he  played  his 
part ;  it  was  here  that  he  found  abundant 
scope  for  his  commanding  energy  and  im- 
perious passions.  The  Richelieu  of  that 
island,  he  made  it  wealthier  in  the  midst  of 
exactions,  and,  one  might  almost  say,  hap- 
pier in  the  midst  of  oppressions.  He  curb- 
ed subordinate  tyranny,  but  his  own  left  a 
sting  behind  it  that  soon  spread  a  deadly 
poison  over  Ireland.  But  of  his  merits  and 
his  injustice  toward  that  nation  I  shall  find  a 
better  occasion  to  speak.  Two  well-known 
instances  of  his  despotic  conduct  in  respect 
to  single  persons  may  just  be  mentioned : 
the  deprivation  and  imprisonment  of  the 
Lord- chancellor  Loftus  for  not  obeying  an 
order  of  the  privy-council  to  make  such  a 
settlement  as  they  prescribed  on  his  son's 
marriage — a  stretch  of  interference  with 
private  concerns  which  was  aggravated  by 
the  suspected  familiarity  of  the  lord-deputy 
with  the  lady  who  was  to  reap  advantage 
from  it* — and,  secondly,  the  sentence  of 
death  passed  by  a  council  of  war  on  Lord 
Mountnorris,  in  Sti'afford's  presence,  and 
evidently  at  his  instigation,  on  account  of 
some  very  slight  expressions  which  he  had 
used  in  private  society.  Though  it  was 
never  the  deputy's  intention  to  execute  this 
judgment  of  his  slaves,  but  to  humiliate 
and  trample  upon  Mountnoms,  the  violence 
and  indecency  of  his  conduct  in  it,  his  long 
persecution  of  the  unfortunate  prisoner  af- 
ter the  sentence,  and  his  glorying  in  the  act 
at  all  times,  and  even  on  his  own  ti'ial,  are 

observing  a  superior  command  no  further  tbau  they 
like  themselves,  and  of  questioning  any  profit  of 
the  crown,  called  upon  by  his  majesty's  ministers, 
which  might  enable  it  to  subsist  of  itself,  without 
being  necessitated  to  accept  of  such  conditions  as 
others  might  easily  think  to  impose  upon  it."  Sept., 
1632. — Somers  Tracts,  iv.,  198. 

*  Rushworth  Abr.,  iii.,  85.  Clarendon,  i.,  390 
(1826).  The  original  editors  left  out  some  words, 
which  brought  this  home  to  StrafTord.  And  if  the 
case  was  as  there  seems  every  reason  to  believe, 
I  would  ask  those  who  talk  of  this  man's  innocence, 
whether  in  any  civilized  country  a  more  outrageous 
piece  of  tyranny  has  been  committed  by  a  goveni- 
or  than  to  compel  a  nobleman  of  the  highest  sta- 
tion to  change  the  disposition  of  his  private  estate, 
because  that  governor  carried  on  an  adulterous  in- 
tercourse with  the  daughter-in-law  of  the  person 
whom  he  treated  thus  imperiously  ? 


irrefragable  proofs  of  such  vindictive  bitter- 
ness as  ought,  if  there  were  nothing  else, 
to  prevent  any  good  man  from  honoring  his 
memory.* 

The  haughty  and  impetuous  primate 
found  a  congenial  spirit  in  the  Correspond- 
lord-deputy.  They  unbosom  to  ^auS''" 
each  other,  in  then-  private  let-  Strafford, 
ters,  their  ardent  thirst  to  promote  the 
king's  service  by  measures  of  more  energy 
than  they  were  permitted  to  exercise.  Do 
we  think  the  administration  of  Charles  dm*- 
ing  the  interval  of  Parliaments  rash  and  vio- 
lent? They  tell  us  it  was  over-cautious 
and  slow.  Do  we  revolt  from  the  severities 
of  the  Star  Chamber?  To  Laud  and  Straf- 
ford they  seemed  the  feebleness  of  excess- 
ive lenity.  Do  we  cast  on  the  crown  law- 
yers the  reproach  of  having  betrayed  their 
country's  liberties?  We  may  find  that, 
with  their  utmost  servility,  they  fell  far  be- 
hind the  expectations  of  the  court,  and  their 
scruples  were  reckoned  the  chief  shackles 
on  the  half-emancipated  prerogative. 

The  system  which  Laud  was  longing  to 
pursue  in  England,  and  which  Strafford  ap- 
proved, is  frequently  hinted  at  by  the  word 
thorough.  "  For  the  state,"  says  he,  "  in- 
deed, my  lord,  I  am  for  thorough  ;  for  I  see 
that  both  thick  and  thin  stays  somebody, 
where  I  conceive  it  should  not,  and  it  is  im- 
possible to  go  thorough  alone."f  "  I  am 
very  glad"  (in  another  letter)  "  to  read  your 

*  Clarendon  Papers,  i.,  449,  543,  594.  Rush- 
worth  Abridg.,  iii.,  43.  Clar.  Hist.,  i.,  386  (1826). 
Strafford  Letters,  i.,  497,  et  post.  This  proceeding 
against  Lord  Mountnorris  excited  much  dissatis- 
faction in  England,  those  of  the  council  who  dis- 
liked Strafford  making  it  a  pretext  to  inveigh 
against  his  aiTogance.  But  the  king,  invariably 
on  the  severe  and  arbitrary  side,  justified  the  meas- 
ure, which  silenced  the  courtiers,  p.  512.  Be  it 
added  that  the  virtuous  Charles  took  a  bribe  of 
£6000  for  bestowing  Mountnorris's  office  on  Sir 
Adam  Loftus,  not  out  of  distress  through  the  par- 
simony of  Parliament,  but  to  purchase  an  estate  in 
Scotland.— Id.,  511. 

Hume,  in  extenuating  the  conduct  of  Strafford 
as  to  Mountnorris's  ti-ia!,  says,  that,  "sensible  of 
the  iniqidty  of  the  sentence,  he  procured  his  majes- 
ty's free  pardon  to  Mountnorris."  There  is  not 
the  slightest  evidence  to  warrant  the  words  in 
italics ;  on  the  couti-ary,  he  always  justified  the 
sentence,  and  had  most  manifestly  procured  it. 
The  king,  in  return  to  a  moving  petition  of  Lady 
Mountnorris,  permitted  his  release  from  confine- 
ment, "  on  making  such  a  submission  as  my  lord- 
deputy  shall  approve.  ' 

t  Strafford  Letters,  vol.  i..  111. 


264 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  VUL 


lordsliip  so  resolute,  and  more  to  hear  you 
affirm  that  the  footing  of  them  that  go  thor- 
ough for  our  master's  service  is  not  upon 
fee,  as  it  hath  been.  But  you  are  withal 
upon  so  many  ifs,  that  by  their  help  you 
may  preserve  any  jnan  upon  ice,  be  it  never 
so  slippery.  As  first,  if  the  common  law- 
yers may  be  contained  within  their  ancient 
and  sober  bounds  ;  if  the  word  thorough  be 
not  left  out,  as  I  am  certain  it  is ;  if  we 
grow  not  faint ;  if  we  ourselves  be  not  in 
fault ;  if  we  come  not  to  a  peccatum  ex  te 
Israel ;  if  others  will  do  their  parts  as  thor- 
oughly as  you  promise  for  yourself,  and 
justly  conceive  of  me.  Now  I  pray,  with 
so  many  and  such  ifs  as  these,  what  may 
not  be  done,  and  in  a  brave  and  noble  way? 
But  can  you  tell  when  these  ifs  will  meet, 
or  be  brought  together?  Howsoever,  I  am 
resolved  to  go  on  steadily  in  the  way  which 
you  have  formerly  seen  7ne  go ;  so  that  (to 
put  in  one  if  too)  if  any  thing  fail  of  my 
hearty  desires  for  the  king  and  the  Church's 
service,  the  fault  shall  not  be  mine."*  "As 
for  my  marginal  note"  (he  writes  in  anoth- 
er place),  "  I  see  you  deciphered  it  well" 
(they  frequently  coiTesponded  in  cipher), 
"  and  I  see  you  make  use  of  it  too ;  do  so 
still,  thorough  and  thorough.  O  that  I 
were  where  I  might  go  so  too!  but  I  am 
shackled  between  delays  and  uncertainties ; 
you  have  a  gi-eat  deal  of  honor  here  for 
your  proceedings ;  go  on  a  God's  name." 
"  I  have  done,"  he  says  some  years  after- 
ward, "  with  expecting  of  thorough  on  this 
side."f 

It  is  evident  that  the  remissness  of  those 
with  whom  he  was  joined  in  the  adminis- 
tration, in  not  adopting  or  enforcing  suffi- 
ciently energetic  measures,  is  the  subject 
of  the  archbishop's  complaint.  Neither  he 
nor  Straflbrd  loved  the  treasurer  Weston, 
nor  Lord  Cottington,  both  of  whom  had  a 
considerable  weight  in  the  council.  But  it 
is  more  difficult  to  perceive  in  what  respects 
the  thorough  system  was  disregarded.  He 
can  not  allude  to  the  Church,  which  he  ab- 
solutely governed  through  the  High  Com- 
mission Court.    The  inadequate  punish- 


*  Strafford  Letters,  vol.  i.,  p.  1-55. 

t  Strafford  Letters,  vol.  i.,  p.  329.  In  other  letters 
they  complain  of  -what  they  call  the  Lady  Mora, 
which  seems  to  be  a  cant  word  for  the  inefBcient 
system  of  the  rest  of  the  eonncil,  unless  it  is  a  per- 
sonal nickname  for  Weston. 


ments,  as  he  thought  them,  imposed  ontho 
refractory,  formed  a  part,  but  not  the  whole, 
of  his  grievance.  It  appears  to  me  that  the 
great  aim  of  these  two  persons  wa.s  to  ef- 
fect the  subjugation  of  the  common  law- 
yers. Some  sort  of  tenderness  for  those 
constitutional  privileges,  so  indissolubly  in- 
terwoven with  the  laws  they  administered, 
adhered  to  the  judges,  even  while  they 
made  great  sacrifices  of  their  integrity  at 
the  instigation  of  the  crown.  In  the  case 
of  habeas  corpus,  in  that  of  ship-money, 
we  find  many  of  them  display  a  kind  of 
half-compliance,  a  reservation,  a  distinction, 
an  anxiety  to  rest  on  precedents,  which, 
though  it  did  not  save  their  credit  with  the 
public,  impau'ed  it  at  court.  On  some  more 
fortunate  occasions,  as  we  have  seen,  they 
even  manifested  a  good  deal  of  firmness  in 
resisting  what  was  urged  on  them.  Chief- 
ly, however,  in  matter  of  prohibitions  issu- 
ing fi-om  the  ecclesiastical  courts,  they  were 
uniformly  tenacious  of  their  jurisdiction. 
Nothing  could  expose  them  more  to  Laud's 
ill  Avill.  I  should  not  deem  it  improbable 
that  he  had  formed,  or  rather  adopted  from 
the  canonists,  a  plan,  not  only  of  rendering 
the  spiritual  jurisdiction  independent,  but 
of  extending  it  to  all  civil  causes,  unless, 
perhaps,  in  questions  of  freehold.* 

*  The  bishops,  before  the  Reformation,  issued 
process  from  their  courts  in  their  own  names.  By 
the  statute  of  1  Edw.  VL,  c.  2,  all  ecclesiastical 
jurisdiction  is  declared  to  be  immediately  from  the 
crown ;  and  it  is  directed  that  persons  exercising^ 
it  shall  use  the  king's  arms  in  their  seal,  and  no 
other.  This  was  repealed  under  Mary ;  but  her 
act  is  itself  repealed  by  1  Jac.  I.,  c.  25,  $  48.  This 
seems  to  revive  the  act  of  Edward.  The  spiritaal 
courts,  however,  continued  to  issue  process  in  the 
bishop's  name  and  with  his  seal.  On  some  diffi- 
culty being  made  concerning  this,  it  was  referred 
by  the  Star  Chamber  to  the  twelve  judges,  who 
gave  it  under  their  bauds  that  the  statute  of  Ed- 
ward was  repealed,  and  that  the  practice  of  the 
ecclesiastical  courts  in  this  respect  was  agreeable 
to  law. — Neal,  589.  Kennet,  92.  Rash.  Abr.,  iii., 
340.  Whitelock  says,  p.  22,  that  the  bishops  aU 
denied  that  they  held  their  jurisdiction  fi-om  the 
king,  for  which  they  were  liable  to  heavy  penal- 
ties. This  question  is  of  little  consequence  ;  for  it 
is  stUl  true  that  ecclesiastical  jurisdiction,  accord- 
ing to  the  law,  emanates  from  the  crown ;  nor  does 
any  thing  turn  on  the  issuing  of  process  in  the  bish- 
op's name,  any  more  than  on  the  holding  courts- 
baron  in  the  name  of  the  lord.  In  Ireland,  unless 
I  am  mistaken,  the  king's  name  is  used  in  eccle- 
siastical proceedings.  Laud,  in  his  famous  speech 
in  the  Stai-  Chamber,  1637,  and  again  on  his  trial. 


Cha.  I.— 16i29-40.] 


FROM  HENRY  VJI.  TO  GEORGE  II. 


265 


The  presumption  of  common  lawyers, 
and  the  difficulties  they  threw  in  the  way 
of  the  Church  and  crown,  are  frequent 
themes  with  the  two  correspondents.  "  The 
Church,"  says  Laud,  "  is  so  bound  up  in 
the  forms  of  the  common  law,  that  it  is  not 
possible  for  me  or  for  any  luan  to  do  that 
good  which  he  would,  or  is  bound  to  do; 
for  your  lordship  sees,  no  man  clearer,  that 
tliey  which  have  gotten  so  much  power  in 
and  over  the  Church  will  not  let  go  their 
hold ;  they  have  indeed  fangs  with  a  wit- 
ness, whatsoever  I  was  once  said  in  a  pas- 
sion to  have."*  Strafford  replies  :  "  I  know 
no  reason  but  you  may  as  well  loile  the 
common  lawyers  in  England  as  I,  poor  bea- 
gle, do  here  ;  and  yet  that  I  do,  and  will  do, 
in  all  that  concerns  my  master,  at  the  peril 
of  my  head.  I  am  confident  that  the  king, 
being  pleased  to  set  himself  in  the  busi- 
ness, is  able,  by  his  wisdom  and  ministers, 
to  cany  any  just  and  honorable  action 
through  all  imaginary  opposition,  for  real 
there  can  be  none ;  that  to  start  aside  for 
such  panic  fears,  fantastic  apparitions  as  a 
Prynne  or  an  Eliot  shall  set  up,  were  the 
meanest  folly  in  the  whole  world ;  that  the 
debts  of  the  crown  being  taken  off,  j''ou  may 
govern  as  you  please ;  and  most  resolute  I 
am  that  work  may  be  done  without  bor- 
rowing any  help  forth  of  the  king's  lodgings, 
and  that  it  is  as  downright  a  peccatum  ex 

asserts  episcopal  jurisdiction  (except  wliat  is  called 
in  foro  contentioso)  to  be  of  divine  right ;  a  doctrine 
not  easily  reconcilable  vvitli  the  crown's  supremacy- 
over  all  causes  under  the  statute  of  Elizabeth, 
since  any  spiritual  censure  may  be  annulled  by  a 
lay  tribunal,  the  commission  of  delegates  ;  and  how 
this  can  be  compatible  with  a  divine  authority  in 
the  bishop  to  pronounce  it,  seems  not  easy  to  prove. 
Laud,  I  have  no  doubt,  would  have  put  an  end  to 
this  badge  of  subordination  to  the  crown.  The 
judges  in  Cawdrey's  case,  5  Reports,  held  a  very 
different  language  ;  nor  would  Elizabeth  have 
borne  this  assumption  of  the  prelates  as  tamely  as 
Charles,  in  his  poor-spirited  bigotiy,  seems  to  have 
done.  Stillingfleet,  though  he  disputes  at  great 
length  the  doctrine  of  Lord  Coke,  in  his  fifth  Re- 
port, as  to  the  extent  of  the  royal  supremacy  be- 
fore the  first  of  Elizabeth,  fully  admits  that  since 
the  statute  of  that  year,  the  authority  for  keeping 
courts,  in  whose  name  soever  they  may  be  held,  is 
derived  from  the  king. — Vol.  iii.,  768,  778. 

This  arrogant  contempt  of  the  lawyers  manifest- 
ed by  Land  and  his  faction  of  piiests  led  to  the  ruin 
of  the  great  churchmen  and  of  the  Church  itself — 
by  the  hands,  chieHy,  of  that  powerful  body  they 
had  insulted,  as  Clarendon  has  justly  remarked. 

*  Strafford  Letters,  vol.  i.,  p.  111. 


te  Israel  as  ever  was,  if  all  this  he  not  ef- 
fected with  speed  and  ease."*  Strafford's 
indignation  at  the  lawyers  breaks  out  on 
other  occasions.  In  writing  to  Lord  Cot- 
tington,  he  complains  of  a  judge  of  assize 
who  had  refused  to  receive  the  king's  in- 
structions to  the  council  of  the  North  in 
evidence,  and  beseeches  that  he  may  be 
charged  with  this  great  misdemeanor  be- 
fore the  council-board.  "  I  confess,"  he 
says,  "  I  disdain  to  see  the  gownmen  in  this 
sort  hang  their  noses  over  the  flowers  of 
the  crown. "f  It  Avas  his  endeavor  in  Ire- 
land, as  well  as  in  Yorkshire,  to  obtain  the 
right  of  determining  civil  suits.  "I  find," 
he  says,  "that  my  Lord  Falkland  was  re- 
strained by  proclamiation  not  to  meddle  in 
any  cause  between  party  and  party,  which 
did  certainly  lessen  his  power  extremely  : 
I  know  very  well  the  common  lawyers  will 
be  passionately  against  it,  who  are  wont  to 
put  such  a  prejudice  upon  all  other  profes- 
sions, as  if  none  were  to  be  trusted  or  capa- 
ble to  administer  justice  but  themselves ; 
yet  how  well  this  suits  with  monarchy, 
when  they  monopolize  all  to  be  governed 
by  their  year  books,  you  in  England  have  a 
costly  experience ;  and  I  am  sure  his  maj- 
esty's absolute  power  is  not  weaker  in  this 
kingdom,  where  hitherto  the  deputy  and 
council-board  have  had  a  stroke  with  them."t 
The  king  indulged  him  in  this,  with  a  re- 
striction as  to  matters  of  inheritance. 

The  cruelties  exercised  on  Prynne  and 
his  associates  have  generally  been  reckoned 
among  the  great  reproaches  of  the  pi'imate. 
It  has  sometimes  been  insinuated  that  they 
were  rather  the  acts  of  other  counselors 
than  his  own.  But  his  letters,  as  too  often 
occurs,  belie  this  charitable  excuse.  He 
expresses  in  them  no  sort  of  humane  senti- 
ment toward  these  unfortunate  men,  but 
the  utmost  indignation  at  the  oscitancy  of 
those  in  power,  which  connived  at  the  pub- 
lic demonstrations  of  sympathy.  "  A  little 
more  quickness,"  he  says,  "  in  the  govern- 
ment would  cure  this  itch  of  libeling.  But 
what  can  you  think  of  thorough  when  there 
shall  be  such  slips  in  business  of  conse- 
quence ?  What  say  you  to  it,  that  Prynne 
and  his  fellows  should  be  suffered  to  talk 
what  they  pleased  while  they  stood  in  the 
pillory,  and  win  acclamations  from  the  peo- 

*  Strafford  Letters,  vol.  i..  p.  173. 

t  lb.,  p.  129.       X  lb.,  p.  201 .    See,  also,  p.  223. 


266 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIII. 


pie,  &c.  ?  By  that  which  I  have  above 
written,  your  lordship  will  see  that  the  Tri- 
umviri will  be  far  enough  from  being  kept 
dark.  It  is  ti'ue  that,  when  this  business  is 
spoken  of,  some  men  speak  as  your  lordship 
writes,  that  it  concerns  the  king  and  govern- 
ment more  than  me ;  but  when  any  thing 
comes  to  be  acted  against  them,  be  it  but 
the  execution  of  a  sentence,  in  which  lies 
the  honor  and  safety  of  all  justice,  yet  there 
is  little  or  nothing  done,  nor  shall  I  ever  live 
to  see  it  otherwise."* 

The  lord-deputy  fully  concurred  in  this 
theory  of  vigorous  government.  Theyi-eas- 
oned  on  such  subjects  as  Cardinal  Granville 
and  the  Duke  of  Alva  had  reasoned  before 
them.  "  A  prince,"  he  says  in  answer, 
"  that  loseth  the  force  and  example  of  his 
punishments,  loseth  withal  the  gi-eatest  part 
of  his  dominion.  If  the  eyes  of  the  Trium- 
viri be  not  sealed  so  close  as  they  ought, 
they  may  perchance  spy  us  out  a  shrewd 
turn  when  we  least  expect  it.  I  fear  we 
are  hugely  mistaken,  and  misapply  our  char- 
ity thus  pitying  of  them,  where  we  should 
indeed  much  rather  pity  ourselves.  It  is 
strange  indeed,"  he  observes  in  another 
place,  "  to  see  the  phrensy  which  possess- 
eth  the  vulgar  nowadays,  and  that  the  just 
displeasure  and  chastisement  of  a  state 
should  produce  greater  estimation,  nay, 
reverence,  to  persons  of  no  consideration 
either  for  life  or  learning,  than  the  greatest 
and  highest  trust  and  employments  shall  be 
able  to  procure  for  others  of  unspotted  con- 
vei'sation,  of  most  eminent  virtues  and  deep- 
est knowledge  :  a  grievous  and  overspread- 
ing leprosy  !  but  where  you  mention  a  rem- 
edy, sure  it  is  not  fitted  for  the  hand  of  ev- 
ery physician ;  the  cure,  under  God,  must 
be  \VT0ught  by  one  iEsculapius  alone,  and  i 
that,  in  my  weak  judgment,  to  be  effected 
rather  by  corrosives  than  lenitives :  less  than 
thorough  will  not  overcome  it ;  there  is  a 
cancerous  malignity  in  it  which  must  be 
cut  forth,  which  long  since  rejected  all  other 
means,  and  therefore  to  God  and  him  I  leave 
it."t 

The  honorable  reputation  that  Sti'afford 
had  earned  before  his  apostasy  stood  princi- 
pally on  two  gi'ounds  :  his  refusal  to  comply 
with  a  requisition  of  money  without  consent 
of  Parliament,  and  his  exertions  in  the  Pe- 
tition of  Right,  which  declared  eveiy  such 

»  s-afford  Lett.,  vol.  ii.,  p.  100.      t  Id.,  p.  130. 


exaction  to  be  contraiy  to  law.  If  any, 
therefore,  be  inclined  to  palliate  his  arbiti  a- 
ry  proceedings  and  principles  in  the  execu- 
tive administration,  his  virtue  will  be  brought 
to  a  test  in  the  business  of  ship-money. 
If  he  shall  be  found  to  have  given  counte- 
nance and  support  to  that  measure,  there 
must  be  an  end  of  all  pretense  to  integrity 
or  patiiotism.  But  of  this  there  are  deci- 
sive proofs.  He  not  only  made  every  ex- 
ertion to  enforce  its  payment  in  Yorkshire 
during  the  years  1639  and  1G40,  for  which 
the  peculiar  dangers  of  that  time  might  fur- 
nish some  apology,  but  long  before,  in  his 
correspondence  with  Laud,  speaks  thus  of 
Mr.  Hampden,  deploring,  it  seems,  the  su- 
pineness  that  had  permitted  him  to  dispute 
the  crown's  claim  with  impunity.  '■  Mr. 
Hampden  is  a  gi-eat  brother  [i.  e.,  a  Puri- 
tan], and  the  very  genius  of  that  people 
leads  them  always  to  oppose,  as  well  civilly 
as  ecclesiastically,  all  that  ever  authority  or- 
dains for  them ;  but  in  good  faith,  were  they 
right  served,  they  should  be  whipt  home 
into  their  right  wits,  and  much  beholden 
they  should  be  to  any  one  that  would  thor- 
oughly take  pains  with  them  in  that  kind."* 
"  In  tnith  I  still  wish,  and  take  it  also  to  be 
a  very  charitable  one,  Mr.  H.  and  others  to 
his  likeness  were  well  whipt  into  their 
right  senses  ;  if  that  the  rod  be  so  used  as 
that  it  smarts  not,  I  am  the  more  sony."f 
Hutton,  one  of  the  judges  who  had  been 
against  the  crown  in  this  case,  having  some 
small  favor  to  ask  of  Strafibrd,  takes  occa- 
sion in  his  letter  to  enter  on  the  subject  of 
ship-money,  mentioning  his  own  opinion  in 
such  a  manner  as  to  give  the  least  possible 
offense,  and  with  all  qualifications  in  favor 
of  the  crown ;  commending  even  Lord 
Finch's  argument  on  the  other  side.t  The 
lord-deputy,  answering  his  letter  after  much 
delay,  says,  "  I  must  confess,  in  a  business 
of  so  mighty  importance,  I  shall  the  less  re- 
gard the  forms  of  pleading,  and  do  conceive, 
as  it  seems  my  Lord  Finch  pressed,  that 
the  power  of  levies  of  forces  at  sea  and  land 
for  the  veiy,  not  feigned,  relief  and  safely 
of  the  public,  is  a  propeit)"^  of  sovereignty, 
as,  we)-e  the  crown  willing,  it  could  not  di- 
vest it  thereof:  Salus  populi  suprema  lex; 
nay,  in  cases  of  exti-emity,  even  above  acta 
of  Parliament,"  &c. 

*  Strafford  Letters,  vol.  ii.,  p.  138. 

t  Ibid.,  p.  158.  t  Ibid.,  p.  178. 


Cha.  1.— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


267 


It  can  not  be  forgotten  that  the  loan  of 
1G26,  for  refusing  which  Wentwoith  had 
sufl'ered  imprisonment,  had  been  demand- 
ed in  a  season  of  incomparably  gi-eater  diffi- 
culty than  that  when  ship-money  was  lev- 
ied :  at  the  one  time  war  had  been  declared 
against  both  France  and  Spain,  at  the  other 
the  public  tranquillity  was  hardly  interrupt- 
ed by  some  bickerings  with  Holland.  In 
avowing,  therefore,  the  king's  right  to  levy 
money  in  cases  of  exigency,  and  to  be  the  sole 
judge  of  that  exigencj^  he  uttered  a  shame- 
less condemnation  of  his  former  virtues ; 
but,  lest  any  doubt  should  remain  of  his 
perfect  alienation  from  all  principles  of  lim- 
ited monarchy,  I  shall  produce  still  more 
conclusive  proofs.  He  was  sti'ongly  and 
wisely  against  the  war  with  Spain,  into 
which  Charles's  resentment  at  finding  him- 
self the  dupe  of  that  power  in  the  business 
of  the  Palatinate  nearly  hurried  him  in 
1637.  At  this  time  Sti-afford  laid  before 
the  king  a  paper  of  considerations  dissuading 
him  from  this  course,  and  pointing  out  par- 
ticularly his  want  of  regular  troops.*  "  It 
is  plain,  indeed,"  he  says,  "  that  the  opinion 
delivered  by  the  judges,  declaring  the  law- 
fulness of  the  assessment  for  the  shipping, 
is  the  gi'eatest  service  that  profession  hath 
done  the  crown  in  my  time  ;  but,  unless  his 
majesty  hath  the  like  power  declared  to 
raise  a  land  army  upon  the  same  exigent  of 
state,  the  crown  seems  to  me  to  stand  but 
upon  one  leg  at  home,  to  be  considerable 
but  by  halves  to  foreign  powers.  Yet  this 
sure,  methinks,  convinces  a  power  for  the 
sovereign  to  raise  payments  for  land  forces, 
and  consequently  submits  to  his  wisdom  and 
ordinance  the  transporting  of  the  money  or 
men  into  foreign  states.  Seeing,  then,  that 
this  piece,  well  fortified,  forever  vindicates 
the  royalty  at  home  from  under  the  condi- 
tions and  resti'aints  of  subjects,  renders  us 
also  abroad  even  to  the  gi-eatest  kings  the 
most  considerable  monarchy  in  Chi-isten- 
dom ;  seeing,  again,  this  is  a  business  to  be 
attempted  and  won  from  the  subject  in  time 
of  peace  only,  and  the  people  first  accus- 
tomed to  these  levies,  when  they  may  be 
called  upon,  as  by  way  of  prevention  for 
our  future  safety,  and  keep  his  majesty 
thereby  also  moderator  of  the  peace  of 
Christendom,  rather  than  upon  the  bleeding 
evil  of  an  instant  and  active  war  ;  I  beseech 
.  *  Strafford  Letters,  vol.  ii.,  p.  60. 


you,  what  piety  to  alliances  is  there  that 
should  divert  a  gi'eat  and  wise  king  forth  of 
a  path  which  leads  so  manifestly,  so  direct- 
ly, to  the  establishing  his  own  throne,  and 
the  secure  and  independent  seating  of  him- 
self and  posterity  in  wealth,  strength,  and 
gloiy,  far  above  any  their  progenitors,  verily 
in  such  a  condition  as  there  were  no  more 
hereafter  to  be  wished  them  in  this  world 
but  that  they  would  be  veiy  exact  in  their 
care  for  the  just  and  moderate  government 
of  their  people,  which  might  minister  back 
to  them  again  the  plenties  and  comforts  of 
life,  that  they  would  be  most  searching 
and  severe  in  punishing  the  oppressions  and 
wrongs  of  their  subjects,  as  well  in  the  case 
of  the  public  magisti'ate  as  of  private  per- 
sons, and  lastly  to  be  utterly  resolved  to  ex- 
ercise this  power  only  for  public  and  neces- 
saiy  uses ;  to  spare  them  as  much  and  oft- 
en as  were  possible  ;  and  that  they  never 
be  wantonly  vitiated  or  misapplied  to  any 
private  pleasure  or  person  whatsoever  ? 
This  being,  indeed,  the  very  only  means  to 
preserve,  as  may  be  said,  the  chastity  of 
these  levies,  and  to  recommend  their  beau- 
ty so  far  forth  to  the  subject,  as  being  thus 
disposed,  it  is  to  be  justly  hoped  they  will 
never  grudge  the  parting  with  then'  mon- 
eys  

"  Perhaps  it  may  be  asked,  where  shall 
so  great  a  sum  be  had  ?  My  answer  is, 
procure  it  from  the  subjects  of  England, 
and  profitably  for  them  too.  By  this  means 
preventing  the  raising  upon  them  a  land  ar- 
my for  defense  of  the  kingdom,  which  would 
be  by  many  degrees  more  chargeable ;  and 
hereby  also  insensibly  gain  a  precedent,  and 
settle  an  authority  and  right  in  the  crown 
to  levies  of  that  nature,  which  thread  draws 
after  it  many  huge  and  great  advantages, 
more  proper  to  be  thought  on  at  some  other 
seasons  than  now." 

It  is,  however,  remarkable  that,  with  all 
Strafford's  endeavors  to  render  the  king  ab- 
solute, he  did  not  intend  to  abolish  the  use 
of  Parliaments.  This  was  apparently  the 
aim  of  Chai-les  ;  but,  whether  from  remains 
of  attachment  to  the  ancient  forms  of  liber- 
ty surviving  amid  his  hatred  of  the  real  es- 
sence, or  from  the  knowledge  that  a  well- 
governed  Parliament  is  the  best  engine  for 
extracting  money  from  the  people,  this  able 
minister  entertained  very  different  views. 
He  urged,  accordingly,  the  convocation  of 


26S 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIIL 


one  in  Ireland,  pledging  himself  for  the  ex- 
periment's success.  And  in  a  letter  to  a 
friend,  after  praising  all  that  had  been  done 
in  it,  "  Happy  it  were,"  he  proceeds,  "  if 
we  might  live  to  see  the  like  in  England,  ev- 
ery thing  in  its  season  ;  but  in  some  cases  it 
is  as  necessary  there  be  a  time  to  forget,  as 
ui  others  to  learn  ;  and  howbeit  the  peccant 
(if  I  may  without  offense  so  term  it)  humor 
be  not  yet  wholly  purged  forth,  yet  do  I 
conceive  it  in  the  way,  and  that  once  rightly 
corrected  and  prepared,  we  may  hope  for  a 
Parliament  of  a  sound  constitution  indeed  ; 
but  this  must  be  the  work  of  time,  and  of 
his  majesty's  excellent  wisdom ;  and  this 
time  it  becomes  us  all  to  pray  for  and  wait 
for,  and  when  God  sends  it,  to  make  the 
right  use  of  it."* 

These  sentiments  appear  honorable  and 
constitutional.  But  let  it  not  be  hastily 
conceived  that  Sti-afford  was  a  friend  to  the 
necessary  and  ancient  pinvileges  of  those 
assemblies  to  which  he  owed  his  rise.  A 
Parliament  was  looked  upon  by  him  as  a 
mere  insti-ument  of  the  prerogative.  Hence 
he  was  sti-ongly  against  permitting  any  mu- 
tual understanding  among  its  members,  by 
which  they  might  form  themselves  into  par- 
ties, and  acquire  sti'ength  and  confidence  by 
previous  concert.  "  As  for  restraining  any 
private  meetings  either  before  or  during  Par- 
liament, saving  only  publicly  in  the  House, 
I  fuUy  rest  in  the  same  opinion,  and  shall  be 
very  watchful  and  attentive  therein,  as  a 
means  which  may  rid  us  of  a  gi'eat  ti'ouble, 
and  prevent  many  stones  of  offense,  which 
otherwise  might,  by  malignant  sphits,  be 
cast  in  among  us  ;"f  and,  acting  on  this 
principle,  he  kept  a  watch  on  the  Irish  Par- 
liament, to  prevent  those  intrigues  which 
his  experience  in  England  had  taught  him 
to  be  the  indispensable  means  of  obtaining  a 
conti'ol  over  the  crown.  Thus  fettered  and 
kept  in  awe,  no  one  presuming  to  take  a 
lead  in  debate  from  uncertainty  of  support. 
Parliaments  would  have  become  such  mock- 
eries of  their  venerable  name  as  the  joint 
contempt  of  the  court  and  nation  must  soon 
have  annihilated.  Yet  so  difficult  is  it  to 
preseiTe  this  dominion  over  any  represent- 
ative body,  that  the  king  judged  far  more 
discreetly  than  Sti'afford  in  desiring  to  dis- 
pense entirely  with  their  attendance. 

*  Strafford  Letters,  vol.  i.,  p.  420. 
t  Ibid.,  p.  246.    See,  also,  p.  370. 


The  passages  which  I  have  thus  largely 
quoted  will,  I  trust,  leave  no  doubt  in  any 
reader's  mind  that  the  Earl  of  Strafford  was 
party  in  a  conspiracy  to  subvert  the  funda- 
mental laws  and  liberties  of  his  countiy; 
for  here  are  not,  as  on  his  trial,  accusations 
of  words  spoken  in  heat,  uncertain  as  to 
proof,  and  of  ambiguous  interpretation  :  nor 
of  actions  variously  reported,  and  capable  of 
some  explanation;  but  the  sincere  unbosom- 
ing of  the  heart  in  letters  never  designed  to 
come  to  light.  And  if  we  reflect  upon  this 
man's  cool-blooded  apostasy  on  the  first  lure 
to  his  ambition,  and  on  his  splendid  abilities, 
which  enhanced  the  guilt  of  that  desertion, 
we  must  feel  some  indignation  at  those  who 
have  palliated  all  his  iniquities,  and  even 
ennobled  his  memoiy  with  the  attributes  of 
patriot  heroism.  Great  he  surely  was,  since 
that  epithet  can  never  be  denied  without 
paradox  to  so  much  comprehension  of  mind, 
such  ardor  and  energy,  such  courage  and 
eloquence  ;  those  commanding  qualities  of 
soul,  which,  impressed  upon  his  dark  and 
stern  countenance,  struck  his  cotemporaries 
with  mingled  awe  and  hate,  and  still  live  in 
the  unfading  colors  of  Vandyck;*  But  it 
may  be  reckoned  as  a  sufficient  ground  for 
distnisting  any  one's  attachment  to  the 
English  Constitution,  that  he  reveres  the 
name  of  the  Earl  of  Strafford. 

It  was  perfectly  consonant  to  Laud's 
temper  and  principles  of  govern-  conduct  of 
ment  to  extirpate,  as  far  as  in  Laud  m  the 
him  lay,  the  lurking  seeds  of  dis-  ecution  of 
affection  to  the  Anglican  Church ;  P""'*"^- 
but  the  course  he  followed  could  in  nature 
have  no  other  tendency  than  to  give  them 
nourishment.    His  predecessor  Abbot  had 
perhaps  connived  to  a  limited  extent  at 
some  iiTegularities  of  discipline  in  the  Pu- 
ritanical clergy,  judging  not  absurdly  that 
their  scruples  at  a  few  ceremonies,  which 
had  been  aggravated  by  a  vexatious  rigor, 
would  die  away  by  degrees,  and  yield  to 
that  centripetal  force,  that  moral  attraction 
toward  uniformity  and  obedience  to  custom, 
which  Providence  has  rendered  one  of  the 

*  The  unfavorable  physiognomy  of  Strafford  is 
noticed  by  writers  of  that  time. — Somers  Tracts, 
iv.,  231.  It  did  not  prevent  him  from  being  ad- 
mired by  the  fair  sex,  especially  at  his  trial,  where, 
May  says,  they  were  all  ou  his  side.  The  por- 
traits by  Vandyck  at  Wentworth  and  Petivorth 
are  well  known;  the  latter  appears  eminently 
characteristic. 


Cha.  I.— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


269 


great  preservatives  of  political  society.  His 
hatred  to  popery  and  zeal  for  Calvinism, 
which  undoubtedly  were  narrow  and  intol- 
erant, as  well  as  his  avowed  disapprobation 
of  those  chiu'chmen  who  preached  up  arbi- 
b'aiy  power,  gained  for  this  prelate  the  fa- 
vor of  the  party  denominated  Puritan.  In 
all  these  respects,  no  man  could  bo  more 
opposed  to  Abbot  than  his  successor.  Be- 
sides reviving  the  prosecutions  for  non-con- 
fonnity  in  their  utmost  strictness,  wherein 
many  of  the  other  bishops  vied  with  their 
primate,  he  most  injudiciously,  not  to  say 
wickedly,  endeavored,  by  innovations  of  his 
own,  and  by  exciting  alarms  in  the  suscep- 
tible consciences  of  pious  men,  to  raise  up 
new  victims  whom  he  might  oppress. 
Those  who  made  any  difiiculty  about  his 
novel  ceremonies,  or  even  who  preached 
on  the  Calvinistic  side,  were  harassed  by 
the  High  Commission  Court  as  if  they  had 
been  actual  schismatics.*  The  most  obnox- 
ious, if  not  the  most  indefensible,  of  these 
prosecutions  were  for  refusing  to  read  what 
was  called  the  Book  of  Sports ;  namely,  a 
proclamation,  or,  rather,  a  renewal  of  that 
issued  in  the  late  reign,  that  certain  feasts 
or  wakes  might  be  kept,  and  a  great  variety 
of  pastimes  used,  on  Sundays  after  evening 
service. f    This  was  reckoned,  as  I  have 


*  See  the  cases  of  Workman,  Peter  Smart,  &c., 
iu  the  common  histories :  Rushworth,  Rapin,  Neal, 
Macaulay,  Brodie,  and  even  Hume,  on  one  side, 
and  for  what  can  be  said  on  the  other,  Collier,  and 
Laud's  own  defense  on  his  trial.  A  number  of 
persons,  doubtless  inclining  to  the  Puritan  side, 
had  raised  a  sum  of  money  to  buy  up  impropria- 
tions, which  they  vested  in  trustees  for  the  pur- 
pose of  supporting  lecturers  ;  a  class  of  ministers 
to  whom  Laud  was  very  averse.  He  caused  the 
parties  to  be  summoned  before  the  Star  Chamber, 
where  their  association  was  dissolved,  and  the  im- 
propriations already  purchased  were  confiscated 
to  the  crown. — Rushworth  Abr.,  ii.,  17.  Neal,  i., 
556. 

t  This  originated  in  an  order  made  at  the  Som- 
erset assizes  by  Chief-justice  Richardson,  at  the 
request  of  the  justices  of  peace,  for  suppressing 
these  feasts,  which  had  led  to  much  disorder  and 
profaneness.  Laud  made  the  privy-council  re- 
prove the  judge,  and  direct  him  to  revoke  the  or- 
der.—Kennet,  p.  71.  Rushw.  Abr.,  ii.,  166.  Hey- 
lin  says,  the  gentlemen  of  the  county  were  against 
Richardson's  order,  which  is  one  of  his  habitual 
falsehoods. — See  Rushw.  Abr.,  ii.,  167.  I  must 
add,  however,  that  the  proclamation  was  perfectly 
legal,  and  according  to  the  spirit  of  the  late  act, 
1  Car.  I.,  c.  1,  for  the  observance  of  the  Lord's  day. 
It  has  been  rather  misrepresented  by  those  who 


already  observed,  one  of  the  tests  of  Puri- 
tanism. But,  whatever  superstition  there 
might  be  in  that  party's  Judaical  obseiTance 
of  the  day  they  called  the  Sabbath,  it  was 
iu  itself  preposterous,  and  tyrannical  in  its 
intention,  to  enforce  the  reading  in  church- 
es of  this  license,  or  rather  recommenda- 
tion, of  festivity.  The  precise  clergy  re- 
fused in  general  to  comply  with  the  requi- 
sition, and  were  suspended  or  deprived  in 
consequence.  Thirty  of  them  were  ex- 
comnmnicated  in  the  single  diocese  of  Nor- 
wich ;  but  as  that  part  of  England  was  rath- 
er conspicuously  Puritanical,  and  the  bish- 
op, one  Wren,  was  the  worst  on  the  bench, 
it  is  highly  probable  that  the  general  aver- 
age fell  short  of  this.* 

Besides  the  advantage  of  detecting  a  la- 
tent bias  in  the  clergy,  it  is  probable  that  the 
High  Church  prelates  had  a  politic  end  in 
the  Book  of  Sports.  The  morose,  gloomy 
spirit  of  Puritanism  was  naturally  odious  to 
the  young  and  to  men  of  joyous  tempers. 
The  comedies  of  that  age  are  full  of  sneers 
at  its  formality.  It  was  natural  to  think 
that,  by  enlisting  the  common  propensities 
of  mankind  to  Jimusement  on  the  side  of  the 
Established  Church,  they  might  raise  a  di- 
version against  that  fanatical  spirit  which 
can  hardly  long  continue  to  be  the  prevail- 
ing temperament  of  a  nation.  The  Church 
of  Rome,  from  which  no  ecclesiastical  states- 
man would  disdain  to  take  a  lesson,  had  for 
many  ages  perceived,  and  acted  upon  tho 
principle,  that  it  is  the  policy  of  govern- 
ments to  encourage  a  love  of  pastime  and 
recreation  in  the  people,  both  because  it 
keeps  them  from  speculating  on  religious 
and  political  matters,  and  because  it  renders 
them  more  cheerful,  and  less  sensible  to  the 
evils  of  their  condition ;  and  it  may  be  re- 
marked by  the  way,  that  the  opposite  sys- 
tem, so  long  pursued  in  this  country,  wheth- 
er from  a  Pui-itanical  spirit,  or  from  the 
wantonness  of  petty  authority,  has  no  such 
gi-ounds  of  policy  to  recommend  it.  Thus 
much,  at  least,  is  certain,  that  when  the 

have  not  attended  to  its  limitations,  as  Neal  and 
Mr.  Brodie.  Dr.  Lingard,  ix.,  422,  has  stated  the 
matter  rightly. 

*  Neal,  569.  Rushworth  Abr.,  ii.,  166.  Collier, 
758.  Heylin's  Life  of  Laud,  241,  290.  The  last 
writer  extenuates  the  persecution  by  Wren ;  but 
it  is  evident  by  his  own  account  that  no  suspension 
or  censure  was  taken  off  till  the  party  conformed 
and  read  the  declaration. 


270 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  vm. 


Puritan  paity  employed  their  authority  in  j 
proscribing  all  diversions,  in  enforcing  all 
the  Jewish  rigor  about  the  Sabbath,  and 
gave  that  repulsive  air  of  austerity  to  the 
face  of  England  of  which  so  many  singular 
illustrations  are  recorded,  they  rendered  ' 
their  own  yoke  intolerable  to  the  youthful 
and  gay  ;  nor  did  any  other  cause,  perhaps, 
so  materiaUy  conti'ibute  to  bring  about  the 
Restoration.    But  mankind  love  sport  as 
little  as  pi-ayer  by  compulsion  ;  and  the  im-  ' 
mediate  effect  of  the  king's  declaration  was 
to  produce  a  far  more  scrupulous  abstinence 
from  diversions  on  Sundaj's  than  had  been 
practiced  before. 

The  resolution  so  evidently  taken  by  the 
court,  to  admit  of  no  half  conformity  in  re- 
ligion, especially  after  Laud  had  obtained 
an  unlimited  sway  over  the  king's  mind, 
convinced  the  Puritans  that  England  could 
no  longer  afford  them  an  asylum.  The 
state  of  Europe  was  not  such  as  to  encour- 
age their  emigi-ation,  though  many  were 
well  received  in  Holland  ;  but,  turning  their 
eyes  to  the  newly-discovered  regions  be- 
yond the  Atlantic  Ocean,  they  saw  a  secure 
place  of  refuge  from  present  tyranny,  and  a 
boundless  prospect  for  future  hope.  They 
obtained  from  the  crown  the  charter  of 
Massachusetts  Bay  in  1629.  About  three 
hundred  and  fifty  persons,  chiefly  or  whol- 
ly of  the  Independent  sect,  sailed  with  the 
first  fleet.  So  many  followed  in  the  sub- 
sequent years,  that  these  New  England  set- 
tlements have  been  supposed  to  have  drawn 
near  half  a  million  of  money  fi'om  the  moth- 
er-countiy  before  the  civil  wars.*  Men  of 
a  higher  rank  than  the  first  colonists,  and 
now  become  hopeless  alike  of  the  civil  and 
religious  liberties  of  England — men  of  ca- 
pacious and  commanding  minds,  formed  to 
be  the  legislators  and  generals  of  an  infant 
republic — the  wise  and  cautious  Lord  Say, 
the  acknowledged  chief  of  the  Independent 
sect — the  brave,  open,  and  enthusiastic  Lord 
Brooke — Sir  Arthur  Hazlerig — Hampden, 
ashamed  of  a  country  for  whose  rights  he 
had  fought  alone — Cromwell,  panting  with 
energies  that  he  could  neither  control  nor 
explain,  and  whose  unconquerable  fire  was 
still  wrapped  in  smoke  to  every  eye  but 
that  of  his  kinsman  Hampden,  were  pre- 
paring to  embark  for  America,  when  Laud, 

*  IseaJ,  p.  546.  I  do  not  know  how  he  makes 
bis  compatation. 


for  his  own  and  his  master's  curse,  procur- 
ed an  order  of  council  to  stop  their  depart- 
ure.* Besides  the  reflections  which  such 
an  instance  of  destructive  infatuation  must 
suggest,  there  are  two  things  not  unworthy 
to  be  remarked :  first,  that  these  chiefs  of 
the  Puritan  sect,  far  from  entertaining  those 
schemes  of  oveituming  the  government  at 
home  that  had  been  imputed  to  them,  look- 
ed only  in  16.38  to  escape  from  imminent 
tyranny :  and,  secondly,  that  the  views  of 
the  archbishop  Avere  not  so  much  to  render 
the  Church  and  crown  secure  from  the  at- 
tempts of  disaffected  men,  as  to  gratify  a 
malignant  humor  by  persecuting  them. 

These  severe  proceedings  of  the  court 
and  hierarchy  became  more  odi-  Favor  shown 
ous  on  account  of  their  suspected  J?  Catholics. 

.  '       .       Tendency  to 

leanmg,  or,  at  least,  notorious  m-  iheir  relig- 
dulgence,  toward  popery.  With 
some  fluctuations,  according  to  circumstan- 
ces or  changes  of  influence  in  the  council, 
the  policy  of  Charles  was  to  wink  at  the 
domestic  exercise  of  the  Catholic  religion, 
and  to  admit  its  professors  to  pay  composi- 
tions for  recusancy  which  were  not  regu- 
larly enforced.f  The  Catholics  willingly 
submitted  to  this  mitigated  rigor,  in  the  san- 


*  A  proclamation,  dated  May  1,  1633,  reciting 
that  the  king  was  informed  that  many  persona 
went  yearly  to  New  England  in  order  to  be  out  of 
the  reach  of  ecclesiastical  authority,  commands 
that  no  one  shall  pass  without  a  license,  and  a  tes- 
timonial of  conformity  from  the  minister  of  his  par- 
ish.— Rymer,  xx.,  223.  Laud,  in  a  letter  to  Straf- 
ford, ii.,  169,  complains  of  men  running  to  New 
England,  when  there  was  a  want  of  them  in  Ire- 
land. And  why  did  they  so,  but  that  any  track- 
less wilderness  seemed  better  than  his  own  or  his 
fnend's  tjTanny  ?  In  this  letter  he  laments  that 
he  is  left  alone  in  the  envious  and  thorny  part  of 
the  work,  and  has  no  encouragement. 

t  In  thirteen  years,  ending  with  1640,  but  X40?0 
was  levied  on  recusants  bj-  process  from  the  Ex- 
chequer, according  to  Commons'  Journals,  1  Dec, 
1640.  But  it  can  not  be  denied  that  they  paid  con- 
siderable sums  by  way  of  composition,  though  less, 
probably,  than  in  former  times. — Lingard,  ix.,  424, 
&c.,  note  G.  Weston  is  said  by  Clarendon  to  have 
oflfended  the  Catholics  by  enforcing  penalties  to 
raise  the  revenue.  One  priest  only  was  executed 
for  religion  before  the  meeting  of  the  Long  Parlia- 
ment.— Butler,  iv.,  97.  And  though,  for  the  sake 
of  appearance,  proclamations  for  arresting  priests 
and  recusants  sometimes  came  forth,  they  were  al 
ways  discharged  in  a  short  time.  The  number 
pardoned  in  the  first  sixteen  years  of  the  king  is 
said  to  have  amounted,  in  twenty-nine  counties 
only,  to  11.970. — Neal,  604.  Clarendon,  i.,  261,  con- 
firms the  s3-stematic  indulgence  shown  to  Catho- 


Cha.  I.— 1629-40.]  FROM  HENRY  VII.  TO  GEORGE  11. 


271 


guine  expectation  of  far  more  prosperous 
„  days.    I  shall,  of  course,  not  cen- 

Expectations 

entertained    sure  this  part  01  his  administra- 

by  them.        ^^^^  ^    -^^^  jj^^j. 

connivance  at  the  resort  of  Catholics  to  the 
queen's  chapel  in  Somerset  House,  though 
they  used  it  with  much  ostentation,  and  so 
as  to  give  excessive  scandal,  was  any  moi'e 
than  a  just  sense  of  toleration  would  have 
dictated.*  Unfortunately,  the  prosecution 
of  other  sectaries  renders  it  difficult  to  as- 
cribe such  a  libei'al  principle  to  the  council 
of  Charles  the  First.  It  was  evidently  true, 
what  the  nation  saw  with  alarm,  that  a 
proneness  to  favor  the  professors  of  this 
religion,  and  to  a  considerable  degi'ee  the 
religion  itself,  was  at  the  bottom  of  a  con- 
duct so  inconsistent  with  their  system  of 
government.  The  king  had  been  persuad- 
ed, in  1635,  through  the  influence  of  the 
queen,  and  probably  of  Laud,f  to  receive 
privately,  as  an  accredited  agent  from  the 
Mission  of  court  of  Rome,  a  secular  priest, 
Panzani.  named  Panzani,  whose  ostensible 
instructions  were  to  effect  a  reconciliation 
of  some  violent  differences  that  had  long 
subsisted  between  the  secular  and  regular 
clergy  of  his  communion.  The  chief  mo- 
tive, however,  of  Charles  was,  as  I  believe, 
so  far  to  conciliate  the  pope  as  to  induce 
him  to  withdraw  his  opposition  to  the  oath 
of  allegiance,  which  had  long  placed  the 
Catholic  laity  in  a  veiy  invidious  condition, 
and  widened  a  breach  which  his  majesty 
had  some  hopes  of  closing.  For  this  pur- 
pose, he  offered  any  reasonable  explanation 
which  might  leave  the  oath  free  from  the 
slightest  appearance  of  infringing  the  papal 
supremacy.  But  it  was  not  the  policy  of 
Rome  to  make  any  concession,  or  even  en- 
ter into  any  treaty,  that  might  tend  to  im- 

lics,  which  Dr.  Lingard  seems,  reluctantly  and  by 
silence,  to  admit. 

*  Strafford  Letters,  i.,  505,  524 ;  ii.,  2,  57. 

t  Heylin,  286.  The  very  day  of  Abbot's  death, 
an  offer  of  a  cardinal's  hat  was  made  to  Laud,  as 
he  tells  us  in  his  Diarj',  "  by  one  that  avowed  abil- 
ity to  perform  it."  This  was  repeated  some  days 
afterward,  Ang.  4th  and  17th,  1633.  It  seems  very 
questionable  whether  this  came  fi-om  authority. 
The  new  primate  made  a  strange  answer  to  the 
first  application,  which  might  well  encourage  a 
second;  certainly  not  what  might  have  been  ex- 
pected from  a  steady  Protestant.  If  we  did  not 
read  this  in  his  own  Diary,  we  should  not  believe 
it.  The  offer,  at  least,  proves  that  he  was  suppos- 
ed capable  of  acceding  to  it. 


pair  her  temporal  authority.  It  was  better 
for  her  pride  and  ambition  that  the  English 
Catholics  should  continue  to  hew  wood  and 
draw  water,  their  bodies  the  law's  slaves, 
and  their  souls  her  own,  than,  by  becoming 
the  willing  subjects  of  a  Protestant  sover- 
eign, that  they  should  lose  that  sense  of  de- 
pendency and  habitual  deference  to  her 
commands  in  all  worldly  matters,  which 
states  wherein  their  faith  stood  established 
had  ceased  to  display.  She  gave,  there- 
fore, no  encouragement  to  the  proposed 
explanations  of  the  oath  of  allegiance,  and 
even  instructed  her  nuncio  Con,  who  suc- 
ceeded Panzani,  to  check  the  precipitance 
of  the  English  Catholics  in  contributing  men 
and  money  toward  the  army  raised  against 
Scotland  in  1639.*  There  might,  indeed, 
be  some  reasonable  suspicion  that  the  court 
did  not  play  quite  fairly  with  this  body,  and 
was  more  eager  to  extort  what  it  could  from 
their  hopes  than  to  make  any  substantial 
return. 

The  favor  of  the  administration,  as  well 
as  the  antipathy  that  every  Parliament  had 
displayed  toward  them,  not  unnaturally  ren- 
dered the  Catholics,  for  the  most  part,  as- 
serters  of  the  king's  arbitrary  power. f 

*  Clarendon  State  Papers,  ii.,  44.  It  is  always 
important  to  distinguish  dates.  By  the  year  1639, 
the  court  of  Rome  had  seen  the  fallacy  of  those 
hopes  she  had  previously  been  led  to  entertain, 
that  the  king  and  Church  of  England  would  return 
to  her  fold.  This  might  exasperate  her  against 
liim,  as  it  certainly  did  against  Laud;  besides 
which,  I  should  suspect  the  influence  of  Spain  in 
the  conclave. 

t  Proofs  of  this  abound  in  the  first  volume  of  the 
collection  just  quoted,  as  well  as  in  other  books. 
The  Catholics  were  not,  indeed,  mianiiuous  in  the 
view  they  took  of  the  king's  prerogative,  which 
became  of  importance  in  the  controversy  as  to  the 
oath  of  allegiance,  one  party  maintaining  that  the 
king  had  a  right  to  put  his  own  explanation  on  that 
oath,  which  was  more  to  be  regarded  than  the 
sense  of  Parliament,  while  another  denied  that 
they  could  conscientiously  admit  the  king's  inter- 
pretation against  what  they  knew  to  have  been 
the  intention  of  the  Legislature  who  imposed  it. 
A  Mr.  Courtney,  who  had  written  on  the  latter 
side,  was  imprisoned  in  the  Tower  on  pretext  of 
recusancy,  but  really  for  having  promulgated  so 
obnoxious  an  opinion. — P.  258,  et  alibi.  Memoirs 
of  Panzani.  p.  140.  The  Jesuits  were  much  against 
the  oath,  and,  fi-om  whatever  cause,  threw  all  the 
obstacles  they  could  in  the  way  of  a  good  under- 
standing between  the  king  and  the  pope.  One 
reason  was  their  apprehension  that  an  article  of 
the  treaty  would  be  the  appointment  of  a  Catholic 
bishop  in  England;  a  matter  about  which  the 


272 


COXSTITUTIOXAL  HISTOttY  OF  ENGf  AXD 


[Chap.  VIII. 


This  again  increased  the  popular  prejudice. 
But  nothing  excited  so  much  alarm  as  the 
perpetual  conversions  to  their  faith.  These 
had  not  been  quite  unusual  in  any  age  since 
the  Reformation,  though  the  balance  had 
been  very  much  inclined  to  the  opposite  side. 
They  became,  however,  under  Charles,  the 
news  of  every  day;  Protestant  clergymen 
in  several  instances,  but  especially  women 
of  rank,  becoming  proselytes  to  a  religion 
so  seductive  to  the  timid  reason  and  suscep- 
tible imagination  of  that  sex.  They  whose 
minds  have  never  strayed  into  the  wilder- 
ness of  doubt,  vainly  deride  such  as  sought 
out  the  beaten  path  their  fathers  had  trod- 
den in  old  times  ;  they  whose  temperament 
gives  little  play  to  the  fancy  and  sentiment, 
want  power  to  comprehend  the  charm  of 
superstitious  illusions,  the  satisfaction  of 
the  conscience  in  the  performance  of  posi- 
tive rites,  especially  with  privation  or  suf- 
fering, the  victorious  self-gratulation  of  faith 
in  its  ti-iumph  over  reason,  the  romantic 
tenderness  that  loves  to  rely  on  female  pro- 
tection, the  graceful  associations  of  devotion 
with  all  that  the  sense  or  the  imagination 
can  require — the  splendid  vestment,  the 
fragrant  censer,  the  sweet  sounds  of  choral 
harmony,  and  the  sculptured  form  that  an 
intense  piety  half  endows  with  life.  These 
springs  were  touched,  as  the  variety  of  hu- 
man chai-acter  might  require,  by  the  skillful 
hands  of  Romish  priests,  chiefly  Jesuits, 
whose  numbers  in  England  were  about 
250,*  concealed  under  a  lay  garb,  and  com- 
bining the  courteous  manners  of  gentlemen 
with  a  refined  experience  of  mankind,  and 
a  logic  in  whose  labyrinths  the  most  practi- 
cal reasoner  was  perplexed.  Against  these 
fascinating  whiles  the  Puritans  opposed  oth- 
er weapons  from  the  same  armoiy  of  hu- 
man nature  ;  they  awakened  the  pride  of 
reason,  the  stern  obstinacy  of  dispute,  the 
names,  so  soothing  to  the  ear,  of  free  inqui- 
ry and  private  judgment.  They  inspired 
an  abhorrence  of  the  adverse  party  that 
seiTed  as  a  baiTier  against  insidious  ap- 
proaches.   But  far  different  principles  ac- 

members  of  that  Church  have  been  quarrelia?  ev- 
er since  the  reisn  of  Elizabeth,  but  too  trifling  for 
onr  notice  in  this  place.  More  than  half  Panzani's 
Memoirs  relate  to  it. 

*  Memoirs  of  Panzani,  p.  207.  This  is  a  state- 
ment by  Father  Leander;  in  another  place,  p.  140, 
they  are  reckoned  at  360.  There  were  about  1^0 
other  regulars,  and  5  or  600  secular  priests. 


tuated  the  prevailing  party  in  the  Church 
of  England.  A  change  had  for  some  years 
been  wrought  in  its  tenets,  and  still  more  in 
its  sentiments,  which,  while  it  brought  the 
whole  body  into  a  sort  of  approximation  to 
Rome,  made  many  individuals  shoot,  as  it 
were,  from  their  own  sphere,  on  coming 
within  the  stronger  attraction  of  another. 

The  charge  of  inclining  toward  popeiy, 
brought  by  one  of  our  religions  parties 
against  Laud  and  his  colleagues  with  invid- 
ious exaggeration,  has  been  too  indignantly 
denied  by  another.  Much,  indeed,  will  de- 
pend on  the  definition  of  that  obnoxious 
word,  which  one  may  restrain  to  an  ac- 
knowledgment of  the  supremacy  in  faith 
and  discipline  of  the  Roman  See,  while  an- 
other comprehends  in  it  all  those  tenets 
which  were  rejected  as  coiTuptions  of 
Christianity  at  the  Reformation,  and  a  third 
may  extend  it  to  the  ceremonies  and  eccle- 
siastical obseiTances  which  were  set  aside 
at  the  same  time.  In  this  last  and  most 
enlarged  sense,  which  the  vulgar  naturally 
adopted,  it  is  notorious  that  all  the  innova- 
tions of  the  school  of  Laud  were  so  many 
approaches,  in  the  exterior  worship  of  the 
Church,  to  the  Roman  model.  Pictures 
were  set  up  or  repaired ;  the  communion- 
table took  the  name  of  an  altar  :  it  was 
sometimes  made  of  stone  ;  obeisances  were 
made  to  it ;  the  crucifix  was  sometimes 
placed  upon  it;  the  dress  of  the  ofliciating 
priests  became  more  gaudy ;  churches  were 
consecrated  with  sti'ange  and  mystical  pa- 
geantiy.*  These  petty  superstitions,  which 
would  of  themselves  have  disgusted  a  nation 
accustomed  to  despise  as  well  as  abhor  the 
pompous  rites  of  the  Catholics,  became 
more  alarming  from  the  evident  bias  of  some 
leading  churchmen  to  parts  of  the  Romish 
theology.  The  docti'ine  of  a  real  presence, 
distinguishable  only  by  vagueness  of  defini- 
tion from  that  of  the  Church  of  Rome,  was 
generally  held.f    Montagu,  bishop  of  Chi- 


*  Kennet,  73.  Harris's  Life  of  Charles,  220. 
Collier,  772.  Brodie,  ii.,  224,  note.  Neal,  p.  572, 
&c.  Laud,  in  his  defense  at  his  trial,  denies  or 
extenuates  some  of  the  charges.  There  is,  how- 
ever, full  proof  of  all  that  I  have  said  in  my  text. 
The  famous  consecration  of  St.  Catharine  s  Creed 
Church  in  1C31  is  mentioned  by  Rushwortb,  Wel- 
vrood,  and  others.  Laud  said  in  his  defense  that 
be  borrowed  the  ceremonies  from  Andrews,  who 
had  found  them  in  some  old  liturgy. 

t  lu  Bishop  Andrews's  answer  to  BeUarmine, 


Cha.  I.— 1629-40.] 


FROM  HENllY  VII.  TO  GEORGE  11. 


273 


Chester,  already  so  conspicuous,  and  justly 
reckoned  the  chief  of  the  Romanizing  fac- 
tion, went  a  considerable  length  toward  ad- 
mitting the  invocation  of  saints  ;  prayers  for 
the  dead,  which  lead  naturally  to  the  tenet 
of  purgatory,  were  vindicated  by  many ;  in 
fact,  there  was  hardly  any  distinctive  opin- 
ion of  the  Church  of  Rome  which  had  not 
its  abettors  among  the  bishops,  or  those  who 
wrote  under  their  pati-onage.  The  practice 
of  auricular  confession,  which  an  aspiring 
clergy  must  so  deeply  regret,  was  frequent- 
ly inculcated  as  a  duty,  and  Laud  gave  just 
offense  by  a  public  declaration,  that  in  the 
disposal  of  benefices,  he  should,  in  equal  de- 
grees of  merit,  prefer  single  before  married 
priests.*    They  incun-ed  scarcely  less  odi- 

he  says,  Praesentiam  credimus  non  minus  quam  vos 
veram ;  de  modo  prasentiK  nil  teniere  definimus. 
And  soon  afterward:  Nobis  vobiscum  de  objecto 
convenit,  de  modo  lis  omnis  est.  De  hoc  est,  lide 
firmd  tenemns  quod  sit,  de  hoc  modo  est,  ut  sit 
Per,  sive  In,  sive  Cum,  sive  Sub,  sive  Trans,  nul- 
lum inibi  verbum  est.  I  quote  from  Casaubon's 
Epistles,  p.  393.  This  is,  reduced  to  plain  terms  : 
We  fully  agree  with  you  that  Christ's  body  is  ac- 
tually present  in  the  sacramental  elements,  in  the 
same  sense  as  you  use  the  word ;  but  we  see  no 
cause  for  determining  the  precise  mode,  whether 
by  transubstantiation  or  otherwise. 

The  doctrine  of  the  Church  of  England,  as  evi- 
denced by  its  leading  ecclesiastics,  underwent  a 
rhange  in  the  reign  of  James,  through  Andrews, 
Casaubon,  and  others,  who  deferred  wholly  to  an- 
tiquity. In  fact,  as  I  have  elsewhere  observed, 
there  can  be  but  two  opinions,  neglecting  subordi- 
nate differences,  on  this  famous  controversy.  It  is 
clear  to  those  who  have  attended  to  the  subject, 
that  the  Anglican  Reformers  did  not  hold  a  local 
presence  of  Christ's  human  body  in  the  consecra- 
ted bread  itself,  independent  of  the  communicant, 
or,  as  the  technical  phrase  was,  extra  usum ;  and 
it  is  also  clear  that  the  divines  of  the  latter  school 
did  80.  This  question  is  rapdered  intricate  at  first 
sight,  partly  by  the  strong  figurative  language 
which  the  early  Refoimers  employed  in  order  to 
avoid  shocking  the  prejudices  of  the  people,  and 
partly  by  the  incautious  and  even  absurd  use  of 
the  word  real  presence  to  mean  real  absence,  which 
is  common  with  modem  theologians. 

[The  phrase  "real  presence"  is  never,  I  believe, 
used  by  our  writers  of  the  16th  age  but  as  synon- 
ymous with  corporeal,  and  consequently  is  condem- 
ned by  them.  Cranmer  calls  it,  "  that  error  of  the 
real  presence,"  i.,  Ixxv.  Jewel  challenges  his  ad- 
versary to  produce  any  authority  for  those  words 
from  the  fathers.  I  do  not  know  when  it  came  in- 
to use  ;  probably  under  James,  or,  it  may  be,  rath- 
er earlier.] 

*  Heylin's  Life  of  Laud,  p.  219.    He  probably 
imbibed  this,  like  many  other  of  his  prejudices, 
from  Bishop  Andrews,  whose  epitaph  in  the 
S 


urn  by  their  dislike  of  the  Calvinistic  sys- 
tem, and  l)y  what  ardent  meu  construed 
into  a  dereliction  of  the  Pi'otestant  cause, 
a  more  reasonaijle  and  less  dangerous  theo- 
ry on  the  nature  and  reward  of  human  vir- 
tue than  tliat  which  the  fanatical  and  pre- 
sumptuous spirit  of  Luther  had  held  forth 
as  the  most  fundamental  principle  of  his 
Reforaiation. 

It  must  be  confessed  that  these  English 
theologians  Avere  less  favorable  to  the  papal 
supremacy  than  to  most  other  distinguish- 
ing tenets  of  the  Catholic  Church.  Yet 
even  this  they  were  inclined  to  admit  in  a 
considerable  degree,  as  a  matter  of  positive, 
though  not  divine  institution,  content  to  make 
the  doctrine  and  discipline  of  the  fifth  cen- 
tury the  rule  of  their  bastard  reform.  An 
extreme  reverence  for  what  they  called  the 
primitive  Church  had  been  the  source  of 
their  en-ors.  The  first  Reformers  had  paid 
little  regard  to  that  authority.  But  as  learn- 
ing, by  which  was  then  meant  an  acquaint- 
ance with  ecclesiastical  antiquity,  grew 
more  genei'al  in  the  Churcli,  it  gradually 
inspired  more  respect  for  itself;  and  men's 
judgment  in  matters  of  religion  came  to  be 
measured  by  the  quantity  of  their  erudi- 
tion.* The  sentence  of  the  early  writers, 
including  the  fifth  and  perhaps  sixth  centu- 
ries, if  it  did  not  pass  for  infallible,  was  of 
prodigious  weight  in  controversy.  No  one 
in  the  English  Church  seems  to  have  con- 
tributed so  much  toward  this  relapse  into 
superstition  as  Andrews,  bishop  of  Win- 
chester, a  man  of  eminent  learning  in  this 
kind,  who  may  be  reckoned  the  founder  of 
the  school  wherein  Laud  was  the  most 
prominent  disciple,  f 

Church  of  St.  Savior's  in  Southwark  speaks  of  him 
as  having  received  a  superior  reward  in  heaven  on 
account  of  his  celibacy ;  coelebs  migravit  ad  aui-eo- 
1am  coelestem.  —  Biog.  Britannica.  Aureola,  a 
word  of  no  classical  authority,  means,  in  the  style 
of  popish  divinitj',  which  the  author  of  this  epitaph 
thought  fit  to  employ,  the  crown  of  virginity. — See 
Du  Cange,  in  voc. 

*  See  Life  of  Hammond,  in  Wordsworth's  Ec- 
cles.  Biography,  vol.  v.,  343.  It  had  been  usual  to 
study  divinity  in  compendiums,  chiefly  drawn  up 
in  the  sixteenth  century.  King  James  was  a 
great  favorer  of  antiquity,  and  prescribed  the  study 
of  the  fathers  in  liis  Instructions  to  the  Universi- 
ties in  1616. 

t  Andrews  gave  scandal  in  the  queen's  reign  by 
preaching  at  court,  "  that  contrition,  without  con- 
fession and  absolution,  and  deeds  worthy  of  repent- 
ance, was  not  sufficient;  that  the  ministers  had 


274 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIIL 


A  characteristic  tenet  of  this  party  was, 
as  I  have  aU'eady  observed,  that  episcopal 
government  was  indispensably  requisite  to 
a  Christian  Church.*  Hence  they  treated 
the  Presbyterians  with  insolence  abroad, 
and  severity  at  home.  A  brief  to  be  read 
in  churches  for  the  sufferers  in  the  Palati- 
nate having  been  prepared,  wherein  they 
were  said  to  profess  the  same  religion  as 
ourselves,  Laud  insisted  on  this  being  struck 
out.f  The  Dutch  and  Walloon  churches 
in  England,  which  had  subsisted  since  the 
Reformation,  and  which  various  motives  of 
policy  had  led  Elizabeth  to  protect,  were 
harassed  by  the  primate  and  other  bishops 
for  their  want  of  conformity  to  the  Anglican 
ritual. t  The  English  ambassador,  instead 
of  frequenting  the  Huguenot  church  at 
Charenton,  as  had  been  the  former  prac- 
tice, was  instructed  to  disclaim  all  fraterni- 
ty with  their  sect,  and  set  up  in  his  own 
chapel  the  obnoxious  altar  and  the  other  in- 
novations of  the  hierarchy. §    These  impol- 

tlie  two  keys  of  power  and  knowledge  delivered 
unto  tliem ;  that  whose  sins  soever  they  remitted 
upon  earth,  should  be  remitted  in  heaven.  The 
court  is  full  of  it,  for  such  doctiiue  was  not  usually 
taught  there." — Sidney  Letters,  ii.,  185.  Han-ing- 
ton  also  censures  him  for  an  attempt  to  bring  in 
auricular  confession.  Nugae  Antiquae,  ii.,  192.  In 
his  own  writings  against  Pen'on,  he  tlu-ows  away 
a  great  part  of  what  have  always  been  considered 
tlie  Protestant  doctrines. 

*  Hall,  bishop  of  Exeter,  a  very  considerable 
person,  wrote  a  treatise  on  the  Divine  Institution 
■of  Episcopacy,  which,  according  to  an  analysis 
given  by  Heyliu  and  others  of  its  leading  positions, 
is  so  much  in  the  teeth  of  Hooker's  Ecclesiastical 
Polity,  that  it  might  pass  for  an  answer  to  it.  Yet 
it  did  not  quite  come  up  to  tlie  primate's  standard, 
-who  made  him  alter  some  passages  which  looked 
too  hke  concessions. — Heyliu's  Life  of  Laud,  374. 
Collier.  789.  One  of  his  offenses  was  the  asserting 
tlie  pope  to  be  anti-Christ,  which  displeased  the 
king  as  well  as  primate,  though  it  had  been  ortho- 
dox under  James. 

t  Collier,  764    Neal,  582.    Heylin,  288. 

i  Collier,  753.    Heylin.  260. 

§  Clarendon,  iii.,  3C6.  State  Papers,  i.,  338. 
"  Lord  Scudamore,  the  English  ambassador,  set  up 
an  altar.  Sec,  in  the  Laudeau  stjle.  His  success- 
or. Lord  Leicester,  spoke  to  the  archbishop  about 
going  to  Charenton ;  and  telling  him  Lord  Scuda- 
more did  never  go  thither.  Laud  answered,  '  He  is 
the  wiser.'  Leicester  requested  his  advice  what 
he  should  do,  in  order  to  sift  his  disposition,  being 
himself  resolved  how  to  behave  in  that  matter. 
But  the  other  wouid  only  say  that  he  left  it  to  his 
discretion.  Leicester  says  he  had  many  reasons 
to  think  that  for  his  going  to  Charenton  the  arch- 
bishop did  him  all  the  ill  offices  he  could  to  the 


itic  and  insolent  proceedings  gave  the  for- 
eign Protestants  a  hati'ed  of  Charles,  which 
they  retained  through  all  his  misfortunes. 

This  alienation  from  the  foreign  church- 
es of  the  Reformed  persuasion  had  scarce- 
ly so  important  an  effect  in  begetting  a 
predilection  for  that  of  Rome,  as  the  lan- 
guage frequently  held  about  the  Anglican 
separation.  It  became  usual  for  our  church- 
men to  lament  the  precipitancy  with  which 
the  Reformation  had  been  conducted,  Emd 
to  inveigh  against  its  principal  instruments. 
The  Catholic  writers  had  long  descanted  on 
the  lust  and  violence  of  Henry,  the  pretend- 
ed licentiousness  of  Anne  Boleyn,  the  ra- 
pacity of  Cromwell,  the  pliancy  of  Cran- 
mer ;  sometimes  with  great  truth,  but  with 
much  of  invidious  misrepresentation.  These 
topics,  wliich  have  no  kind  of  operation  on 
men  accustomed  to  sound  reasoning,  pro- 
duce an  unfailing  effect  on  ordinary  minds. 
Nothing  incurred  more  censure  than  the 
dissolution  of  the  monastic  orders,  or  at  least 
the  alienation  of  their  endowments ;  acts  ac- 
companied, as  we  must  all  admit,  with  great 
rapacity  and  injustice,  but  which  the  new 
school  branded  with  the  name  of  sacrilege. 
Spelman,  an  antiquary  of  eminent  learning, 
was  led  by  bigotry  or  subserviency  to  com- 
pose a  wretched  tract  called  the  Histoiy  of 
Sacrilege,  with  a  view  to  confirm  the  vul- 
gar superstition  that  the  possession  of  estates 

king,  representing  him  as  a  Puritan,  and  conse- 
quently, in  his  method,  an  enemy  to  monarchical 
government,  though  he  had  not  been  very  kind  be- 
fore. The  said  archbishop,  he  adds,  would  not 
countenance  Blondel's  book  against  the  usurped 
power  of  the  pope." — Blencowe's  Sidney  Papers, 
261. 

"  To  think  well  of  the  Reformed  religion,"  says 
Northmnberlaud  in  IS^'''  "  enough  to  make  the 
archbishop  an  enemy ;  and  though  he  can  not  for 
shame  do  it  in  pubhc,  yet  in  private  he  will  do 
Leicester  all  the  mischief  he  can." — Collins's  Sid- 
ney Papers,  ii.,  623. 

Such  was  the  opinion  entertained  of  Laud  by 
those  who  could  not  reasonably  be  called  Puritans, 
except  by  such  as  made  that  word  a  synonjTU  for 
Protestant.  It  would  be  easy  to  add  other  proofs. 
The  prosecution  in  the  Star  Chamber  against  Sher- 
field,  recorder  of  Salisbur\-,  for  destn^jong  some  su- 
perstitious pictures  in  a  church,  led  to  a  display  of 
the  aversion  many  of  the  council  entertained  for 
popery,  and  their  jealousy  of  the  archbishop's  bias. 
They  were  with  difficulty  brought  to  condemn 
Sherfield,  and  passed  a  sentence  at  last  very  un- 
Uke  those  to  which  they  were  accustomed. — Rush- 
worth.  State  Trials.  Hume  misrepresents  the 
case. 


Cha.  I.— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


275 


alienated  from  the  Church  entailed  a  sure 
curse  on  the  usurper's  posterity.  There 
is  some  reason  to  suspect  that  the  king  en- 
tertained a  project  of  restoring  all  impro- 
priated hereditaments  to  the  Church. 

It  is  alleged  by  one  who  had  much  access 
to  Laud,  that  his  object  in  these  accommo- 
dations was  to  draw  over  the  more  moder- 
ate Romanists  to  the  English  (Jhurch,  by 
extenuating  the  differences  of  her  faith,  and 
rendering  her  worship  more  palatable  to 
their  prejudices.*  There  was,  however, 
good  reason  to  suspect,  from  the  same  writ- 
er's account,  that  some  leading  ecclesiastics 
entertained  schemes  of  a  complete  reun- 
ion ;f  and  later  discoveries  have  abundantly 
confirmed  this  suspicion.  Such  schemes 
have  doubtless  been  in  the  minds  of  men 
not  inclined  to  offer  every  sacrifice  ;  and 
during  this  very  period  Grotius  was  exert- 
ing his  talents  (whether  judiciously  or  oth- 
erwise we  need  not  inquire)  to  make  some 
sort  of  reconciliation  and  compromise  ap- 
pear practicable. t  But  we  now  know  that 
the  views  of  a  party  in  the  English  Church 
were  much  more  extensive,  and  went  al- 
most to  an  entire  dereliction  of  the  Protes- 
tant doctrine. 

The  Catholics  did  not  fail  to  anticipate 
the  most  favorable  consequences  from  this 
turn  in  the  Church.  The  Clarendon  State 
Papers,  and  many  other  documents,  contain 
remarkable  proofs  of  their  sanguine  and 
not  unreasonable  hopes.  "Weston,  the  lord- 
treasurer,  and  Cottington,  were  already  in 
secret  of  their  persuasion,  though  the  for- 
mer did  not  take  much  pains  to  promote 
their  interests.  No  one,  however,  showed 
them  such  decided  favor  as  Secretary 
Windebank,  through  whose  hands  a  corre- 
spondence was  cairied  on  with  the  court 
of  Rome  by  some  of  its  agents. §  They 

*  Heylin's  Life  of  Laud,  390. 

t  Id.,  388.  The  passage  is  very  remarkable,  but 
too  long  to  be  extracted  in  a  work  not  directly  ec- 
clesiastical. It  is  rather  ambiguous  ;  but  the  Me- 
moirs of  Panzani  afford  the  key. 

t  [I  should  now  think  less  favorably  of  Grotius, 
and  suspect  that  he  would  ultimately  have  made 
every  sacrifice.  See  Hist,  of  Literature  of  15th, 
16th,  and  17th  centuries,  vol.  iii.,  p.  58  (first  edi- 
tion). 184.5.] 

§  The  Spanish  ambassador  applies  to  Winde- 
bank, 1C33,  to  have  a  case  of  books  restored  that 
had  been  carried  from  the  custom-house  to  Arch- 
bishop Abbot.  "Now  he  is  dead,  I  make  this  de- 
mand upon  liis  efi'ects  and  library,  that  they  may 


exult  in  the  peaceful  and  flourishing  state 
of  their  religion  in  England  as  compared 
with  fornier  times.  The  recusants,  they 
write,  were  not  molested  ;  and  if  their  com- 
positions were  enforced,  it  was  rather  from 
the  king's  want  of  money  than  any  desire 
to  injure  their  religion.  Their  rites  were 
freely  exercised  in  the  queen's  chapel  and 
those  of  ambassadors,  and,  more  privately, 
in  the  houses  of  the  rich.  The  Church  of 
England  was  no  longer  exasperated  against 
them ;  if  there  was  ever  any  prosecution, 
it  was  to  screen  the  king  from  the  reproach 
of  the  Puritans.  They  drew  a  flattering 
picture  of  the  resipiscence  of  the  Anglican 
party,  who  are  come  to  acknowledge  the 
truth  in  some  articles,  and  difier  in  others 
rather  verbally  than  in  substance,  or  in  points 
not  fundamental ;  who  hold  all  other  Prot- 
estants to  be  schismatical,  and  confess  the 
primacy  of  the  Holy  See,  regretting  the 
separation  already  made,  and  wishing  for 
reunion ;  who  profess  to  pay  implicit  re- 
spect to  the  fathers,  and  can  best  be  assail- 
ed on  that  side.* 

These  letters  contain,  no  doubt,  a  partial 
I'epresentation  ;  that  is,  they  impute  to  the 
Anglican  clergy  in  general  what  was  only 
true  of  a  certain  number.  Their  aim  was 
to  inspire  the  court  of  Rome  with  more  fa- 
vorable views  of  that  of  England,  and  thus 
to  pave  the  way  for  a  permission  of  the  oath 
of  allegiance,  at  least  with  some  modification 
of  its  terms.  Such  flattering  tales  naturally 
excited  the  hopes  of  the  Vatican,  and  con- 
tributed to  the  mission  of  Panzani,  who  was 
instructed  to  feel  the  pulse  of  the  nation, 
and  communicate  more  unbiased  informa- 
tion to  his  court  than  could  be  expected 
from  the  English  priests.  He  confirmed, 
by  his  letters,  the  general  truth  of  the  for- 
mer statements  as  to  the  tendency  of  the 
Anglican  Church,  and  the  favorable  dispo- 
sitions of  the  court.  The  king  received 
him  secretly,  but  with  much  courtesy  ;  the 
queen  and  the  Catholic  ministers,  Cotting- 
ton and  Windebank,  with  unreserved  confi- 
dence. It  required  all  the  adroitness  of  an 
Italian  emissary  fi'om  the  subtlest  of  courts 
be  restored  to  me;  as  his  majesty's  order  at  that 
time  was  ineffectual,  as  well  as  its  appearing  that 
there  was  nothing  conhaband  or  prohibited."  A 
list  of  these  books  follows,  and  is  curious.  Tliey 
consisted  of  English  popish  ti-acts  by  wholesale,  in- 
tended, of  course,  for  circulation. — Clar.  State  Pa- 
pers, 66.  *  Clarendon  State  Papers,  19",  &c. 


276 

to  meet  their  demonstrations  of  friendship 
without  too  much  committing  his  employ- 
ers. Nor  did  Panzani  altogether  satisfy  the 
pope,  or  at  least  his  minister,  Cardinal  Bar- 
berini,  in  this  respect.* 


*  Id.,  249.  The  Memoirs  of  Panzani,  after  fur- 
nishing some  materials  to  Dodd's  Church  History, 
were  published  by  Mr.  Berington  in  1794.  They 
are,  however,  become  scarce,  and  have  not  been 
much  quoted.  It  is  plain  that  they  were  not  his 
own  work,  but  written  by  some  dependent,  or  per- 
son in  his  confidence.  Their  truth,  as  well  as  au- 
thenticity, appears  to  me  quite  beyond  controver- 
sy ;  they  coincide,  in  a  remarkable  manner,  with 
all  our  other  information  ;  the  names  and  local  de- 
tails are  particularly  accurate  for  the  work  of  a 
foreigner;  in  short,  they  contain  no  one  fact  of  any 
consequence  which  there  is  reason  to  distrust. 
Some  account  of  them  may  be  found  in  Butler's 
Engl.  Cath.,  vol.  iv. 

A  small  ti-act,  entitled  "The  Pope's  Nuncio," 
printed  in  1643,  and  said  to  be  founded  on  the  in- 
foi-mation  of  the  Venetian  ambassador,  is,  as  I  con- 
ceive, derived  in  some  direct  or  indirect  manner 
from  these  memoirs.  It  is  republished  in  the  Som- 
ers  Tracts,  vol.  iv. 

Mr.  Butler  has  published,  for  the  first  time,  a 
long  and  important  extract  from  Panzani's  own  re- 
port to  the  pope  concerning  the  state  of  the  Cath- 
olic religion  in  England. — Mem.  of  Catholics,  iv.,  55. 
He  reckons  them  at  150,000;  many  of  them,  how- 
ever, continuing  so  outwardly  to  live  as  not  to  be 
known  for  such,  among  whom  are  many  of  the  first 
nobility.  From  them  the  neighboring  Catholics 
have  no  means  of  hearing  mass  or  going  to  the  sacra- 
ments. Others,  more  bold,  give  opportunity,  more  or 
less,  to  their  poorer  neighbors  to  practice  their  duty. 
Besides  these,  there  are  others,  who,  apprehensive 
of  losing  their  property  or  places,  live  in  appear- 
ance as  Protestants,  take  the  oaths  of  supremacy 
and  allegiance,  frequent  the  churches,  and  speak 
occasionally  against  Catholics  ;  yet  in  their  hearts 
are  such,  and  sometimes  keep  priests  in  their 
houses,  that  they  may  not  be  without  help,  if  nec- 
essary. Among  them  he  includes  some  of  the  first 
nobility,  secular  and  ecclesiastical,  and  many  of 
every  rank.  While  he  was  in  London,  almost  all 
the  nobility  who  died,  though  reputed  Protestants, 
died  Catholics.  The  bishops  are  Protestants,  ex- 
cept four,  Durham,  Salisbury,  Rochester,  and  Ox- 
ford, who  are  Puritans.  The  latter  are  most  nu- 
merous among  the  people,  and  are  more  hated  by 
moderate  Protestants  than  are  the  Catholics.  A 
great  change  is  apparent  in  books  and  seiTuons 
compared  with  fonner  times  ;  auricular  confession 
praised,  images  well  spoken  of,  and  altars.  The 
pope  is  owned  as  patriarch  of  the  West ;  and 
wishes  arc  expressed  for  reunion.  The  queen  has 
a  jjublic  chapel  besides  her  private  one,  where 
service  is  celebrated  with  much  pomp ;  also  the 
ambassadors ;  and  there  are  others  in  London. 
The  laws  against  recusants  are  much  relaxed  ; 
though  sometimes  the  king,  being  in  want  of  mon- 
ey, takes  one  third  of  their  incomes  by  way  of  com- 


[chap,  vin. 

During  the  residence  of  Panzani  in  Eng- 
land, an  extraordinary  negotiation  was  com- 
menced for  the  reconciliation  of  the  Church 
of  England  with  that  of  Rome  ;  and  as  this 
fact,  though  unquestionable,  is  very  little 
known,  I  may  not  be  thought  to  digi'ess  in 
taking  particular  notice  of  it.  Windebank 
and  Lord  Cottington  were  the  first  movers 
in  that  business,  both  calling  themselves  to 
Panzani  Catholics,  as  in  fact  they  were,  but 
claiming  all  those  concessions  from  the  See 
of  Rome  which  had  been  sometimes  held 
out  in  the  preceding  century.  Bishop 
Montagu  soon  made  himself  a  intrigue  of 
partj-,  and  had  several  interviews  wiUi°"' 
with  Panzani.  He  professed  the  Panzani. 
strongest  desire  for  a  union,  and  added,  that 
he  was  satisfied  both  the  archbishops,  the 
Bishop  of  London,  and  several  othei-s  of 
that  order,  besides  many  of  the  inferior 
clergy,  were  prepared  to  acknowledge  the 
spiritual  supremacy  of  the  Holy  See,  there 
being  no  method  of  ending  controversies  but 
by  recuiTing  to  some  center  of  ecclesiastical 
unity.  For  himself,  he  knew  no  tenet  of 
the  Roman  Chm-ch  to  which  he  would  not 
subscribe,  unless  it  were  that  of  ti-ansub- 
stantiation,  though  he  had  some  scruples  as 
to  communion  in  one  kind.  But  a  congress 
of  moderate  and  learned  men,  chosen  on 
each  side,  might  reduce  the  disputed  points 
into  small  compass,  and  confer  upon  them. 

This  overture  being  communicated  to 
Rome  by  its  agent,  was,  of  course,  too 
tempting  to  be  disregarded,  though  too  am- 
biguous to  be  snatched  at.    The  reunion 

position.  The  Catholics  are  yet  molested  by  the  pur- 
suivants, who  enter  their  houses  in  search  of  priests 
or  sacred  vessels ;  and  though  this  evil  was  not 
much  felt  while  he  was  in  London,  they  might  be 
set  at  work  at  any  time.  He  determined,  there- 
fore, to  obtain,  if  possible,  a  general  order  from  the 
king  to  restrain  the  pursuivants;  and  .the  business 
was  put  into  the  hands  of  some  counselors,  but  not 
settled  at  his  departure.  The  oath  of  allegiance 
divided  the  ecclesiastics,  the  major  part  refusing 
to  take  it.  After  a  good  deal  about  the  appoint- 
ment of  a  Catholic  bishop  in  England,  he  mentions 
Father  Davenport  or  Sancta  Clara's  book,  entitled 
Deus,  Natura,  Gratia,  with  which  the  king,  he 
says,  had  been  pleased,  and  was  therefore  disap- 
pointed at  finding  it  put  in  the  Index  Expurgato- 
rius  at  Rome.  This  book,  which  made  much  noise 
at  the  time,  was  an  attempt  to  show  the  compati- 
bility of  the  Anglican  doctrines  with  those  of  the 
Catholic  Church  ;  the  usual  trick  of  popish  intrigu- 
ers.— See  an  abstract  of  it  in  StiUingfleet's  Works, 
vol.  v.,  p.  176. 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


Cha.  I.— 1629-40.] 


FROM  HENRY  V: 


11.  TO  GEORGE  II. 


277 


of  England  to  the  Catholic  Church,  in  itself 
a  most  important  advantage,  might,  at  that 
particular  juncture,  during  the  dubious 
struggle  of  the  Protestant  religion  in  Ger- 
many, and  its  still  more  precarious  condition 
in  France,  very  probably  reduce  its  adhe- 
rents throughout  Europe  to  a  proscribed 
and  persecuted  sect.  Pauzani  Avas  there- 
fore instructed  to  flatter  Montagu's  vanity, 
to  manifest  a  great  desire  for  reconciliation, 
but  not  to  favor  any  discussion  of  controvert- 
ed points,  which  had  always  proved  fruit- 
less, and  which  could  not  be  admitted  till 
the  supremo  authority  of  the  Holy  See  was 
recognized.  As  to  all  usages  founded  on 
positive  law,  which  might  be  disagi-eeable 
to  the  English  nation,  they  should  receive 
as  much  mitigation  as  the  case  would  bear. 
This,  of  course,  alluded  to  the  three  gi-eat 
l)oints  of  discipline,  or  ecclesiastical  institu- 
tion— the  celibacy  of  the  clergy,  the  exclu- 
sion of  the  laity  from  the  eucharistical  cup, 
and  the  Latin  liturgy. 

In  the  course  of  the  bishop's  subsequent 
interviews,  he  again  mentioned  his  willing- 
ness to  acknowledge  the  pope's  supremacy, 
and  assured  Panzani  that  the  ai'chbishop 
was  entirely  of  his  mind,  but  with  a  great 
mixture  of  fear  and  caution.*  Three  bish- 
ops only,  Morton,  Hall,  and  Davenant,  were 
obstinately  bent  against  the  Church  of 
Rome  ;  the  rest  might  be  counted  moder- 
ate.f  The  agent,  however,  took  care  to 
obtain  from  another  quarter  a  more  partic- 
ular account  of  each  bishop's  disposition, 
and  transtnitted  to  Rome  a  report,  which 

*  If  we  may  believe  Heylin,  the  qneen  prevail- 
ed on  Land  to  use  his  influence  with  the  king  that 
Panzani  might  come  to  London,  promising  to  be 
bis  friend. — Life  of  Laud,  286. 

t  P.  246.  It  may  seem  extraordinary  that  he 
did  not  mention  Williams  ;  but  I  presume  he  took 
that  political  bishop's  zeal  to  be  insincere.  Will- 
iams liad  been,  while  in  power,  a  great  favorer 
of  the  toleration  of  papists.  If,  indeed,  a  story  told 
of  him,  on  Endymion  Porter's  authority,  in  a  late 
work,  be  true,  he  was  at  that  time  sufficiently  in- 
clined to  have  accepted  a  cardinal's  hat,  and  made 
interest  for  it. — Blencowe's  Sidney  Papers,  p.  262. 
One  bishop,  Goodman  of  Gloucester,  was  undoubt- 
edly a  Roman  Catholic,  and  died  in  that  commun- 
ion. He  refused  for  a  long  time  to  subscribe  the 
canons  of  1640,  on  account  of  one  that  contained  a 
renunciation  of  popery,  but  yielded  at  length  for 
fear  of  suspension,  and  charged  Montagu  with  hav- 
ing inatigated  his  refusal,  though  he  subscribed 
himseK  ^Nalson,  i.,  371.  Rushw.  Abr.,  iii.,  168. 
CoU'.r  '"<3     Land's  defense  on  his  trial. 


does  not  appear.  Montngn  displayed  a 
most  unguarded  Avarmth  in  all  this  treaty ; 
notwithstanding  which,  Panzani  suspected 
him  of  still  entertaining  some  notions  in- 
compatible with  the  Catholic  docti'ine.  He 
behaved  with  much  greater  discretion  than 
the  bishop;  justly,  I  suppose,  distrusting 
the  influence  of  a  man  who  showed  so  little 
capacity  for  a  business  of  the  utmost  deli- 
cacy. It  appears  almost  certain  that  Mon- 
tagu made  too  free  with  the  name  of  the 
archbishop,  and  probably  of  many  others ; 
and  it  is  well  worthy  of  remark,  that  the 
popish  party  did  not  entertain  any  sanguine 
hopes  of  the  king's  conversion.  They  ex- 
pected, doubtless,  that,  by  gaining  over  the 
hierarchy,  they  should  induce  him  to  fol- 
low;  but  he  had  evidently  given  no  reason 
to  imagine  that  he  would  precede.  A  few 
casual  words,  not,  perhaps,  exactly  report- 
ed, might  sometimes  elate  their  hopes,  but 
can  not  excite  in  us,  who  are  better  able  to 
judge  than  his  cotemporaries,  any  reason- 
able suspicion  of  his  constancy.  Yet  it  is 
not  impossible  that  he  might  at  one  time 
conceive  a  union  to  be  more  practicable  than 
it  really  was.* 

t  Henrietta  Maria,  in  her  communication  to 
Madame  de  Motteville,  has  the  following  passage, 
which  is  not  undesei-ving  of  notice,  though  she 
may  have  been  deceived:  "Le  Roi  Jacques  .  . 
composa  deux  li\Tes  pour  la  defense  de  la  fausse 
religion  d'Angleterre,  et  fit  reponse  a  ceux  que  le 
Cardinal  du  Perron  ecrivit  centre  lui.  En  defend- 
ant le  mensonge,  il  concut  de  I'amour  pour  la  ver- 
ite,  et  souhaita  de  se  retirer  de  I'erreur.  Ce  fut 
en  voulant  accorder  les  deux  religions,  la  notre  et 
la  sienne  ;  mais  il  mourut  avant  que  d'executer  ce 
louable  dessein.  Le  Roi  Charles  Stuard,  son  fils, 
quand  il  vint  a  la  couronne,  se  trouva  presque  dans 
les  memes  sentimens.  II  avoit  auprds  de  lui  I'Arch- 
eveque  de  Cantorberi,  qui,  dans  son  creur  ctant 
ti-es-bou  Catholique,  inspira  au  roi  son  maitre  un 
grand  dcsir  de  rctablir  la  liturgie,  croyant  que  s'il 
pouvoit  arriver  a  ce  point,  il  y  auroit  si  peu  de 
difi'erence  de  la  fbi  ortliodoxe  a  la  leur,  qu'il  seroit 
aise  peu  a  peu  d'y  conduire  le  roi.  Pour  travail- 
ler  a  ce  grand  ouvrage,  que  ne  paroissoit  au  roi 
d'AngleteiTe  que  le  retablissement  parfait  de  la 
liturgie,  et  qui  est  le  seul  dessein  qui  ait  etc  dans 
le  coEur  de  ce  prince,  I'Arcbeveque  de  Cantorberi 
lui  conseiUa  de  commencer  par  I'Ecosse,  comma 
plus  eloignee  du  coeur  du  royaumc ;  lui  disant,  que 
leur  remuement  seroit  moins  a  craindre.  Le  roi, 
avant  que  de  partir,  voulant  envoyer  cette  liturgie 
en  I'Ecosse,  I'appoita  uu  soir  dans  la  cbambre  de 
la  reine,  et  la  pria  de  lire  ce  livre,  lui  disant,  qu'il 
seroit  bien  aise  qu'elle  le  vit,  afin  qn'elle  sut  com- 
bien  ils  approchoieut  de  creance.  " — Mem.  de  Motte- 
ville, i.,  242.    A  well-informed  writer,  however. 


27S 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIIL 


The  court  of  Rome,  however,  omitted  no 
token  of  civility  or  good  will  to  conciliate 
cm-  king's  favor.  Besides  expressions  of 
paternal  kindness  which  Urban  lavished  on 
him,  Cardinal  Barberini  gi-atified  his  well- 
known  taste  by  a  present  of  pictures. 
Charles  showed  a  due  sense  of  these  court- 
esies. The  prosecutions  of  recusants  were 
absolutely  stopped,  by  cashiering  the  pui'- 
suivants  who  had  been  employed  in  the 
odious  office  of  detecting  them.  It  was  ar- 
ranged that  reciprocal  diplomatic  relations 
should  be  established,  and,  consequently, 
that  an  English  agent  should  constantly  re- 
side at  the  court  of  Rome,  by  the  nominal 
appointment  of  the  queen,  but  empowered 
to  conduct  the  various  negotiations  in  hand. 
Through  the  first  person  who  held  this  sta- 
tion, a  gentleman  of  the  name  of  Hamilton, 
the  king  made  an  overture  on  a  matter  very 
near  to  his  heart,  the  restitution  of  the  Pa- 
latinate. I  have  no  doubt  that  the  whole  of 
his  imprudent  tampering  with  Rome  had 
been  considerably  influenced  by  this  chi- 
merical hope  ;  but  it  was  apparent  to  every 
man  of  less  unsound  judgment  than  Charles, 
that,  except  the  young  elector  would  re- 
nounce the  Protestant  faith,  he  could  ex- 
pect nothing  from  the  intercession  of  the 
pope. 

After  the  first  preliminaries,  which  she 
could  not  refuse  to  enter  upon,  the  court  of 
Rome  displayed  no  eagerness  for  a  treaty 
which  it  found,  on  more  exact  infonnation, 
to  be  embaiTassed  with  greater  difficulties 
than  its  new  allies  had  confessed.*  Wheth- 
er this  subject  continued  to  be  discussed 
during  the  mission  of  Con,  who  succeeded 
Panzani,  is  hard  to  determine,  because  the 
latter's  memoirs,  our  unquestionable  author- 
ity for  what  has  been  above  related,  cease 
to  afford  us  light ;  but  as  Con  was  a  very 


says  Charles  was  a  Protestant,  and  never  liked  the 
Catholic  religion.— P.  Orleans,  Revolat.  d'Anglet., 
iii.,  35.  He  says  the  same  of  Laud,  but  refers  to 
Vittorio  Siri  for  an  opposite  story. 

*  Cardinal  Barberini  wrote  word  to  Panzani, 
that  the  proposal  of  Windebank,  that  the  Chiirch 
of  Rome  should  sacrifice  communion  in  one  kind, 
the  celibacy  of  the  clergy,  &c.,  would  never  please ; 
that  the  English  ought  to  look  back  on  the  breach 
they  had  made,  and  their  motives  for  it,  and  that 
the  whole  world  was  against  them  on  the  first-men- 
tioned points,  p.  173.  This  is  exactly  what  any 
one  might  predict  tr\\o  knew  the  long  discussions 
on  the  subject  with  Austria  and  France  at  the 
time  of  the  Council  of  Trent. 


active  intriguer  for  his  court,  it  is  by  no 
means  unlikely  that  he  proceeded  in  the 
same  kind  of  parley  with  Montagu  and 
Windebank;  yet  whatever  might  pass  be- 
tween them  was  intended  rather  with  a 
view  to  the  general  interests  of  the  Roman 
Church,  than  to  promote  a  reconciliation 
with  that  of  England,  as  a  separate  con- 
tracting paity.  The  former  has  displayed 
so  systematic  a  policy  to  make  no  conces- 
sion to  the  Refoinners,  either  in  matters  of 
belief,  wherein,  since  the  Council  of  Trent, 
she  could  in  fact  do  nothing,  or  even,  as  far 
as  possible,  in  points  of  disciphne,  as  to 
which  she  judged,  perhaps  rightly,  that  her 
authority  would  be  impaired  by  the  prece- 
dent of  concession  without  any  proportion- 
ate advantage :  so  unvaiying  in  all  ca.ses  has 
been  her  detennination  to  yield  nothing  ex- 
cept through  absolute  force,  and  to  elude 
force  itself  by  eveiy  subtlety,  that  it  is  as- 
tonishing how  honest  men  on  the  opposite 
side  (men,  that  is,  who  seriously  intended 
to  preserve  any  portion  of  their  avowed  ten- 
ets) could  ever  contemplate  the  possibility 
of  reconciliation.  Upon  the  present  occa- 
sion, she  manifested  some  alarm  at  the 
boasted  approximation  of  the  Anglicans. 
The  attraction  of  bodies  is  reciprocal ;  and 
the  English  Catholics  might,  with  so  much 
temporal  interest  in  the  scale,  be  impelled 
more  rapidly  toward  the  E  stablished  Church 
than  that  church  toward  them.  "Advise 
the  clergy,"  say  the  instructions  to  the  nun- 
cio in  16.39,  "to  desist  from  thatfoolish,  nay, 
rather  illiterate  and  childish,  custom  of  dis- 
tinction in  the  Protestant  and  Puritan  doc- 
trine ;  and  especially  this  eiTor  is  so  much 
the  greater,  when  they  undertake  to  prove 
that  Protestantism  is  a  degree  nearer  to  the 
Catholic  faith  than  the  other ;  for  since  both 
of  them  be  without  the  verge  of  the  Church, 
it  is  needless  hypocrisy  to  speak  of  it,  yea, 
it  begets  more  malice  than  it  is  w-orth."* 

This  exceeding  boldness  of  the  Catholic 
party,  and  their  success  in  conversions, 
which  were,  in  fact,  less  remarkable  for 
their  number  than  for  the  condition  of  the 
persons,  roused  the  primate  himself  to  some 
apprehension.  He  prefeiTed  a  formal  com- 
plaint to  the  king  in  council  against  the  re- 
sort of  papists  to  the  queen's  chapel,  and 

*  "Begets  more  malice"  is  obscure — perhaps  ic 
means  "irritates  the  Puritans  more.'" — Clar.  Pa- 
pers, ii.,  44. 


Cha.  I.— 1629-40.]  FROM  HEXRY  VII.  TO  GEORGE  II. 


279 


the  insolence  of  some  active  zealots  about 
the  court.*  Heurietta,  who  had  courted 
his  friendship,  and  probably  relied  on  his 
connivance,  if  not  support,  seems  never  to 
have  forgiven  this  unexpected  attack.  Laud 
gave  another  testimony  of  his  unabated  hos- 
tility to  popeiy  by  repubhshing  with  addi- 
tions his  celebrated  conference  with  the 
Jesuit  Fisher,  a  woi-k  reckoned  the  gi'eat 
monument  of  his  learning  and  conti-oversial 
acumen.  This  conference  had  taken  place 
many  years  before,  at  the  desire  and  in  the 
presence  of  the  Countess  of  Buckingham, 
the  duke's  mother.  Those  who  are  con- 
versant with  literary  and  ecclesiastical  anec- 
dote must  be  aware  that  nothing  was  more 
usual  in  the  seventeenth  century  thao  such 
single  combats  under  the  eye  of  some  fair 
lady,  whose  religious  faith  was  to  depend 
upon  the  victoiy.  The  wily  and  polished 
Jesuits  had  gi-eat  advantages  in  these  duels, 
which  almost  alwaj's,  I  believe,  ended  in 
their  favor.  After  fatiguing  their  gentle  ar- 
bitress  for  a  time  with  the  tedious  fencing  of 
text  and  citation,  till  she  felt  her  own  inabil- 
ity to  award  the  palm,  they  came,  with  her 
prejudices  already  engaged,  to  the  necessity 
of  an  infallible  judge  ;  and  as  their  adversa- 
ries of  the  English  Church  had  generally 
left  themselves  vulnerable  on  thi.s  side,  there 
was  little  difficulty  in  obtaining  success. 

*  Hevlin,  p.  338.  Land's  Diarj',  Oct.,  1637. 
Strafford  Letters,  i.,  426.  Garrard,  a  dependent 
friend  whom  Strafford  retained,  as  was  usual  with 
great  men,  to  communicate  the  news  of  the  court, 
frequently  descants  on  the  excessive  boldness  of 
the  papists.  "Laud,"  he  says,  vol.  ii.,  p. 74,  " does 
all  he  can  to  heat  down  the  general  fear  conceived 
of  bringing  on  popery."  So  in  p.  165,  and  many 
other  places. 

It  is  manifest,  by  a  letter  of  Laud  to  Strafford  in 
1638,  that  he  was  not  satisfied  with  the  systemat- 
ic connivance  at  recusancy. — Id.,  171.  The  expla- 
nation of  the  archbishop's  conduct  with  respect  to 
tlie  Roman  Catholics  seems  tofce,  that,  with  a  view 
of  gaining  them  over  to  his  own  half-way  Protes- 
tantism, ond  also  of  ingratiating  himself  with  the 
queen,  he  had  for  a  time  gone  along  with  the  tide, 
till  he  found  there  was  a  real  danger  of  being  car- 
ried further  than  he  intended.  This  accounts  for 
the  well-known  story  told  by  Evelyn,  that  the  Jes- 
uits at  Rome  spoke  of  liim  as  their  bitterest  ene- 
my. He  is  reported  to  have  said  that  they  and 
the  Puritans  were  the  chief  obstacles  to  a  reunion 
of  the  churches.  There  is  an  obscure  storj-  of  a 
plot  carried  on  by  the  pope's  legate  Con  and  the 
English  Jesuits  against  Laud,  and  detected  in  1G40 
by  one  Andrew  Habemfield,  which  some  have 
treated  as  a  mere  fiction. — Rushworth,  iii.,  232. 


I  Like  Hector  in  the  spoils  of  Patroclus,  our 
clergj-  had  assumed  to  themselves  the  ce- 

I  lestial  armor  of  authority,  but  found  that, 
however  it  might  intimidate  the  multitude, 

I  it  fitted  them  too  ill  to  repel  the  spear  that 

1  had  been  ^vl■ou^ht  in  the  same  furnace.  A 

I 

writer  of  tliis  school  in  the  age  of  Charles 
the  First,  and  incomparably  superior  to  any 
of  the  churchmen  belonging  to  it  in  the 
brightness  and  originality  of  his  genius.  Sir 
Thomas  Browne,  whose  varied  talents 
wanted  nothing  but  the  controlling  suprem- 
acy of  good  sense  to  place  him  in  the  high- 
est rank  of  our  literature,  will  furnish  a  bet- 
ter instance  of  the  prevailing  bias  than  mere- 
j  ly  theological  writings.  He  united  a  most 
j  acute  and  skeptical  understanding  with 
strong  devotional  sensibility-,  the  tempeiu- 
ment  so  conspicuous  in  Pascal  and  Johnson, 
and  which  has  a  peculiar  tendency  to  seek 
the  repose  of  implicit  faith.  "  Where  the 
Scripture  is  silent,"  s.iys  Browne  in  his 
Religio  Medici,  "the  Church  is  my  text; 
where  it  speaks,  'tis  but  my  comment." 
That  Jesuit  must  have  been  a  disgrace  to 
his  order  who  would  have  asked  more  than 
such  a  concession  to  secure  a  proselyte — 
the  right  of  interpreting  whatever  was  writ- 
ten, and  of  supplying  whatever  was  not. 

At  this  time,  however,  appeared  one  man 
in  the  field  of  religious  debate,  who  chiiiiug- 
sti'uck  out  from  that  insidious  track,  worth, 
of  which  his  own  experience  had  shown 
him  the  perils.  ChillingAvoith,  on  whom 
nature  had  bestowed  something  like  the 
same  constitutional  temperament  as  that  to 
which  I  have  just  adverted,  except  that  the 
reasoning  power  having  a  greater  masterj", 
his  religious  sensibility  i-ather  gave  earn- 
estness to  his  love  of  truth  than  tenacity  to 
his  prejudices,  had  been  induced,  like  so 
many  others,  to  pass  over  to  the  Roman 
Church.  The  act  of  transition,  it  may  be 
obseiTed,  from  a  system  of  tenets  wherein 
men  had  been  educated,  was  in  itself  a  vig- 
orous exercise  of  free  speculation,  and  might 
be  termed  the  suicide  of  private  judgment. 
But  in  Chillingworth's  restless  mind  there 
was  an  inextinguishable  skepticism  that  no 
opiates  could  subdue  ;  yet  a  skepticism  of 
that  species  which  belongs  to  a  vigorous,  not 
that  which  denotes  a  feeble  understanding. 
Dissatisfied  with  his  new  opinions,  of  which 
he  had  never  been  really  convinced,  he 
panted  to  breathe  the  freer  air  of  Protes- 


280 


CONSTITUTIOXAL  HISTORY  OF  ENQLAND 


[Chap.  VIIL 


tantism,  and  after  a  long  and  anxious  inves- 
tigation, returned  to  the  English  Church. 
He  well  redeemed  any  censure  that  might 
have  been  thrown  on  him,  by  his  gi'eat  work 
in  answer  to  the  Jesuit  Knott,  entitled  The 
Religion  of  Protestants  a  Safe  Way  to  Sal- 
vation. In  the  course  of  his  reflections  he 
had  perceived  the  insecurity  of  resting  the 
Refonnation  on  any  but  its  original  basis, 
the  independency  of  private  opinion.  This, 
too,  he  asserted  with  a  fearlessness  and 
consistency  hitherto  little  known,  even  with- 
in the  Protestant  pale ;  combining  it  with 
another  principle,  which  the  zeal  of  the 
early  Reformers  had  rendered  them  unable 
to  perceive,  and  for  want  of  which  the  ad- 
versaiy  had  perpetually  discomfited  them, 
namely,  that  the  eiTors  of  conscientious 
men  do  not  forfeit  the  favor  of  God.  This 
endeavor  to  mitigate  the  dread  of  forming 
mistaken  judgments  in  religion  runs  through 
the  whole  work  of  Chillingworth,  and  marks 
him  as  the  founder,  in  this  country,  of  what 
has  been  called  the  latitudinarian  school  of 
theology.  In  this  view,  which  has  practi- 
cally been  the  most  important  one  of  the 
controversy,  it  may  pass  for  an  anticipated  I 
reply  to  the  most  brilliant  performance  on 
the  opposite  side,  the  History  of  the  Varia- 
tions of  Protestant  Churches ;  and  those 
who,  from  a  delight  in  the  display  of  human 
intellect,  or  from  more  serious  motives  of 
inquiry,  are  led  to  these  two  master-pieces, 
will  have  seen,  perhaps,  the  utmost  strength 
that  either  paity,  in  the  great  schism  of 
Christendom,  has  been  able  to  put  forth. 

This  celebrated  work,  which  gained  its 
author  the  epithet  of  immortal,  is  now,  I 
suspect,  little  studied  even  by  the  clergy. 
It  is,  no  doubt,  somewhat  tedious,  when 
read  continuously,  from  the  frequent  recur- 
rence of  the  same  strain  of  reasoning,  and 
from  his  method  of  following,  sentence  by 
sentence,  the  steps  of  his  opponent ;  a 
method  which,  while  it  presents  an  imme- 
diate advantage  to  controversial  -v^Titers,  as 
it  heightens  their  reputation  at  the  expense 
of  their  adversary,  is  apt  to  render  them 
very  tiresome  to  posterity.  But  the  close- 
ness and  precision  of  his  logic,  which  this 
mode  of  incessant  grappling  with  his  antag- 
onist served  to  displaj-,  are  so  admirable — 
perhaps,  indeed,  hardly  rivaled  in  any  book 
beyond  the  limits  of  strict  science — that  the 
study  of  Chillingworth  might  tend  to  chas- 


tise the  verbose  and  indefinite  declamation 
so  characteristic  of  the  present  day.  His 
style,  though  by  no  means  elegant  or  imag- 
inative, has  much  of  a  nervous  energy  that 
rises  into  eloquence.  He  is  chiefly,  how- 
ever, valuable  for  a  true  liberality  and  tol- 
erance ;  far  removed  from  indifference,  as 
may  well  be  thought  of  one  whose  life  was 
consumed  in  searching  for  truth,  but  dia- 
metrically adverse  to  those  pretensions 
which  seem  of  late  years  to  have  been  re- 
gaining ground  among  the  Anglican  divines. 

The  latitudinarian  principles  of  Chilling- 
worth appear  to  have  been  confirmed 
by  his  intercourse  with  a  man,  of 
whose  capacity  his  cotemporaries  enter- 
tained so  high  an  admiration,  that  he  ac- 
quired the  distinctive  appellation  of  the 
Ever-memorable  .Tohn  Hales.  This  testi- 
mony of  so  many  enlightened  men  is  not  to 
be  disregarded,  even  if  we  should  be  of 
opinion  that  the  writings  of  Hales,  though 
abounding  with  marks  of  an  unshackled 
mind,  do  not  quite  come  up  to  the  prromise 
of  his  name.  He  had,  as  well  as  Chilling- 
worth, bon-owed  fi-om  Leyden,  perhaps  a 
j  little  from  Racow,  a  tone  of  thinking  upon 
some  doctrinal  points  as  yet  nearly  un- 
known, and  therefore  highly  obnoxious  in 
England.  More  hardy  than  his  friend,  he 
wrote  a  short  treatise  on  schism,  which 
tended,  in  pretty  blunt  and  unlimited  lan- 
guage, to  overthrow  the  scheme  of  authori- 
tative decisions  in  any  church,  pointing  at 
the  imposition  of  unnecessaiy  ceremonies 
and  articles  of  faith  as  at  once  the  cause 
and  the  apology  of  sepai'ation.  This  hav- 
ing been  circulated  in  manuscript,  came  to 
the  knowledge  of  Laud,  who  sent  for  Hales 
to  Lambeth,  and  questioned  him  as  to  his 
opinions  on  that  matter.  Hales,  though 
willing  to  promise  that  he  would  not  pub- 
lish the  tract,  receded  not  a  jot  from  his 
free  notions  of  ecclesiastical  power,  which 
he  again  advisedly  maintained  in  a  letter  to 
the  archbishop,  now  printed  among  his 
works.  The  result  was  equally  honorable 
to  both  parties  ;  Laud  bestowng  a  canoniy 
of  Windsor  on  Hales,  which,  after  so  bold 
an  avowal  of  his  opinion,  he  might  accept 
without  the  slightest  reproach.  A  behav- 
ior so  liberal  forms  a  singular  contrast  to 
the  rest  of  this  prelate's  history :  it  is  a 
proof,  no  doubt,  that  he  knew  how  to  set 
such  a  value  on  great  abilities  and  learning 


Cha.  I.— 1G29-J0.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


281 


as  to  forgive  much  that  wounded  his  pride. 
But  besides  that  Hales  had  not  made  pub- 
lic this  treatise  on  schism,  for  which  I 
think  he  could  not  have  escaped  the  High 
Commission  Court,  he  was  known  by  Laud 
to  stand  far  aloof  from  the  Calviuistic  sec- 
taries, having  long  since  embraced  in  their 
full  extent  the  principles  of  Episcopius.  and 
to  mix  no  alloy  of  political  faction  with  the 
philosophical  hardiness  of  his  speculations.* 

These  two  remarkable  ornaments  of  the 
English  Church,  who  dwelt  apart  like  stars, 
to  use  the  fine  expression  of  a  living  poet, 
from  the  vulgar  bigots  of  both  her  factions, 
were  accustomed  to  meet,  in  the  society  of 
some  other  eminent  persons,  at  the  house 
of  Loixi  Falkland,  near  Burford.  One  of 
those,  who,  then  in  a  ripe  and  learned 
youth,  became  aftenvard  so  conspicuous  a 
name  in  our  aunals  and  our  literature,  Mr. 
Hyde,  the  chosen  bosom-friend  of  his  host, 
has  dwelt  with  affectionate  remembrance 
on  the  conversations  of  that  mansion.  His 
mai-velous  talent  of  delineating  character,  a 
talent,  I  think,  unrivaled  by  any  writer 
(since,  combining  the  bold  outline  of  the 
ancient  historians  with  the  analytical  mi- 
nuteness of  De  Retz  and  St.  Simon,  it  pro- 
duces a  higher  effect  than  either),  is  never 
more  beautifully  displayed  than  in  that  part 
of  the  memoirs  of  his  life  where  Falkland, 
Hales,  Chilling^vorth,  and  the  rest  of  his 
early  friends  pass  over  the  scene. 

For  almost  thirty  ensuing  years,  Hyde 
Character  himself  becomes  the  companion 
dl^!*writ-  of  historical  reading.  Seven 
ings.  folio  volumes  contain  his  Histoiy 
of  the  Rebellion,  his  Life,  and  the  Letters, 
of  which  a  large  portion  are  his  own.  We 
contract  an  intimacy  with  an  author  who 
has  poured  out  to  us  so  much  of  his  heart. 
Though  Lord  Clarendon's  chief  work  seems 
to  me  not  quite  accui'ately  styled  a  histoiy, 
belonging  rather  to  the  class  of  memoirs.f 

*  Heylin,  in  his  Life  of  Laud,  p.  340,  tells  this 
storj-,  as  if  Hales  had  recanted  his  opinions,  and 
owned  Laud's  superiority  over  him  in  argument. 
This  is  ludicrous,  considering  the  relative  abilities 
of  the  two  men ;  and  Hales's  letter  to  the  arch- 
bishop, which  is  full  as  bold  as  Ids  treatise  on 
schism,  proves  that  Heylin's  nan-ative  is  one  of  his 
many  willful  falsehoods ;  for,  by  making  himself  a 
witness  to  the  pretended  circumstances,  he  has 
precluded  the  excuse  of  error. 

t  It  appears  by  the  late  edition  at  Oxford  (1826) 
that  Lord  Clarendon  twice  altered  his  intention  as 
to  the  nature  of  his  work,  liaving  originally  design- 


yet  the  very  reasons  of  this  distinction, 
the  long  circumstantial  narrative  of  events 
wherein  he  was  engaged,  and  the  slight  no- 
tice of  those  which  he  only  learned  from 
others,  render  it  more  interesting,  if  not  more 
authentic.    Conformably  to  human  feelings. 


ed  to  write  the  histoiy  of  his  time,  which  he 
changed  to  memorials  of  his  own  life,  and  again 
returned  to  his  first  plan.  The  consequence  has 
been,  that  there  are  two  manuscripts  of  the  Histo- 
ry and  of  the  Life,  which  in  a  great  degree  are 
transcripts  one  from  the  other,  or  contain  the  same 
general  fact  with  variations.  That  part  of  the 
Life,  previous  to  1660,  which  is  not  inserted  in  the 
History  of  the  Rebellion,  is  by  no  means  extensive. 

The  genume  text  of  the  Histoiy  has  only  been 
published  in  1826.  A  storj-.  as  is  well  known,  ob- 
tained circulation  within  thirty  years  after  its  first 
appearance,  that  the  manuscript  had  been  materi- 
allj'  altered  or  interpolated.  This  was  positively 
denied,  and  supposed  to  be  wholly  disproved.  It 
turns  out,  however,  that,  like  many  other  anec- 
dotes, it  had  a  considerable  basis  of  truth,  though 
with  various  en'oneous  additions,  and  probably 
willful  misrepresentations.  It  is  nevertheless  sur- 
prising that  the  worthy  editor  of  the  original  man- 
uscript should  say  "that  the  genuineness  of  the 
work  has  rashly,  and  for  party  purposes,  been  call- 
ed in  question,"  when  no  one,  I  believe,  has  ever 
disputed  its  genuineness ;  and  the  anecdote  to 
which  I  have  alluded,  and  to  which,  no  doubt,  he 
alludes,  has  been  by  his  own  industry  (and  many 
thanks  we  owe  him  for  it)  perfectly  confinned  in 
substance  ;  for  though  he  endeavors,  not  quite  nec- 
essarily, to  excuse  or  justify  the  original  editors 
(who  seem  to  have  been  Sprat  and  Aldrich,  with 
the  sanction,  probably,  of  Lords  Clarendon  and 
Rochester,  the  historian's  sous)  for  what  they  did, 
and  even  singularly  asserts  that  "  the  present  col- 
lation satisfactorily  proves  that  they  have  in  no 
one  instance  added,  suppressed,  or  altered  any  his- 
torical fact"  (Advert,  to  edit.  1826,  p.  v.),  yet  it  is 
certain  that,  besides  the  perpetual  impertinence 
of  mending  the  style,  there  are  several  hundred 
variations  which  affect  the  sense,  introduced  from 
one  motive  or  another,  and  directly  contrary  to  the 
laws  of  literary  integrity.  The  long  passages  in- 
serted in  the  appendixes  to  several  volumes  of  this 
edition  contain  surely  historical  facts  that  had  been 
suppressed ;  and,  even  with  respect  to  subordinate 
alterations,  made  for  the  purpose  of  sofleniug  ti'aits 
of  the  author's  angry  temper,  or  correcting  his  mis- 
takes, the  general  effect  of  taking  such  liberties 
with  a  work  is  to  give  it  an  undue  credit  in  the 
eyes  of  the  public,  and  to  induce  men  to  believe 
matters  upon  the  writer's  testimouj-,  which  they 
would  not  have  done  so  readily  if  his  errors  had 
been  fairly  laid  before  them.  Clarendon,  indeed, 
is  so  strangely  loose  in  expression  as  well  as  in- 
correct in  statement,  that  it  would  have  heen  im- 
possible to  remove  his  faults  of  this  kind  without 
writing  again  half  the  histoiy;  but  it  is  certain 
that  great  trouble  was  veiy  unduly  taken  to  light 
en  their  impression  upon  the  world. 


2S2 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  VIIL 


though  against  the  rules  of  historical  com- 
position, it  bears  the  continual  impress  of 
an  intense  concern  about  what  he  relates. 
This  depth  of  personal  interest,  united  fre- 
quently with  an  eloquence  of  the  heart  and 
imagination  that  struggles  through  an  involv- 
ed, incorrect,  and  artificial  diction,  makes  it, 
one  would  imagine,  hardly  possible  for 
those  most  alien  from  his  sentiments  to 
read  his  writings  without  some  portion  of 
sympathy.  But  they  are,  on  this  account, 
not  a  little  dangerous  to  the  soundness  of 
our  historical  conclusions;  the  prejudices 
of  Clarendon,  and  his  negligence  as  to 
truth,  being  full  as  striking  as  his  excellen- 
ces, and  leading  him  not  only  into  many  er- 
roneous judgments,  but  into  frequent  in- 
consistencies. 

These  inconsistencies  are  nowhere  so 
Animaiiver-  apparent  as  in  the  first  or  inti'o- 
sioiis  on      ductory  book  of  his  history,  which 

Cliirendnn's         ,.  .  ,  . 

account  of  proiesses  to  give  a  general  view 
this  period,      tijp  gfj^fg  of  affairs  before  the 

meeting  of  the  Long  Parliament.  It  is 
certainly  the  most  defective  part  of  his 
work.  A  strange  mixture  of  honesty  and 
disingenuousness  pervades  all  he  has  writ- 
ten of  the  early  years  of  the  king's  reign ; 
retracting,  at  least  in  spirit,  in  almost  every 
page  what  has  been  said  in  the  last,  from  a 
constant  fear  that  he  may  have  admitted  so 
much  against  the  government  as  to  make 
his  readers  impute  too  little  blame  to  those 
who  opposed  it.  Thus,  after  freely  cen- 
suring the  exactions  of  the  crown,  whether 
on  the  score  of  obsolete  prerogative  or 
without  any  just  pretext  at  all,  especially 
that  of  ship-money,  and  confessing  that 
"  those  foundations  of  right,  by  which  men 
valued  their  security,  were  never,  to  the 
apprehension  and  uudei-standing  of  wise 
men,  in  more  danger  of  being  destroyed," 
he  turns  to  dwell  on  the  prosperous  state 
of  the  kingdom  during  this  period,  "  enjoy- 
ing the  greatest  calm  and  the  fullest  meas- 
ure of  felicity  that  any  people  in  any  age 
for  so  long  time  together  have  been  blessed 
with,"  till  he  works  himself  up  to  a  sti'ange 
paradox,  that  "  many  wise  men  thought  it 
a  time  wherein  those  two  adjuncts,  which 
NeiTa  was  deified  for  uniting,  Iinperium  et 
Libertas,  were  as  well  reconciled  as  is  pos- 
sible." 

Such  wisdom  was  not,  it  seems,  the  at- 
tribute of  the  nation.    "  These  blessings," 


he  says,  "  could  but  enable,  not  compel,  us 
to  be  happy ;  we  wanted  that  sense,  ac- 
knowledgment, and  value  of  our  own  hap- 
piness which  all  but  we  had,  and  took  pains 
to  make,  when  we  could  not  find,  ourselves 
miserable.  There  was,  in  truth,  a  strange 
absence  of  understanding  in  most,  and  a 
stiange  pei-verseness  of  understanding  in 
the  rest ;  the  court  full  of  excess,  idleness, 
and  luxury ;  the  country  full  of  pride, 
mutiny,  and  discontent;  every  man  more 
troubled  and  perplexed  at  that  they  called 
the  violation  of  the  law,  than  delighted  or 
pleased  with  the  obser^■ation  of  all  the  rest 
of  the  Charter ;  never  imputing  the  in- 
crease of  their  receipts,  revenue,  and  plen- 
ty to  the  wisdom,  virtue,  and  merit  of  the 
crown,  but  objecting  every  small  imposition 
to  the  exorbitancy  and  tyranny  of  the  gov- 
ernment." 

This  sti-ange  passage  is  as  inconsistent 
with  other  parts  of  the  same  chapter,  and 
with  Hyde's  own  conduct  at  the  beginning 
of  the  Parliament,  as  it  is  with  all  reasona- 
ble notions  of  government  ;*  for  if  kings  and 


*  May  thus  answers,  by  a  sort  of  proplietic  an- 
ticipation, this  passage  of  Clarendon :  "  Another 
sort  of  men,"  he  says,  "and  especially  lords  and 
g-entlemen,  by  whom  the  pressures  of  the  g-ovem- 
ment  were  not  much  felt,  who  enjoyed  their  own 
plentiful  fortunes,  with  little  or  insensible  detriment, 
looking  no  further  than  their  present  safety  and 
prosperity,  and  the  yet  undisturbed  peace  of  the 
nation,  while  other  kingdoms  were  embroiled  in 
calamities,  and  Germany  sadly  wasted  by  a  sharp 
war,  did  nothing  but  applaud  the  happiness  of 
England,  and  called  those  ungrateful  factious  spir- 
its who  complained  of  the  breach  of  laws  and  lib- 
erties I  that  the  kingdom  abounded  with  wealth, 
plent)',  and  all  kinds  of  elegances  more  than  ever; 
that  it  was  for  the  honor  of  a  people  that  the  mon- 
arch should  live  splendidly,  and  not  be  curbed  at 
all  in  his  prerogative,  which  would  bring  him  into 
greater  esteem  with  other  princes,  and  more  ena- 
ble him  to  prevail  in  treaties ;  that  what  they  suf- 
fered by  monopolies  was  insensible,  and  not  giiev- 
ous,  if  compared  with  other  states  ;  that  the  Duke 
of  Tuscany  sat  heavier  upon  his  people  in  that 
very  kind ;  that  the  French  king  had  made  him- 
self an  absolute  lord,  and  quite  depressed  the  pow- 
er of  Parliaments,  which  had  been  there  as  great 
as  in  any  kingdom,  and  yet  that  France  flourished, 
and  the  gentiy  lived  well ;  that  the  Austrian  prin- 
ces, especially  in  Spain,  laid  heavy  burdens  upon 
their  subjects.  Thus  did  many  of  the  Enghsh 
gentry,  by  way  of  comparison,  in  ordinarj'  dis- 
course, plead  for  their  own  servitude. 

"  The  courtiers  would  begin  to  dispute  against 
Parliaments,  in  their  oidiuaiy  discourse,  that  they 
were  cruel  to  those  whom  the  king  favored,  and 


Cha.  I.— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


263 


ministers  may  plead  in  excuse  for  violating 
one  law,  that  they  have  not  transgressed 
the  rest  (though  it  would  be  difficult  to 
name  any  violation  of  law  that  Charles  had 
not  committed) — if  this  were  enough  to 
reconcile  their  subjects,  and  to  make  dissat- 
isfaction pass  for  a  want  or  perversion  of 
understanding,  they  must  be  in  a  very  dif- 
ferent pi'edicament  from  all  others  who  live 
within  the  pale  of  civil  society,  whose  obli- 
gation to  obey  its  discipline  is  held  to  be  en- 
tire and  universal.  By  this  great  writer's 
own  admissions,  the  decision  in  the  case  of 
ship-money  had  shaken  every  man's  secu- 
rity for  the  enjoyment  of  his  private  inherit- 
ance. Though  as  yet  not  weighty  enough 
to  be  actually  very  oppressive,  it  might, 
and,  according  to  the  experience  of  Eu- 
rope, undoubtedly  would,  become  such  by 
length  of  time  and  peaceable  submission. 

We  may  acknowledge  without  hesitation 
that  the  kingdom  had  gi-own  during  this  pe- 
riod into  remarkable  prosperity  and  afflu- 
ence. The  rents  of  land  wei'e  very  con- 
siderably increased,  and  large  tracts  redu- 
ced into  cultivation.  The  manufacturing 
towns,  the  sea-ports,  became  more  popu- 
lous and  flomishing.  The  metropolis  in- 
creased in  size  with  a  rapidity  that  repeated 
proclamations  against  new  buildings  could 
not  resti-ain.  The  country  houses  of  the 
superior  gentiy  throughout  England  were 
built  on  a  scale  which  their  descendants, 
even  in  days  of  more  redundant  affluence, 
have  seldom  ventured  to  emulate.  The 
kingdom  was  indebted  for  this  prosperity  to 
the  spirit  and  industry  of  the  people  ;  to 
the  laws  which  secure  the  commons  from 
oppression,  and  which,  as  between  man  and 
man,  were  still  fairly  administered  ;  to  the 


too  injurious  to  Ins  prerogative ;  that  the  late  Par- 
liament stood  upon  too  high  tenns  with  the  king, 
and  that  they  hoped  the  king  should  never  need 
any  more  Parliaments.  Some  of  the  gi'eatest 
statesmen  and  privy-counselors  would  ordinarily 
laugh  at  the  ancient  language  of  England,  when  the 
word  liberty  of  the  subject  was  named.  But  these 
gentlemen,  who  seemed  so  forward  in  taking  up 
their  own  yoke,  were  but  a  small  part  of  the  na- 
tion (though  a  number  considerable  enough  to  make 
a  reformation  hard)  compared  with  those  gentle- 
men who  were  sensible  of  their  birthrights  and  the 
true  interests  of  the  kingdom ;  on  which  side  the 
common  people  in  the  generality,  and  the  country 
freeholders  stood,  who  would  rationally  ai'gue  of 
their  own  rights,  and  those  oppressions  that  were 
laid  upon  them."— Hist,  of  Pari.,  p.  13  (edit.  1812). 


opening  of  fresh  channels  of  trade  in  the 
Eastern  and  Western  worlds  (rivulets,  in- 
deed, as  tlicy  seem  to  us,  who  float  in  the 
full  tide  of  modern  commerce,  yet  at  that 
time  no  slight  contributions  to  the  stream 
of  public  wealth) ;  but,  above  all,  to  the  long 
tranquillity  of  the  kingdom,  ignorant  of  the 
sufferings  of  domestic,  and  seldom  much 
affected  by  the  privations  of  foieign  war. 
It  was  the  natural  course  of  things,  that 
wealth  should  be  progressive  in  such  a  land. 
Extreme  tyranny,  such  as  that  of  Spain  ia 
the  Netherlands,  might,  no  doubt,  have 
turned  back  the  current.  A  less  violent, 
but  long-continued  despotism,  such  as  has 
existed  in  several  European  monarchies, 
would,  by  the  corruption  and  incapacity 
which  absolute  governments  engender,  have 
retarded  its  advance.  The  administration 
of  Charles  was  certainly  not  of  the  former 
description;  yet  it  would  have  been  an  ex- 
cess of  loyal  stupidity  in  the  nation  to  have 
attributed  their  riches  to  the  wisdom  or 
virtue  of  the  court,  which  had  injured  the 
freedom  of  ti'ade  by  monopolies  and  arbitra- 
ly  proclamations,  and  driven  away  industri- 
ous manufacturers  by  persecution. 

If  we  were  to  draw  our  knowledge  from 
no  other  book  than  Lord  Clarendon's  His- 
tory, it  would  still  be  impossible  to  avoid  the 
inference  that  misconduct  on  the  part  of  the 
crown,  and  more  especially  of  the  Churcli, 
was  the  chief,  if  not  the  sole,  cause  of  these 
prevailing  discontents.  At  the  time  when 
Laud  unhappily  became  Archbishop  of  Can- 
terbuiy,  "  the  general  temper  and  humor  of 
the  kingdom,"  he  tells  us,  "was  little  in- 
cUned  to  the  papist,  and  less  to  the  Puritan. 
There  were  some  late  taxes  and  imposi- 
tions introduced,  which  rather  angei'ed  than 
gi-ieved  the  people,  who  were  more  than 
repaired  by  the  quiet  peace  and  prosperity 
they  enjoyed  ;  and  the  murmurs  and  dis- 
content that  was,  appeared  to  be  against 
the  excess  of  power  exercised  by  the  crown, 
and  supported  by  the  judges  in  Westmin- 
ster Hall.  The  Church  was  not  repined 
at,  nor  the  least  inclination  to  alter  the  gov- 
ernment and  discipline  thereof,  or  to  change 
the  doctrine ;  nor  was  there,  at  that  time, 
any  considerable  number  of  persons,  of  any 
valuable  condition  throughout  the  kingdom, 
who  did  wish  either ;  and  the  cause  of  so 
prodigious  a  change  in  so  few  years  after 
was  too  visible  from  the  effects."  This 


284 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  Vllt 


cause,  he  is  compelled  to  admit,  in  a  pass- 
age too  diffuse  to  be  extracted,  was  the  pas- 
sionate and  imprudent  behavior  of  the  pri- 
mate. Can  there  be  a  sti'onger  proof  of  the 
personal  prepossessions  which  forever  dis- 
tort the  judgment  of  this  author,  than  that 
he  should  blame  the  remissness  of  Abbot, 
who  left  things  in  so  happy  a  condition,  and 
assert  that  Laud  executed  tlie  trust  of  solely 
managing  ecclesiastical  affairs  "  infinitely  to 
the  sei-vice  and  benefit"  of  that  church 
which  he  brought  to  destiiiction  ?  Were 
it  altogether  true,  what  is,  doubtless,  much 
exaggerated,  that  in  IG.3.3  very  little  discon- 
tent at  the  measures  of  the  court  had  begun 
to  prevail,  it  would  be  utterly  inconsistent 
with  experience  and  obsei"vation  of  mankind 
to  ascribe  the  almost  universal  murmurs  of 
1639  to  any  other  cause  than  bad  govern- 
ment. But  Hyde,  attached  to  Laud  and 
devoted  to  the  king,  shrunk  from  the  con- 
clusion that  his  own  language  would  afford  ; 
and  his  piety  made  him  seek  in  some  mys- 
terious influences  of  Heaven,  and  in  a  judi- 
cial infatuation  of  the  people,  for  the  causes 
of  those  ti'oubles  which  the  fixed  and  uni- 
form dispensations  of  Providence  were  suf- 
ficient to  explain.* 

'  It  is  curious  to  contrast  the  inconsistent  and 
feeble  apologies  for  the  prerogative  we  read  in 
Clarendon's  History,  with  his  speech  before  the 
Lords,  on  impeaching  the  judges  for  their  decision 
in  the  case  of  sliip-money.  In  this  he  speaks  veiy 
strongly  as  to  the  illegality  of  the  proceedings  of 
the  judges  in  Rolls  and  Vassal's  cases,  though  in 
his  Histoi-y  he  endeavors  to  insinuate  that  the  king 
had  a  right  to  tonnage  and  poundage;  he  inveighs 
also  against  the  decision  in  Bates's  case,  which  he 
vindicates  in  his  Histoiy. — Somers  Tracts,  iv.,  302. 
Indeed,  the  whole  speech  is  irreconcilable  with  the 
picture  he  aftei-ward  drew  of  the  prosperity  of 
England,  and  of  the  unreasonableness  of  discontent. 

The  fact  is,  that  when  he  sat  down  in  Jersey  to 
begin  his  Histoiy,  irritated,  disappointed,  afflicted 
at  all  that  had  passed  in  the  last  five  years,  he 
could  not  bring  his  mind  back  to  the  state  in  which 
it  had  been  at  the  meeting  of  the  Long  Parliament, 
and  believed  himself  to  have  partaken  far  less  in 
the  sense  of  abuses  and  desire  of  redress  than  he 
had  really  done.  There  may,  however,  be  reason 
to  suspect  that  he  had,  in  some  respects,  gone  fur- 
ther in  the  first  draught  of  his  Histoiy  than  appears 
at  present ;  that  is,  I  conceive,  that  he  erased  him- 
self some  passages  or  phrases  unfavorable  to  the 
court.  Let  the  reader  judge  from  the  following 
sentence  in  a  letter  to  Nicholas  relating  to  his 
work,  dated  Feb.  12, 1647  :  "  I  will  offer  no  excuse 
for  the  entertaining  of  Con,  who  came  after  Panza- 
ni,  and  was  succeeded  by  Rosetti,  which  was  a 
business  of  so  much  folly,  or  worse,  that  I  have 


It  is  difficult  to  pronounce  how  much 
longer  the  nation's  signal  forbear-  Scots  tronb- 
ance  would  have  held  out,  if  the  J^eU""? ihT 
Scots  had  not  precipitated  them-  goverument. 
selves  into  rebellion.  There  was  still  a 
confident  hope  that  Parliament  must  soon 
or  late  be  assembled  ;  and  it  seemed  equally 
impolitic  and  unconstitutional  to  seek  re- 
dress by  any  violent  means.  The  patriots, 
too,  had  just  cause  to  lament  the  ambition 
of  some  whom  the  couit's  favor  subdued, 
and  the  levity  of  many  more  whom  its  van- 
ities allured.  But  the  unexpected  success 
of  the  tumultuous  rising  at  Edinburgh 
against  the  service-book  revealed  the  impo- 
tence of  the  English  government.  Desti- 
tute of  money,  and  neither  daring  to  ask  it 
from  a  Parliament  nor  to  extort  it  by  any 
fresh  demand  from  the  people,  they  hesita- 
ted whether  to  employ  force  or  to  submit  to 
the  insurgents.  In  the  Exchequer,  as  Lord 
Northumberland  wrote  to  Strafford,  there 
was  but  the  sum  of  c£200  ;  with  all  the 
means  that  could  be  devised,  not  above 
6£110,000  could  be  raised;  the  magazines 
were  all  unfurnished,  and  the  people  were 
so  discontented  by  reason  of  the  multitude 
of  projects  daily  imposed  upon  them,  that 
he  saw  reason  to  fear  a  great  part  of  them 
would  be  readier  to  join  with  the  Scots 
than  to  di'aw  their  swords  in  the  king's 
service.*  "The  discontents  at  home,"  he 
observes  some  months  afterward,  "  do  mth- 
er  increase  than  lessen,  there  being  no 
course  taken  to  give  any  kind  of  satisfac- 
tion. The  king's  coffers  were  never  emp- 
tier than  at  this  time  ;  and  to  us  that  have 
the  honor  to  be  near  about  him,  no  way  is 
yet  known  how  he  will  find  means  either 
to  maintain  or  begin  a  war  without  the  help 
of  his  people. "t     Strafford  himself  dis- 

mentioned  it  in  my  prolegomena  (of  those  distem- 
pers and  exorbitances  in  government  which  pre- 
pared the  people  to  submit  to  the  furj'  of  this  Par- 
liament) as  an  offense  and  scandal  to  religion,  in 
the  same  degree  that  ship-money  was  to  liberty 
and  property.'" — State  Papers,  ii.,  336.  But  when 
we  turn  to  the  passage  in  the  History  of  the  Re- 
bellion, p.  268,  where  this  is  mentioned,  we  do 
not  find  a  single  expression  reflecting  on  the  court, 
though  the  Catholics  themselves  are  censured  for 
imprudence.  This  may  serve  to  account  for  sev- 
eral of  Clarendon's  inconsistencies,  for  nothing  ren- 
ders an  author  so  inconsistent  with  himself  as  cor- 
I'ections  made  in  a  different  temper  of  mind  from 
that  which  actuated  him  in  the  first  composition. 
*  Strafford  Letters,  ii.,  186.  t  Id.,  267. 


Cha.  I.— 1629-40.] 


FBOM  HENKY  VII.  TO  GEOHGE  11. 


285 


suaded  a  war  in  such  circumstances,  thougli 
hardly  knowing  what  other  course  to  ad- 
vise.* He  had  now  awaked  from  the 
dreams  of  infatuated  arrogance,  to  stand 
appalled  at  the  perils  of  his  sovereign  and 
his  own.  In  the  letters  that  passed  be- 
tween him  and  Laud  after  the  Scots  troub- 
les had  broken  out,  we  read  their  hardly- 
concealed  dismay,  and  glimpses  of  "  the 
two-handed  engine  at  the  door."  Yet  pride 
forbade  them  to  perceive  or  confess  the 
real  causes  of  this  portentous  state  of  af- 
fairs. They  fondly  laid  the  miscarriage  of 
the  business  of  Scotland  on  failure  in  the 
execution,  and  an  '•  over-gi'eat  desire  to  do 
all  quietly."t 

In  this  imminent  necessity,  the  king  had 
recourse  to  those  who  had  least  cause  to 
repine  at  his  administi-ation.  The  Catholic 
gently,  at  the  powerful  interference  of  their 
queen,  made  large  contributions  toward  the 
campaign  of  1G39.  Many  of  them  volun- 
teered their  personal  service.  There  was, 
indeed,  a  further  project,  so  secret  that  it  is 
not  mentioned,  I  believe,  till  veiy  lately,  by 
any  historical  writer.  This  was  to  procure 
10,000  regular  troops  from  Flanders,  in  ex- 
change for  so  many  recruits  to  be  levied 
for  Spain  in  England  and  Ireland.  These 
troops  were  to  be  for  six  months  in  the 
king's  pay.  Colonel  Gage,  a  Catholic,  and 
the  negotiator  of  this  treaty,  hints  that  the 
pope  would  probably  contribute  money,  if 
he  had  hopes  of  seeing  the  penal  laws  re- 
pealed ;  and  observes,  that  with  such  an 
army  the  king  might  both  subdue  the  Scots, 
and  at  the  same  time  keep  his  Parliament 
in  check,  so  as  to  make  them  come  to  his 


*  Strafford  Letters,  ii.,  191. 

t  Strafford  Letters,  ii.,  250.  "  It  was  ever  clear 
in  my  judgment,"  says  Strafford,  "tliat  the  busi- 
ness of  Scotland,  so  well  laid,  so  pleasing  to  God 
and  man,  had  it  been  effected,  was  miserably  lost 
in  the  execution ;  yet  could  never  have  so  fatally 
miscarried  if  there  had  not  been  a  failure  likewise 
in  this  direction,  occasioned  either  by  over-great 
desires  to  do  all  quietly  without  noise,  by  the  state 
of  the  business  misrepresented,  by  opportunities 
and  seasons  slipped,  or  by  some  such  like."  Laud 
answers  in  the  same  sti-ain:  "Indeed,  my  lord, 
the  business  of  Scotland,  I  can  be  bold  to  say  with- 
out vanitj',  was  well  laid,  and  was  a  great  service 
to  the  crown  as  well  as  to  God  himself.  And  that 
it  should  so  fatally  fail  in  the  execution  is  a  great 
blow  as  well  to  the  power  as  honor  of  the  king," 
&c.  He  lays  the  blame,  in  a  great  degree,  on  Lord 
Traquair.— P.  264. 


conditions.*  The  treaty,  however,  was 
never  concluded.  Spain  was  far  more  in- 
clined to  revenge  herself  for  the  bad  faith 
she  imputed  to  Charles,  than  to  lend  him 
any  assistance.  Hence,  when,  in  the  next 
year,  he  offered  to  declare  war  against  Hol- 
land, as  soon  as  he  should  have  subdued 
the  Scots,  for  a  loan  of  1,200,000  crowns, 
the  Spanish  ambassador  haughtily  rejected 
the  proposition.! 

The  pacification,  as  it  was  termed,  of 
Berwick  in  the  summer  of  1G39,  has  been 
represented  by  several  historians  as  a  meas- 
ure equally  ruinous  and  unaccountable. 
That  it  was  so  far  ruinous  as  it  formed  one 
link  in  the  chain  that  dragged  the  king  to 
destruction,  is  most  evident;  but  it  was  both 
inevitable  and  easy  of  explanation.  The 
treasury,  whatever  Clarendon  and  Hume 
may  have  said,  was  perfectly  bankrupt.} 
The  citizens  of  London,  on  being  urged  by 
the  council  for  a  loan,  had  used  as  much 
evasion  as  they  dared. §  The  writs  for 
ship-money  were  executed  with  greater 
difficulty ;  several  sheritiTs  willingly  acqui- 
esced in  the  excuses  made  by  their  coun- 
ties. ||  Sir  Francis  Seymour,  brother  to 
the  Earl  of  Hertford,  and  a  man,  like  his 

*  Clarendon  State  Papers,  ii.,  19. 

t  Id.,  84,  and  Appendix,  xxvi. 

:t;  Hume  says  that  Charles  had  an  accumulated 
treasure  of  £200,000  at  this  time.  I  know  not  his 
authority  for  the  particular  sum ;  but  Clarendon 
pretends  that  "  the  revenue  had  been  so  well  im- 
proved and  so  wisely  managed,  that  there  was 
money  in  the  Exchequer  proportionable  for  the  un- 
dertaking any  noble  enterprise."  This  is,  at  the 
best,  strangely  hyperbolical ;  but,  in  fact,  there 
was  an  absolute  want  of  every  thing.  Ship-mon- 
ey would  have  been  a  still  more  crying  sin  than  it 
was,  if  the  produce  had  gone  beyond  the  demands 
of  the  state ;  nor  was  this  ever  imputed  to  the 
court.  This  is  one  of  Lord  Clarendon's  cajiital 
mistakes  ;  for  it  leads  him  to  speak  of  the  treaty 
of  Berwick  as  a  measure  that  might  have  been 
avoided,  and  even,  in  one  place,  to  ascribe  it  to  the 
king's  excessive  lenity  and  aversion  to  shedding 
blood,  wherein  a  herd  of  supei"ficial  writers  have 
followed  him. 

§  Clarendon  State  Papers,  ii.,  46,  54.  Lest  it 
should  seem  extraordiuai-y  that  I  sometimes  con- 
tradict Lord  Clarendon  on  the  authority  of  his  own 
collection  of  papei's,  it  may  be  necessary  to  ap- 
prise the  reader  that  none  of  these,  anterior  to  the 
civil  war,  had  come  in  his  possession  tiU  he  had 
written  this  part  of  his  History. 

II  The  grand  jury  of  Northampton  presented 
ship-money  as  a  grievance.  But  the  privy-council 
wrote  to  the  sheriff  that  they  would  not  admit  his 
affected  excuses ;  and  if  he  neglected  to  execute 


286 


C0X3TITUTI0NAL  HISTORY  OF  ENGLAND 


[Chap.  VIII. 


brother,  of  very  moderate  principles,  abso- 
lutely refused  to  pay  it,  though  warned  by 
the  council  to  beware  how  he  disputed  its 
legality.*  Many  of  the  Yorkshire  gentry, 
headed  by  Sir  Marmaduke  Langdale,  com- 
bined to  refuse  its  payment. f  It  was  im- 
possible to  rely  again  on  Catholic  subscrip- 
tions, which  the  court  of  Rome,  as  I  have 
mentioned  above,  instigated,  perhaps,  by 
that  of  Madrid,  had  already  tried  to  re- 
strain. The  Scots  were  enthusiastic,  near- 
ly unanimous,  and  entire  masters  of  their 
country.  The  EngUsh  nobility,  in  general, 
detested  the  archbishop,  to  whose  passion 
they  ascribed  the  whole  mischief  and  feared 
to  see  the  king  become  despotic  in  Scotland. 
If  the  terms  of  Charles's  ti-eaty  with  his 
revolted  subjects  were  unsatisfactory  and 
indefinite,  enormous  in  concession,  and  yet 
affording  a  pretext  for  new  enci'oachments, 
this  is  no  more  than  the  common  lot  of  the 
weaker  side. 

There  was  one  possible,  though  not,  un- 
der all  the  circumstances,  veiy  likely  meth- 
od of  obtaining  the  sinews  of  war — the  con- 
vocation of  Pai-liament.  This  many,  at 
least,  of  the  king's  advisers  appear  to  have 
long  desired,  could  they  but  have  vanquish- 
ed his  obstinate  reluctance.  This  is  an  im- 
portant obseiTation  :  Charles,  and  he  per- 
haps alone,  unless  we  reckon  the  queen, 
seems  to  have  taken  a  resolution  of  super- 
seding absolutely  and  forever  the  legal 
Constitution  of  England.  The  judges,  the 
peers.  Lord  Strafford,  nay,  if  we  believe  his 
dying  speech,  the  pi'imate  himself,  retained 
enough  of  respect  for  the  ancient  laws  to 
desu'e  that  Parliaments  should  be  summon- 
ed whenever  they  might  be  expected  to 
second  the  views  of  the  monarch.  They 
felt  that  the  new  scheme  of  governing  by 
proclamations  and  writs  of  ship-money  could 
not,  and  ought  not  to  be  permanent  in  Eng- 
land. The  king  reasoned  more  royally, 
and,  indeed,  much  better.  He  well  per- 
ceived that  it  was  vain  to  hope  for  another 
Parliament  so  constituted  as  those  under 
the  Tudors.    He  was  ashamed  (and  that 

tlie  writ,  a  quick  and  exemplary  reparation  would 
be  required  of  him. — Rushw.  Abr.,  iii.,  93. 

*  Rushw.  Abr.,  iii.,  47.  The  king;  writes  in  the 
margin  of  Windebank's  letter,  informing  him  of 
Sej-mour's  refusal :  "  You  must  needs  make  him 
an  example,  not  only  by  disti-ess,  but,  if  it  be  pos- 
sible, an  information  in  some  court,  as  Mr.  Attorn- 
ey shall  advise."         t  Strafford  Letters,  ii.,  308. 


pernicious  woman  at  his  side  would  not  fail 
to  encourage  the  sentiment)  that  his  broth- 
ers of  France  and  Spain  should  have  achiev- 
ed a  work  which  the  sovereign  of  England, 
though  called  an  absolute  king  by  his  court- 
iers, had  scarcely  begun.  All  mention, 
therefore,  of  calling  Parliament  gi'ated  on 
his  ear.  The  declaration  published  at  the 
dissolution  of  the  last,  that  he  should  ac- 
count it  presumption  for  any  to  prescribe 
a  time  to  him  for  calling  Parliaments,  was 
meant  to  extend  even  to  his  own  counsel- 
ors. He  rated  severely  Lord-keeper  Cov- 
entry for  a  suggestion  of  this  kind.*  He 
came  with  much  reluctance  into  Went- 
worth's  proposal  of  summoning  one  in  Ire- 
land, though  the  superior  control  of  the 
crown  over  Parliaments  in  that  kingdom 
was  pointed  out  to  him.  "The  king,"  says 
Cottington,  "at  the  end  of  1638,  will  not 
hear  of  a  Parliament;  and  he  is  told  by  a 
committee  of  learned  men  that  there  is  no 
other  way."f  This  repugnance  to  meet 
his  people,  and  his  inability  to  cairy  on  the 
war  by  any  other  methods,  produced  the 
ignominious  pacification  at  Berwick.  But 
as  the  Scots,  grown  bolder  by  success,  had 
after  this  treaty  almost  thrown  off  all  sub- 
jection, and  the  renewal  of  the  war,  or  loss 
of  the  sovereignty  over  that  kingdom,  ap- 
peared necessary  alternatives,  overpowered 
by  the  concurrent  advice  of  his  council,  and 
especially  of  Strafford,  he  issued  writs  for 
that  which  met  in  April,  1640.$  They  told 
him  that,  making  trial  once  more  of  the  an- 
cient and  ordinary  way,  he  would  leave  his 
people  without  excuse  if  that  should  fail, 
and  have  wherewithal  to  justify  himself  to 
God  and  the  world  if  he  should  be  forced 
contrary  to  his  inclinations  to  use  exti'aordi- 
nary  means,  rather  than  through  the  peev- 

*  "  The  king  hath  so  rattled  my  lord-keeper,  that 
he  is  now  the  most  pliable  man  in  England,  and 
all  thoughts  of  Parliaments  are  quite  out  of  his 
pate."— Cottington  to  Sti-afford,  29th  Oct.,  1633, 
vol.  i.,  p.  141. 

t  Vol.  ii.,  p.  946.  "So  by  this  time,"  says  a 
powerful  writer,  "  all  thoughts  of  ever  having  a 
Parliament  again  was  quite  banished ;  so  many 
oppressions  bad  been  set  on  foot,  so  many  illegal 
actions  done,  that  the  only  way  to  justify  the  mis- 
chiefs already  done  was  to  do  that  one  greater; 
to  take  away  the  means  wliich  were  ordained  to 
redress  them,  the  lawful  government  of  England 
by  Parliaments." — May,  Hist,  of  Pariiament,  p.  11. 

t  Sidney  Papers,  ii.,  623.  Clarendon  Papers, 
ii.  81. 


Cha.  I.— 1629-40  ] 


FROM  HENRY  VII.  TO  GEORGE  II. 


287 


ishness  of  some  factious  spirit  to  sufter  his 
state  and  government  to  be  lost.* 

It  has  been  universally  admitted  that  the 
_  ,.      .  Parhament  which  met  on  the  13th 

Parliament 

of  April,  of  April,  1640,  was  as  favorably 
^^"^  disposed  toward  the  king's  service, 
and  as  httle  influenced  by  their  many 
wrongs,  as  any  man  of  ordinary  judgment 
could  expect. f  But  though  cautiously  ab- 
staining from  any  intemperance,  so  much 
as  to  reprove  a  member  for  calling  ship- 
money  an  abomination  (no  very  outrageous 
expression),  they  sufficiently  manifested  a 
determination  not  to  leave  their  grievances 
unredressed.  Petitions  against  the  mani- 
fold abuses  in  Chui'ch  and  State  covered 


*  Id.  ibid.  The  attentive  reader  will  not  fail 
to  observe  that  this  is  the  identical  language  of 
the  famoas  advice  imputed  to  Strafford,  though 
used  on  another  occasion. 

t  May.  Clarendon.  The  latter  says,  upon  the 
dissolution  of  this  Parliament :  "  It  could  never  be 
hoped  that  so  many  sober  and  dispassionate  men 
would  ever  meet  again  in  that  place,  or  fewer  who 
brought  ill  purposes  with  them."  This,  like  so 
many  other  passages  in  the  noble  historian,  is  cal- 
culated rather  to  mislead  the  reader.  All  the  prin- 
cipal men  who  headed  the  popular  party  in  the 
Long  Parliament  were  members  of  this ;  and  the 
whole  body,  so  far  as  their  subsequent  conduct 
shows,  was  not  at  all  constituted  of  diflTerent  ele- 
ments from  the  rest ;  for  I  find,  by  comparison  of 
the  hst  of  this  Parliament,  in  Nalson's  Collections, 
with  that  of  the  Long  Parliament,  in  the  Parlia- 
mentary Histoi-y,  that  eighty,  at  most,  who  had 
not  sat  in  the  former,  took  the  Covenant ;  and  that 
seventy-three,  in  the  same  circumstances,  sat  in 
the  king's  convention  at  Oxford.  The  difference, 
therefore,  was  not  so  much  in  the  men  as  in  the 
times  J  the  bad  administration  and  bad  success  of 
1640,  as  well  as  the  dissolution  of  the  Short  Parlia- 
ment, having  greatly  aggravated  the  public  discon- 
tents. 

The  court  had  never  augured  well  of  this  Parlia- 
ment. "The  elections,"  as  Lord  Northumberland 
writes  to  Lord  Leicester  at  Paris  (Sidney  Papers, 
ii.,  641),  "that  are  generally  made  of  knights  and 
burgesses  in  this  kingdom,  give  us  cause  to  fear 
that  the  Parliament  will  not  sit  long ;  for  such  as 
have  dependence  upon  the  court  are  in  divers  pla- 
ces refused,and  the  most  refractory  persons  chosen." 

There  are  some  strange  things  said  by  Claren- 
don of  the  ignorance  of  the  Commons  as  to  the  val- 
ue of  twelve  subsidies,  which  Hume,  who  loves  to 
depreciate  the  knowledge  of  former  times,  implic- 
itly copies.  But  they  can  not  be  true  of  that  en- 
lightened body,  whatever  blunders  one  or  two  in- 
dividuals might  commit.  The  rate  at  which  every 
man's  estate  was  assessed  to  a  subsidy  was  per- 
fectly notorious ;  and  the  burden  of  twelve  subsi- 
dies to  be  paid  in  three  years  was  more  than  the 
charge  of  ship-money  they  had  been  enduring. 


their  table  ;  Pym,  Rudyard,  Waller,  Lord 
Digby,  and  others  more  conspicuous  after- 
ward, excited  them  by  vigorous  speeches ; 
they  appointed  a  committee  to  confer  with 
the  Lords,  according  to  some  precedents  of 
the  last  reign,  on  a  long  list  of  grievances, 
divided  into  ecclesiastical  innovations,  in- 
fringements of  the  propriety  of  goods,  and 
breaches  of  the  privilege  of  Parliament. 
They  voted  a  request  of  the  Peers,  who, 
Clarendon  says,  were  more  entirely  at  the 
king's  disposal,  that  they  would  begin  with 
the  business  of  supply,  and  not  proceed  to 
debate  on  grievances  till  aftei'ward,  to  be  a 
high  breach  of  privilege.*  There  is  not 
the  smallest  reason  to  doubt  that  they 
would  have  insisted  on  redress  in  all  those 
particulars  with  at  least  as  much  zeal  as 
any  former  Parliament,  and  that  the  king, 
after  obtaining  his  subsidies,  would  have 
put  an  end  to  their  remonsti'ances,  as  he 
had  done  before. f  In  order  to  obtain  the 
supply  he  demanded,  namely,  twelve  subsi- 
dies to  be  paid  in  three  years,  which,  though 
unusual,  was  certainly  not  beyond  his  exi- 
gences, he  offei'ed  to  release  his  cliiim  to 
ship-money  in  any  manner  they  should 
point  out.  But  this  the  Commons  indig- 
nantly repelled.  They  deemed  ship-mon- 
ey the  great  crime  of  his  administration, 
and  the  judgment  against  Mr.  Hampdea 
the  infamy  of  those  who  pronounced  it. 
Till  that  judgment  should  be  annulled  and 
those  judges  punished,  the  national  liber- 
ties must  be  as  precarious  as  ever.  Even 
if  they  could  hear  of  a  compromise  with  so 
flagrant  a  breach  of  the  Constitution,  and 
of  purclvising  their  undoubted  rights,  the 
doctrine  asserted  in  Mr.  Hampden's  case 
by  the  crown  lawyers,  and  adopted  by  some 
of  the  judges,  rendered  all  stipulations  nu- 
gatory. The  right  of  taxation  had  been 
claimed  as  an  absolute  prerogative  so  inhe- 
rent in  the  crown,  that  no  act  of  Parliament 
could  take  it  away.  All  former  statutes, 
down  to  the  Petition  of  Right,  had  been 
prostrated  at  the  foot  of  the  throne ;  by 
what  new  compact  were  the  present  Par- 
liament to  give  a  sanctity  more  inviolable  to 
their  own  ?t 

*  Journals.    Pari.  Hist.    Nalson.  Clarendon. 

t  The  king  had  long  before  said  that  "Parlia- 
ments ai-e  like  cats:  they  grow  curst  with  age." 

t  See  Mr.  Waller's  speech  on  Crawley's  im- 
peachment.   Nalson,  ii.,  358. 


288 


COXSTITUTIOXAL  HISTOllY  OF  ENGLAND 


[Chap.  VIII. 


It  will  be  in  the  recollection  of  niy  read- 
ers, that  while  the  Commons  were  deliber- 
ating whether  to  promise  any  supply  before 
the  redress  of  grievances,  and  in  what  meas- 
ure, Sir  Heniy  Vane,  the  secretary,  told 
them  that  the  king  would  accept  nothing 
less  than  the  twelve  subsidies  he  had  re- 
quired ;  in  consequence  of  which,  the  Par- 
liament was  dissolved  next  day.  Claren- 
don, followed  by  several  others,  has  imputed 
treachery  in  this  to  Vane,  and  told  us  that 
the  king  regretted  so  much  what  he  had 
done,  that  he  wished,  had  it  been  practica- 
ble, to  recall  the  Parliament  after  its  disso- 
lution. This  is  confirmed,  as  to  Vane,  by 
the  queen  herself,  in  that  interesting  nan-a- 
tive  which  she  communicated  to  Madame 
de  Motteville.*    Were  it  not  for  such  au- 

*  Mem.  de  Motteville,  i.,  238-278.  P.  Orieans, 
Rev.  de  I'AngleteiTC,  tome  iii.,  says  the  same  of 
Vane  ;  but  his  testimony  may  resolve  itself  into 
the  former.  It  is  to  be  observed,  that  ship-money, 
which  the  king  offered  to  rehnquish,  brought  in 
£200,000  a  year,  and  tliat  the  proposed  twelve  sub- 
sidies would  liave  amounted,  at  most,  to  £840,000, 
to  be  paid  in  three  years.  Is  it  surprising,  that 
when  the  House  displayed  an  intention  not  to  grant 
the  wliole  of  this,  as  appears  by  Clarendon's  own 
story,  the  king  and  his  advisei-s  should  have  thought 
it  better  to  break  off  altogether  ?  I  see  no  reason 
for  imputing  treachei-y  to  Vane,  even  if  he  did  not 
act  merely  by  the  king's  direction.  Clarendon 
Bays  he  and  Herbert  persuaded  the  king  that  the 
House  "  would  pass  such  a  vote  against  ship-mon- 
ey as  would  blast  that  revenue  and  other  branch- 
es of  the  receipt,  which  others  believed  they  would 
not  have  the  confidence  to  have  attempted,  and 
veiy  few  that  they  would  have  had  the  credit  to 
have  compassed." — P.  24j.  The  word  they  is  as 
inaccurate  as  is  commonly  the  case  with  this  writ- 
er's language.  But  does  he  mean  that  the  House 
would  not  have  passed  a  vote  against  ship-money  ? 
They  had  already  entered  on  the  subject,  and  sent 
for  records  ;  and  he  admits  himself  that  they  were 
resolute  against  grantmg  subsidies  as  a  considera- 
tion fur  the  abandonment  of  that  grievance.  Be- 
sides, Hyde  himself  not  only  inveighs  most  severe- 
ly in  his  History  against  ship-money,  but  was  him- 
self one  of  the  managers  of  the  impeachment 
against  six  judges  for  their  conduct  in  regard  to  it; 
and  his  speech  before  the  House  of  Lords  on  that 
occasion  is  extant. — Rushw.  Abr.,  ii.,  477.  But 
this  is  merely  one  instance  of  his  eternal  inconsist- 
ency. 

"  It  seems  that  the  Lord-lieutenant  of  Ireland 
wished  from  the  beginning  that  matters  should  thus 
be  driven  to  the  utmost ;  for  he  wished  the  king  to 
insist  on  a  grant  of  money  before  any  progress 
should  be  made  in  the  removal  of  the  abuses  which 
bad  grown  up,  a  proceeding  at  variance  with  that 
of  the  preceding  Parliament.  No  less  did  he  vote 
for  the  violent  measure  of  demandiug  twelve  sub- 


thorities,  seemingly  independent  of  each 
other,  yet  entirely  tallying,  I  should  have 
deemed  it  more  probable  that  Vane,  with 
whom  the  Solicitor-general  Herbert  had 
concurred,  acted  solely  by  the  king's  com- 
mand. Charles,  who  feared  and  hated  all 
Parliaments,  had  not  acquiesced  in  the 
scheme  of  calling  the  present  till  there  was 
no  other  alternative  ;  an  insufficient  supply 
would  have  left  him  in  a  more  difficult  sit- 
uation than  before  as  to  the  use  of  those 
extraordinary  means,  as  they  were  called, 
which  his  disposition  led  him  to  prefer : 
the  intention  to  assail  parts  of  his  adminis- 
tration more  dear  to  him  than  ship-money, 
and  especiaUy  the  ecclesiastical  novelties, 
was  apparent.  Nor  can  we  easily  give  him 
credit  for  this  alleged  regret  at  the  step  he 
had  taken,  when  we  read  the  declaration 
he  put  forth,  charging  the  Commons  with 
entering  on  exatnination  of  his  government 
in  an  insolent  and  audacious  manner,  ti-adu- 
cing  his  administi-ation  of  justice,  rendering 
odious  his  officers  and  ministers  of  state, 
and  introducing  a  wfiy  of  bargaining  and 
contracting  with  the  king,  as  if  nothing 
ought  to  be  given  him  by  them  but  what 
he  should  purchase,  either  by  quitting 
somewhat  of  his  royal  prerogative,  or  by 
diminishing  and  lessening  his  revenue.* 
The  unconstitutional  practice  of  committing 
to  prison  some  of  the  most  prominent  mem- 
bers, and  seai'ching  their  houses  for  papers, 
was  renewed :  and  having  broken  loose 
again  from  the  restraints  of  law,  the  king's 
sanguine  temper  looked  to  such  a  triumph 
over  the  Scots  in  the  coming  campaign  as 
no  prudent  man  could  think  probable. 

This  dissolution  of  Parliament  in  Maj-, 
1640,  appears  to  have  been  a  very  fatal  cri- 
sis for  the  king's  popularity.  Those  who, 
with  the  loj-altj'  natural  to  Englishmen,  had 
willingly  ascribed  his  previous  misgovern- 
ment  to  evil  counsels,  could  not  any  longer 
avoid  perceiving  his  mortal  antipathy  to  any 
Parliament  that  should  not  be  as  subsei-vi- 
ent  as  the  Cortes  of  Castile.  The  neces- 
sity of  some  great  change  became  the  com- 
mon theme.    "  It  is  impossible,"  says  Lord 

sidies,  only  five,  at  the  utmost,  having  been  pre- 
viously gi-anted.  He  either  entertained  the  view 
of  thus  gaining  consideration  with  the  king,  or  of 
moving  him  to  an  alliance  with  the  Spaniards,  in 
whose  confidence  he  is." — Montreuil's  dispatches, 
in  Raumer,  ii.,  308. 

*  Pari.  Hist.    Rushworth.  Nalson. 


Cha.  I— 1629-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


2S9 


Northumberland,  at  that  time  a  courtier, 
"  that  things  can  long  continue  in  the  con- 
dition they  are  now  in  ;  so  general  a  defec- 
tion in  this  kingdom  hath  not  been  known 
in  the  memoiy  of  any  !"*  Several  of  those 
who  thought  most  deeply  on  public  afi'airs 
now  entered  into  a  private  communication 
with  the  Scots  insurgents.  It  seems  prob- 
able, from  the  well-known  stoiy  of  Lord 
Saville's  forged  letter,  that  there  had  been 
veiy  little  connection  of  this  kind  until  the 
present  summer;!  and  we  may  conjecture 
that  during  this  ominous  interval,  those  great 
projects,  which  were  displayed  in  the  next 
session,  acquired  consistence  and  ripeness 
by  secret  discussions  in  the  houses  of  the 
Earl  of  Bedford  and  Lord  Say.  The  king, 
meanwhile,  experienced  aggravated  misfor- 
tune and  ignominy  in  his  military  operations. 
Ship-money,  indeed,  was  enforced  with 
greater  rigor  than  before,  several  sheriffs 
and  the  lord-mayor  of  London  being  prose- 
cuted in  the  Star  Chamber  for  neglecting  to 
levy  it.  Some  citizens  were  imprisoned 
for  refusing  a  loan.  A  new  imposition  was 
laid  on  the  counties,  under  the  name  of  coat- 
and-conduct-monej-,  for  clothing  and  defray- 
ing tlie  ti-aveling  charges  of  the  new  levies. t 
A  state  of  actual  invasion,  the  Scots  having 
passed  the  Tweed,  might  excuse  some  of 
these  irregularities,  if  it  could  have  been 
forgotten  that  the  war  itself  was  produced 
by  the  king's  impolicy,  and  if  the  nation  had 
not  been  prone  to  see  friends  and  deliver- 
ers rather  than  enemies  in  the  Scottish 
army.  They  were,  at  the  best,  indeed, 
troublesome  and  expensive  guests  to  the 
northern  counties  which  they  occupied; 
but  the  cost  of  their  visit  was  justly  laid  at 
the  king's  door.  Various  arbitrary  resour- 
ces having  been  suggested  in  the  council, 
and  abandoned  as  inefficient  and  impracti- 
cable, such  as  the  seizing  the  merchants' 
bullion  in  the  mint,  or  issuing  a  debased 
coin,  the  unhappy  king  adopted  the  hopeless 

*  June  4,  1640.    Sidney  Papers,  ii.,  654. 

t  A  late  vrriter  has  spoken  of  this  celebrated 
letter  as  resting  on  very  questionable  authority. — 
Lingard,  x.,  43.  It  is,  however,  mentioned  as  a 
known  fact  by  several  cotemporai'y  writers,  and 
particularly  by  the  Earl  of  Manchester,  in  his  un- 
published Memorials,  from  which  Nalson  has  made 
extracts ;  and  who  could  neither  be  mistaken,  nor 
have  any  apparent  motive,  in  this  private  narra- 
tive, to  deceive. — Nalson,  ii.,  427. 

t  Ryraer,  xx.,  432.    Rashw^orth  Abr.,  iii.,  163, 
&c.    Nalson,  i.,  389,  &c.    Raumer,  ii.,  318. 
T 


scheme  of  convening  a  great  council  of  all 
the  peers  at  York,  as  the  only  al-  council  of 
ternative  of  a  Parliament.*  It  was 
foreseen  that  this  assembly  would  only  ad- 
vise the  king  to  meet  his  people  in  a  legal 
way.  The  public  voice  could  no  longer  be 
suppressed.  The  citizens  of  London  pre- 
sented a  petition  to  the  king,  complaining 
of  grievances,  and  asking  for  a  Parliament. 
This  was  speedily  followed  by  one  signed 
by  twelve  peers  of  popular  character,  f 
The  lords  assembled  at  York  al-  „ 

Convocatiou 

most  unanimously  concurred  in  of  the  Long 
the  same  advice,  to  which  the  "  '^'nent. 
king,  after  some  hesitation,  gave  his  assent. 
They  had  more  difficulty  in  bringing  about 
a  settlement  with  the  Scots :  the  E  nglish 
army,  disaffected  and  undisciplined,  had  al- 
ready made  an  inglorious  retreat ;  and  even 
Strafford,  though  passionately  against  a 
treaty,  did  not  venture  to  advise  an  engage- 
ment.J  The  majority  of  the  peers,  how- 
ever, overruled  alL  opposition ;  and  in  the 
alarming  posture  of  his  affairs,  Charles  had 
no  resource  but  the  dishonorable  pacification 
of  Ilipon.§    Anticipating  the  desertion  of 


*  Lord  Clarendon  seems  not  to  have  well  un- 
derstood the  secret  of  this  Great  Council,  and  sup- 
poses it  to  have  been  suggested  by  those  who 
wished  for  a  Parliament,  whereas  the  Hardwicke 
Papers  show  the  conti-ary. — P.  116  and  118.  His 
notions  about  the  facility  of  composing  the  public 
discoutent  are  sti'angely  mistaken.  "  Without 
doubt,"  he  says,  "  that  fire  at  that  time,  which  did 
shortly  after  burn  the  whole  kingdom,  might  have 
been  covered  under  a  bushel."  But  the  whole  of 
this  introductory  book  of  his  History  abounds  with 
proofs  that  he  had  partly  forgotten,  partly  never 
known,  the  state  of  England  before  the  opening 
of  the  Long  Parliament.  In  fact,  the  disaffection, 
or  at  least  discontent,  had  proceeded  so  far  in  1640, 
that  no  human  skill  could  have  averted  a  great 
part  of  the  consequences.  But  Clarendon's  par- 
tiality to  the  king,  and  to  some  of  his  advisers, 
leads  him  to  see  in  every  event  particular  causes, 
or  an  overruling  destiny,  rather  than  the  sure  oper- 
ation of  impolicy  and  misgoveniment. 

t  These  were  Hertford.  Bedford,  Essex,  War- 
wick, Paget,  Wharton,  Say,  Brooke,  Kimbolton, 
Saville,  Mulgrave,  Bolingbroke. — Nalson,  436,  437. 

t  This  appears  from  the  minutes  of  the  council 
(Hardwicke  Papers),  and  contradicts  the  common 
opinion.  Lord  Conway's  disaster  at  Newburn  was 
by  no  means  surprising ;  the  EngUsh  troops,  who 
had  been  lately  pi-essed  into  sei-vice,  were  perfect- 
ly mutinous ;  some  regiments  had  risen  and  even 
murdered  their  officers  on  the  road. — Rymer,  414, 
425. 

§  The  Hardwicke  State  Papers,  ii.,  168,  &c., 
contain  much  interesting  information  about  the 


290 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  XI. 


some  who  had  partaken  in  his  councils,  and  ]  fording  any,  he  awaited  in  fearful  suspense 
conscious  that  others  would  more  stand  in  j  the  meeting  of  a  Parliament, 
need  of  his  support  than  be  capable  of  af-  | 


CHAPTER  IX. 


FROM  THE  MEETING  OF  THE  LONG  PARLIAMENT  TO  THE  BEGINNHNG  OF  THE 

CIVIL  WAR. 

Character  of  Long  Parliament. — Its  salutary  Meas- 
ures.— Triennial  Bill. — Other  beneficial  Laws. — 
Observations. — Impeachment  of  Strafford. — Dis- 
cussion of  its  Justice. — Act  against  Dissolution 
of  Parliament  withoat  its  Consent. — Innovations 
meditated  in  the  Church. — Schism  in  the  Con- 

■  stitutional  Party. — Remonstrance  of  November. 
1641.  —  Suspicions  of  the  King's  Sincerity. — 

.  duestion  of  the  Militia. — Historical  Sketch  of 
Military  Force  in  England. — Encroachments  of 
the  Parliament. —  Nineteen  Propositions — Dis- 
cussion of  the  respective  Claims  of  the  two  Par- 

.  ties  to  Support. — Faults  of  botli. 

We  are  now  arrived  at  that  momentous 

Character  of  P^^O"^  '°  histoiy  which  nO 

the  Long  Englishman  ever  regards  without 
Parliament.  jQ^g^est,  and  few  without  preju- 
dice ;  the  period  from  which  the  factions 
of  modern  rimes  trace  their  divergence; 
which,  after  the  lapse  of  almost  two  centu- 
ries, still  calls  forth  the  warm  emotions  of 
party -spirit,  and  affords  a  test  of  political 
principles ;  at  that  famous  Parliament,  the 
theme  of  so  much  eulogy  and  of  so  much 
reproach ;  that  synod  of  inflexible  patriots 
with  some,  that  conclave  of  traitorous  rebels 
with  others ;  that  assembly,  we  may  more 
truly  say,  of  unequal  virtue  and  checkered 
fame,  which,  after  having  acquired  a  higher 
claim  to  our  gratitude,  and  effected  more 
for  our  liberties,  than  any  that  had  gone  be- 
fore or  that  has  followed,  ended  by  subvert- 
ing the  Constitution  it  had  strengthened, 
and  by  sinking  in  its  decrepitude,  and  amid 
public  contempt,  beneath  a  usurper  it  had 
Its  salutary  blindly  elevated  to  power.  It 
seems  agreeable  to  our  plan  first 


measures. 


Council  of  York.  See,  also,  the  Clarendon  Collec- 
tion for  some  curious  letters,  with  marginal  notes 
by  the  king.  In  one  of  these  he  says  :  "  The  may- 
or now,  with  the  city,  are  to  be  flattered,  not 
threatened." — P.  123.  Windebank  writes  to  him 
in  another  (Oct.  19,  1640),  that  the  clerk  of  the 
Lower  House  of  Parliament  had  come  to  demand 
the  journal-book  of  the  last  assembl}-  and  some  pe- 
titions, which,  by  the  king  s  command,  he  ^\Vin- 
debank)  had  taken  into  his  custody,  and  requests 
to  know  if  they  should  be  given  up.  Charles 
writes  on  the  margin,  "  Ay,  by  all  means.'' — P.  132. 


j  to  bring  together  those  admirable  provisions 
'  by  which  this  Parliament  restored  and  con- 
solidated the  shattered  fabric  of  our  Consti- 
tution, before  we  advert  to  its  measures  of 
more  equivocal  benefit  or  its  fatal  errors ; 
j  an  arrangement  not  very  remote  from  that 
!  of  mere  chronology,  since  the  former  were 
chiefly  completed  within  the  first  nine 
j  months  of  its  session,  before  the  king's 
'  journey  to  Scotland  in  the  summer  of 
'  1641. 

It  must,  I  think,  be  admitted  by  eveiy 
one  who  concurs  in  the  representation  giv- 
en in  this  work,  and  especially  in  the  last 
chapter,  of  the  practical  state  of  our  govern- 
ment, that  some  new  securiries  of  a  more 
powerful  efificacy  than  any  which  the  exist- 
ing laws  held  forth  were  absolutely  indis- 
pensable for  the  preservarion  of  English 
liberties  and  privileges.    These,  however 
sacred  in  name,  however  venerable  by  pre- 
scription, had  been  so  repeatedly  transgress- 
ed, that  to  obtain  their  confirmation,  as  had 
been  done  in  the  Petition  of  Right,  and  that 
as  the  price  of  large  subsidies,  would  but 
j  expose  the  Commons  to  the  secret  derision 
I  of  the  court.    The  king  by  levying  ship- 
'  money  in  contravention  of  his  assent  to  that 
petition,  and  by  other  marks  of  insincerity, 
had  given  too  just  cause  for  suspicion  that, 
though  very  conscientious  in  his  way,  he 
had  a  fund  of  casuistiy  at  command  that 
would  always  release  him  from  any  obliga- 
tion to  respect  the  laws.    Again,  to  punish 
delinquent  ministers  was  a  necessary  piece 
of  justice  :  but  who  could  expect  that  any 
such  retribution  would  deter  ambitious  and 
intrepid  men  from  the  splendid  lures  of 
power  ?    Whoever,  therefore,  came  to  the 
Parliament  of  November,  1640.  with  serious 
and  steady  purposes  for  the  public  weal, 
and  most,  I  believe,  except  mere  courtiers, 
;  entertained  such  purposes  according  to  the 
I  measure  of  their  capaciries  and  energies, 
'  must  have  looked  to  some  essential  change 
!  in  the  balance  of  government,  some  import- 


CHA.  1.-1040-42.] 


PROM  HENRY  VII.  TO  GEORGE  II. 


291 


ant  limitntlons  of  royal  authority,  as  the  pri- 
mary object  of  his  attendance. 

Nothing  could  1)6  more  obvious  than  that 
the  excesses  of  the  late  unhappy  times  had 
chiefly  originated  in  tlie  long  intermission 
of  Parliaments.  No  lawyer  would  have 
dared  to  suggest  ship-money  with  the  ter- 
rors of  aHouse  of  Commons  before  his  eyes. 
But  the  king's  known  resolution  to  govern 
without  Parliaments  gave  bad  men  more 
confidence  of  impunity.  This  resolution 
was  not  likely  to  l)e  shaken  by  the  unpala- 
table chastisement  of  his  servants  and  re- 
dress of  abuses,  on  which  the  present  Par- 
liament was  about  to  enter.  A  statute  as 
old  as  the  reign  of  Edward  III.  had  already 
provided  that  Parliaments  should  be  held 
"  eveiy  year,  or  oftener,  if  need  be."*  But 
this  enactment  had  in  no  age  been  respected. 
It  was  certain  that  in  the  present  temper 
of  the  administration,  a  law  simply  enact- 
ing that  the  interval  between  Pai-liaments 
should  never  exceed  three  years,  would 
Triennial  pi"ove  wholly  inefTectual.  In  the 
2'"-  '  famous  act,  therefore,  for  triennial 
Parliaments,  the  first  fruits  of  the  Com- 
mons' laudable  zeal  for  reformation,  such 
provisions  were  introduced  as  gi-ated  harsh- 
ly on  the  ears  of  those  who  valued  the  I'oy- 
ai  prerogative  above  the  liberties  of  the  sub- 
ject, but  without  which  the  act  itself  might 
have  been  dispensed  with.  Every  Parlia- 
ment was  to  be  ipso  facto  dissolved  at  the 
expiration  of  three  years  from  the  first  day 
of  its  session,  unless  actually  sitting  at  the 
time,  and  in  that  case,  at  its  first  adjourn- 
ment or  prorogation.  The  chancellor  or 
keeper  of  the  great  seal  was  to  be  sworn  to 
issue  writs  for  a  new  Parliament  within 
three  years  from  the  dissolution  of  the  last, 
under  pain  of  disability  to  hold  his  office, 
and  further  punishment ;  in  case  of  his  fail- 
ure to  comply  with  this  provision,  the  peers 
were  enabled  and  enjoined  to  meet  at  West- 
minster, and  to  issue  writs  to  the  sheriflls ; 
the  sherifis  themselves,  should  the  peers 
not  fulfill  this  duty,  were  to  cause  elections 
to  be  duly  made ;  and  in  their  default,  at  a 
prescribed  time  the  electors  themselves 
were  to  proceed  to  choose  their  representa- 

*  4  Edw.  3,  c.  14.  It  appears  by  the  Jommals, 
30th  Dec.,  1640,  that  the  Trienuial  Bill  was  origi- 
nally for  the  yearly  holding  of  Parliaments.  It 
seems  to  have  been  altered  in  the  committee ;  at 
least  we  find  the  title  changed,  Jan.  19 


lives.  No  future  Parliament  was  to  be  dis- 
solved or  adjourned,  without  its  own  con- 
sent, in  less  than  fifty  days  from  the  open- 
ing of  its  session.  It  is  more  reasonable  to 
doubt  whether  even  these  provisions  would 
have  afforded  an  adequate  security  for  the 
periodical  assembling  of  Parliament,  wheth- 
er the  supine  and  courtier-like  character  of 
the  peers,  the  want  of  concert  and  energy 
in  the  electors  theiuselves,  would  not  have 
enabled  the  government  to  set  the  statute  at 
naught,  than  to  censure  them  as  derogato- 
ry to  the  reasonable  prerogative  and  dignity 
of  the  crown.  To  this  important  bill,  the 
king,  with  some  apparent  unwillingness, 
gave  his  assent.*  It  effected,  indeed,  a 
strange  revolution  in  the  system  of  his  gov- 
ernment. The  nation  set  a  due  value  on 
this  admirable  statute,  the  passing  of  which 
they  welcomed  with  bonfires  and  every 
mark  of  joy. 

After  laying  this  solid  foundation  for  the 
maintenance  of  such  laws  as  they  Beneficial 
might  deem  necessary,  the  House 
of  Commons  proceeded  to  cut  away  the 
more  flagrant  and  recent  usurpations  of  the 
crown.  They  passed  a  bill  declaring  ship- 
money  illegal,  and  annulling  the  judgment 
of  the  Exchequer  Chamber  against  Mr. 
Hampden,  f  They  put  an  end  to  another 
contested  prerogative,  which,  though  inca- 
pable of  vindication  on  any  legal  authority, 
had  more  support  from  a  usage  of  fourscore 
years,  the  levying  of  customs  on  merchan- 
dise. In  an  act  gi-anting  the  king  tonnage 
and  poundage,  it  is  "  declared  and  enacted 
that  it  is,  and  hath  been  the  ancient  right  of 
the  subjects  of  this  realm,  that  no  subsidy, 
custom,  impost,  or  other  charge  whatsoev- 
ei",  ought,  or  may  be  laid  or  imposed  upon 
any  merchandise  exported  or  imported  by 
subjects,  denizens,  or  aliens,  without  com- 
mon consent  in  Parliament."!  This  is  the 
last  statute  that  has  been  found  necessary 

*  Pari.  Hist.,  702,  717.    Stat.  16  Car.  I.,  c.  1. 
t  C.  14. 

t  C.  8.  The  king  had  professed,  in  Lord-keep- 
er Finch's  speech  on  opening  the  Parliament  of 
April,  1640,  that  he  had  only  taken  tonnage  and 
poundage  de  facto,  without  claiming  it  as  a  right, 
and  had  caused  a  bill  to  be  prepared,  granting  it 
to  him  from  the  commencement  of  his  reign. — 
Pari.  Hist,  533.  See  preface  to  Hargrave's  Col- 
lection of  Law  Tracts,  p.  195,  and  Rymer,  xx.,  118, 
for  what  Charles  did  with  respect  to  impositions 
on  merchandise.  The  Long  Parliament  called  the 
farmers  to  account. 


292 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IX. 


Observations. 


to  restrain  the  crown  from  arbitrary  taxa- 
tion, and  may  be  deemed  the  complement 
of  those  numerous  provisions  which  the 
vii-tue  of  ancient  times  had  extorted  from 
the  first  and  third  Edwards. 

Yet  these  acts  were  hardly  so  indispens- 
able, nor  wought  so  essential  a 
change  in  the  character  of  our 
monarchy,  as  that  which  abolished  the  Star 
Chamber.  Though  it  was  evident  how  lit- 
tle the  statute  of  Hemy  VII.  could  bear  out 
that  overweening  power  it  had  since  arro- 
gated ;  though  the  statute-book  and  Parlia- 
mentary records  of  the  best  ages  were  iiTef- 
ragable  testimonies  against  its  usurpations, 
yet  the  course  of  precedents  under  the  Tu- 
dor and  Stuart  families  was  so  invariable 
that  nothing  more  was  at  first  intended  than 
a  bill  to  regulate  that  tribuned.  A  sugges- 
tion, thrown  out,  as  Clarendon  informs  us, 
by  one  not  at  all  connected  with  the  more 
ardent  reformers,  led  to  the  substitution  of 
a  bill  for  taking  it  altogether  away.*  This 
abrogates  all  exercise  of  jui'isdiction,  prop- 
erly so  called,  whether  of  a  civil  or  criminal 
nature,  by  the  privy-council,  as  well  as  the 
Star  Chamber.  The  power  of  examining 
and  committing  persons  charged  \vith  offens- 
es is  by  no  means  taken  away ;  but,  with 
a  i-eti-ospect  to  the  language  held  by  the 
judges  and  crown  lawyers  in  some  cases 
that  have  been  mentioned,  it  is  enacted, 
that  every  person  committed  by  the  coun- 
cil, or  any  of  them,  or  by  the  king's  special 
command,  may  have  his  writ  of  habeas  cor- 
pus ;  in  the  return  to  which,  the  officer  in 
whose  custody  he  is  shall  certify  the  true 
cause  of  his  commitment,  which  the  court, 
from  whence  the  writ  has  issued,  shall 


*  16  Car.  I.,  c.  10.  The  abolition  of  the  Star 
Chamber  was  first  moved,  March  5th,  1641,  by 
Lord  Andover,  in  the  House  of  Lords,  to  which  he 
had  been  called  by  writ.  Both  he  and  his  father, 
the  Earl  of  Berkshire,  were  zealous  Royalists  dur- 
ing the  subsequent  war. — Pari.  Hist.,  722.  But 
he  is  not,  I  presume,  the  person  to  whom  Claren- 
don alludes.  This  author  insinuates  that  the  act 
for  taking  away  the  Star  Chamber  passed  both 
Houses  without  sufficient  deliberation,  and  that  the 
peers  did  not  venture  to  make  any  opposition ; 
whereas  there  were  two  conferences  between  the 
Houses  on  the  subject,  and  several  amendments 
and  provisos  made  by  the  Lords,  and  agreed  to  by 
the  Commons.  Scarce  any  bill,  during  this  ses- 
sion, received  so  much  attention.  The  king  made 
some  difiiculty  about  assenting  to  the  bills  taking 
away  the  Star  Chamber  and  High  Commission 
courts,  but  soon  gave  way. — Pari.  Hist.,  853. 


within  three  days  examine,  in  order  to  see 
whether  the  cause  thus  certified  appear  to 
be  just  and  legal  or  not,  and  do  justice  ac- 
cordingly by  delivering,  bailing,  or  remand- 
ing the  party.  Thus  fell  the  great  Court 
of  Star  Chamber,  and  with  it  the  whole  ir- 
regular and  arbitraiy  practice  of  govern- 
ment, that  had  for  several  centuries  so 
thwarted  the  operation  and  obscured  the 
light  of  our  free  Constitution,  that  many 
have  been  prone  to  deny  the  existence  of 
those  liberties  which  they  found  so  often 
infi-inged,  and  to  mistake  the  violations  of 
law  for  its  standard. 

With  the  Court  of  Star  Chamber  perbh- 
ed  that  of  the  High  Commission,  a  younger 
birth  of  tyranny,  but  perhaps  even  more 
hateful,  from  the  peculiar  irritation  of  the 
times.  It  had  stretched  its  authority  be- 
yond the  tenor  of  the  act  of  Elizabeth  where- 
by it  had  been  created,  and  which  limits  its 
competence  to  the  correction  of  ecclesiastic- 
al offenses  according  to  the  known  bounda- 
ries of  ecclesiastical  jurisdiction,  assuming  a 
right  not  only  to  imprison,  but  to  fitie  the 
laity,  which  was  generally  reckoned  illegal.* 
The  statute  repealing  that  of  Elizabeth,  un- 
der which  the  High  Commission  existed, 
proceeds  to  take  away  from  the  ecclesias- 
tical courts  all  power  of  inflicting  temporal 
penalties,  in  terms  so  large,  and,  doubtless, 
not  inadvertently  employed,  as  to  render 
their  jm-isdiction  nugatory.  This  part  of 
the  act  was  repealed  after  the  Restoration ; 
and,  like  the  other  measures  of  that  time, 
\vith  little  care  to  prevent  the  recun-ence 
of  those  abuses  which  had  provoked  its  en- 
actments.f 

A  single  clause  in  the  act  that  abolished 
the  Star  Chamber  was  sufficient  to  annihi- 
late the  arbitrary  jurisdiction  of  several  oth- 
er iiTegular  tribunals,  grown  out  of  the  des- 
potic temper  of  the  Tudor  dynasty — the 
Court  of  the  President  and  Council  of  the 
North,  long  obnoxious  to  the  common  law- 
yers, and  lately  the  sphere  of  Strafford's 
tyrannical  an'ogance  ;t  the  Court  of  the 

*  Coke  has  strongly  argued  the  illegality  of  fin- 
ing and  imprisoning  by  the  High  Commission,  4th 
Inst..  324.  And  he  omitted  this  power  in  a  com- 
mission he  drew,  "leaving  us,"  says  Bishop  Will- 
iams, "  nothing  but  the  old  rusty  sword  of  the 
Church,  excommunication.'" — Cabala,  p.  103.  Care 
was  taken  to  restore  this  authority  in  the  reign  of 
Charles.  t  16  Car.  L,  c.  11. 

{  Hyde  distinguished  himself  as  chairman  of  the 


Cha.  I.— 1610-42] 


FROM  HENRY  VH.  TO  GEORGE  11. 


293 


President  and  Council  of  Wales  and  the 
Welsh  Marches,  which  had  pretended,  as 
before  mentioned,  to  a  jurisdiction  over  the 
adjacent  counties  of  Salop,  Worcester, 
Herefoi'd,  and  Gloucester;  with  those  of 
the  duchy  of  Lancaster  and  county  palatine 
of  Chester :  these,  under  various  pretexts, 
had  usurped  so  extensive  a  cognizance  as  to 
deprive  one  third  of  England  of  the  privileg- 
es of  the  common  law.  The  jurisdiction, 
however,  of  the  two  latter  courts  in  matters 
touching  the  king's  private  estate  has  not 
been  taken  away  by  the  statute.  Another 
act  Jifforded  remedy  for  some  abuses  in  the 
stannaiy  courts  of  Cornwall  and  Devon.* 
Others  retrenched  the  vexatious  preroga- 
tive of  purvej'ance,  and  took  away  that  of 
compulsory  knighthood,  f  And  one  of  great- 
er importance  put  an  end  to  a  fruitful  source 
of  oppression  and  complaint,  by  determining 
forever  the  extent  of  royal  forests,  according 
to  their  boundaries  in  the  twentieth  year  of 
James,  annulling  all  the  peraujbulations  and 
inquests  by  which  they  had  subsequently 
been  eulm-ged.t 

I  must  here  reckon,  among  the  beneficial 
acts  of  this  Parliament,  one  that  passed 
some  months  afterward,  after  the  king's 
return  from  Scotland,  and  perhaps  the  only 
measure  of  that  second  period  on  which  we 
can  bestow  uimiixed  commendation.  The 
delays  and  uncertainties  of  raising  troops  by 
voluntary  enlistment,  to  which  the  temper 
of  the  English  nation,  pacific  though  intrep- 
id, and  impatient  of  the  strict  control  of 
martial  law,  gave  small  encouragement,  had 
led  to  the  usage  of  pressing  soldiers  for  serv- 
ice, whether  in  Ireland,  or  on  foreign  ex- 
peditions. This  prerogative  seeming  dan- 
gerous and  oppressive,  as  well  as  of  dubious 
legalitj',  it  is  recited  in  the  preamble  of  an 
act  empowering  the  king  to  levy  troops  by 
this  compulsorj^  method  for  the  special  ex- 
igency of  the  Irish  rebellion,  that  "  by  the 
laws  of  this  realm,  none  of  his  majesty's 
subjects  ought  to  be  impressed  or  compell- 
ed to  go  out  of  his  countiy  to  seiTe  as  a 

committee  which  brought  in  the  bill  for  abolishing 
the  court  of  York.  In  his  speech  on  presenting 
this  to  the  Lords,  he  alludes  to  the  tjramiy  of 
Strafford,  upt  rudely,  but  in  a  style  hardly  consist- 
ent with  that  of  his  History.— Pari.  Hist,  766. 
The  editors  of  this,  however,  softened  a  little  what 
he  did  say  in  one  or  two  places  ;  as  where  he  uses 
the  word  tyranny,  in  speaking  of  Lord  Mountuor- 
rii's  case.      *  C.  15.      \  C.  19,  20.      \  C.  16. 


]  soldier  in  the  wars,  except  in  case  of  neces- 
sity of  the  sudden  coming  in  of  strange  en- 
emies into  the  kingdom,  or  except  they  be 
otherwise  bound  by  the  tenure  of  their 
lands  or  possessions."*  The  king,  in  a 
speech  from  the  throne,  adverted  to  this 
bill  while  passing  through  the  Houses,  as  an 
invasion  of  his  prerogative.  This  notice  of 
a  Parliamentary  proceeding  the  Commons 
resented  as  a  breach  of  their  privilege  ;  and 
having  obtained  the  consent  of  the  Lords  to 
a  joint  remonstiance,  the  king,  who  was  in 
no  state  to  maintain  his  objection,  gave  his 
assent  to  the  bill.  In  the  reigns  of  Eliza- 
beth and  James,  we  have  seen  frequent  in- 
stances of  the  crown's  interference  as  to 
matters  debated  in  Parliament.  But  from 
the  time  of  the  Long  Parliament,  the  law 
of  privilege,  in  this  respect,  has  stood  on  an 
unshaken  basis,  f 

These  are  the  principal  statutes  which 
we  owe  to  this  Parliament.  They  give 
occasion  to  two  remarks  of  no  slight  im- 
portance. In  the  first  place,  it  will  appear, 
on  comparing  them  with  our  ancient  laws 
and  history,  that  they  made  scarce  any  ma- 
terial change  in  our  Constitution  such  as  it 
had  been  established  and  recognized  under 
the  house  of  Plantagenet:  the  law  for  tri- 
ennial Parliaments  even  receded  from  those 
unrepealed  provisions  of  the  reign  of  Ed- 
ward III.,  that  they  should  be  assembled 
annually.  The  Court  of  Star  Chamber,  if 
it  could  be  said  to  have  a  legal  jurisdiction 
at  all,  which  by  that  name  it  had  not,  traced 
it  only  to  the  Tudor  period  ;  its  recent  ex- 
cesses were  diametrically  opposed  to  the 
existing  laws,  and  the  protestations  of  an- 
cient Parliaments.  The  Court  of  Ecclesi- 
astical Commission  was  an  oflfset  of  the 
royal  supremacy,  established  at  the  Refor- 
mation. The  impositions  on  merchandise 
were  both  plainly  illegal,  and  of  no  long 
usage.  That  of  ship-money  was  flagrant- 
ly, and  by  universal  confession,  a  sti-ain  of 
arbitrary  power  without  ]jretext  of  right. 
Thus,  in  by  far  the  greater  part  of  the  en- 
actments of  1641,  the  monarchy  lost  noth- 

"C.  28. 

t  Journals,  16th  of  Dec.  Pari.  Hist.,  968.  Nalson, 
!  750.  It  is  remarkable  that  Clarendon,  who  ifi  suf- 
ficiently jealous  of  all  tliat  he  thought  encroach- 
ment in  the  Commons,  does  not  censure  their  ex- 
pHcit  assertion  of  this  privilege.  He  lays  the 
blame  of  the  king's  interference  on  St.  John's  ad- 
vice, which  is  very  improbable. 


^94' 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IX.' 


ing  that  it  had  anciently  po.ssessed,  and  the 
balance  of  our  Constitution  might  seem 
rather  to  have  been  restored  to  its  former 
equipoise  than  to  have  undergone  any  fresh 
change. 

But  those  common  liberties  of  England 
whicli  our  forefathers  had,  with  such  com- 
mendable perseverance,  extorted  from  the 
grasp  of  power,  though  by  no  means  so 
merely  theoretical  and  nugatory  in  effect  as 
some  would  insinuate,  were  yet  very  pre- 
carious in  the  best  periods,  neither  well 
defined,  nor  exempt  from  anomalous  ex- 
ceptions, or  from  occasional  infringements. 
Some  of  them,  such  as  the  statute  for  an- 
nual sessions  of  Parliament,  had  gone  into 
disuse.  Those  that  were  most  evident 
could  not  be  enforced ;  and  the  new  tribu- 
nals that,  whether  by  law  or  usurpation, 
had  reared  their  heads  over  the  people,  had 
made  almost  all  public  and  personal  rights 
dependent  on  their  arbitrary  wiU.  It  was 
necessary,  therefore,  to  infuse  new  blood 
into  the  languid  frame,  and  so  to  renovate 
our  ancient  Constitution  that  the  present 
era  should  seem  almost  a  new  birth  of  lib- 
erty. Such  was  the  aim,  especially,  of 
those  provisions  which  placed  the  return  of 
Parliaments  at  fixed  intervals,  beyond  the 
power  of  the  crown  to  elude.  It  was  hoped 
that  by  their  means,  so  long  as  a  sense  of 
public  spirit  should  exist  in  the  nation  (and 
beyond  that  time  it  is  vain  to  think  of  liber- 
tj-),  no  prince,  however  able  and  ambitious, 
could  be  free  from  restraint  for  more  than 
three  years ;  an  interval  too  short  for  the 
completion  of  arbitrary  projects,  and  which 
few  ministers  would  venture  to  employ  in 
such  a  manner  as  might  expose  them  to  the 
wrath  of  Parliament. 

It  is  to  be  observed,  in  the  second  place, 
that  by  these  salutary  resti-ictions  and  some 
new  reti'enchments  of  pernicious  or  abused 
prerogative,  the  Long  Parliament  formed 
our  Constitution  such  nearly  as  it  now  exists. 
Laws  of  great  importance  were  doubtless 
enacted  in  subsequent  times,  particularly  at 
the  Revolution ;  but  none  of  them,  perhaps, 
were  strictly  necessary  for  the  preservation 
of  our  civil  and  political  privileges  ;  and  it  is 
rather  from  1641  than  any  other  epoch,  that 
we  may  date  their  full  legal  establishment. 
That  single  statute  which  abolished  the 
Star  Chamber,  gave  every  man  a  security 
which  no  other  enactments  could  have  af- 


forded, and  which  no  government  could  es- 
sentially impair.  Though  the  reigns  of  the 
two  latter  Stuarts,  accordingly,  are  justly 
obnoxious,  and  were  marked  by  several  il- 
legal measures,  yet,  whether  we  consider 
the  number  and  magnitude  of  their  trans- 
gressions of  law,  or  the  practical  oppression 
of  their  government,  these  princes  fell  very 
short  of  the  despotism  that  had  been  exer- 
cised either  under  the  Tudors  or  the  two 
first  of  their  own  family. 

From  this  survey  of  the  good  works  of 
the  Long  Parliament,  we  must  turn  our 
eyes  with  equal  indifference  to  the  oppo- 
site picture  of  its  errors  and  offenses ;  faults 
which,  though  the  mischiefs  they  produced 
were  chiefly  temporary,  have  yet  served  to 
obliterate  from  the  recollection  of  too  many 
the  permanent  blessings  we  have  inherited 
through  its  exertions.  In  reflecting  on  the 
events  which  so  soon  clouded  a  scene  of 
1  glory,  we  ought  to  learn  the  dangers  that 
attend  all  revolutionaiy  crises,  however  jus- 
tifiable or  necessary ;  and  that,  even  when 
posterity  may  have  cause  to  rejoice  in  the 
ultimate  result,  the  existing  generation  are 
seldom  compensated  for  their  present  loss 
of  ti'anquillity.  The  very  enemies  of  this 
Parliament  confess  that  they  met  in  No- 
vember, 1640,  with  almost  unmingled  zeal 
for  the  public  good,  and  with  loyal  attach- 
ment to  the  crown.  They  were  the  cho- 
sen representatives  ofcthe  commons  of  Eng- 
land, in  an  age  more  eminent  for  steady  and 
scrupulous  conscientiousness  in  private  life, 
than  any,  perhaps,  that  had  gone  before  or 
has  followed ;  not  the  demagogues  or  ad- 
venturers of  transient  popularity,  but  men 
well-bom  and  wealthy,  than  whom  there 
could,  perhaps,  never  be  assembled  five 
hundred  more  adequate  to  redress  the 
giievances  or  to  fix  the  laws  of  a  great  na- 
tion. But  they  were  misled  by  the  excess 
of  two  passions,  both  just  and  natural  in  the 
circumstances  whei-ein  they  found  them- 
selves, resentment  and  distrust*;  passions 
eminently  contagious,  and  irresistible  when 
they  seize  on  the  zeal  and  ci'edulity  of  a 
popular  assembly.  The  one  betrayed  them 
into  a  measure  certainly  severe  and  san- 
guinary, and  in  the  eyes  of  posterity  ex- 
posed to  gi-eater  reproach  than  it  deseiTed, 
the  attainder  of  Lord  Strafford,  and  some 
other  proceedings  of  too  much  violence  ;  the 
other  gave  a  color  to  all  their  resolutions» 


Cha.  I.— 1640-42.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


295 


and  aggravated  tlieir  diflerences  with  the 
king  till  there  remained  no  other  arbitrator 
but  the  sword. 

Tliose  who  know  the  conduct  and  char- 
T       .    acter  of  the  Earl  of  Sti-aftbrd,  his 

Tmpeacn- 

nient  of    abuse  of  power  in  the  North,  his 

Strafford.  {•  .  ,  ■ 

far  more  outrageous  transgressions 
in  Ireland,  his  dangerous  influence  over  the 
king's  counsels,  can  not  hesitate  to  admit,  if, 
indeed,  they  profess  any  regard  to  the  Con- 
stitution of  this  kingdom,  that  to  bring  so 
great  a  delinquent  to  justice  according  to 
the  known  process  of  law  was  among  the 
rprimary  duties  of  tlie  new  Parliament.  It 
was  that  which  all,  witli  scarce  an  excep- 
tion but  among  his  own  creatures  (for  most 
of  the  court  were  openly  or  in  secret  his 
enemies*),  ardently  desired,  yet  which  the 
king's  favor  and  his  own  commanding  genius 
must  have  rendered  a  doubtful  enterprise. 
Ho  came  to  Loudon,  not  unconscious  of  the 
danger,  by  his  master's  direct  injunctions. 
The  first  days  of  the  session  were  critical ; 
and  any  vacillation  or  delay  in  the  Com- 
mons might  probably  have  given  time  for 
some  sti-ong  exertion  of  power  to  frustrate 
their  designs.  We  must  therefore  consid- 
er the  bold  suggestion  of  Pym,  to  cany  up 
to  the  Lords  an  impeachment  for  high  trea- 
son against  Straflbrd,  not  only  as  a  master- 
stroke of  that  policy  which  is  fittest  for  rev- 
olutions, but  as  justifiable  by  the  circum- 
stances wherein  they  stood.  Nothing  short 
of  a  commitment  to  the  Tower  would  have 
broken  the  spell  that  so  many  years  of  ar- 
bitrary dominion  had  been  working.  It  was 
<lissipated  in  the  instant  that  the  people  saw 
him  in  the  hands  of  the  usher  of  the  black 
rod  ;  and  with  his  power  fell  also  that  of  his 
master ;  so  that  Charles,  from  the  very 
hour  of  Strafford's  impeachment,  never 

*  "A  greater  aud  more  universal  hatred,"  says 
Northumberlaud,  in  a  letter  to  Leice.ster,  Nov.  13, 
1C40  (Sidney  Papers,  ii.,  C63),  "  was  never  con- 
tracted by  any  person  than  he  has  drawn  upon 
himself.  He  is  not  at  all  dejected,  but  believes 
confidently  to  clear  himself  in  the  opinion  of  all 
equal  and  indifferent-minded  hearers,  when  he 
ehall  come  to  make  his  defense.  The  king  is  in 
such  a  strait  that  I  do  not  know  how  he  will  pos- 
gibly  avoid,  without  endangering  the  loss  of  the 
whole  kingdom,  the  giving  way  to  the  remove  of 
divers  persons,  as  well  as  other  things  that  will  be 
demanded  by  the  Parliament.  After  they  have 
done  questioning  some  of  the  great  ones,  they  in- 
tend to  endeavor  the  displacing  of  Jermyn,  New- 
castle, and  Walter  Montague." 


once  ventured  to  resume  the  high  tone  of 
command  congenial  to  his  disposition,  or  to 
speak  to  the  Commons  but  as  one  com- 
plaining of  a  superior  force.* 

*  Clarendon,  i.,  305.  No  one  opposed  the  res- 
olution to  impeach  the  lord-lieutenant,  save  that 
Falkland  suggested  the  appointment  of  a  commit- 
tee, as  more  suitable  to  the  gi'avity  of  their  pro- 
ceedings. But  Pym  frankly  answered  that  this 
would  ruin  all,  since  Strafford  would  doubtless  ob- 
tain a  dissolution  of  the  Parliament,  unless  they 
could  shut  liira  out  from  access  to  the  king. 

The  Letters  of  Robert  Baillie,  principal  of  the 
University  of  Glasgow  (two  vols.,  Edinburgh,  1775), 
abound  with  curious  iufonnatiou  as  to  this  period, 
and  for  several  subsequent  years.  Baillie  was  one 
of  the  Scots  commissioners  deputed  to  London  at 
the  end  of  1C40,  and  took  an  active  share  in  pro- 
moting the  destruction  of  Episcopacy.  His  cor- 
respondence breathes  all  the  naiTow  and  exclusive 
bigotry  of  the  Presb3'terian  school.  The  follow- 
ing passage  is  so  interesting,  that,  notwithstand- 
ing its  length,  it  may  find  a  place  here : 

"The  lieutenant  of  Ireland  came  but  on  Monday 
to  town  late,  on  Tuesday  rested,  on  Wednesday 
came  to  Parliament,  but  ere  night  he  was  caged. 
Intolerable  pride  and  oppression  cries  to  Heaveti 
for  a  vengeance.  The  Lower  House  closed  their 
doors  ;  the  speaker  kept  the  keys  till  his  accusa- 
tion was  concluded.  Thereafter  Mr.  Pym  went 
up,  with  a  number  at  his  hack,  to  the  Higher 
House ;  and  in  a  pretty  short  speech,  did,  in  the 
name  of  the  Lower  House,  aud  in  the  name  of  the 
Commons  of  all  England,  accuse  Thomas,  earl  of 
.Straflbrd,  lord-lieutenant  of  Ireland,  of  high  trea- 
son ;  and  required  his  person  to  be  arrested  till  pro- 
bation might  be  heard ;  so  Mr.  Pym  and  his  back 
were  removed.  The  Lords  began  to  consult  oa 
that  strange  and  unexpected  motion.  The  word 
goes  in  haste  to  the  lord-lieutenant,  where  he  was 
with  the  king ;  with  speed  he  comes  to  the  House ; 
he  calls  rudely  at  the  door;  James  Maxwell,  keep- 
er of  the  black  rod,  opens  ;  his  lordship,  with  a 
proud,  glooming  countenance,  makes  toward  his 
place  at  the  board  head,  but  at  once  many  bid  him 
void  the  House  ;  so  he  is  forced,  in  confusion,  to  go 
to  the  door  till  he  was  called.  After  consultation, 
being  called  in,  he  stands,  but  is  commanded  to 
kneel,  and  on  his  knees  to  hear  the  sentence.  Be- 
ing on  his  knees,  he  is  delivered  to  the  keeper  of 
the  black  rod,  to  be  jjrisoner  till  he  was  cleared  cf 
these  crimes  the  House  of  Connnons  had  charged 
him  with.  He  oft'ered  to  speak,  but  was  command- 
ed to  be  gone  without  a  word.  In  the  outer  room, 
James  Maxwell  required  him,  as  prisoner,  to  de- 
liver his  sword.  When  he  had  got  it,  he  cries 
with  a  loud  voice  for  his  man  to  carry  my  lord-lieu- 
tenant's sword.  This  done,  he  makes  through  a 
number  of  people  toward  his  coach  ;  all  gazing,  no 
man  capping  to  him,  before  whom,  that  morning, 
the  greatest  of  England  would  have  stood  discov- 
ered, all  crying,  'What  is  the  matter?'  He  said, 
'A  small  matter,  I  warrant  you.'  They  repUed, 
'  Yes,  indeed,  high  treason  is  a  small  matter.' 
Coming  to  the  place  where  he  expected  his  coacli, 


296 


COXSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  IX. 


The  ai'ticles  of  Strafford's  impeachment 
Discussion  of  relate  principally  to  his  conduct 
its  justice.  in  Ireland  ;  for  though  he  had 
begun  to  act  with  violence  in  the  Court  of 
York,  as  lord-president  of  the  North,  and 
was  charged  with  having  procured  a  com- 
mission investing  him  with  exorbitant  pow- 
er, yet  he  had  too  soon  left  that  sphere  of 
dominion  for  the  lieutenancy  of  Ireland  to 
give  any  wide  scope  for  prosecution ;  but 
in  Ireland  it  was  sufficiently  proved  that  he 
had  arrogated  an  authority  beyond  what  the 
crown  had  ever  lawfully  enjoyed,  and  even 
beyond  the  example  of  former  viceroys  of 
that  island,  where  the  disordered  state  of 
society,  the  frequency  of  rebellions,  and  the 
distance  from  aU  control,  had  given  rise  to 
such  a  series  of  arbiti^ary  precedents  as 
would  have  almost  excused  an  ordinaiy 
sti'etch  of  power.*    Notwithstanding  this, 

it  was  not  there ;  so  lie  behoved  to  return  that 
same  way,  through  a  world  of  gazing  people. 
When  at  last  he  had  foand  his  coach,  and  was  en- 
tering, James  Maxwell  told  him,  '  Your  lordship  is 
my  prisoner,  and  must  go  in  my  coach ;'  and  so  he 
behoved  to  do."— P.  217. 

*  The  ti-ial  of  Strafford  is  best  to  be  read  in  Rash- 
worth  or  Nalsou.  The  account  in  the  new  edition 
of  the  State  Trials,  I  know  not  whence  taken,  is 
carious,  as  coming  from  an  eye-witness,  though 
very  partial  to  the  prisoner ;  but  it  can  hardly  be 
so  accurate  as  the  others.  His  famous  peroration 
was  priuted  at  the  time  in  a  loose  sheet.  It  is  in 
the  Somers  Tracts.  Many  of  the  charges  seem  to 
have  been  sufficiently  proved,  and  would  undoubt- 
edly justify  a  severe  sentence  on  an  impeachment 
for  misdemeanors.  It  was  riot  pretended  by  the 
managers  that  more  than  two  or  three  of  them 
amounted  to  treason  ;  but  it  is  the  unquestionable 
right  of  the  Commons  to  blend  offenses  of  a  differ- 
ent degree  in  an  impeachment. 

It  has  been  usually  said  that  the  Commons  had 
recourse  to  the  bill  of  attainder,  because  they  found 
it  impossible  to  support  the  impeachment  for  ti'ea- 
son.  But  St.  John  positively  denies  that  it  was  in- 
tended to  avoid  the  judicial  mode  of  proceeding. 
— Nalson,  ii.,  162.  And,  what  is  stronger,  the 
Lords  themselves  voted  upon  the  articles  judicial- 
ly, and  not  as  if  they  were  enacting  a  legislative 
measure.  As  to  the  famous  proviso  in  the  bill  of 
attainder,  that  the  judges  should  determine  noth- 
ing to  be  treason,  bj'  virtue  of  this  bill,  wliich  they 
would  not  have  detei-mined  to  be  ti-eason  other- 
wise (on  which  Hume  and  many  others  have  re- 
lied, to  show  the  consciousness  of  Parliament  that 
the  measure  was  not  warranted  by  the  existing 
law),  it  seems  to  have  been  introduced  in  order  to 
quiet  the  apprehensions  of  some  among  the  peers, 
who  had  gone  great  lengths  with  the  late  govern- 
ment, and  were  astonished  to  find  that  tlieir  obe- 
dience to  the  king  could  be  turned  into  treason 
against  him. 


however,  when  the  managers  came  to  state 
and  substantiate  their  articles  of  accusation, 
though  some  were  satisfied  that  there  was 
enough  to  warrant  the  severest  judgment, 
yet  it  appeared  to  many  dispassionate  men 
that,  even  supposing  the  evidence  as  to  all 
of  them  to  be  legally  convincing,  they  could 
not,  except  through  a  dangerous  latitude  of 
construction,  be  aggravated  into  treason- 
The  law  of  England  is  silent  as  to  conspir- 
acies against  itself.  St.  John  and  Mavnard 
struggled  in  vain  to  prove  that  a  scheme  to 
overturn  the  fundamentallaws  and  to  govern 
by  a  standing  army,  though  as  infamous  as 
any  treason,  could  be  brought  within  the 
words  of  the  statute  of  Edward  III.,  as  a 
compassing  of  the  king's  death ;  nor,  in  fact, 
was  there  any  conclusive  evidence  against 
Strafford  of  such  a  design.  The  famous 
words  imputed  to  him  by  Sir  Henry  Vane, 
though  there  can  be  little  reason  to  question 
that  some  such  were  spoken,  seem  too  im- 
perfectly reported,*  as  well  as  uttered  too 
much  in  the  heat  of  passion,  to  furnish  a 
substantive  accusation ;  and  I  should  rather 
found  my  conviction  of  Strafford's  syste- 
matic hostility  to  our  fundamental  laws  on 
his  correspondence  since  brought  to  light, 
as  well  as  on  his  general  conduct  in  admin- 
istration, than  on  any  overt  acts  proved  on 
his  impeachment.  The  presumption  of 
histo7y,  to  whose  miiTor  the  scattered  rays 
of  moral  evidence  converge,  may  be  irre- 
sistible, when  the  legal  inference  fi'ora  insu- 
lated actions  is  not  only  technically,  but  sub- 
stantially inconclusive  ;  yet  we  are  not  to 
suppose  that  the  charges  against  this  minis- 
ter appeared  so  evidently  to  fall  short  of 
high  treason,  according  to  the  apprehension 
of  that  age,  as  in  later  times  has  usually 

*  They  were  confirmed,  in  a  considerable  de- 
gree, by  the  evidence  of  Northumberland  and  Bris- 
tol, and  even  of  Usher  and  Jaxon. — Rushw.  Abr., 
iv.,  455,  559,  586.  BaiUie,  284.  But  are  they  not 
also  exactly  according  to  the  principles  always 
avowed  and  acted  upon  by  that  minister,  and  by 
the  whole  phalanx  of  courtiers,  that  a  king  of  Eng- 
land does  very  well  to  ask  his  people's  consent  in 
the  first  instance,  hut,  if  that  is  frowardly  refused, 
he  has  a  paramount  right  to  maintain  his  govern- 
ment by  any  means  ? 

It  may  be  remai-ked,  that  Clarendon  says,  "  the 
law  was  clear  that  less  than  two  witnesses  ought 
not  to  be  received  in  a  case  of  treason."  Yet  I 
doubt  whether  any  one  had  been  allowed  the  ben- 
efit of  that  law  ;  and  the  contrary  had  been  assert- 
ed repeatedly  by  the  judges. 


Cha.  I.— 16-10-J2.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


297 


been  taken  for  gi-anted.  Accustomed  to 
the  unjust  verdicts  obtained  in  cases  of  trea- 
son by  the  court,  the  statute  of  Edward 
having  been  perpetually  stretched  by  con- 
structive interpretations,  neither  the  peoj)le 
nor  the  lawj'ers  annexed  a  definite  sense 
to  that  crime.  The  judges  themselves,  on 
a  solemn  reference  by  the  House  of  Lords 
for  their  opinion,  whether  some  of  the  arti- 
cles charged  against  Strafi'ord  amounted  to 
treason,  answered  unanimously,  that  upon 
all  which  their  lordships  had  voted  to  be 
proved,  it  was  their  opinion  the  Earl  of 
Straftbrd  did  deserve  to  undergo  the  pains 
and  penalties  of  high  treason  by  law  ;*  and 
as  an  apology,  at  least,  for  this  judicial  opin- 
ion, it  may  be  remarked,  that  the  fifteenth 
article  of  the  imjieachmcnt,  charging  him 
witli  raising  money  by  his  own  authority, 
and  quartering  troops  on  the  people  of  Ire- 
land, in  order  to  compel  their  obedience  to 
bis  unlawful  requisitions  (upon  whicli,  and 
one  other  article,  not  on  the  whole  matter, 
the  Peers  voted  him  guiltj'),  does,  in  fact, 
approach  very  nearly,  if  we  may  not  say 
more,  to  a  substantive  treason  within  the 
statute  of  Edward  III.,  as  a  levying  war 
against  the  king,  even  without  reference  to 
some  Irish  acts  of  Parliament  upon  which 
the  managers  of  the  impeachment  relied. 
It  can  not  be  extravagant  to  assert,  that  if 
the  colonel  of  a  regiment  were  to  issue  an 
order  commanding  the  inhabitants  of  the 
district  where  it  is  quartered  to  contribute 
certain  sums  of  money,  and  were  to  compel 
tile  payment  by  quartering  troops  on  the 
houses  of  those  who  refused,  in  a  general 
and  systematic  manner,  he  would,  accord- 
ing to  a  warrantable  consti'uction  of  the  stat- 
utes, be  guilty  of  the  treason  called  levy- 
ing war  on  the  king ;  and  that,  if  we  could 
imagine  him  to  do  this  by  an  order  from 

*  Lords' Journals,  May  6.  Pari.  Hist.,  757.  This 
opinion  of  tlie  judges,  wliich  is  not  mentioned  by 
Clarendon,  Hume,  and  other  common  historians, 
seems  to  have  cost  Strafford  his  Hfe.  It  was  re- 
lied on  by  some  bishops,  especially  Usher,  whom 
Charles  consulted  whether  he  should  pass  the  bill 
of  attainder,  though  Clarendon  puts  much  worse 
casuistrj-  into  the  mouth  of  Williams. — Pan-'s  Life 
of  Usher,  p.  45.  Hackel's  Life  of  Williams,  p.  ICO. 
Juxon  is  said  to  have  stood  alone  among  five  bish- 
ops in  advising  the  king  to  follow  his  own  con- 
science. Clarendon,  indeed,  does  not  mention  this, 
though  he  glances  at  Usher  with  some  reproach, 
p.  451 ;  but  the  story  is  as  old  as  the  Icon  Basil- 
ike,  in  which  it  is  alluded  to. 


the  privy -council  or  the  war-office,  the 
case  would  not  be  at  all  altered.  On  the 
other  hand,  a  single  act  of  such  violence 
might  be  (in  technical  language)  trespass, 
misdemeanor,  or  felony,  according  to  cir- 
cumstances, but  would  want  the  generality 
which,  as  the  statute  has  been  construed, 
determines  its  character  to  be  treason.  It 
is,  however,  manifest  that  Strafford's  actual 
enforcement  of  his  order,  by  quartering  sold- 
iers, was  not  by  any  means  proved  to  be  so 
frequently  done  as  to  bring  it  within  the  line 
of  treason ;  and  the  evidence  is  also  open  to 
every  sort  of  legal  objection.  But  in  that 
age,  the  rules  of  evidence,  so  scrupulously 
defined  since,  were  either  very  imperfectly 
recognized  or  continually  transgressed.  If, 
then,  Strafford  could  be  brought  within  the 
letter  of  the  law,  and  was  also  deserving  of 
death  for  his  misdeeds  toward  the  Com- 
monwealth, it  might  be  thought  enough  to 
justify  his  condemnation,  although  he  had 
not  offended  against  what  seemed  to  be  the 
spirit  and  intention  of  the  statute.  This 
should,  at  least,  restrain  us  from  passing  an 
unqualified  censure  on  those  who  voted 
against  him,  comprehending,  undoubtedly, 
the  far  more  respectable  portion  of  the 
Commons,  though  only  twenty-six  peers 
against  nineteen  formed  the  feeble  majority 
on  the  bill  of  attainder.*    It  may  be  obsenf- 

*  The  names  of  the  fifty-nine  members  of  the 
Commons  who  voted  against  the  bill  of  attainder, 
and  wliich  were  placarded  as  Straffordians,  may 
be  found  in  the  Parliamentary  Histoiy,  and  sever- 
al other  books.  It  is  remarkable  that  few  of  them 
are  distinguished  persons ;  none  so  much  so  as 
Selden,  whose  whole  Parliamentary  career,  not- 
withstanding the  timidity  not  vei-y  fairly  imputed 
to  him,  was  eminently  honorable  and  independent. 
But  we  look  in  vain  for  H3-de,  Falkland,  Colcpep- 
per,  or  Palmer.  The  first  jirobably  did  not  vote ; 
the  others  may  have  been  in  the  majority  of  204, 
by  whom  the  bill  was  passed ;  indeed,  I  have 
seen  a  MS.  account  of  the  debate,  where  Falkland 
and  Colepepper  appear  to  have  both  spoken  for  it. 
As  to  the  Lords,  we  have,  so  far  as  I  know,  no  Hst 
of  the  nineteen  who  acquitted  Strafford.  It  does 
not  comprehend  Hertford,  Bristol,  or  Holland,  who 
were  absent  (Nalson,  316),  nor  any  of  the  popish 
lords,  whether  through  fear  or  any  private  influ- 
ence. Lord  Clare,  his  brother-iu  law,  and  Lord 
Saville,  a  man  of  the  most  changeable  character, 
were  his  prominent  advocates  during  the  trial; 
though  Bristol,  Hertford,  and  even  Say  desired  to 
have  had  his  life  spared  (Baillie,  243,  247,  271, 
292);  and  the  Eari  of  Bedford,  according  to  Clar- 
endon, would  have  come  into  this.  But  the  sud- 
den and  ill-timed  death  of  tliat  eminent  peer  put 


29S 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  IX 


ed,  that  the  House  of  Commons  acted  in 
one  respect  with  a  generosity  which  the 
crown  had  never  shown  in  any  case  of  ti'ea- 
son,  by  immediately  passing  a  bill  to  relieve 
his  children  from  the  penalties  of  forfeiture 
and  corruption  of  blood. 

It  is  undoubtedly  a  veiy  important  prob- 
lem in  political  ethics,  whether  great  offens- 
es against  the  Commonwealth  may  not 
justly  incur  the  penalty  of  death  by  a  ret- 
rospective act  of  the  Legislature,  which  a 
ti'ibunal  restrained  by  known  laws  is  not 
competent  to  inflict.    Bills  of  attainder  had 
been  by  no  means  uncommon  in  England, 
especially  under  Henry  VIIL,  but  general- 
ly when  the  crime  charged  might  have  been 
equally  punished  by  law.    They  are  less 
dangerous  than  to  sti'etch  the  boundaries 
of  a  statute  by  arbiti'aiy  construction.  Nor 
do  they  seem  to  diflier  at  all  in  principle 
from  those  bills  of  pains  and  penalties  which, 
in  times  of  comparative  moderation  and 
tranquillity,  have  sometimes  been  thought  i 
necessary  to  visit  some  unforeseen  and 
anomalous  trangi-ession  beyond  the  reach 
of  our  penal  code.    There  are  many,  in-  ! 
deed,  whose  system  absolutely  rejects  all ! 
such  retrospective  punishment,  either  from  ! 
the  danger  of  giving  too  much  scope  to  vin-  ' 
dictive  passion,  or  on  some  more  abstract 
principle  of  justice.    Those  who  may  in-  I 
cline  to  admit  that  the  moral  competence 
of  the  sovereign  power  to  secure  itself  by  i 
the  punishment  of  a  heinous  offender,  even 

an  end  to  the  negotiation  for  briueing  the  Parha- 
mentary  leaders  into  olBce,  wherein  it  was  a  main 
object  with  the  king  to  save  the  life  of  Strafford ; 
entirelj-,  as  I  am  inclined  to  believe,  from  motives 
of  conscience  and  honor,  without  anj-  views  of  ever 
again  restoring  him  to  power.  Charles  bad  no 
personal  attachment  to  Strafford ;  and  the  queen's 
dislike  of  him  (according  to  Clarendon  and  Burnet, 
though  it  must  be  owned  that  Madame  de  Motte- 
ville  does  not  confirm  this),  or  at  least  his  general 
unpopularity  at  court,  would  have  determined  the 
king  to  lay  him  aside. 

It  is  said  by  Burnet  that  the  queen  prevailed  on 
Charles  to  put  that  strange  postscript  to  his  letter 
to  the  Lords  in  behalf  of  Strafford,  "  If  he  must  die, 
it  were  charity  to  reprieve  him  till  Saturday ;"  by 
which  he  manifestly  surrendered  him  up,  and  gave 
cause  to  suspect  his  own  sincerity.  Doubts  have 
been  thrown  out  by  Carte  as  to  the  genuineness 
of  Strafford's  celebrated  letter,  requesting  the  king 
to  pass  the  bill  of  attainder.  They  do  not  appear 
to  be  founded  on  much  evidence  ;  but  it  is  certain, 
by  the  manner  in  which  he  received  the  news, 
that  he  did  not  expect  to  be  sacrificed  by  his  mas- 
ter. 


without  the  previous  warning  of  law,  is  not 
to  be  denied,  except  by  reasoning  which 
would  shake  the  foundation  of  its  light  to 
inflict  puni-shment  in  ordinaiy  cases,  will 
still  be  sensible  of  the  mischief  which  any 
departure  from  stable  rules,  under  the  influ- 
ence of  the  most  public-spiiuted  zeal,  is  like- 
ly to  produce.  The  attainder  of  Strafibrd 
could  not  be  justifiable,  unless  it  were  nec- 
essary ;  nor  necessary,  if  a  lighter  penalty 
would  have  been  sufficient  for  the  public 
security. 

This,  therefore,  becomes  a  preliminaiy 
question,  upon  which  the  whole  mainly 
turns.  It  is  one  which  does  not  seem  to 
admit  of  a  demonstrative  answer,  but  with 
which  we  can,  perhaps,  deal  better  than 
those  who  lived  at  that  time.  Their  dis- 
trust of  the  king,  their  apprehension  that 
nothing  less  than  the  delinquent  minister's 
death  could  insure  them  from  his  return  to 
power,  rendered  the  leaders  of  Parliament 
obstinate  against  any  proposition  of  a  miti- 
gated penalty.  Nor  can  it  be  denied  that 
there  are  several  instances  in  history  where 
the  favorites  of  monarchs,  after  a  transient 
exile  or  imprisonment,  have  returned,  on 
some  fresh  wave  of  fortune,  to  mock  or 
avenge  themselves  upon  their  adversaiies. 
Yet  the  prosperous  condition  of  the  popular 
party,  which  nothing  but  intemperate  pas- 
sion was  likely  to  impair,  i-endered  this  conr 
tingency  by  no  means  probable ;  and  it  is 
against  probable  dangers  that  nations  should 
take  precautions,  without  aiming  at  more 
complete  security  than  the  baffling  uncer- 
tainties of  events  will  pennit.  Such  was 
Sti-aftbrd's  unpopularity,  that  he  could  nev- 
er have  gained  any  sj-mpathy  but  by  the 
harshness  of  his  condemnation  and  the  mag- 
nanimity it  enabled  him  to  display.  These 
have  half  redeemed  his  forfeit  fame,  and 
misled  a  generous  posterity.  It  was  agreed 
on  all  hands  that  anj-  punishment  which  the 
law  could  award  to  the  highest  misdemean- 
ors, duly  proved  on  impeachment,  must  be 
justly  inflicted.  "  I  am  still  the  same,"  said 
Lord  Digby,  in  his  famous  speech  against 
the  bill  of  attainder,  "  in  ray  opinions  and 
affections  as  unto  the  Earl  of  Sti'afFord ;  I 
confidentl}-  beUeve  him  to  be  the  most  dan- 
gerous minister,  the  most  insupportable  to 
free  subjects,  that  can  be  charactered ;  I 
believe  him  to  be  still  that  gi-and  apostate  to 
the  Commonweahh,  who  must  not  expect 


Cha.  I.— 1640-42.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


299 


to  be  pardoned  in  this  world  till  he  be  dis- 
patched to  the  other;  and  yet  let  me  tell 
you,  Mr.  Speaker,  my  hand  must  not  be  to 
that  dispatch."*  These  sentiments,  what- 
ever we  may  think  of  the  sincerity  of  him 
who  uttered  them,  were  common  to  many 
of  those  who  desired  most  ardently  to  see 
that  uniform  course  of  known  law,  which 
neither  the  court's  lust  of  power  nor  the 
clamorous  indignation  of  a  popular  assembly 
might  turn  aside.  The  king,  whose  con- 
science was  so  deeply  wounded  by  his  ac- 
quiescence in  this  minister's  death,  would 
gladly  have  assented  to  a  bill  inflicting  the 
penalty  of  perpetual  banishment ;  and  this, 
accompanied,  as  it  ought  to  have  been,  by 
degradation  from  the  rank  for  which  he  had 
sold  his  integrity,  would  surely  have  exhib- 
ited to  Europe  an  example  sufficiently  con- 
spicuous of  j  list  retribution.  Though  noth- 
ing, perhaps,  could  have  restored  a  tolerable 
degree  of  confidence  between  Charles  and 
the  Parliament,  it  is  certain  that  his  resent- 
ment and  aversion  were  much  aggi-avated 
by  the  painful  compulsion  they  had  put  on 
him,  and  that  the  schism  among  the  Consti- 
tutional party  began  from  this,  among  other 
causes,  to  gi-ovv  more  sensible,  till  it  termin- 
ated in  civil  war.f 

But  if  we  p.iy  such  regard  to  the  princi- 
ples of  clemency  and  moderation,  and  of  ad- 
herence to  the  fixed  rules  of  law,  as  to  pass 

*  Parliamentarj-  History,  ii.,  750. 

t  See  some  judicious  remarks  on  this  by  May, 
p.  64,  who  generally  shows  a  good  deal  of  impar- 
tiality at  this  period  of  liistory.  The  violence  of  in- 
dividuals, especially  when  of  considerable  note,  de- 
serves to  be  remarked,  as  characteristic  of  the 
temper  that  influenced  the  House,  and  as  account- 
ing for  the  disgnst  of  moderate  men.  "  Why 
should  he  have  law  himself,"  said  St.  John,  in  ar- 
guing the  bill  of  attainder  before  the  peers,  "who 
would  not  that  others  should  have  any  ?  We  in- 
deed give  laws  to  hares  and  deer,  because  they 
are  beasts  of  chase  ;  but  we  give  none  to  wolves 
and  foxes,  but  knock  them  on  the  head  wherever 
they  are  found,  because  they  are  beasts  of  prey.  ' 
Nor  was  this  a  mere  burst  of  passionate  declama- 
tion, but  urged  as  a  serious  argument  for  taking 
away  Strafford's  life  witliout  sufficient  grounds  of 
law  or  testimony. — Rushworth  Abr.,  iv.,  61.  Clar- 
endon, i.,  407.  Strode  told  the  House  that,  as  they 
had  charged  Strafford  with  high  treason,  it  con- 
cerned them  to  charge  as  conspirators  in  the  same 
treason  all  who  had  before,  or  should  hereafter, 
plead  in  that  cause. — Baillie,  2.52.  This  monstrous 
proposal  seems  to  please  the  Presbyterian  bigot. 

If  this  hold,''  he  observes,  "  Sti-afFord's  council 
will  be  rare." 


some  censure  on  this  deviation  from  them 
in  the  attainder  of  Lord  Strafford,  we  must 
not  yield  to  the  clamorous  invectives  of  hi3 
admirers,  or  treat  the  prosecution  as  a  scan- 
dalous and  flagitious  excess  of  party  ven- 
geance. Look  round  the  nations  of  the 
globe,  and  say  in  what  age  or  country  would 
such  a  man  have  fallen  into  the  hands  of 
his  enemies  without  paying  the  forfeit  of 
his  offenses  against  the  Commonwealth  with 
his  life.  They  who  grasp  at  arbitrary  pow- 
er, they  who  make  their  fellow-citizens 
tremble  before  them,  they  who  gratify  a 
selfish  pride  by  the  humiliation  and  servi- 
tude of  mankind,  have  always  played  a  deep 
stake  ;  and  the  more  invidious  and  intolera- 
ble has  been  their  pre-eminence,  their  fall 
has  been  more  destructive,  and  their  pun- 
ishment more  exemplary.  Something  be- 
yond the  retirement  or  the  dismissal  of  such 
ministers  has  seemed  necessary  to  "  absolve 
the  gods,"  and  furnish  history  with  an  aw- 
ful lesson  of  retribution.  The  spontaneous 
instinct  of  nature  has  called  for  the  ax  and 
the  gibbet  against  such  capital  delinquents. 
If,  then,  we  blame,  in  some  measure,  the 
sentence  against  Strafford,  it  is  not  for  his 
sake,  but  for  that  of  the  laws  on  which  he 
trampled,  and  of  the  liberty  which  he  be- 
trayed. He  died  justly  before  God  and 
man,  though  we  may  deem  the  precedent 
dangerous,  and  the  better  course  of  a  mag- 
nanimous lenity  unwisely  rejected  ;  and  in 
condemning  the  bill  of  attainder,  we  can  not 
look  upon  it  as  a  crime. 

The  same  distrustful  temper,  blamable  in 
nothing  but  its  excess,  drew  the  ^ct  against 
House  of  Commons  into  a  meas-  dissolution  of 

Parliament 

ure  more  unconstitutional  than  without  us 
the  attainder  of  Straffbrd,  the  bill 
enacting  that  they  should  not  be  dissolved 
without  their  own  consent.  Whether  or 
not  this  had  been  previously  meditated  by 
the  leaders,  is  uncertain ;  but  the  circum- 
stances under  which  it  was  adopted  display 
all  the  blind  precipitancy  of  fear.  A  scheme 
for  bringing  up  the  army  from  the  north  of 
England  to  overawe  Parliament  had  been 
discoursed  of,  or  rather,  in  a  great  measure, 
concerted,  by  some  young  courtiers  and  mil- 
itary men.  The  imperfection  and  indefinite- 
ness  of  the  evidence  obtained  respecting 
this  plot  increased,  as  often  happens,  the  ap- 
prehensions of  the  Commons  ;  yet,  difficult 
as  it  might  be  to  fix  its  proper  character  be- 


300 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IX. 


tween  a  loose  project  and  a  deliberate  con- 
spiracy, this  at  least  was  hardly  to  be  de- 
nied, that  the  king  had  listened  to  and  ap- 
proved a  proposal  of  appealing  from  the 
representatives  of  his  people  to  a  military 
force.*  Their  greatest  danger  was  a  sud- 
den dissolution.  The  triennial  bill  afforded, 
indeed,  a  valuable  security  for  the  future ; 
yet  if  the  present  Pai-liament  had  been 

*  Clarendon  and  Hume  of  coarse  treat  this  as  a 
very  trifling  affair,  exaggerated  for  factious  pur- 
poses. But  those  who  judge  from  the  evidence  of 
persons  unvpilling  to  accuse  themselves  or  the 
king,  and  from  tlie  natural  probabilities  of  the  case, 
will  suspect,  or,  rather,  be  wholly  convinced,  that 
it  had  gone  much  further  than  these  writers  admit. 
See  the  accounts  of  this  plot  in  Rushworth  and 
Nalson,  or  in  the  Parliamentary  History ;  also 
what  is  said  by  Montreuil  in  Raumer,  p.  324.  The 
strongest  evidence,  however,  is  furnished  by  Hen- 
rietta, whose  relation  of  the  circumstances  to  Ma- 
dame de  Motteville  proves  that  the  king  and  her- 
self had  the  strongest  hopes  from  the  influence  of 
Goring  and  Wilmot  over  the  army,  by  means  of 
which  they  aimed  at  saving  Strafford's  life  ;  though 
the  jealousy  of  those  ambitious  intriguers,  who 
could  not  both  enjoy  the  place  to  which  each  as- 
pired, broke  the  whole  plot. — Mem.  de  Motteville, 
i.,  253.  Compare  with  this  passage,  Percy's  let- 
ter, and  Goring's  deposition  (Nalson,  ii.,  286,  294), 
for  what  is  said  of  the  king's  privity  by  men  who 
did  not  lose  his  favor  by  their  evidence.  Mr.  Bro- 
die  has  commented  in  a  long  note  (iii.,  189)  on 
Clarendon's  apparent  misrepresentations  of  this 
business.  But  what  has  escaped  the  acuteness  of 
this  writer  is,  that  the  petition  to  the  king  and  Par- 
liament, drawn  up  for  the  army's  subscription,  and 
asserted  by  Clai'endon  to  have  been  the  only  step 
taken  by  those  engaged  in  the  supposed  con- 
spiracy (though  not,  as  Mr.  Brodie  too  rashly  con- 
jectures, a  fabrication  of  his  own),  is  most  care- 
lessly referred  by  him  to  that  period,  or  to  the 
agency  of  Wilmot  and  his  coadjutors,  having  been, 
in  fact,  prepared  about  the  July  following,  at  the 
instigation  of  Daniel  O'Neale,  and  some  others  of 
the  Royalist  party.  This  is  manifest,  not  only 
from  the  allusions  it  contains  to  events  that  had 
not  occurred  in  the  months  of  March  and  April, 
when  the  plot  of  Wilmot  and  Goring  was  on  foot, 
especially  the  bill  for  triennial  Parliaments,  but 
from  evidence  given  before  the  House  of  Commons 
in  October,  1641,  and  which  Mr.  Brodie  has  pub- 
lished in  the  appendix  to  liis  third  volume,  though, 
with  an  inadvertence  of  which  he  is  seldom  guilty, 
overlooking  its  date  and  pui-port.  This,  however, 
is  of  itself  sufficient  to  display  the  inaccurate  char- 
acter of  Clarendon's  history  ;  for  I  can  scarcely  as- 
cribe the  present  incorrectness  to  design.  There 
are,  indeed,  so  many  mistakes  as  to  dates  and 
other  matters  in  Clarendon's  account  of  this  plot, 
that,  setting  aside  his  manifest  disposition  to  sup- 
press the  truth,  we  can  place  not  the  least  rehance 
on  his  memory  as  to  those  points  which  we  may 
not  be  well  able  to  bring  to  a  test. 


broken  with  any  circumstances  of  violence, 
it  might  justly  seem  veiy  hazardous  to  con- 
fide in  the  right  of  spontaneous  election  re- 
served to  the  people  by  that  statute,  which 
the  crown  would  have  three  yeai^s  to  de- 
feat. A  rapid  impulse,  rather  than  any  con- 
certed resolution,  appears  to  have  dictated 
this  hardy  encroachment  on  the  prerogative. 
The  bill  against  the  dissolution  of  the  pres- 
ent Parliament  without  its  own  consent  was 
resolved  in  a  committee  on  the  fifth  of  May, 
brought  in  the  next  day,  and  sent  to  the 
Lords  on  the  seventh.  The  Upper  House, 
in  a  conference  the  same  day,  urged  a  very 
wise  and  constitutional  amendment,  limiting 
its  duration  to  the  term  of  tAvo  years ;  but 
the  Commons  adhering  to  their  original  pro- 
visions, the  bill  was  passed  by  both  Houses 
on  the  eighth.*  Thus,  in  the  space  of  three 
days  from  the  first  suggestion,  an  alteration 
was  made  in  the  frame  of  our  polity,  which 
rendered  the  House  of  Commons  equally 
independent  of  their  sovereign  and  their 
constituents ;  and,  if  it  could  be  supposed 
capable  of  being  maintained  in  more  tranquil 
times,  would,  in  the  theory  at  least  of  specu- 
lative politics,  have  gradually  converted  the 
government  into  something  like  a  Dutch 
aristocracy.  The  ostensible  pretext  was, 
that  money  could  not  be  boiTowed  on  the 
authority  of  resolutions  of  Parliament,  until 
some  secimty  was  furnished  to  the  creditors 
that  those  whom  they  were  to  trust  should 
have  a  permanent  existence.  This  argument 
would  have  gone  a  great  way,  and  was  ca- 
pable of  an  answer,  since  the  money  might 
have  been  borrowed  on  the  authority  of  the 
whole  Legislature.  But  the  chief  motive, 
unquestionably,  was  a  just  apprehension  of 
the  king's  intention  to  overthrow  the  Parlia- 
ment, and  of  personal  danger  to  those  who 
had  stood  most  forward  fi-om  his  resentment 
after  a  dissolution.  His  ready  acquiescence 
in  this  bill,  far  more  dangerous  than  any  of 

*  Journals.  Parliamentary  Hist.,  784.  May,  67. 
Clarendon.  According  to  Mrs.  Hutchinson,  p.  97, 
this  bill  originated  with  Mr.  Pierpout.  If  we 
should  draw  an  inference  from  the  Journals,  Sir 
John  Colepepper  seems  to  have  been  the  most 
prominent  of  its  supporters.-  Mr.  Hyde  and  Lord 
Falkland  were  also  managers  of  the  conference 
with  the  Lords.  But  in  Sir  Ralph  Vemey's  man- 
uscript notes,  I  find  Mr.  Whitelock  mentioned  as 
being  ordered  by  the  House  to  prepare  the  bill, 
which  seems  to  imply  that  he  had  moved  it,  or,  at 
least,  been  very  forward  in  it.  Yet  all  these  were 
moderate  men. 


Cha.  I.— 1640-42.]  FROM  HENRY  VII.  TO  GEORGE  11. 


301 


those  at  which  he  deniurred,  can  only  be 
ascribed  to  his  own  shame  and  the  queen's 
consternation  at  the  discovery  of  the  late 
plot ;  and  thus  we  trace  again  the  calamities 
of  Charles  to  their  two  great  sources,  his 
want  of  judgment  in  affairs,  and  of  good  faith 
toward  his  people. 

The  Parliament  had  met  with  as  ardent 
,  and  just  an  indignation  against 

Innovations  ... 

meditated  in  ecclcsiastical  as  temporal  griev- 
the  Church.  rpj^g  tyranny,  the  folly, 

and  rashness  of  Charles's  bishops,  were  still 
greater  than  his  own.  It  Avas  evidently  an 
indispensable  duty  to  reduce  the  overbear- 
ing ascendency  of  that  order,  which  had 
rendered  the  nation,  in  regard  to  spiritual 
dominion,  a  great  loser  by  the  Reformation. 
They  had  been  so  blindly  infatuated,  as 
even,  in  the  year  1640,  amid  all  the  pei'ils 
of  the  times,  to  fill  up  the  measure  of  pub- 
lic wratli  by  enacting  a  series  of  canons  in 
convocation.  These  enjoined,  or  at  least 
recommended,  some  of  the  modern  innova- 
tions, which,  though  many  excellent  men 
had  been  persecuted  for  want  of  compliance 
with  them,  had  not  got  the  sanction  of  au- 
thority. They  imposed  an  oath  on  the  cler- 
gy, commonly  called  the  et  crotera  oath, 
binding  them  to  attempt  no  alteration  "in 
the  government  of  the  Church  by  bishops, 
deans,  archdeacons,"  &c.  This  oath  was 
by  the  same  authority  enjoined  to  such  of 
the  laity  as  held  ecclesiastical  offices.*  The 
king,  howevei",  on  the  petition  of  tlie  council 
of  peers  at  Yor-k,  directed  it  not  to  be  taken. 
The  House  of  Commons  rescinded  these 
canons  with  some  degree  of  excess  on  the 
other  side,  not  only  denying  the  right  of 
convocation  to  bind  the  clergy,  which  had 
certainly  been  exercised  in  all  periods,  but 
actually  impeaching  the  bishops  for  a  high 
misdemeanor  on  that  account,  f  The  Lords, 
in  the  month  of  March,  appointed  a  commit- 
tee of  ten  earls,  ten  bishops,  and  ten  barons, 
to  report  upon  the  innovations  lately  brought 
into  the  Church.  Of  this  committee  Will- 
iams was  chairman.  But  the  spirit  which 
now  possessed  the  Commons  was  not  to  be 
exorcised  by  the  sacrifice  of  Laud  and  Wren, 

*  Neal,  p.  632,  has  printed  these  canons  imper- 
fectly. They  may  be  found  at  length  in  Nalson,  i., 
542. 

t  Clarendon.  Pari.  Hist.,  678,  896.  Neal,  647, 
720.  These  votes  as  to  the  canons,  however,  were 
carried  ncm.  con. — Journals,  IGth  Dec,  1640. 


or  even  by  such  inconsiderable  alterations 
as  the  moderate  bishops  were  ready  to  sug- 
gest.* 

There  had  always  existed  a  party,  though 
by  no  means  coextensive  with  that  bearing 
the  general  name  of  Puritan,  who  retained 
an  insuperable  aversion  to  the  whole  scheme 
of  Episcopal  discipline,  as  inconsistent  with 
the  ecclesiasticsJ  parity  they  believed  to  be 
enjoined  by  the  apostles.  It  is  not  easy  to 
determine  what  proportion  these  bore  to  the 
community.  They  vv'ere  certainly,  at  the 
opening  of  the  Parliament,  by  far  the  less 
numerous,  though  an  active  and  increasing 
party.  Few  of  the  House  of  Commons,  ac- 
cording to  Clarendon  and  the  best  cotem- 
porary  writers,  looked  to  a  destruction  of  the 
existing  hierarchy. f  The  more  plausible 
scheme  was  one  which  had  the  sanction  of 
Usher's  learned  judgment,  and  which  Will- 
iams was  said  to  favor,  for  what  was  called 
a  moderate  Episcopacy;  wherein  the  bish- 
op, reduced  to  a  sort  of  president  of  his  col- 
lege of  presbyters,  and  differing  from  them 
only  in  rank,  not  in  order  (gi'adu,  non  ordine), 
should  act,  whether  in  ordination  or  juris- 
diction, by  then'  concurrence. J  This  inter- 
mediate form  of  chui'ch  government  would 
probably  have  contented  the  popular  leaders 
of  the  Commons,  except  two  or  three,  and 
have  proved  acceptable  to  the  nation.  But 
it  was  hardly  less  offensive  to  the  Scottish 
Presbyterians,  intolerant  of  the  smallest  de- 
viation from  their  own  model,  than  to  the 
High-Church  Episcopalians;  and  the  neces- 
sity of  humoring  that  proud  and  prejudiced 
race  of  people,  who  began  already  to  show 

*  Neal,  709.  Laud  and  Wren  were  both  im- 
peached Dec.  18 ;  the  latter  entirely  for  introdu- 
cing superstitions.— Pari.  Hist.,  861.  He  lay  in  the 
Tower  till  1659. 

t  Neal  says  that  the  major  part  of  the  Parlia- 
mentarians at  the  beginning  of  the  war  were  for 
moderated  Episcopacy  (ii.,  4),  and  asserts  the  same 
in  another  place  (i.,  715)  of  the  Puritans,  in  con- 
tradiction of  Rapin.  "  How  will  this  go,"  says 
BaiLlie,  in  April,  1641,  "the  Lord  knows;  all  are 
for  the  creating  of  a  kind  of  Presbytery,  and  for 
bringing  down  the  bishops  in  all  things  Bpiritual 
and  temporal,  so  low  as  can  be  with  any  subsist, 
ence ;  but  their  utter  abolition,  which  is  the  only 
aim  of  the  most  godly,  is  the  knot  of  the  question," 
i.,  245. 

t  Neal,  666,  672,  713.  Collier,  805.  Baxter's 
Life,  p.  62.  The  Ministers'  Petition,  as  it  was 
called,  presented  Jan.  23, 1641,  with  the  signatures 
of  700  beneficed  clergj  men,  went  to  this  extent  of 
reformation. — Neal,  679. 


302 


CONSTITUTIONAL  HISTORY  OF  EJvTGLAND. 


[Chap.  IX. 


that  an  alteration  in  the  Church  of  England 
would  be  their  stipulated  condition  for  any 
assistance  they  might  afford  to  the  popular 
party,  led  the  majority  of  the  House  of  Com- 
mons to  give  more  countenance  than  they 
sincerely  intended  to  a  bill,  preferred  by 
what  was  then  called  the  Root  and  Branch 
party,  for  the  entire  abolition  of  Episcopacy. 
This  party,  composed  chiefly  of  Presbyteri- 
ans, but  with  no  small  admixture  of  other 
sectaries,  predominated  in  the  city  of  Lon- 
don. At  the  instigation  of  the  Scots  com- 
missioners, a  petition  against  Episcopal  gov- 
ernment, with  15,000  signatures,  was  pre- 
sented early  in  the  session  (Dec.  11, 1640), 
and  received  so  favorably  as  to  startle  those 
who  bore  a  good  affection  to  the  Church.* 
This  gave  rise  to  the  first  diflierence  that 
was  expressed  in  Parliament ;  Digby  speak- 
ing warmly  against  the  reference  of  this  pe- 
tition to  a  committee,  and  Falkland,  though 
sti'enuous  for  reducing  the  prelates'  author- 
ity, showing  much  reluctance  to  abolish 
their  order.f  A  bill  was,  however,  brought 
in  by  Sir  Edward  Bering,  an  honest  but  not 
very  enlightened  or  consistent  man,  for  the 
utter  extirpation  of  Episcopacy,  and  its  sec- 
ond reading  carried  on  a  division  by  139  to 
108. t  This,  no  doubt,  seems  to  show  the 
anti-Episcopal  party  to  have  been  stronger 
than  Clarendon  admits ;  yet  I  suspect  that 

*  Pari.  Hist.,  673.  Clarendon,  i.,  356.  Baillie's 
Letters,  218,  &c.  Though  sangnine  as  to  the  prog- 
ress of  his  sect,  he  admits  that  it  was  very  diffi- 
cult to  pluck  up  Episcopacy  by  the  roots ;  for  this 
reason,  they  did  not  vpish  the  House  to  give  a 
speedy  answer  to  the  city  petition,  p.  241.  It  was 
earned  by  36  or  37  voices,  he  says,  to  refer  it  to 
the  Committee  of  Religion,  p.  245.  No  division 
appears  on  the  Jounials. 

The  whole  influence  of  the  Scots  commissioners 
was  directed  to  this  object,  as  not  only  Baillie's 
Letters,  but  those  of  Joluistone  of  Wariston  (Dal- 
rymple's  Memorials  of  James  and  Charles  I.,  ii., 
114,  &c.)  show.  Besides  their  exti'eme  higotiy, 
which  was  the  predominant  motive,  they  had  a 
better  apology  for  interfering  with  church  govern- 
ment in  England,  with  which  the  archbishop  bad 
furnished  them;  it  was  the  only  sure  means  of 
presei-ving  their  own.        t  Rushworth.  Nalson. 

t  Pari.  Hist.,  ei4,  822,  828.  Clarendon  tells  us, 
that,  being  chairman  of  tlie  committee  to  whom 
this  bill  was  refen'ed,  he  gave  it  so  much  intemip- 
tion,  that  no  progress  could  be  made  before  the  ad- 
30urnment.  The  House  came,  however,  to  a  reso- 
lution, that  the  taking  away  the  offices  of  arch- 
bishops, bishops,  chancellors,  and  commissaries 
out  of  this  church  and  kingdom,  should  be  one 
clause  of  the  bill.    June  12.    Commons'  Jouaiials. 


the  greater  part  of  those  who  voted  for  it 
did  not  intend  more  than  to  intimidate  the 
bishops.  Petitions  very  numerously  signed, 
for  the  maintenance  of  Episcopal  govern- 
ment, were  presented  from  several  coun- 
ties ;*  nor  is  it,  I  think,  possible  to  doubt 
that  the  nation  sought  only  the  abridgment 
of  that  coercive  jurisdiction  and  temporal 
power,  by  which  tlie  bishops  had  forfeited 
the  i-everence  due  to  their  function,  as  well 
as  that  absolute  authority  over  presbyters, 
which  could  not  be  reconciled  to  the  customs 
of  the  primitive  Church. f  This  was  the 
object  both  of  the  act  abolishing  the  High 
Commission,  which,  by  the  largeness  of  its 
expressions,  seemed  to  take  away  all  co- 
ercive jurisdiction  from  the  ecclesiastical 
courts,  and  of  that  for  depriving  the  bishops 
of  their  suffrages  among  the  peers  ;  which, 

*  Lord  Hertford  presented  one  to  the  Lords  from 
Somersetshire,  signed  by  14,350  freeholders  and  in- 
habitants.— Nalson,  ii.,  727.  The  Cheshire  peti- 
tion, for  preserving  the  Common  Prayer,  was  sign- 
ed by  near  10,U00  hands  — Id.,  758.  I  have  a  col- 
lection of  these  petitions  now  before  me,  printed 
in  1642,  from  thirteen  English  and  five  Welsh 
counties,  and  all  very  numerously  signed.  In  al- 
most every  instance,  I  observe,  tliey  thaiik  the 
Parliament  for  putting  a  check  to  innovations  and 
abuses,  while  they  deprecate  the  abolition  of  Epis- 
copacy and  the  Liturgy.  Thus  it  seems  that  the 
Presbyterians  were  very  far  from  ha%-ing  the  na- 
tion on  their  side.  The  following  extract  from  the 
Somersetshire  petition  is  a  good  sample  of  tlie  gen- 
eral tone :  "  For  the  present  government  of  the 
Church  we  are  most  thankful  to  God,  believing  it 
in  our  hearts  to  be  the  most  pious  and  the  wisest 
that  any  people  or  kingdom  upon  earth  hath  been 
withal  since  the  apostles'  days  ;  though  we  may  not 
deny  but,  through  the  frailty  of  men  and  corruption 
of  times,  some  things  of  ill  consequence,  and  other 
needless,  are  stolen  or  thrust  into  it,  which  we 
heartily  wish  may  be  reformed,  and  the  Church  re- 
stored to  its  fonuer  purity.  And,  to  the  end  it 
may  be  the  better  preserved  from  present  and  fu- 
ture innovation,  we  wish  the  wittingly  and  mali- 
ciously guiltj',  of  what  condition  soever  they  be, 
whether  bishops  or  inferior  clergy,  may  receive 
condign  punishment ;  but,  for  the  miscairiage  of 
governors,  to  destroy  tlie  government,  we  trust  it 
shall  never  enter  into  the  boai-ts  of  this  wise  and 
honorable  assembly.'' 

t  The  House  came  to  a  vote  on  July  17,  accord- 
ing to  Whitelock,  p.  46,  in  favor  of  Usher's  scheme, 
that  each  couutj'  should  be  a  diocese,  and  that 
there  should  be  a  governing  college  or  presbytery, 
consisting  of  twelve,  under  the  presidency  of  a 
bishop  :  Sir  E.  Bering  spoke  in  favor  of  this,  though 
his  own  bill  went  much  further. — Nalson,  ii.,  294. 
Neal,  703.  I  can  not  find  the  vote  in  the  Journals ; 
it  passed,  therefore,  I  suppose,  in  the  committee, 
and  was  not  reported  to  the  House. 


Cha.  I.— 1640-42.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


303 


after  being  once  rejected  by  a  largo  majority 
of  the  Lords  in  June,  1641,  passed  into  a 
law  in  the  month  of  February  following,  and 
was  the  latest  concession  that  the  king  made 
before  his  final  appeal  to  arms.* 

This  was  hardly,  perhaps,  a  greater  alter- 
ation of  the  established  Constitution  than 
had  resulted  from  the  suppression  of  the 
monasteries  under  Henry,  when,  by  the  fall 
of  the  mitred  alibots,  the  secular  peers  ac- 
quired a  preponderance  in  number  over  the 
spiritual  which  they  had  not  previously  en- 
joyed.   It  was  supported  by  several  per- 

•  Pari.  Hist.,  774,  794,  817,  910,  1087.  The  Lords 
had  previously  come  to  resolutions,  that  bishops 
should  sit  in  the  House  of  Lords,  but  not  in  the 
privy-council,  nor  be  in  any  commission  of  the 
peace. — Id.,  814. 

The  king  was  very  unwilling  to  give  his  consent 
to  the  hill  excluding  the  bishops  from  Parliament, 
and  was,  of  course,  dissuaded  by  Hyde  from  doing 
so.  He  was  then  at  Newmarket,  on  his  way  to  the 
North,  and  had  nothing  but  war  in  his  head.  The 
queen,  however,  and  Sir  John  Colepepper,  prevail- 
ed on  him  to  consent. — Clarendon,  History,  ii.,  247 
(1826);  Life,  51.  The  queen  could  not  be  expect- 
ed to  have  much  tenderness  for  a  Protestant  epis- 
copacy; and  it  is  to  be  said  in  favor  of  Colepep- 
per's  advice,  who  was  pretty  indifferent  in  eccle- 
siastical matters,  that  the  bishops  had  rendered 
themselves  odious  to  many  of  those  who  wished 
well  to  the  royal  cause.  See  the  very  remarkable 
conversation  of  Hyde  with  Sir  Edward  Vemey, 
who  was  killed  at  the  battle  of  Edgehill,  where 
the  latter  declares  his  reluctance  to  fight  for  the 
bishops,  whose  quan-el  he  took  it  to  be,  though 
bound  by  gratitude  not  to  desert  the  king. — Clar- 
endon's Life,  p.  68. 

This  author  represents  Lord  Falkland  as  having 
been  misled  by  Hampden  to  take  an  unexpected 
part  in  favor  of  the  first  bill  for  excluding  the  bish- 
ops from  Parliament.  "  The  House  was  so  mar- 
velously  delighted  to  see  the  two  inseparable 
friends  divided  in  so  important  a  point,  that  they 
could  not  contain  from  a  kind  of  rejoicing ;  and 
the  more  because  they  saw  Mr.  Hyde  was  much 
surprised  with  the  contradiction,  as  in  truth  he 
was,  having  never  discovered  the  least  inclination 
in  the  other  toward  such  a  comiiliance,"  i.,  413. 
There  is,  however,  an  earlier  speech  of  Falkland 
in  print  against  the  London  petition,  wherein, 
while  objecting  to  the  abolition  of  the  order,  he  in- 
timates his  willingness  to  take  away  their  votes  in 
Parliament,  with  all  other  temporal  authoritj'. — 
Speeches  of  the  Happy  Parliament,  p.  188  (pub- 
lished in  1G41).  Johnstone  of  Wariston  says  there 
were  but  four  or  five  votes  against  taking  away 
civil  places  and  seats  in  Parliament  from  the  bish- 
ops.— Dalrymple's  Memorials,  ii.,  116.  But  in  the 
Journals  of  the  Commons,  10th  of  March,  1640-1,  it 
is  said  to  be  resolved,  after  a  long  and  mature  de- 
bate, that  the  legislative  power  of  bishops  is  a 
hinderance  to  theii-  function. 


sons,  especially  Lord  Falkland,  by  no  means 
inclined  to  subvert  the  Episcopal  discipline  ; 
whether  fi-om  a  hope  to  compromise  better 
with  the  opposite  party  by  this  concession, 
or  from  a  sincere  belief  that  the  bishops 
might  be  kept  better  to  the  duties  of  their 
function  by  excluding  them  from  civil  power. 
Considered  generally,  it  may  bo  reckoned  a 
doubtful  question  in  the  theory  of  our  gov- 
ernment, whether  the  mixture  of  this  ec- 
clesiastical aristocracy  with  the  House  of 
Lords  is  advantageous  or  otherwise  to  the 
public  interests,  or  to  those  of  religion. 
Their  great  revenues,  and  the  precedence 
allotted  them,  seem  naturally  to  place  them 
on  this  level ;  and  the  general  property  of 
the  clergy,  less  protected  than  that  of  other 
classes  against  the  cupidity  of  an  administra- 
tion or  a  faction,  may  perhaps  require  this 
peculiar  security.  In  fact,  the  disposition 
of  the  English  to  honor  the  ministers  of  the 
Church,  as  well  as  to  respect  the  ancient  in- 
stitutions of  their  country,  has  usually  been 
so  powerful,  that  the  question  would  hardly 
have  been  esteemed  dubious  if  the  bishops 
themselves  (I  speak,  of  course,  with  such 
limitations  as  the  nature  of  the  case  requires) 
had  been  at  all  times  sufficiently  studious  to 
maintain  a  character  of  political  independ- 
ence, or  even  to  conceal  a  spirit  of  servility, 
which  the  pernicious  usage  of  continual 
translations  from  one  see  to  another,  bor- 
rowed, like  many  other  parts  of  our  ecclesi- 
astical law,  from  the  most  corrupt  period  of 
the  Church  of  Rome,  has  had  so  manifest 
a  tendency  to  engender.* 

This  spirit  of  ecclesiastical,  rather  than 
civil  democracy,  was  the  first  sign  of  the 
approaching  storm  that  alarmed  the  Hert- 
fords  and  Southamptons,  the  Hydes  and 
Falklands.  Attached  to  the  venerable  church 
of  the  English  Reformation,  they  were  loth 
to  see  the  rashness  of  some  prelates  avenged 
by  her  subversion,  or  a  few  recent  innova- 
tions repressed  by  incomparably  more  es- 
sential changes.  Full  of  regard  for  estab- 
lished law,  and  disliking  the  Puritan  bitter- 
ness, aggravated  as  it  was  by  long  persecu- 
tion, they  revolted  from  the  indecent  devas- 
tation committed  in  churches  by  the  popu- 
lace, and  from  the  insults  which  now  fell  on 
the  conforming  ministers.  The  Lords  early 
distinguished  their  temper  as  to  those  points 
by  an  order  on  the  Ifith  of  January  for  the 

*  [1827,] 


304 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IX. 


performance  of  divine  service  according  to 
law,  in  consequence  of  the  tumults  that  had 
been  caused  by  the  heated  Puritans  under 
pretense  of  abolishing  innovations.  Little 
regard  was  shown  to  this  order;*  but  it  does 
not  appear  that  the  Commons  went  further 
on  the  opposite  side  than  to  direct  some 
ceremonial  novelties  to  be  discontinued,  and 
to  empower  one  of  their  members,  Sir  Rob- 
ert Harley,  to  take  away  all  pictures,  crosses, 
and  superstitious  figures  within  churches  or 
without. f  But  this  order,  like  many  of 
their  other  acts,  was  a  manifest  encroach- 
ment on  the  executive  power  of  the  crown,  t 
It  seems  to  have  been  about  the  time  of 
_  , .       ,    the  summer  recess,  during  the 

Schism  m  the     ,  ■  o 

Constitution-  king's  absence  in  Scotland,  that 
al  party.  ^.j^^  apprehension  of  changes  in 
Church  and  State  far  beyond  what  had  been 
dreamed  of  at  the  opening  of  Parliament, 
led  to  a  final  schism  in  the  Constitutional 
party. §    Charles,  by  abandoning  his  former 

*  "The  higher  House,"  says  BailUe,  "have 
made  an  order,  which  was  read  in  the  churches, 
that  none  presume  of  their  own  head  to  alter  any 
customs  established  by  law :  this  procured  ordi- 
nance does  not  discourage  any  one." — P.  237. 
Some  rioters,  however,  who  had  pulled  down  rails 
about  tlie  altar,  &c.,  were  committed  by  order  of 
the  Lords  in  June. — Nalson,  ii.,  275. 

t  Pari.  Hist.,  868.  By  the  hands  of  this  zealous 
knight  fell  the  beautiful  crosses  at  Charing  and 
Cheap,  to  the  lasting  regret  of  all  faithful  lovers  of 
antiquities  and  architecture. 

t  Pari.  Hist.,  907.  Commons'  Jounials,  Sept.  1, 
1641.  It  was  earned  at  the  time  on  a  division  by 
55  to  37,  that  the  commitee  "  should  propound  an 
addition  to  this  order  for  preventing  all  contempt 
and  abuse  of  the  Book  of  Common  Prayer,  and  all 
tumultuous  disorders  that  might  arise  in  the  Church 
thereupon."  This  is  a  proof  that  the  Church  par- 
ty were  sometimes  victorious  in  the  House.  But 
they  did  not  long  retain  this  casual  advantage  ;  for, 
the  Lords  having  sent  down  a  copy  of  their  order 
of  ICth  January  above  mentiued,  requesting  the 
Commons'  concurrence,  they  resolved,  Sept.  9, 
"  that  the  House  do  not  consent  to  this  order,  it  be- 
ing thought  unreasonable  at  this  time  to  urge  the 
severe  execution  of  the  said  laws."  They  con- 
tented themselves  with  "  expecting  that  the  Com- 
mons of  this  realm  do,  in  the  mean  time,  quietly 
attend  the  reformation  intended,  without  any  tu- 
multuous disturbance  of  the  worship  of  God  and 
peace  of  the  realm." — See  Nalson,  ii.,  434. 

§  May,  p.  75.  See  this  passage,  which  is  very 
judicious.  The  disunion,  however,  had  in  some 
measure  begun  not  long  after  the  meeting  of  Par- 
liament ;  the  court  wanted,  in  December,  1640,  to 
have  given  the  treasurer's  staff  to  Hertford,  whose 
brother  was  created  a  peer  by  the  title  of  Lord 
Seymour.   Bedford  was  the  favorite  with  the  Com- 


advisers,  and  yielding,  with  just  as  much 
reluctance  as  displayed  the  value  of  the  con- 
cession, to  a  series  of  laws  that  abridged  his 
prerogative,  had  recovered  a  good  deal  of  the 
affection  and  confidence  of  some,  and  gained 
from  others  that  sympathy  which  is  seldom 
withheld  from  undeserving  princes  in  their 
humiliation.  Though  the  ill-timed  death 
of  the  Earl  of  Bedford  in  May  had  partly 
disappointed  an  intended  an-angement  for 
bringing  the  popular  leaders  into  oflfice,  yet 
the  appointments  of  Essex,  Holland,  Say, 
iind  St.  John  from  that  party  were  appa- 
rently pledges  of  the  king's  >villingness  to 
select  his  advisers  from  their  ranks,  what- 
ever cause  there  might  be  to  suspect  that 
their  real  influence  over  him  would  be  too 
inconsiderable.*  Those  who  were  still  ex- 
cluded, and  who  distnisted  the  king's  inten- 
tions as  well  toward  themselves  as  the  pub- 
lic cause,  of  whom  Pym  and  Hampden,  with 

mons  for  the  same  office,  and  would  doubtless  have 
been  a  fitter  man  at  the  time,  notwithstanding  the 
other's  eminent  virtues. — Sidney  Letters,  ii.,  665, 
666.  See,  also,  what  BaiUie  says  of  the  introduc- 
tion of  seven  lords,  "  all  Commonwealth's  men," 
into  the  council,  though,  as  generally  happens,  he 
is  soon  discontented  with  some  of  them. — P.  246, 
247.  There  was  even  some  jealousy  of  Say,  as  fa- 
voring Strafford. 

*  Whitelock,  p.  46.  Bedford  was  to  have  been 
lord-treasurer,  with  Pym,  whom  he  had  brought 
into  Parliament  for  Tavistock,  as  his  chancellor  of 
the  Exchequer;  Hollis  secretary  of  state.  Hamp- 
den is  said,  but  not,  perhaps,  on  good  authority,  to 
have  sought  the  office  of  governor  to  the  Prince  of 
Wales,  which  Hume,  not  very  candidly,  brings  as 
a  proof  of  his  ambition.  It  seems  probable  that,  if 
Charles  had  at  that  time  (Maj-,  1641)  carried  these 
plans  into  execution,  and  ceased  to  Usten  to  the 
queen,  or  to  those  persons  about  his  bedchamber 
who  were  perpetuaUj-  leading  him  astray,  he  would 
have  escaped  the  exorbitant  demands  which  were 
afterward  made  upon  him,  and  even  saved  his  fa- 
vorite Episcopacy.  But,  after  the  death  of  the 
Earl  of  Bedford,  who  had  not  been  hostile  to  the 
Church,  there  was  no  man  of  rank  in  that  party 
whom  he  liked  to  trust;  Northumberland  having 
acted,  as  he  thought,  very  ungratefully.  Say  being 
a  known  enemy  to  Episcopacy,  and  Essex,  though 
of  the  highest  honor,  not  being  of  a  capacity  to  re- 
tain much  influence  over  the  leaders  of  the  other 
House.  Clarendon  insinuates  that,  even  as  late 
as  March,  1642,  the  principal  patriots,  with  a  few 
exceptions,  would  have  been  content  with  coming 
themselves  into  power  under  the  king,  and  on  this 
condition  would  have  left  his  remainuig  preroga- 
tive untouched  (ii.,  326).  But  it  seems  more  prob- 
able that,  after  the  accusation  of  the  five  members, 
no  measure  of  this  kind  would  have  been  of  any 
service  to  Charles. 


Cha.  1.-1640-40] 


FEOM  HEXEY  VIL  TO  GEOEGE  II. 


305 


the  assistance  of  St.  John,  though  actually 
solicitor-general,  were  the  chief,  found  uo 
better  means  of  keeping  alive  the  animosity 
that  was  beginning  to  subside  than  by  fram- 
ing the  Remonstrance  on  the  State  of  the 
Kingdom,  presented  to  the  king  in  Novem- 
ber, 1641.  This  being  a  recapitulation  of 
„  all  the  gi-ievances  and  misgov- 

of  November,  ernment  that  had  existed  since 
his  accession,  which  his  acqui- 
escence in  so  many  measures  of  redress 
ought,  according  to  the  conmiou  courtesy 
due  to  sovereigns,  to  have  canceled,  was 
haixlly  capable  of  answering  any  other  pur- 
pose than  that  of  reanimating  discontents 
almost  appeased,  and  guarding  the  people 
against  the  conlidence  they  were  beginning 
to  place  in  the  king's  sincerity.  The  pro- 
moters of  it  might  also  hope,  from  Chai-les's 
proud  and  hasty  temper,  that  he  would  re- 
ply in  such  a  tone  as  would  more  exasperate 
the  Commons.  But  he  had  begun  to  use 
the  advice  of  judicious  men,  Falkland,  Hyde, 
and  Colepepper,  and  reined  in  his  natural 
violence  so  as  to  give  his  enemies  no  ad- 
vantage over  him. 

The  jealousy  which  nations  ought  never 
to  jay  aside  was  especially  requhed  toward 
Charles,  whose  love  of  arbitrary  dominion 
was  much  better  proved  than  his  sincerity 
in  relinquishing  it.  But  if  he  were  intended 
to  reign  at  all,  and  to  reign  with  any  portion 
either  of  the  prerogatives  of  an  English 
king,  or  the  respect  claimed  by  every  sover- 
eign, the  Remonstrance  of  the  Commons 
could  but  prolong  an  iri-itation  incompatible 
with  public  tranquiUity.  It  admits,  indeed, 
of  no  question,  that  the  schemes  of  Pyra, 
Hampden,  and  St.  John  already  tended  to 
restrain  the  king's  personal  exercise  of  any 
effective  power,  from  a  sincere  persuasion 
that  no  confidence  could  ever  be  placed  in 
him,  though  not  to  abolish  the  monarchy,  or 
probablj-  to  abridge  in  the  same  degree  the 
rights  of  his  successor.  Their  Remon- 
strance was  put  forward  to  stem  the  return- 
ing tide  of  loyalty,  which  not  only  threatened 
to  obsti-uct  the  further  progi-ess  of  their  en- 
deavors, but,  as  they  would  allege,  might, 
by  gaining  strength,  wash  away  some,  at 
least,  of  the  bulwarks  that  had  been  so  re- 
cently constructed  for  the  preservation  of 
liberty.  It  was  caiTied  in  a  full  house  by 
the  small  majority  of  159  to  148.*  So  much 


*  Commons'  Joumals,  22d  November.    On  a 

u 


j  was  it  deemed  a  trial  of  sti-ength,  that  Croni- 

second  division  the  same  night,  whether  the  Re- 
'  monstrance  should  be  printed,  the  popular  side  lost 
I  it  by  124  to  101 ;  but  on  the  loth  of  December  the 
i  printing  was  carried  by  135  to  63.    Several  divis- 
j  ions  on  important  subjects  about  this  time  show 
'  that  the  Ro3alist  minority  was  very  formidable; 
!  but  the  attendance,  especially  on  that  side,  seems 
I  to  have  been  irregrular ;  and  in  general,  when  we 
j  consider  the  immense  importance  of  these  debates, 
I  we  are  surprised  to  find  the  House  so  deficient  in 
I  numbers  as  many  divisions  show  it  to  liave  been. 
,  Clarendon  frequently  complains  of  the  sapineuess 
!  of  his  party ;  a  fault  invariably  imputed  to  their 
friends  by  the  zealous  supporters  of  estabhshed 
authority-,  who  forget  that  sluggish,  lukewarm,  and 
j  thoughtless  tempers  must  always  exist,  and  that 
I  such  will  naturally  belong  to  their  side.    I  find  in 
the  short  pencil  notes  taken  by  Sir  Ralph  Vemey, 
with  a  copy  of  which  I  have  been  favored  by  Mr. 
Sergeant  D'Oyly,  the  following  entrj'  on  the  7th 
of  August,  before  the  king's  journey  to  Scotland: 
"A  remonstrance  to  be  made  how  we  found  the 
kingdom  and  the  Church,  and  how  the  state  of  it 
now  stands."    This  is  not  adverted  to  in  Xalson, 
nor  in  the  Journals  at  this  time ;  but  Clarendon 
sajs,  in  a  suppressed  passage,  vol.  ii.,  Append., 
591,  that  "  at  the  beginning  of  the  Parliament,  or 
shortly  after,  when  all  men  were  inflamed  with 
the  pressures  and  illegalities  which  had  been  ex- 
ercised upon  them,  a  committee  was  appointed  to 
prepare  a  remonstrance  of  the  state  of  the  king- 
dom, to  be  presented  to  his  majesty,  in  which  the 
several  grievances  might  be  recited,  which  com- 
mittee had  never  brought  any  report  to  the  House ; 
most  men  conceiWug,  and  verj-  reasonably,  that 
the  quick  and  effectual  progress  his  majesty  made 
for  the  reparation  of  those  grievances,  and  pre- 
vention of  the  like  for  the  future,  had  rendered  that 
work  needless.    But  as  soon  as  the  intelligence 
came  of  his  majesty  being  on  his  way  from  Scot- 
laud  toward  London,  that  committee  was,  with 
great  earnestness  and  importunity,  called  upon  to 
bring  in  the  draft  of  such  remonstrance,"  &c.  I 
find  a  slight  notice  of  this  origin  of  the  remonstrance 
in  the  Journals,  Nov.  17,  1640. 

In  another  place,  also  suppressed  in  the  com- 
mon editions.  Clarendon  says  :  "  This  debate  held 
many  hours,  in  which  the  framers  and  contrivers  of 
the  declaration  said  very  little,  or  answered  any 
reasons  that  were  alleged  to  the  contrarj- ;  the 
only  end  of  passing  it,  which  was  to  incline  the 
people  to  sedition,  being  a  reason  not  to  be  given; 
but  called  still  for  the  question,  presmning  their 
number,  if  not  their  reason,  would  ser\-e  to  carry 
it ;  and  after  two  in  the  morning  (for  so  long  the 
debate  continued,  if  that  can  be  called  a  debate 
when  those  only  of  one  opinion  argued),  &c.,  it 
was  put  to  the  question."  What  a  strange  mem- 
ory this  author  had !  I  have  now  before  me  Sir 
Ralph  Vemey's  MS.  note  of  the  debate,  whence 
it  appears  that  Pjto,  Hampden,  Hollis,  Glyn,  and 
Maynard  spoke  in  favor  of  the  Remonstrance  ;  nay, 
as  far  as  these  brief  memoranda  go,  Hyde  himself 
seems  not  to  have  warmly  opposed  it. 


306 


CONSTITUTIONAL  HISTOB,Y  OF  ENGLAND 


[Chap.  IX. 


well  declared  after  the  division  that,  had  the 
question  been  lost,  he  would  have  sold  his 
estate  and  retired  to  America. 

It  may  be  thought  rather  surprising  that. 
Suspicions  ^vith  a  House  of  Commons  so 
of  the  king's  nearly  balanced  as  they  appear  on 
sincerity.  ^j^.^  vote,  the  king  should  have 
new  demands  that  annihilated  his  authority 
made  upon  him,  and  have  found  a  greater 
majority  than  had  voted  the  Remonstrance 
ready  to  oppose  him  by  arms,  especially  as 
that  paper  contained  little  but  what  was 
true,  and  might  rather  be  censured  as  an 
ill-timed  provocation  than  an  encroachment 
on  the  Constitutional  prerogative.  But  there 
were  circumstances,  both  of  infelicity  and 
misconduct,  which  aggi'avated  that  distrust 
whereon  every  measure  hostile  to  him  was 
grounded.  His  imprudent  connivance  at 
popery,  and  the  far  more  reprehensible  en- 
couragement given  to  it  by  his  court,  had 
sunk  deep  in  the  hearts  of  his  people.  His 
ill-wishers  knew  how  to  in-itate  the  char- 
acteristic sensibility  of  the  English  on  this 
topic.  The  queen,  unpopular  on  the  score 
of  her  imputed  arbitrary  counsels,  was  odi- 
ous as  a  maintainer  of  idolatry.*  The  lenity 
shown  to  convicted  popish  priests,  who, 
though  liable  to  capital  punishment,  had 
been  suffered  to  escape  with  sometimes  a 
very  short  imprisonment,  Avas  naturally  (ac- 
cording to  the  maxims  of  those  times) 
treated  as  a  gi'ievance  by  the  Commons, 
who  petitioned  for  the  execution  of  one 
Goodman  and  others  in  similar  circumstan- 
ces, perhaps  in  the  hope  that  the  king  would 
attempt  to  shelter  them.  But  he  dexter- 
ously left  it  to  the  House  whether  they 


*  The  letters  of  Sir  Edward  Nicholas,  published 
as  a  supplement  to  Eveljni's  Diary,  show  how  gen- 
erally the  apprehensions  of  popish  influence  were 
entertained.  It  is  well  for  superficial  pretenders 
to  lay  these  on  calumny  and  misrepresentation ; 
but  such  as  have  read  our  historical  documents 
Tsnow  that  the  Hoyalists  were  almost  as  jealous  of 
the  king  in  this  respect  as  the  Puritans.  See  what 
Nicholas  says  to  the  king  himself,  p.  22,  05,  29.  In- 
deed, he  gives  several  hints  to  a  discerning  reader 
that  lie  was  not  satisfied  with  the  soundness  of  the 
king's  intentions,  especially  as  to  O'Neale's  tam- 
pering with  the  army,  p.  77.  Nicholas,  however, 
became  afterward  a  very  decided  supporter  of  the 
royal  cause ;  and  in  the  council  at  Oxford,  just  be- 
fore the  treaty  of  Uxbridge,  was  the  only  one  who 
voted  according  to  the  king's  wish,  not  to  give  the 
members  at  Westminster  the  appellation  of  a  Par- 
liament.—P.  90. 


I  should  die  or  not ;  and  none  of  them  ac- 
tually suffered.*  Rumors  of  pretended  con- 
spiracies by  the  Catholics  were  perpetually 
in  circulation,  and  rather  unworthily  en- 
couraged by  the  chiefs  of  the  Commons. 
More  substantial  motives  for  alarm  appeared 
to  arise  from  the  obscure  ti-ansaction  in  Scot- 
land, commonly  called  the  Incident,  which 
looked  so  like  a  concerted  design  against  the 
two  great  leaders  of  the  Constitutional  par- 
ty, Hamilton  and  Argyle,  that  it  was  not  un- 
natural to  anticipate  something  similar  ia 
England. f  In  the  midst  of  these  appre- 
hensions, as  if  to  justify  every  suspicion  and 
every  severity,  burst  out  the  Irish  Rebell- 
ion with  its  attendant  massacre.  Though 
nothing  could  be  more  unlikely  in  itself,  or 
less  supported  by  proof,  than  the  king's  con- 
nivance at  this  calamity,  from  which  every 
man  of  common  understanding  could  only 
expect,  wliat  actually  resulted  from  it,  a 
terrible  aggravation  of  his  difficulties,  yet, 
with  that  distrustful  temper  of  the  English, 
and  their  jealous  dread  of  popery,  he  was 
never  able  to  conquer  their  suspicions  that 
he  had  either  instigated  the  rebellion,  or 
was  very  little  solicitous  to  suppress  it ;  sus- 
picions indeed,  to  which,  however  unground- 
ed at  this  particular  period,  some  circum- 
stances that  took  place  afterward  gave  an 
api)arent  confirmation. t 

*  The  king's  speech  about  Goodman,  Baillie 
tells  us,  gave  great  satisfaction  to  all ;  "  with  much 
humming  was  it  received."^ — -P.  240.  Goodman 
petitioned  the  House  that  be  might  be  executed 
rather  than  become  the  occasion  of  differences  be- 
tween the  king  and  Parliament.  This  was  earlier 
in  time,  and  at  least  equal  in  generosity,  to  Lord 
Strafford's  famous  letter ;  or  perhaps  rather  more 
so,  since,  though  it  turned  oat  otherwise,  he  had 
greater  reason  to  expect  that  he  should  be  taken 
at  his  word.  It  is  remarkable,  that  the  king  sa.ys 
in  his  answer  to  the  Commons,  that  no  priest  had 
been  executed  merely  for  religion  either  by  his 
father  or  Elizabeth,  which,  though  well  meant, 
was  quite  untrue.— Pari.  Hist,  712.    Butler,  ii.,  5. 

t  See  what  Clarendon  says  of  the  effect  pro- 
duced at  Westminster  by  the  Incident,  in  one  of 
the  suppressed  passages. — Vol.  ii.,  Append.,  p. 
575,  edit.  1826. 

X  Nalson,  ii.,  788,  792,  804.  Clarendon,  ii.,  Bi. 
The  queen's  behavior  had  been  extraordinarily  im- 
prudent from  the  very  beginning.  So  early  as  Feb. 
17,  1641,  the  French  ambassador  writes  word: 
"La  reine  d'Augleterre  dit  publiquement  qu'il  y  a 
une  treve  arrestee  pom-  trois  ans  entre  la  France 
et  I'Espagne,  et  que  ces  deux  couronnes  vont  onir 
leurs  forces  po'jr  la  defendre  et  pour  venger  les 
Cutholiques." — Mazure,  Hist,  de  la  Revol.  eu  1683, 


Cha.  I.— 1640-42.] 


FROM  HENRY  VII.  TO  GEORGE  H. 


307 


It  was,  perhaps,  hardly  practicable  for  the 
king,  had  he  given  less  real  excuse  for  it 
than  he  did,  to  lull  that  disquietude  which 
so  many  causes  operated  to  excite.  The 
most  circumspect  discretion  of  a  prince  in 
such  a  difficult  posture  can  not  restrain  the 
rashness  of  eager  adherents,  or  silence  the 
murniure  of  a  discontented  court.  Those 
nearest  Charles's  person,  and  who  always 
possessed  too  much  of  his  confidence,  were 
notoriously  and  naturally  averse  to  the  re- 
cent changes.  Their  threatening  but  idle 
speeches,  and  impotent  denunciations  of  re- 
sentment, conveyed  with  malignant  exag- 
geration among  the  populace,  provoked  those 
tumultuous  assemblages,  which  afforded  the 
king  no  bad  pretext  for  withdrawing  him- 
self from  a  capital  where  his  personal  dig- 
nity was  so  little  respected.*  It  is  impos- 
sible, however,  to  deny,  that  he  gave  by  his 
own  conduct  no  trifling  reasons  for  sus- 
picion, and  last  of  all  by  the  appointment  of 
Lunsford  to  the  government  of  the  Tower ; 
a  choice  for  which,  as  it  would  never  have 
been  made  from  good  motives,  it  was  nat- 
ural to  seek  the  worst.  But  the  single  false 
stepf  which  rendered  his  affairs  irretrieva- 

ii.,  419.  She  was  very  desirous  to  go  to  France, 
doubtless  to  interest  her  brother  and  the  queen  in 
the  cause  of  royalty.  Lord  Holland,  who  seems 
to  have  been  the  medium  between  the  Parliament- 
ary chiefs  and  the  French  court,  signified  how 
much  this  would  be  dreaded  by  the  former ;  and 
Richelieu  took  care  to  keep  her  away,  of  which 
she  bitterly  complained.  This  was  in  Febmary. 
Her  majesty's  letter,  which  M.  Mazure  has  been 
malicious  enough  to  print  verbatim,  is  a  curious 
specimen  of  orthography. — Id.,  p.  416.  Her  own 
party  were  equally  averse  to  this  step,  wliieh  was 
chiefly  the  effect  of  cowardice;  for  Henrietta  was 
by  no  means  the  high  spirited  woman  that  some 
have  fancied.  It  is  well  known  that  a  few  months 
afterward  she  pretended  to  require  the  waters  of 
Spa  for  her  health,  but  was  induced  to  give  up  her 
journey. 

*  Clarendon,  ii.,  81.  This  writer  intimates  that 
the  Tower  was  looked  upon  by  the  court  as  a  bri- 
dle upon  the  city. 

t  Nalson,  ii.,  810,  and  other  writers,  ascribe  this 
accusation  of  Lord  Kimbolton  in  the  Peers,  and  of 
the  five  members,  as  they  are  commonly  called, 
Pym,  HoUis,  Hampden,  Hazlerig,  and  Strode,  to 
secret  information  obtained  by  the  king  in  Scotland 
of  their  former  intrigues  with  that  nation.  This  is 
rendered  in  some  measure  probable  by  a  part  of 
the  written  charge  preferred  by  the  attorney-gen- 
eral before  the  House  of  Lords,  and  by  expressions 
that  fell  from  the  king,  such  as,  "  it  was  a  treason 
which  they  should  all  thank  him  for  discovering." 
Clarendon,  however,  hardly  hints  at  this;  and 


ble  by  any  thing  short  of  civil  war,  and 
placed  all  reconciliation  at  an  insuperable 

gives,  at  least,  a  hasty  reader  to  understand  that 
the  accusation  was  solely  grounded  on  their  Par- 
liamentary conduct.  Probably  he  was  aware  that 
the  Act  of  Oblivion  passed  last  year  afforded  a  suf- 
ficient legal  defense  to  the  charge  of  corresponding 
with  the  Scots  in  1G40.  In  my  judgment,  they  had 
an  abundant  justification  in  the  eyes  of  their  coun- 
ti'y  for  intrigues  which,  though  legally  treasonable, 
had  been  the  means  of  overtlirowing  despotic 
power.  The  king  and  courtiers  had  been  elated 
by  the  applause  he  received  when  he  went  into 
the  city  to  dine  with  the  lord-mayor  on  his  return 
from  Scotland ;  and  Madame  de  Motteville  says 
plainly,  that  he  detennined  to  avail  himself  of  it  iu 
order  to  seize  the  leaders  in  Parliament  (i.,  264). 

Nothing  coulil  be  more  irregular  than  the  mode 
of  Chai-les's  proceedings  m  this  case.  He  sends  a 
message  by  the  sergeant  at  arms  to  require  of  the 
speaker  that  five  members  should  be  given  up  to 
him  on  a  charge  of  high  treason ;  no  magisti-ate'a 
or  counselor's  waiTant  appeared ;  it  was  the  king 
acting  singly,  without  the  intervention  of  the  law. 
It  is  idle  to  allege,  like  Clarendon,  that  privilege 
of  Parliament  does  not  extend  to  treason  ;  the 
breach  of  privilege,  and  of  all  Constitutional  law, 
was  in  the  mode  of  proceeding.  In  fact,  the  king 
was  guided  by  bad  private  advice,  and  cared  not 
to  let  any  of  his  privy-council  know  his  intention, 
lest  he  should  encounter  opposition. 

The  following  account  of  the  king's  coming  to 
the  House  on  this  occasion  is  copied  from  the  pen- 
cil notes  of  Sir  R.  Vemey.  It  has  been  already 
printed  by  Mr.  Hatsell  (Precedents,  iv.,  106),  but 
with  no  great  coirectness.  What  Sir  R.  V.  says 
of  the  transactions  of  Jan.  3  is  much  the  same  as 
we  read  in  the  Journals.  He  thus  proceeds : 
"Tuesday,  Januaiy  4,  1641.  The  five  gentlemen 
which  were  to  be  accused  came  into  the  House, 
and  there  was  information  that  they  should  be  tak- 
en away  by  force.  Upon  this  the  House  sent  to 
the  lord-mayor,  aldermen,  and  common  council,  to 
let  them  know  how  their  privileges  were  likely  to 
be  broken,  and  the  city  put  into  danger,  and  advis- 
ed them  to  look  to  their  security. 

"  Likewise  some  members  were  sent  to  the  Inns 
of  Court,  to  let  them  know  how  they  heard  they 
were  tampered  withal  to  assist  the  king  against 
them,  and  therefore  they  desired  them  not  to  come 
to  Westminster. 

"  Then  the  House  adjourned  to  one  of  the  clock. 

"As  soon  as  the  House  met  again,  it  was  mov- 
ed, considering  there  was  an  intention  to  take  these 
five  members  away  by  force,  to  avoid  all  tumult, 
let  them  be  commanded  to  absent  themselves ; 
upon  this  the  House  gave  them  leave  to  absent 
themselves,  but  entered  no  order  for  it ;  and  then 
the  five  gentlemen  went  oat  of  the  House. 

"  A  Uttle  after,  the  king  came  with  all  his  guard, 
and  all  his  pensioners,  and  two  or  throe  hundred 
soldiers  and  gentlemen.  The  king  commanded  the 
soldiers  to  stay  in  the  hall,  and  sent  us  word  he 
was  at  the  door.  The  speaker  was  commanded  to 
sit  still,  with  the  mace  lymg  before  him ;  and  then 


308 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap,  IX 


distance,  was  his  attempt  to  seize  the  five 
members  within  the  waUs  of  the  House ; 
an  evident  violation,  not  of  common  privi- 
lege, but  of  all  secmity  for  the  independent 
existence  of  Parliament  in  the  mode  of  its 
execution,  and  leading  to  a  very  natural, 
though  perhaps  mistaken  sunnise,  that  the 
charge  itself  of  high  treason  made  against 
these  distinguished  leaders,  without  com- 
municating any  of  its  gi'ounds,  had  no  other 
the  king  came  to  tlie  door,  and  took  tbe  palsgrave 
in  with  him,  and  commanded  aU  that  came  with 
him  upon  their  lives  not  to  come  in.  So  the  doors 
were  kept  open,  and  the  Earl  of  Roxbm-gh  stood 
within  the  door,  leaning:  upon  it.  Then  the  king 
came  upward  toward  the  chair  with  his  hat  off,  and 
the  speaker  stepped  out  to  meet  him;  then  the 
kuig  stepped  up  to  his  place,  and  stood  upon  the 
step,  hut  sat  not  down  in  the  chair. 

'•  And  after  he  had  looked  a  great  while,  he  told 
us  he  would  not  break  our  privileges,  but  treason 
had  no  privilege ;  be  came  for  those  five  gentle- 
men, for  he  expected  obedience  yesterday,  and 
not  an  answer.  Then  he  called  Mr.  Pym  and  Mr. 
Hollis  by  name,  but  no  answer  was  made.  Then 
he  asked  the  speaker  if  they  were  here,  or  where 
they  were  ?  Upon  this,  the  speaker  fell  on  his 
knees,  and  desired  his  excuse,  for  he  was  a  servant 
to  the  House,  and  had  neither  eyes  nor  tongue  to 
Bee  or  say  any  thing  but  what  they  commanded 
him :  then  the  king  told  him  he  thought  his  own 
eyes  were  as  good  as  his,  and  then  said  his  birds 
had  fiown,  but  he  did  expect  the  House  should 
send  them  to  him ;  and  if  they  did  not,  he  would 
seek  them  himself,  for  then-  treason  was  foul,  and 
such  a  one  as  they  would  all  thank  him  to  discover: 
then  he  assured  us  they  should  have  a  fair  trial ; 
and  so  went  out,  pulling  off  his  hat  till  he  came  to 
the  door. 

"  Upon  tliis,  the  House  did  instantly  resolve  to 
adjourn  till  to-mon-ow  at  one  of  the  clock,  and  in 
the  interim  they  might  consider  what  to  do. 

"Wednesday,  5th  Januaiy,  1641. 

"  The  House  ordered  a  committee  to  sit  at  GuUd- 
hall  in  London,  and  all  that  would  come  had  voices. 
This  was  to  consider  and  advise  how  to  right  the 
House  in  point  of  privilege  broken  by  the  king's 
coming  yesterday  with  a  force  to  take  members 
out  of  our  House.  They  allowed  the  Irish  commit- 
tee to  sit,  but  would  meddle  with  no  other  business 
tiU  this  were  ended ;  they  acquainted  the  Lords 
in  a  message  with  what  they  had  done,  and  then 
they  adjom-ued  the  House  till  Tuesday  next." 

The  author  of  these  memoranda  in  pencil,  which 
extend,  at  intervals  of  time,  from  the  meeting  of 
the  Parliament  to  April,  1642,  though  mistaken  by 
Mr.  Hatsell  for  Sir  Edmund  Veniey,  member  for 
the  county  of  Bucks,  and  killed  at  the  battle  of 
Edgehill,  has  been  ascertained  by  my  leained 
friend,  Mr.  Sergeant  D'Oyly,  to  be  his  brother.  Sir 
Ralph,  member  for  Aylesbun,-.  He  continued  at 
Westminster,  and  took  the  Coveuant;^  but  after- 
ward retired  to  France,  and  was  disabled  to  sit  by 
a  vote  of  the  House,  Sept.  22,  1645. 


I  foundation  than  their  Parliamentaiy  con- 
duct ;  and  we  are,  in  fact,  wairanted  by  the 
authority  of  the  queen  herself  to  assert,  that 
their  aim  in  this  most  secret  enterprise  was 
to  strike  terror  into  the  Parliament,  and  re- 
gain the  power  that  had  been  wrested  from 
their  grasp.*  It  is  unnecessary  to  dwell  on 
a  measure  so  well  known,  and  which  scarce 
any  of  the  king's  advocates  have  defended. 
The  onlj-  material  subject  it  aflbrds  for  re- 
flection is,  how  far  the  manifest  hostiUty  of 
Charles  to  the  popular  chiefs  might  justify 
them  in  rendering  it  harmless  by  wresting 
the  sword  out  of  his  hands.  No  man,  doubt- 
less, has  a  right,  for  the  sake  only  of  his 
own  security,  to  subvert  his  countrj-'s  laws, 
or  to  plunge  her  into  civil  war.  But  Hamp- 
den, Hollis,  and  Pym  might  not  absurdly 
consider  the  defense  of  English  freedom 
bound  up  in  their  own,  assailed  as  they 
were  for  its  sake  and  by  its  enemies.  It  is 
observed  by  Clarendon,  that  "  Mr.  Hamp- 
den was  much  altered  after  this  accusation, 
liis  nature  and  courage  seeming  much  fiercer 
than  before  :"  and  it  is  certain  that  both  he 
and  Mr.  Pym  were  not  only  most  forward 
in  all  the  proceedings  which  brought  on  the 
war,  but  among  the  most  implacable  oppo- 
nents of  all  oveitures  toward  reconciliation  ; 
so  that  although,  both  dying  in  1643,  we 
can  not  pronounce  with  absolute  certainty 
as  to  their  views,  there  can  be  little  room 
to  doubt  that  they  would  have  adhered  to 
the  side  of  Cromwell  and  St.  John  in  the 
gi  eat  separation  of  the  Parliamentary  party. 

The  noble  historian  confesses  that  not 
Hampden  alone,  but  the  generality  of  those 
who  were  beginning  to  judge  more  favora- 
bly of  the  king,  had  their  inclinations  alien- 
ated by  this  fatal  act  of  violence.!  It  is 
worthj-  of  remark,  that  each  of  the  two  most 
striking  encroachments  on  the  king's  pre- 

*  Mem.  de  Motteville,  i.,  264.  Clarendon  has 
hardly  been  ingenuous  in  throwing  so  much  of  the 
blame  of  this  affair  on  Lord  Digby.  Indeed,  he 
insinuates  in  one  place  that  the  queen's  apprehen- 
sion of  being  impeached,  with  which  some  one  in 
the  confidence  of  the  Pai-liamentarj-  leaders  (either 
Lord  Holland  or  Lady  Carlisle)  had  inspired  her, 
led  to  the  scheme  of  anticipating  them  (ii.,  232).  It 
has  been  generally  supposed  that  Lady  Carlisle 
gave  the  five  members  a  hint  to  absent  themselves. 
The  French  ambassador,  however,  Montreuil,  takes 
the  credit  to  himself:  " J'avois  prevenu  mes  amis, 
et  ils  s'etoient  mis  en  surete.'' — Mazure,  p.  429. 
It  is  probable  that  he  was  in  communication  with 
that  intriguing  lady.  t  P.  159,  180. 


Cha.  I.— 1640-42.] 


PROM  HENRY  VII.  TO  GEORGE  II. 


309 


rogative  sprang  directly  from  the  suspicions 
roused  of  an  intention  to  destroy  their  priv- 
ileges :  the  bill  perpetuating  the  Parlia- 
ment having  been  hastily  passed  on  the  dis- 
covery of  Percy's  and  .Jennyn's  conspiracy, 
and  the  present  attempt  on  the  five  mem- 
bers inducing  the  Commons  to  insist  peremp- 
Question  of  torily  ou  vesting  the  command  of 
the  mihtia.  {j^g  njiiitia  in  persons  of  their  own 
nomination ;  a  security,  indeed,  at  which 
they  had  been  less  openly  aiming  from  the 
time  of  that  conspiracy,  and  particularly  of 
late.*    Every  one  knows  that  this  was  the 

*  The  earliest  proof  that  the  Commons  gave  of 
their  intention  to  take  the  miUtia  into  their  hands 
was  immediately  upon  the  discovery  of  Percy's 
plot,  5th  of  May,  1641,  when  au  order  was  made 
that  the  members  of  each  coauty,  &c.,  should  meet 
to  oonsider  in  what  state  the  places  for  which  they 
serve  are  in  respect  of  arms  and  ammunition,  and 
whether  the  deputj"-lieutenauts  and  lord-lieuten- 
ants are  persons  well  aS'ected  to  the  religion  and 
the  public  peace,  and  to  present  their  names  to  the 
House,  and  who  are  the  governors  of  forts  and  cas- 
tles ill  their  counties. — Commons'  Journals.  Not 
long  afterward,  or  at  least  before  the  king's  jonmey 
to  Scotland,  Sir  Arthur  Hazlerig,  as  Clarendon  in- 
forms us,  proposed  a  biU  for  settling  the  militia  in 
such  hands  as  they  should  uonimate,  which  was 
seconded  by  St.  John,  and  read  once,  "but  with  so 
iiniversal  a  dislike,  that  it  was  never  called  upon 
a  second  time." — Clarendon,  i.,  488.  I  can  find 
nothing  of  this  in  the  Journals,  and  believe  it  to  be 
one  of  the  anachronisms  into  which  this  author  has 
fallen,  in  consequence  of  writing  at  a  distance  from 
authentic  materials.  The  bill  to  which  he  alhides 
must,  I  conceive,  be  that  brought  in  by  Hazlerig 
long  after,  7th  of  Dec,  1641,  not,  as  he  terms  it,  for 
settling  the  militia,  but  for  making  certain  persons, 
leaving  their  names  in  blank,  "  lords-general  of  all 
the  forces  within  England  and  Wales,  and  lord-ad- 
miral of  England."  The  persons  intended  seem  to 
have  been  Essex,  Holland,  and  Northumberland. 
The  Commons  had  for  some  time  planned  to  give 
the  two  former  earls  a  supreme  command  over  the 
trained  bajids  north  and  south  of  Trent  (Journals, 
Nov.  15  and  16),  which  was  afterward  changed 
into  the  scheme  of  lord-lieutenants  of  their  own 
nomination  for  each  countj'.  The  bill  above  men- 
tioned having  been  once  read,  it  was  moved  that 
it  be  rejected,  which  was  negatived  by  158  to  125. 
— Commons'  Journals,  7th  of  Dec.  Nalson,  ii.,  719, 
has  made  a  mistake  about  these  numbers.  The 
bill,  however,  was  laid  aside,  a  new  plan  having 
been  devised.  It  was  ordered,  31st  of  Dec,  1641, 
"  that  the  House  be  resolved  into  a  committee  ou 
Monday  next  (Jan.  3),  to  take  into  consideration 
the  militia  of  the  kingdom."  That  Monday,  Jan. 
3,  was  the  famous  day  of  the  king's  message  about 
the  five  members ;  and  on  Jan.  13,  a  declaration 
for  putting  the  kingdom  in  a  state  of  defense  pass- 
ed the  Commons,  by  which  "  all  olBcers,  magis- 
trates, &c.,  were  enjoined  to  take  care  that  no 


grand  question  upon  which  the  quarrel 
finally  rested  ;  but  it  may  be  satisfactoiy  to 
show,  more  precisely  than  our  historians 
have  generally  done,  what  was  meant  by 
the  power  of  the  militia,  and  what  was  the 
exact  ground  of  dispute  in  this  respect  be- 
tween Charles  I.  and  his  Parliament. 

The  military  force  which  our  ancient 
Constitution  had  placed  in  the  jjistorical 
hands  of  its  chief  magistrate  and  sketch  of  the 
those  deriving  authority  from  furcem''EDg- 
him,  may  be  classed  under  two 
descriptions :  one  principally  designed  to 
maintain  the  king's  and  the  nation's  rights 
abroad,  the  other  to  protect  them  at  home 
from  attack  or  disturbance.  The  first  com- 
prehends the  tenures  by  knight's  service, 
which,  according  to  the  constant  principles 
of  a  feudal  monarchy,  bound  the  owners  of 
lands  thus  held  from  the  crown  to  attend 
the  king  in  war,  within  or  without  the  realm, 
mounted  and  armed,  during  the  regular 
term  of  service.  Their  own  vassals  were 
obliged  by  the  same  law  to  accompany  them. 
But  the  feudal  service  was  limited  to  forty 
days,  beyond  which  time  they  could  be  re- 
tained only  by  their  own  consent,  and  at  the 
king's  expense.  The  military  tenants  were 
frequently  called  upon  in  expeditions  against 
Scotland,  and  last  of  nil  in  that  of  1640  ;  but 
the  short  duration  of  their  legal  service 
rendered  it,  of  course,  nearly  useless  in  Con- 
tinental warfare.  Even  when  they  formed 
the  battle,  or  line  of  heavy-armed  cavalry, 
it  was  necessary  to  complete  the  army  by- 
recruits  of  foot-soldiers,  whom  feudal  tenure 
did  not  regularly  supply,  and  whose  import- 
ance was  soon  made  sensible  by  their  skill 
in  our  national  weapon,  the  bow.  What 
was  the  extent  of  the  king's  lawful  prerog- 
ative for  two  centuries  or  more  after  the 
conquest  as  to  compelling  any  of  his  sub- 
jects to  serve  him  in  foreign  war,  independ- 
ently of  the  obligations  of  tenure,  is  a  ques- 
tion scarcely  to  be  answered ;  since,  know- 
ing so  imperfectly  the  boundaries  of  Con- 
soldiers  be  raised,  nor  any  castles  or  arms  given 
up,  wilhoid  his  majesty's  pleasure,  sigriificd  by  both 
houses  of  Parliament." — Commons'  Journals.  Pari. 
Hist,  1035.  The  Lords  at  the  time  refused  to  con- 
cur in  this  declaration,  which  was  afterward  changed 
into  the  ordinance  for  the  militia;  but  32  peers  sign- 
ed a  protest,  id.,  1049,  and  the  House  not  many 
days  afterward  came  to  an  opposite  vote,  joining 
with  the  Commons  in  their  demand  of  the  miUtia. 
—Id.,  1072,  1091. 


310 


CONSTITUTIONAL  HISTORY  OF  ENOLAND 


[Chap.  IX. 


stitutional  law  in  that  period,  we  have  little 
to  guide  us  but  precedents  ;  and  precedents, 
in  such  times,  are  apt  to  be  much  more 
records  of  power  than  of  right.  We  find 
certainly  several  instances  under  Edward  I. 
and  Edward  II.,  sometimes  of  proclama- 
tions to  the  sheriffs,  directing  them  to  notify 
to  all  persons  of  sufficient  estate  that  they 
must  hold  themselves  ready  to  attend  the 
king  whenever  he  should  call  on  them, 
sometimes  of  commissions  to  particular  per- 
sons in  different  counties,  who  are  enjoined 
to  choose  and  an-ay  a  competent  number 
of  horse  and  foot  for  the  king's  service.* 
But  these  levies  being  of  course  vexatious 
to  the  people,  and  contraiy,  at  least,  to  the 
spii'it  of  those  immunities  which,  under  the 
shadow  of  the  Great  Charter,  they  were 
entitled  to  enjoy,  Edward  III.,  on  the  pe- 
tition of  his  first  Parliament,  who  judged 
that  such  compulsoiy  sei-vice  either  was  or 
ought  to  be  rendered  illegal,  passed  a  re- 
markable act,  with  the  simple  brevity  of 
those  times :  "  That  no  man  from  hence- 
forth should  be  charged  to  arm  himself 
otherwise  than  he  was  wont  in  the  time  of 
his  progenitors,  the  kings  of  England  ;  and 
that  no  man  be  compelled  to  go  out  of  his 
shire  but  where  necessity  requireth,  and 
sudden  coming  of  sti-ange  enemies  into  the 
realm ;  and  then  it  shall  be  done  as  hath 
been  used  in  times  past  for  the  defense  of 
the  realm. "f 

This  statute,  by  no  means  of  inconsidera- 
ble importance  in  our  Constitutional  histoiy% 
put  a  stop  for  some  ages  to  these  arbiti'ary 
conscriptions.  But  Edward  had  recourse 
to  another  means  of  levying  men  without 
bis  own  cost,  by  calling  on  the  counties  and 
principal  towns  to  furnish  a  certain  number 
of  troops.  Against  this  the  Parliament  pro- 
vided a  remedy  by  an  act  in  the  twenty- 
fifth  year  of  his  reign  :  "  That  no  man  shall 
be  consti-ained  to  find  men  at  arms,  hoblers, 
nor  archers,  other  than  those  who  hold  by 

*  Rymer,  sub  Edw.  I.  et  11.,  passim.  Thus,  in 
1297,  a  writ  to  the  sheriff  of  Yorkshire  directs  him 
to  make  known  to  all,  qui  habeut  20  libratas  terras 
et  reditus  per  ammm,  tam  illis  qui  nou  tenent  de 
nobis  iu  capite  quam  illis  qui  tenent,  ut  de  equis 
et  annis  sibi  provideaut  et  se  probareut  indllate  ; 
ita  quod  sint  prompti  et  parati  ad  veniendam  ad 
nos  et  eundum  cum  propria  persona  nostra,  pro 
defensione  ipsorum  et  totius  regni  nostri  proedicti, 
quandocuuque  pro  ipsis  duxerimus  detnandandum, 
ii.,  86-1.  t  Stat.  1  Edw.  III.,  c.  5. 


such  service,  if  it  be  not  by  common  con- 
sent and  gi-ant  in  Parliament."  Both  these 
statutes  were  recited  and  confirmed  in  the 
fourth  year  of  Henry  IV.* 

The  successful  resistance  thus  made  by 
Parliament  appears  to  have  produced  the 
discontinuance  of  compulsoiy  levies  for  for- 
eign warfare.  Edward  III.  and  his  suc- 
cessors, in  their  long  contention  with  France, 
resorted  to  the  mode  of  recruiting  by  con- 
ti-acts  with  men  of  high  rank  or  military 
estimation,  whose  influence  was  greater, 
probably,  than  that  of  the  crown  toward 
procuring  voluntaiy  enlistments.  The  pay 
of  soldiers,  which  we  find  stipulated  In  such 
of  those  conti-acts  as  are  extant,  was  ex- 
tremely high  ;  but  it  secured  the  service  of 
a  brave  and  vigorous  yeomanry.  Under 
the  house  of  Tudor,  in  conformity  to  their 
more  despotic  scheme  of  government,  the 
salutary  enactments  of  fonner  times  came 
to  be  disregarded,  Heniy  VIII.  and  Eliza- 
beth sometimes  compelling  the  counties  to 
furnish  soldiers ;  and  the  prerogative  of 
pressing  men  for  militaiy  seiTice,  even  out 
of  the  kingdom,  having  not  only  become  as 
much  established  as  undisputed  usage  could 
make  it,  but  acquiring  no  slight  degree  of 
sanction  by  an  act  passed  under  Philip  and 
Maiy,  which,  without  repealing  or  advert- 
ing to  the  statutes  of  Edward  III.  and  Hen- 
ry IV.,  recognizes,  as  it  seems,  the  right 
of  the  crown  to  levy  men  for  service  in  war, 
and  imposes  penalties  on  persons  absenting 
themselves  from  musters  commanded  by 
the  king's  authority  to  be  held  for  that  pur- 
pose, f  Clarendon,  whose  political  heresies 
sprang  in  a  gi'eat  measure  from  his  possess- 
ing but  a  very  imperfect  knowledge  of  our 
ancient  Constitution,  speaks  of  the  act  that 
declared  the  pressing  of  soldiers  illegal, 
though  exactl}'  following,  even  in  its  lan- 
guage, that  of  Edward  III.,  as  conti-ary  to 
the  usage  and  custom  of  all  times. 

It  is  scarcely,  perhaps,  necessaiy  to  ob- 

*  25  Edw.  III.,  c.  8.    4  Hen.  IV.,  c.  13.  ' 

t  4  &  5  Philip  and  Marj-,  c.  3.  The  Harleian 
manuscripts  are  the  best  authority  for  the  practice 
of  pressuig  soldiers  to  ser\-e  iu  Ireland  or  else- 
where, and  are  full  of  instances.  The  Mouldys 
and  Bnllcalfs  were  in  frequent  requisition.  See 
vols.  309,  1926,  2219.  and  others.  Thanks  to  Hum- 
phrey Wanley's  diligence,  the  analysis  of  these 
papers  in  the  catalosue  will  save  the  inquirer  the 
trouble  of  reading-,  or  the  mortification  of  finding  he 
can  not  read,  the  tenible  scrawl  in  which  they  aro 
generally  written. 


Cha.  I.— 1640-42.] 


FEOM  HENRY  VII.  TO  GEORGE  II. 


311 


sen'e,  that  there  had  never  been  any  regular 
army  kept  up  in  England.  Henry  VII.  es- 
tablished the  yeomen  of  the  guard  in  1485 
solely  for  the  defense  of  his  person,  and 
rather,  perhaps,  even  at  that  time,  to  be 
considered  as  the  king's  domestic  servants 
than  as  soldiers.  Their  number  was  at  first 
fifty,  and  seems  never  to  liave  exceeded  two 
hundred.  A  kind  of  regular  troops,  how- 
ever, chiefly  accustomed  to  the  use  of  ar- 
tillery, was  maintained  in  the  veiy  few  for- 
tified places  where  it  was  thought  neces- 
sary or  practicable  to  keep  up  the  show  of 
defense ;  the  Tower  of  London,  Ports- 
mouth, the  Castle  of  Dover,  the  Fort  of 
Tilbuiy,  and,  before  the  union  of  the  crowns, 
Berwick,  and  some  other  places  on  the 
Scottish  border.  I  have  met  with  very 
little  as  to  the  nature  of  these  gnn-isons ; 
but  their  whole  number  must  have  been  in- 
significant, and  probably  at  no  time  equal  to 
resist  any  serious  attack. 

We  must  take  care  not  to  confound  this 
strictly  military  force,  serving,  whether  by 
virtue  of  tenure  or  engagement,  whereso- 
ever it  should  be  called,  with  that  of  a  more 
domestic  and  defensive  character,  to  which 
alone  the  name  of  militia  was  usually  ap- 
plied. By  the  Anglo-Saxon  laws,  or,  rather, 
by  one  of  the  primaiy  and  indispensable 
conditions  of  political  society,  every  free- 
holder, if  not  every  freeman,  was  bound  to 
defend  his  countiy  against  hostile  invasion. 
It  appears  that  the  alderman  or  earl,  while 
those  titles  continued  to  imply  the  govern- 
ment of  a  county,  was  the  proper  com- 
mander of  this  militia.  Henry  II.,  in  order 
to  render  it  more  effective  in  cases  of  emer- 
gency, and  perhaps  with  a  view  to  extend 
its  service,  enacted,  bj'  consent  of  Parlia- 
ment, that  every  freeman,  according  to  the 
value  of  his  estate  or  moveables,  should  hold 
himself  constantly  furnished  with  suitable 
arms  and  equipments.*  By  the  statute  of 
Winchester,  in  the  thirteenth  year  of  Ed- 
ward I.,  these  provisions  were  enforced  and 
extended.  Eveiy  man,  between  the  ages 
of  fifteen  and  sixty,  was  to  be  assessed,  and 
eworn  to  keep  armor  according  to  the  value 
of  his  lands  and  goods ;  for  fifteen  pounds 
and  upwird  in  rent,  or  forty  marks  in  goods, 
a  hauberk,  an  iron  breastplate,  a  sword,  a 
knife,  and  a  horse ;  for  smaller  property, 

*  Wilkins'a  Leges  Anglo-Saxonicoe,  p.  333.  Lyt- 
tleton"s  Henrj-  II.,  iii.,  354. 


less  extensive  arms.  A  view  of  this  armor 
was  to  be  taken  twice  in  the  year,  by  con- 
stables chosen  in  every  hundred.*  These 
regulations  appear  by  the  context  of  the 
whole  statute  to  have  more  immediate  re- 
gard to  the  preservation  of  internal  peace, 
by  suppressing  tumult  sand  an-esting  rob- 
bers, than  to  the  actual  defense  of  tlie  realm 
against  hostile  invasion ;  a  danger  not  at 
that  time  very  imminent.  The  sheriff',  as 
chief  consei-vator  of  public  peace  and  min- 
ister of  the  law,  had  always  possessed  the 
right  of  siunmoning  the  posse  comitates ; 
that  is,  of  calhng  on  aU  the  king's  liege  sub- 
jects within  his  jurisdiction  for  assistance, 
in  case  of  any  rebellion  or  tumultuous  rising, 
or  when  bands  of  robbers  infested  the  pub- 
lic ways,  or  when,  as  occuiTed  very  fre- 
quently, the  execution  of  legal  process  was 
forcibly  obsti-ucted.  It  seems  to  have  been 
the  policy  of  that  wise  prince,  to  whom  we 
are  indebted  for  so  many  signal  improve- 
ments in  our  law,  to  give  a  more  effective 
and  permanent  energy  to  this  power  of  the 
sheriff'.  The  provisions,  however,  of  the 
statute  of  Winchester,  so  far  as  tliey  obliged 
eveiy  proprietor  to  possess  suitable  arms, 
were  of  course  applicable  to  national  de- 
fense. In  seasons  of  public  danger,  threat- 
ening invasion  from  the  side  of  Scotland  or 
France,  it  became  customary  to  issue  com- 
missions of  array,  empowering  those  to 
whom  they  were  addressed  to  muster  and 
ti'ain  all  men  capable  of  bearing  arms  in  tho 
counties  to  which  their  commission  extend- 
ed, and  hold  them  in  readiness  to  defend 
the  kingdom.  The  earliest  of  these  com- 
missions that  I  find  in  Rymer  is  of  1324, 
and  the  latest  of  1557. 

The  obligation  of  keeping  sufficient  arms 
according  to  each  man's  estate  was  pre- 
served by  a  statute  of  Philip  and  Mary, 
which  made  some  changes  in  tho  rate  and 
proportion,  as  well  as  the  kind  of  arms.f 
But  these  ancient  provisions  were  abro- 
gated by  James  in  his  first  Parliament.f 

*  Stat.  13  Edw.  I.       t  5  Philip  and  Marj-,  c.  2. 

t  1  Jac,  c.  25,  ^  46.  An  order  of  covmcil  in  Dec, 
1638,  that  everj-  man  having  lands  of  inheritance  to 
the  clear  yearly  value  of  £200  should  be  chargea- 
ble to  furnish  a  light-liorseman,  every  one  of  £300 
estate  to  furnish  a  lance,  at  the  discretion  of  the 
lord  lieutenant,  was  unwaiTanted  by  any  existing 
law,  and  must  be  reckoned  among  the  violent 
stretches  of  prerogative  at  that  time. — Rushw. 
Abr.,  ii.,  500. 


312 


CONSTITUTIONAL  HISTORY  OF  EN<3LAND 


[Chap.  IX- 


The  nation,  become  forever  secure  from  in 
vasion  on  the  quarter  where  the  militia  serv- 
ice had  been  most  required,  and  freed  from 
the  other  dangers  which  had  menaced  the 
throne  of  Elizabeth,  gladly  saw  itself  re- 
leased from  an  expensive  obligation.  The 
government  again  may  be  presumed  to  have 
thought  that  weapons  of  offense  were  safer 
in  its  hands  than  in  those  of  its  subjects. 
Magazines  of  arms  were  formed  in  different 
places,  and  generally  in  each  county  but, 
if  we  may  reason  from  the  absence  of  doc- 
uments, there  was  little  regard  to  military 
array  and  preparation,  save  that  the  citizens 
of  London  mustered  their  trained  bands  on 
holydays,  an  institution  that  is  said  to  have 
sprung  out  of  a  voluntaiy  association,  called 
the  ai'tillery  company,  formed  in  the  reign 
of  Henry  VIII.  for  the  encouragement  of 
archery,  and  acquiring  a  more  respectable 
and  martial  character  at  the  time  of  the 
Spanish  armada. f 

The  power  of  calling  into  arms,  and  mus- 
tering the  population  of  each  county,  given 
in  earlier  times  to  the  sheriff  or  justices  of 
the  peace,  or  to  special  commissioners  of 
array,  began  to  be  intrasted,  in  the  reign  of 
Mary,  to  a  new  officer,  entitled  the  lord- 
lieutenant.  This  was  usually  a  peer,  or  at 
least  a  gentleman  of  large  estate  within  the 
county,  whose  office  gave  him  the  com- 
mand of  the  militia,  and  rendered  him  the 
chief  vicegerent  of  his  sovereign,  responsible 
for  the  maintenance  of  public  order.  This 
institution  may  be  considered  as  a  revival 
of  the  ancient  local  earldom  ;  and  it  certainly 
took  away  from  the  sheriff  a  gi-eat  part  of 
the  dignity  and  importance  which  he  had 
acquired  since  the  discontinuance  of  that 
office ;  yet  the  lord-lieutenant  has  an  au- 
thority so  peculiarly  militaiy,  that  it  does 
not  in  any  degree  control  the  civil  power  of 
tlie  sheriff  as  the  executive  minister  of  the 
law.  In  certain  cases,  such  as  a  tumultuous 
obstmction  of  legal  authority,  each  might  be 
said  to  possess  an  equal  power,  the  sheriff 
being  still  undoubtedly  competent  to  call  out 
the  posse  comitates  in  order  to  enforce  obe- 
dience. Practically,  however,  in  all  serious 
circumstances,  the  lord-lieutenant  has  al- 
ways been  reckoned  the  efficient  and  re- 
sponsible guardian  of  public  tranquillity. 

*  Rymer,  xix.,  310. 

t  Grose's  Military  Antiquities,  i.,  150.  The  word 
artillery  was  used  in  that  age  for  the  long  bow. 


From  an  attentive  consideration  of  this 
sketch  of  our  military  law,  it  will  strike  the 
reader  that  the  principal  question  to  be  de- 
temiined  was,  whether,  in  time  of  peace, 
without  pretext  of  danger  of  invasion,  there 
were  any  legal  authority  that  could  direct 
the  mustering  and  training  to  arms  of  the 
able-bodied  men  in  each  county,  usually  de- 
nominated the  militia.  If  the  power  ex- 
isted at  all,  it  manifestly  resided  in  the  king. 
The  notion  that  either  or  both  houses  of 
Pai-liament,  who  possess  no  portion  of  ex- 
ecutive authority,  could  take  on  themselves 
one  of  its  most  peculiar  and  important  func- 
tions, was  so  preposterous,  that  we  can 
scarcely  give  credit  to  the  sincerity  of  any 
reasonable  person  who  advanced  it.  In  the 
imminent  peril  of  hostile  invasion,  in  the 
case  of  intestine  rebellion,  there  seems  to 
be  no  room  for  doubt,  that  the  king,  who 
could  call  on  his  subjects  to  bear  arms  for 
their  countiy  and  laws,  could  oblige  them 
to  that  necessaiy  discipline  and  previous 
training,  without  which  their  service  would 
be  unavailing.  It  might  also  be  urged  that 
he  was  the  proper  judge  of  the  danger ;  but 
that,  in  a  season  of  undeniable  tranquillity, 
he  could  withdraw  his  subjects  from  their 
necessaiy  labors  against  their  consent,  even 
for  the  important  end  of  keeping  up  the 
use  of  military  discipline,  is  what,  with  our 
present  sense  of  the  limitations  of  royal 
power,  it  might  be  difficult  to  affirm.  The 
precedents  under  Heniy  VIII.  and  Eliza- 
beth were  numerous ;  but  not  to  mention 
that  many,  perhaps  most  of  these,  might 
come  under  the  class  of  preparations  against 
invasion,  where  the  royal  authority  was  not 
to  be  doubted,  they  could  be  no  stronger 
than  those  other  precedents  for  pressing 
and  mustering  soldiers,  which  had  been 
declared  illegal.  There  were  at  least  so 
mixny  points  uncertain,  and  some  wherein 
the  prerogative  was  plainly  deficient,  such 
as  the  right  of  marching  the  militia  out  of 
their  own  counties,  taken  away,  if  it  had 
before  existed,  by  the  act  just  passed  against 
pressing  soldiei's,  that  the  concurrence  of 
the  whole  Legislature  seemed  requisite  to 
place  so  essential  a  matter  as  the  public  de- 
fense on  a  secure  and  permanent  footing.* 

*  Whitelock  maintained,  both  on  this  occasion 
and  at  the  treaty  of  Uxbridge,  that  the  power  of 
the  militia  resided  in  the  king  and  two  Houses 
I  jointly,  p.  5.J,  129.    This,  tliough  not  very  well 


Cha.  I— 1640-42.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


313 


The  nini  of  tlie  llou.ses,  however,  in  the 
bill  for  resfulating  the  militia,  pre- 

Encioach-  ,      °  ^,      f      .  , 

mentsofthe  sented  to  Charlcs  in  li  ebruary. 

Parliament,  jg^.^^  j^j^    refusal    tO  pasS 

which  led  by  rapid  steps  to  the  civil  war, 
was  not  so  much  to  remove  those  uncer- 
tainties by  a  general  provision  (for  in  effect 
they  left  them  much  as  before)  as  to  place 
the  command  of  the  sword  in  the  hands  of 
those  they  could  control ;  nominating  in  the 
bill  the  lords-lieutenant  of  eveiy  county, 
who  were  to  obey  the  orders  of  the  two 
Houses,  and  to  be  in-emovable  by  the  king 
for  two  years.  No  one  can  pretend  that 
this  was  not  an  encroaciiment  on  his  pre- 
rogative.* It  can  only  find  a  justification 
in  the  precarious  condition,  as  the  Com- 
mons asserted  it  to  be,  of  tliose  liberties 
they  had  so  recently  obtained,  in  their  just 
persuasion  of  the  king's  insincerity,  and  in 
the  demonstmtions  he  had  already  made  of 
an  intention  to  win  back  his  authority  at  the 
sword's  point.f  But  it  is  equitable,  on  the 
other  hand,  to  observe,  that  the  Commons 
had  by  no  means  greater  reason  to  distrust 
the  faith  of  Charles,  than  he  had  to  antici- 
pate fresh  assaults  from  them  on  the  power 
he  had  inherited,  on  the  form  of  religion 
which  alone  he  thought  lawful,  on  the  coun- 
selors who  had  served  him  most  faithfully, 
and  on  the  nearest  of  his  domestic  ties.  If 
the  right  of  self-defense  could  be  urged  by 
Parliament  for  this  demand  of  the  militia, 
must  we  not  admit  that  a  similar  plea  was 
equally  valid  for  the  king's  refusal  ?  How- 
ever arbitrary  and  violent  the  previous  gov- 
ernment of  Charles  may  have  been,  how- 

expresseil,  can  only  mean  that  it  required  an  act 
of  Parliament  to  determine  and  rea^ulate  it. 

*  See  the  list  of  those  recommended,  Pari.  Hist., 
1083.  Some  of  these  were  Royalists;  but,  on  the 
whole,  three  fourths  of  the  military  force  of  Eng- 
land would  have  been  in  the  liands  of  persons 
who,  though  men  of  rank,  and  attached  to  the 
monarchy,  had  given  Charles  no  reason  to  hope 
that  they  would  decline  to  obey  any  order  which 
the  Parliament  might  issue,  however  derogatory 
or  displeasing  to  himself. 

t  "  When  this  bill  had  been  with  much  ado  ac- 
cepted, and  first  read,  there  were  few  men  who 
imagined  it  would  ever  receive  further  counte- 
nance ;  but  now  there  were  very  few  who  did  not 
believe  it  to  be  a  very  necessary  provision  for  the 
peace  and  safety  of  the  kingdom.  So  great  an 
impression  had  the  late  proceedings  made  upon 
them,  that  with  little  opposition  it  passed  the 
Commons,  and  was  sent  up  to  the  Lords." — Clar- 
endon, ii.,  180. 


ever  disputable  his  sincerity  at  present,  it  is 
vain  to  deny  that  he  had  made  the  most 
valuable  concessions,  and  such  as  had  cost 
him  very  dear.  He  had  torn  away  from  his 
diadem  what  all  monarchs  would  deem  its 
choicest  jewel,  that  high  attribute  of  un- 
controllable power,  by  which  their  flatterers 
have  in  all  ages  told  them  they  resemble 
and  represent  the  Divinity.  He  had  seen 
those  whose  counsels  he  had  best  approved 
rewarded  with  exile  or  imprisonment,  and 
had  incurred  the  deep  reproacli  of  his  own 
heart  by  the  sacrifice  of  Strafford.  He  had 
just  now  given  a  reluctant  assent  to  the  ex- 
tinction of  one  estate  of  Parliament,  by  the 
bill  excluding  bishops  from  the  House  of 
Peers.  Even  in  the  business  of  the  militia, 
he  would  have  consented  to  nominate  the 
persons  recommended  to  him  as  lieutenants, 
by  commissions  revocable  at  his  pleasure, 
or  would  have  passed  the  bill  rendering 
them  iiTemovable  for  one  year,  provided 
they  might  receive  their  orders  from  him- 
self and  the  two  Houses  jointly.*  It  was 
not  unreasonable  for  the  king  to  pause  at 
the  critical  moment  which  was  to  make  all 
future  denial  nugatoiy,  and  inquire  whether 
the  prevailing  majority  designed  to  leave 
him  what  they  had  not  taken  away.  But 
he  was  not  long  kept  in  uncer-  Nineteen 
taintyupon  this  score.  The  nine-  prop^sniuns. 
teen  propositions  tendered  to  him  at  York 
in  the  beginning  of  June,  and  founded  u])on 
addresses  and  declarations  of  a  considerably 
earlier  date.f  went  to  abrogate  in  spirit  the 

*  Clarendon,  ii.,  375.  Pari.  Hist.,  1077,  1106, 
&c.  It  may  be  added,  that  the  militia  bill,  as 
originally  tendered  to  tlie  king  by  the  two  Houses, 
was  ushered  in  by  a  preamble  asserting  that  there 
had  been  a  most  dangerous  and  desperate  design 
on  the  House  of  Commons,  the  effect  of  the  bloody 
counsels  of  the  papists,  and  other  ill-affected  per- 
sons, who  had  already  raised  a  rebellion  in  Ire- 
land.-— C'lar.,  p.  336.  Surely  he  could  not  have 
passed  this,  especially  the  last  allusion,  without 
recording  his  own  absolute  dishonor;  hut  it  must 
he  admitted,  that  on  the  king's  ohjection  they 
omitted  this  preamble,  and  also  materially  limited 
the  powers  of  the  lords-Iieutepant  to  be  appointed 
under  the  bill. 

t  A  declaration  of  the  grievances  of  the  king- 
dom, and  the  remedies  proposed,  April  1,  may  be 
found  in  the  Parliamentary  Historj-,  p.  115.5.  But 
that  work  does  not  notice  that  it  had  passed  the 
Commons  on  Feb.  19,  before  the  king  had  begun 
to  move  toward  the  North. —  Commons'  Jounials. 
It  seem,?  not  to  have  pleased  the  House  of  Lords, 
who  postponed  its  consideration,  and  was  much 


314 


COXSTITUTIOXAL  HISTORY  OF  EXQLAXD 


[Chap.  IX- 


whole  existing  Constitution,  and  were,  in 
truth,  so  far  beyond  what  the  king  could  be 
expected  to  giunt,  that  terms  more  intolera- 
ble were  scarcely  proposed  to  him  in  his 
greatest  difficulties,  not  at  Uxbridge,  nor  at 
Newcastle,  nor  even  at  Newport. 

These  famous  propositions  import  that 
the  privy  council  and  officers  of  state  should 
be  approved  by  Parliament,  and  take  such  an 
oath  as  the  two  Houses  should  prescribe ; 
that  during  the  iuteiTals  of  Parliament,  no 
vacancy  in  the  council  should  be  supplied 
without  the  assent  of  the  major  part,  sub- 
ject to  the  futm-e  sanction  of  the  two 
Houses ;  that  the  education  and  mairiages 
of  the  king's  children  should  be  under  Pai-- 
liamentary  control;  the  votes  of  popish  peei's 
be  taken  away ;  the  church  government  and  ; 
Liturgy  be  reformed  as  both  Hovises  should 
advise ;  the  militia  and  all  fortified  jjlaces 
put  in  such  hands  as  Parliament  should  ap- 
prove ;  finally,  that  the  king  should  pass  a 
bill  for  restraining  all  peers  to  be  made  in 
future  from  sitting  in  Parliament,  unless 
they  be  admitted  with  the  consent  of  both 
Houses.  A  few  more  laudable  provisions, 
such  as  that  the  judges  should  hold  their 
offices  during  good  behavior,  which  the  king 
had  long  since  promised,*  were  mixed  up 
with  these  strange  demands.  Even  had 
the  king  complied  with  such  unconstitutional 
requisitions,  there  was  one  behind,  which, 
though  they  had  not  advanced  it  on  this 
occasion,  was  not  likely  to  be  forgotten.  It 
had  been  asserted  by  the  House  of  Com- 
mons in  their  last  remonstrance,  that,  on  a 
right  constnaction  of  the  old  coronation  oath, 
the  king  was  bound  to  assent  to  all  bills 
which  the  two  houses  of  Parhament  should 
offer. f  It  has  been  said  by  some  that  this 
more  grievous  to  the  king  than  the  nineteen  prop- 
ositions themselves.  One  proposal  was  to  re- 
move all  papists  from  about  the  queen  ;  that  is,  to 
deprive  her  of  the  exercise  of  her  religion,  guar- 
antied by  her  marriage  contract.  To  this  objec- 
tion Pym  replied,  that  the  House  of  Commons  had 
only  to  consider  the  law  of  God  and  the  law  of  the 
land ;  that  they  must  resist  idolatry,  lest  they  incur 
the  divine  wrath,  and  must  see  the  laws  of  this  king- 
dom executed ;  that  the  public  faith  is  less  than 
that  they  owe  to  God,  against  which  no  conti^act 
can  oblige,  neither  can  any  bind  us  against  the  law 
of  the  kingdom.— Pari.  Hist.,  1162.         *  Id.,  702. 

t  Clarendon,  p.  452.  Upon  this  passage  iu  the 
Remonstrance  a  division  took  place,  when  it  was 
carried  by  103  to  61.— Pari.  Hist..  1302.  The  words 
in  the  old  form  of  coronation  oath,  as  presers-ed  in 
a  bill  of  Parliament  under  Henry  IV.,  concerning 


was  actually  the  Constitution  of  Scotland, 
where  the  crown  possessed  a  counterbalan- 
cing influence  ;  but  such  a  doctrine  wag  ia 
this  country  as  repugnant  to  the  whole  his- 
tory of  our  laws,  as  it  was  incompatible  with 
the  subsistence  of  the  monarchy  in  any 
thing  more  than  a  nominal  pre-eminence. 

In  weighing  the  merits  of  this  great  con- 
test, in  judging  whether  a  thor-  „f 
oushly  upright  and  enlightened  the  respective 

,\       ^       ,         ,.       ,  claims  of  the 

man  would  rather  have  listed  un-  two  parties  to 
der  the  royal  or  Parliamentary  ^"pp""^- 
standard,  there  are  two  political  postulates, 
the  concession  of  which  we  may  require : 
one,  that  civU  war  is  such  a  calamity  as 
nothing  but  the  most  indispensable  necessity 
can.  authorize  any  party  to  bring  on ;  the 
other,  that  the  mixed  government  of  Eng- 
land by  king.  Lords,  and  Commons,  was  to 
be  maintained  in  preference  to  any  other 
form  of  polity.  The  first  of  these  can  hardly 
be  disputed ;  and  though  the  denial  of  the 
second  would  certainly  involve  no  absurdity, 
yet  it  maj'  justly  be  assumed  where  both 
parties  avowed  their  adherence  to  it  as  a 
common  principle.  Such  as  prefer  a  des- 
potic or  a  Republican  form  of  government, 
will  generally,  without  much  further  in- 
quiry, have  made  their  election  between 
Charles  the  Fhst  and  the  Parliament.  We 
do  not  argue  from  the  creed  of  the  English 
Constitution  to  those  who  have  abandoned 
its  communion. 

There  was  so  much  in  the  conduct  and 
circumstances  of  both  parties,  in  the  Faults  of 
year  1642,  to  excite  disapprobation 

which  this  grammatico-political  contention  arose, 
are  the  following  :  "  Concedis  justas  leges  et  con- 
suetudines  esse  teuendas,  et  promittis  per  te  eas 
esse  protegendas,  et  ad  honorem  Dei  corroboran- 
das,  quas  vulsiis  elegerit,  secundum  vires  tuas  V 
It  was  maintained  by  one  side  that  elcqerit  should 
be  construed  in  the  future  tense,  while  the  other 
contended  for  the  prsterperfect.  Bat  even  if  the 
former  were  right  as  to  the  point  of  Latin  con- 
struction, though  consuetudines  seems  naturally  to 
imply  a  past  tense,  I  should  by  no  means  admit 
the  sh  ange  inference  that  the  king  was  bound  to 
sanction  all  laws  proposed  to  him.  His  own  as- 
sent is  involved  in  the  expression,  "  quas  valgus 
elegerit,"  which  was  introduced,  on  the  hypothe- 
sis of  the  word  being  in  the  future  tense,  as  a  se- 
curity against  his  legislation  without  consent  of 
the  people  in  Parliament.  The  English  coronation 
oath  which  Charles  had  taken  excludes  the  fu- 
ture :  Sir,  will  you  grant  to  hold  and  keep  the 
laws  and  rightful  customs  Khich  the  commonalty 
of  this  your  kingdom  have  ? 


Cha.  I.— 1640-42.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


315 


and  disti'ust,  that  a  Avise  and  good  man 
could  hardly  unite  cordially  with  either  of 
them.    On  the  one  hand,  he  would  enter- 
tain little  doubt  ot*the  king's  desire  to  over- 
tlirow  by  force  or  stratagem  whatever  had 
been  effected  in  Parliament,  and  to  estab- 
lish a  plenaiy  despotism  ;  his  arbitrary  tem- 
per, his  known  principles  of  government,  the 
natural  sense  of  wounded  pride  and  honor, 
the  instigations  of  a  haughty  woman,  the  so- 
licitations of  favorites,  the  promises  of  ambi- 
tious men,  were  all  at  work  to  render  his  new 
position  as  a  constitutional  sovereign,  even  if 
unaccompanied  by  fresh  indignities  and  en- 
croachments, too  grievous  and  mortifying 
to  be  endured.    He  had  already  tampered 
in  a  conspiracy  to  overawe,  if  not  to  dis- 
perse, the  Parliament ;  he  had  probably  ob- 
tained large  promises,  though  very  little  to 
be  ti'usted,  from  several  of  the  Presbyterian 
leaders  in  Scotland  during  his  residence 
there  in  the  summer  of  1641 ;  he  had  at- 
tempted to  recover  his  ascendency  by  a  sud- 
den blow  in  the  affair  of  the  five  members ; 
he  had  sent  the  queen  out  of  England,  fur- 
nished with  the  crown  jewels,  for  no  other 
probable  end  than  to  raise  men  and  procure 
arms  in  foreign  countries  ;*  he  was  now 
about  to  take  the  field  with  an  army,  com- 
posed in  part  of  young  gentlemen  disdainful 
of  a  Puritan  faction  that  censured  their  li- 
cense, and  of  those  soldiers  of  fortune,  reck- 
less of  public  principle,  and  averse  to  civil 
control,  whom  the  war  in  Germany  had 
trained  ;  in  part  of  the  Catholics,  a  wealthy 
and  active  body,  devoted  to  the  crown,  from 
wliich  alone  they  had  experienced  justice  or 
humanity,  and  from  whose  favor  and  grati- 
tude they  now  expected  the  most  splendid 
returns.    Upon  neither  of  these  parties 
could  a  lover  of  his  countiy  and  her  liberties 
look  without  alarm ;  and  though  he  might 
derive  more  hope  from  those  better  spirits, 
who  had  withstood  the  prerogative  in  its 
exorbitance,  as  they  now  sustained  it  in  its 
decline,  yet  it  could  not  be  easy  to  foretell 
that  they  would  preserve  sufficient  influence 
to  keep  steady  the  balance  of  power  in  the 


*  See  what  is  said  as  to  this  by  P.  Orleans,  iii., 
87,  and  by  Madame  de  Motteville,  i.,  268.  Her  in- 
tended journey  to  Spa,  in  July,  1641,  wliich  was 
given  up  on  the  reiuoustrance  of  Parliament,  is 
highly  suspicious.  The  House,  it  appeai-s,  had  re- 
ceived even  then  information  that  the  crown  jew- 
els were  to  be  carried  away. — Xalson,  ii.,  391. 


contingency  of  any  decisive  success  of  the 
royal  arms. 

But,  on  the  other  hand,  the  House  of 
Commons  presented  still  less  favorable 
prospects.  We  should  not,  indeed,  judge 
over  severely  some  acts  of  a  virtuous  indig- 
nation in  the  first  moments  of  victoiy,*  or 
those  heats  of  debate,  without  some  excess- 
es of  which  a  popular  assembly  is  in  danger 
of  falling  into  the  opposite  extreme  of  phleg- 
matic security  ;  but,  after  eveiy  allowance 
has  been  made,  he  must  bring  very  heated 
passions  to  the  records  of  those  times  who 
does  not  perceive  in  the  conduct  of  that 
body  a  series  of  glaring  violations,  not  only 
of  positive  and  constitutional,  but  of  those 
higher  principles  which  are  paramount  to 
all  immediate  policy.  Witness  the  ordi- 
nance for  disarming  recusants  passed  by 
both  Houses  in  August,  1641,  and  that  in 
November,  authorizing  the  Earl  of  Leices- 
ter to  raise  men  for  the  defense  of  Ireland 
without  warrant  under  the  great  seal — both 
manifest  encroachments  on  the  executive 
power  ;f  and  the  enormous  extension  of 

*  The  impeachments  of  Lord  Finch  and  of  Judge 
Berkley  for  high  treason  are  at  least  as  little  justi- 
fiable hi  point  of  law  as  that  of  Stratford.  Yet,  be- 
cause the  former  of  these  was  moved  by  Lord 
Falkland,  Clarendon  is  so  far  from  objecting  to  it, 
that  he  imputes  as  a  fault  to  the  Parliamentary 
leaders  their  lukewannness  in  this  prosecution, 
and  insinuates  that  they  were  desirous  to  save 
Finch.  See  especially  the  new  edition  of  Claren- 
don, vol.  i..  Appendix.  But  they  might  reasonably 
think  that  Finch  was  not  of  sufficient  importance 
to  divert  their  attention  from  the  grand  apostate, 
whom  they  were  determined  to  punisli.  Finch 
fled  to  Holland ;  so  that  then  it  would  have  been 
absurd  to  take  much  trouble  about  his  impeach- 
ment:  Falkland,  however,  opened  it  to  the  Lords, 
14th  of  Jan.,  1641,  in  a  speech  containing  fuU  as 
many  extravagant  propositions  as  any  of  St.  John's. 
Berkley,  besides  his  forwardness  about  ship  mou- 
ey,  had  been  notorious  for  subserviency  to  the  pre- 
rogative. The  House  sent  the  usher  of  the  black 
rod  to  the  Court  of  King's  Bench,  while  the  judges 
were  sitting,  who  took  him  away  to  prison  ;  "  which 
sti'uck  a  gi'eat  teiTor,"  says  Whitelock,  "  in  the 
rest  of  his  brethren  then  sitting  in  Westminster 
Hall,  and  in  all  his  profession."  The  impeachment 
against  Berkley  for  high  treason  ended  in  his  pay- 
ing a  fine  of  £10,000.  But  what  appears  strange 
and  unjustifiable  is.  that  the  Houses  sufi'ered  him 
to  sit  for  some  terms  as  a  judge  with  this  impeach- 
ment over  his  head.  The  only  excuse  fur  this  is, 
that  there  were  a  great  many  vacancies  on  that 
bench. 

t  Journals,  Aug.  30  and  Nov.  9.  It  may  be  urg- 
ed in  behalf  of  these  ordmances,  that  the  king  had 


316 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  IX. 


privilege,  under  -which  every  person  accus-  ' 
ed  on  the  slightest  testimony  of  disparaging  ' 
their  proceedings,  or  even  of  introducing 
new-fangled  ceremonies  in  the  Church,  a 
matter  wholly  out  of  their  cognizance,  was 
dragged  before  them  as  a  delinquent,  and 
lodged  in  their  prison.*  Witness  the  out- 
rageous attempts  to  intimidate  the  minority 
of  their  own  body  in  the  commitment  of 
Mr.  Palmer,  and  afterward  of  Sir  Ralph 
Hopton,  to  the  Tower,  for  such  language  ' 
used  in  debate  as  would  not  have  excited 
any  obsei-vation  in  ordinary  times ;  their 
continual  encroachments  on  the  rights  and 
privileges  of  the  Lords,  as  in  their  intima- 
tion that,  if  bills  thought  by  them  necessary 
for  the  public  good  should  fall  in  the  Upper 
House,  they  must  join  with  the  minority 
of  the  Lords  in  representing  the  same  to 
the  king;f  or  in  the  impeachment  of  the 

gone  into  Scotland  against  the  wish  of  the  two 
Houses,  and  after  refusing  to  appoint  a  custos 
rezni  at  their  request.  But  if  the  exigency  of  the 
case  might  justify,  under  those  circumstances,  the 
assumption  of  an  irregular  power,  it  ought  to  have 
been  limited  to  the  period  of  the  sovereign's  ab- 
sence. 

*  Pari.  Hist.,  678,  et  alibi.  Journals,  passim. 
Clarendon,  i.,  475.  sa5-s  this  began  to  pass  all 
bounds  after  the  act  rendering  them  indissoluble. 
"  It  had  never,"  he  says,  "  been  attempted  before 
this  Parliament  to  commit  any  one  to  prison,  ex- 
cept for  some  apparent  breach  of  privilege,  such  as 
the  arrest  of  one  of  their  members,  or  the  like." 
Instances  of  this,  however,  had  occurred  before,  of 
which  I  have  mentioned  in  another  place  the  gross- 
est, that  of  Floyd,  in  1621.  The  Lords,  in  March, 
1642,  condemned  one  Sandford,  a  tailor,  for  cursing 
the  Parliament,  to  be  kept  at  work  in  Bridewell 
during  his  life,  besides  some  minor  inflictions. — 
Rushworth.  A  strange  order  was  made  by  the 
Commons,  Dec.  10,  1641,  that  Sir  William  Earl 
ha\'iug  given  information  of  some  dangerous  words 
spoken  by  certain  persons,  the  speaker  shall  issue 
a  warrant  to  apprehend  stick  persons  as  Sir  Will- 
iam Earl  should  point  out. 

t  The  entry  of  this  in  the  Journals  is  too  char- 
acteristic of  the  tone  assumed  in  the  Commons  to 
be  omitted.  "  This  committee  (after  naming  some 
of  the  warmest  men)  is  appointed  to  prepare  heads 
for  a  conference  with  the  Lords,  and  to  acquaint 
them  what  bills  this  House  hath  passed  and  sent 
lip  to  their  lordships,  which  much  concern  the  safe- 
ty of  the  kingdom,  but  have  had  no  consent  of  their 
lordships  unto  them ;  and  that,  this  House  being 
the  representative  bod}'  of  the  whole  kingdom,  and 
their  lordships  being  but  as  particular  persons,  and 
coming  to  Parliament  in  a  particular  capacity,  that 
if  they  shall  not  be  pleased  to  consent  to  the  pass- 
ing of  those  acts  and  others  necessan.-  to  the  pres- 
ervation and  safety  of  the  kingdom,  that  then  this 
House,  together  with  such  of  the  lords  that  are 


'  Duke  of  Richmond  for  words,  and  those  of 
I  the  most  trifling  nature,  spoken  in  the  Up- 
per House  ;*  their  despotic  violation  of  the 
rights  of  the  people,  in*  imprisoning  those 
who  presented  or  prepared  respectful  peti- 
tions in  behalf  of  the  established  Constitu- 
tion,f  while  they  encouraged  those  of  a  tu- 
multuous multitude  at  their  bar  in  favor  of 
innovation  ;t  their  usurpation  at  once  of  the 
judicial  and  legislative  powers  in  all  that 
'  related  to  the  Church,  particularly  by  their 
committee  for  scandalous  ministers,  under 
which  denomination,  adding  reproach  to  in- 
jury, they  subjected  all  who  did  not  reach 
the  standard  of  Puritan  perfection  to  con- 
tumely and  vexation,  and  ultimately  to  ex- 
more  sensible  of  the  safety  of  the  kingdom,  may 
join  together  and  represent  the  same  unto  his 
majesty."  This  was  on  December  3,  1641,  before 
the  argument  from  necessity  could  be  pretended, 
and  evidently  contains  the  germ  of  the  resolution 
of  February,  1649,  that  the  House  of  Lords  was 
useless. 

The  resolution  was  moved  by  Mr.  Pym ;  and  on 
Mr.  Godolphin's  objecting,  very  sensibly,  that  if 
they  went  to  the  king  with  the  lesser  part  of  the 
lords,  the  greater  part  of  the  lords  might  go  to  the 
king  with  the  lesser  part  of  them,  he  was  com- 
manded to  withdraw  (Vemey  MS.)  ;  and  an  order 
appears  on  the  Journals,  that  on  Tuesday  next  the 
House  would  take  into  consideration  the  oS'ense 
now  given  by  words  spoken  by  Mr.  Godolphin. 
Nothing  further,  however,  seems  to  have  taken 
place. 

*  This  was  carried  Jan.  27,  1642,  by  a  majority 
of  223  to  122,  the  largest  number,  I  think,  that 
voted  for  any  question  during  the  Parliament. 
Richmond  was  an  eager  courtier,  and  perhaps  an 
enemy  to  the  Constitution,  which  may  account  for 
the  unusual  majority  in  favor  of  his  impeachment, 
but  can  not  justify  it.  He  had  merely  said,  on  a 
proposition  to  adjourn,  "Why  should  we  not  ad- 
journ for  six  mouths  V 

t  Pari.  Hist.,  1147,  1150,  1188.  Clarendon,  ii., 
284,  346. 

X  Clarendon,  322.  Among  other  petitions  pre- 
sented at  this  rime,  the  noble  author  inserts  one 
from  the  porters  of  London.  Mr.  Brodie  asserts 
of  this,  that  "  it  is  nowhere  to  be  found  or  alluded 
to,  so  far  as  I  recollect,  except  in  Clarendon's  His- 
tory ;  and  I  have  no  hesitation  in  pronouncing  it  a 
forsery  by  that  author,  to  disgrace  the  petirions 
which  so  galled  him  and  his  party.  The  Journals 
of  the  Commons  give  an  account  of  everj'  peririon ; 
and  I  have  gone  over  them  with  the  vtmost  care, 
in  order  to  ascertain  whether  such  a  peririon  ever 
was  presented,  and  yet  can  not  discover  a  trace  of 
it"  (iii.,  306).  This  writer  is  here  too  precipitate. 
No  sensible  man  will  believe  Clarendon  to  have 
committed  so  foolish  and  useless  a  forgery ;  and 
this  perition  is  fully  noticed,  though  not  inserted  at 
length,  in  the  Journals  of  February  3d. 


CHA.  I.— 1640-42.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


317 


pulsion  from  their  lawful  property.*  Wit- 
ness the  impeachment  of  the  twelve  bish- 
ops for  treason,  on  account  of  their  protes- 
tation against  all  that  should  be  done  in  the 
House  of  Lords  during  their  compelled  ab- 
sence through  fear  of  the  populace  ;  a  pro- 
test not,  perhaps,  entirely  well  expressed, 
but  abundantly  justifiable  in  its  argument 
by  the  plainest  principles  of  law.f  These 
great  abuses  of  power,  becoming  daily  more 
fi-equent  as  they  became  less  excusable, 
would  make  a  sober  man  hesitate  to  sup- 
port them  in  a  civil  war,  wherein  their  suc- 
cess must  not  only  consummate  the  destruc- 
tion of  the  crown,  the  Church,  and  the  peer- 
age, but  expose  all  who  had  dissented  from 
their  proceedings,  as  it  ultimately  happened, 
to  an  oppression  less  severe,  perliaps,  but 
far  more  sweeping,  than  that  which  had 
rendered  the  Star  Chamber  odious. 

But  it  may  reasonably,  also,  be  doubted 
whether,  in  staking  their  own  cause  on  the 
perilous  contingencies  of  war,  the  House 
of  Commons  did  not  expose  the  liberties 
for  which  they  professedly  were  contend- 
ing to  a  far  greater  risk  than  they  could  have 
incurred  even  by  peace  with  an  insidious 
court ;  for  let  any  one  ask  himself  what 
would  have  been  the  condition  of  the  Par- 
liament if,  by  the  extension  of  that  panic 
which  in  fact  seized  upon  several  regiments, 
or  by  any  of  those  countless  accidents  which 
determine  the  fate  of  battles,  the  king  had 

*  Nalson.  ii.,  234,  245. 

t  The  bishops  had  so  few  friends  iu  the  House 
of  Commons,  that  in  the  debate  arising  out  of  this 
protest,  all  agreed  that  they  should  be  charged 
with  treason  except  one  gentleman,  who  said  he 
thought  them  only  mad,  and  proposed  that  they 
should  be  sent  to  Bedlam  instead  of  the  Tower. 
Even  Clarendon  bears  rather  hard  on  the  protest, 
chiefly,  as  is  evident,  because  it  originated  with 
Williams.  In  fact,  several  of  these  prelates  had 
not  courage  to  stand  by  what  they  had  done,  and 
made  trivial  apologies. — Pari.  Hist.,  996.  Whether 
the  violence  was  such  as  to  form  a  complete  justifi- 
cation for  their  absenting  themselves,  is  a  question 
of  fact  which  we  can  not  well  determine.  Three 
bishops  continued  at  their  posts,  and  voted  against 
the  bill  for  removing  them  from  the  House  of  Lords. 
See  a  passage  from  Hall's  Hard  Measure,  in  Words- 
worth's Eccles.  Biogr.,  v.,  317.  The  king  always 
entertained  a  notion  that  this  act  was  null  iu  itself; 
and  in  one  of  his  proclamations  from  York,  not  veiy 
judiciously  declares  his  intention  to  preserve  the 
privileges  of  the  three  estates  of  Parliament.  The 
Lords  admitted  the  twelve  bishops  to  bail;  but, 
with  their  usual  pusillanimity,  recommitted  them 
on  the  Commons'  expostulation. — Pari.  Hist.,  1092. 


wholly  defeated  their  army  at  Edgehill? 
Is  it  not  probable,  nay,  in  such  a  supposi- 
tion, almost  demonstrable,  that  in  those  first 
days  of  the  civil  war,  before  the  Parliament 
had  time  to  discover  the  extent  of  its  own 
resources,  he  would  have  found  no  obstacle 
to  his  triumphal  entry  into  London  ?  And, 
in  such  circumstances,  amid  the  defection 
of  the  timid  and  lukewarm,  the  consterna- 
tion of  the  brawling  multitude,  and  the  ex- 
ultation of  his  victorious  ti'oops,  would  tlie 
triennial  act  itself,  or  tliose  other  statutes 
which  he  had  veiy  reluctantly  conceded, 
have  stood  secure  ?  Or,  if  we  believe  that 
the  constitutional  supporters  of  his  throne, 
the  Hertfords,  the  Falldands,  the  South- 
amptons,  the  Spencers,  would  still  have  had 
sufficient  influence  to  shield  from  violent 
hands  that  palladium  which  they  had  assist- 
ed to  place  in  the  building,  can  there  be  a 
stronger  argument  against  the  necessity  of 
taking  up  arms  for  the  defense  of  liberties, 
which,  even  in  the  contingency  of  defeat, 
could  not  have  been  subverted  ? 

There  Avere  many,  indeed,  at  that  time, 
as  there  have  been  ever  since,  who,  admit- 
ting all  the  calamities  incident  to  civil  war, 
of  which  this  countiy  reaped  the  bitter 
fruits  for  twentj'  years,  denied  entirely  that 
the  Parliament  went  beyond  the  necessary 
precautions  for  self-defense,  and  laid  the 
whole  guilt  of  the  aggression  at  the  king's 
door.  He  had  given,  it  was  said,  so  many 
proofs  of  a  determination  to  have  recourse 
to  arms,  he  had  displayed  so  insidious  a  hos- 
tility to  the  pi'ivileges  of  Parliament,  that,  if 
he  should  be  quietly  allowed  to  choose  and 
train  soldiers,  under  the  name  of  a  militia, 
through  hired  seiTants  of  his  own  nomina- 
tion, the  people  might  find  themselves  ei- 
ther robbed  of  their  liberties  by  surprise,  or 
compelled  to  struggle  for  them  in  very  un- 
favorable circumstances.  The  Commons, 
with  more  loyal  respect,  perhajis,  than  pol- 
icy, had  opposed  no  obstacle  to  his  deliber- 
ate journey  toward  the  North,  which  they 
could  have  easily  prevented,*  though  well 
aware  that  he  had  no  other  aim  but  to  col- 
lect an  ai'my  ;  was  it  more  than  ordinary 

*  May,  p.  187,  insinuates  that  the  civil  war 
should  have  been  prevented  by  more  vigorous 
measures  on  the  part  of  the  Parliament ;  and  it 
miglit  probably  have  been  in  their  powqr  to  have 
secured  the  king's  person  before  he  i-eached  York ; 
but  the  majority  were  not  ripe  for  such  violent  pro- 
ceedings. 


318 


CONSTITUTIONAL  HISTORY  OF  EN(JLAND 


[Chap.  IX. 


pnidence  to  secure  the  fortified  town  of 
Hull  with  its  magazine  of  arms  from  his 
grasp,  and  to  muster  the  militia  in  each 
county  under  the  command  of  lieutenants 
in  whom  they  could  confide,  and  to  whom, 
from  their  rank  and  personal  character,  he 
could  frame  no  just  objection  ? 

These  considerations  are  doubtless  not 
without  weight,  and  should  restrain  such 
as  may  not  think  them  sufficient  from  too 
strongly  censuring  those  who,  deeming  that 
either  civil  liberty  or  the  ancient  Constitu- 
tion nuist  be  sacrificed,  persisted  in  depriv- 
ing Charles  the  First  of  eveiy  power,  which, 
though  pertaining  to  a  king  of  England,  he 
could  not  be  trusted  to  exercise.  We  are, 
in  truth,  after  a  lapse  of  ages,  often  able  to 
form  a  better  judgment  of  the  course  that 
ought  to  have  been  pursued  in  political  emer- 
gencies than  those  who  stood  nearest  to  the 
scene.  Not  only  we  have  our  knowledge 
of  the  event  to  guide  and  correct  our  imag- 
inary determinations,  but  we  are  free  from 
those  fallacious  rumors,  those  pretended  se- 
crets, those  imperfect  and  illusive  views, 
those  personal  prepossessions,  which  in  ev- 
ery age  warp  the  political  conduct  of  the 
most  well-meaning.  The  characters  of  in- 
dividuals, so  fi-equently  misrepresented  by 
flatteiy  or  party  rage,  stand  out  to  us  re- 
vealed by  the  tenor  of  their  entire  lives,  or 
by  the  comparison  of  historical  anecdotes, 
and  that  more  authentic  information  which 
is  resei-ved  for  posterity.  Looking  as  it 
were  from  an  eminence,  we  can  take  a 
more  comprehensive  range,  and  class  better 
the  objects  before  us  in  their  due  propor- 
tions and  in  their  beaiings  on  one  another.  | 
It  is  not  easy  for  us  even  now  to  decide, 
keeping  in  view  the  maintenance  of  the  en- 
tire Constitution,  from  which  paity  in  the  | 
civil  war  greater  mischief  was  to  be  appre- 
hended ;  but  the  election  was,  I  am  per- 
suaded, still  more  difficult  to  be  made  by 
cotemporai'ies.  No  one,  at  least,  who  has 
given  any  time  to  the  studj"-  of  that  histoiy, 
will  deny  that  among  those  who  fought  in 
opposite  battalions  at  Edgehill  and  New- 
bury, or  voted  in  the  opposite  Parliaments 
of  Westminster  and  Oxford,  there  were 
many  who  thought  much  alike  on  general 
theories  of  prerogative  and  j)rivilege,  divid- 
ed only,  perhaps,  by  some  casual  prejudi-  [ 
ces,  Avhich  had  led  these  to  look  with  great- 
er disti-ust  on  courtly  insidiousness,  and  those 


with  gi-eater  indignation  at  popuJar  violence. 
We  can  not  believe  that  Falkland  and  Cole- 
pepper  differed  gi-eatly  in  their  constitution- 
al principles  from  Whitelock  and  I^ierpoint, 
or  that  Hertford  and  Southampton  were 
less  friends  to  a  limited  monarchy  than  Es- 
sex and  Northumberland. 

There  is,  however,  another  argument 
sometimes  alleged  of  late,  in  justification  of 
the  continued  attacks  on  the  king's  authori- 
ty, which  is  the  most  specious,  as  it  seems 
to  appeal  to  what  are  now  denominated  the 
Whig  principles  of  the  Constitution.  It  has 
been  said  that,  sensible  of  the  mal-adminis- 
tration  the  nation  had  endured  for  so  many 
years  (which,  if  the  king  himself  were  to 
be  deemed  by  constitutional  fiction  ignorant 
of  it,  must  at  least  be  imputed  to  evil  ad- 
visers), the  House  of  Commons  sought  only 
that  security  which,  as  long  as  a  sound  spir- 
it continues  to  actuate  its  members,  it  must 
ever  require — the  appointment  of  ministers 
in  whose  fidelity  to  the  public  liberties  it 
could  better  confide ;  that  by  carrying  frank- 
ly into  effect  those  counsels  which  he  had 
unwisely  abandoned  upon  the  Earl  of  Bed- 
ford's death,  and  bestowing  the  responsible 
offices  of  the  state  on  men  approved  for 
pati-iotism,  he  would  both  have  disarmed 
the  jealousy  of  his  subjects  and  insured  his 
own  prerogative,  which  no  ministers  are 
prone  to  impair. 

Those  who  are  sti'uck  by  these  consider- 
ations may  not,  perhaps,  have  sufficiently  re- 
flected on  the  changes  which  the  king  had 
actually  made  in  his  administi'ation  since  the 
beginning  of  the  Parliament.  Besides  those 
already  mentioned,  Essex,  HoUand,  Say, and 
St.  John,  he  had,  in  the  autumn  of  1641, 
conferred  the  post  of  secretaiy  of  state  on 
Lord  Falkland,  and  that  of  master  of  the 
rolls  on  Sir  John  Colepepper;  both  very 
prominent  in  the  redress  of  grievances  and 
punishment  of  delinquent  ministers  during 
the  first  part  of  the  session,  and  whose  at- 
tachment to  the  cause  of  Constitutional  lib- 
erty there  was  no  sort  of  reason  to  distrust. 
They  were,  indeed,  in  some  points,  6f  a  dif- 
ferent way  of  thinking  from  Pym  and  Hamp- 
den, and  had  doubtless  been  chosen  by  the 
king  on  that  account;  but  it  seems  rather 
beyond  the  legitimate  boimds  of  Parliament- 
ary opposition  to  involve  the  kingdom  "in 
civil  war  simply  because  the  choice  of  the 
crown  had  not  fallen  on  its  leadei-s.  The 


Cha.  I.— 1640-42.]  FROM  HENRY  VII.  TO  GEORGE  II. 


319 


real  misfortune  was,  that  Charles  did  not 
rest  in  the  advice  of  his  own  responsible 
ministers,  against  none  of  whom  the  House 
of  Commons  had  any  just  cause  of  excep- 
tion. The  theory  of  our  Constitution  in 
this  respect  was  veiy  ill  established ;  and, 
had  it  been  more  so,  there  are  perhaps  few 
sovereigns,  especially  in  circumstances  of 
so  much  novelty,  who  would  altogether 
conform  to  it.  But  no  appointment  that  he 
could  have  made  from  the  pah'iotic  bauds 
of  Parliament  would  have  furnished  a  se- 
curity against  the  intrigues  of  his  bedcham- 
ber or  the  influence  of  the  queen. 

The  real  problem  that  we  have  to  re- 
solve as  to  the  political  justice  of  the  civil 
war,  is  not  the  character,  the  past  actions, 
or  even  the  existing  designs  of  Charles ;  not 
even  whether  he  had  as  justly  forfeited  his 
crown  as  his  son  was  deemed  to  have  done 
for  less  violence  and  less  insincerity  ;  not 
even,  I  will  add,  whether  the  liberties  of 
his  subjects  could  have  been  absolutely  se- 
cure under  his  government;  but  whether 
the  risk  attending  his  continuance  upon  the 
throne  with  the  limited  prerogatives  of  an 
English  sovereign  were  gi-eat  enough  to 
counterbalance  the  miseries  of  protiacted 
civil  war,  the  perils  of  defeat,  and  the  no 
less  perils,  as  experience  showed,  of  victory. 
Those  who  adopt  the  words  spoken  by  one 
of  our  greatest  orators,  and  quoted  by 
another,  "  There  was  ambition,  there  was 
sedition,  thei-e  was  violence ;  but  no  man 
shall  persuade  me  that  it  was  not  the  cause 
of  liberty  on  one  side,  and  of  tyranny  on  the 
other,"  have  for  themselves  decided  this 
question.*  But  as  I  know  (and  the  histoi-y 
of  eighteen  years  is  my  witness)  how  little 
there  was  on  one  side  of  such  liberty  as  a 
wise  man  would  hold  dear,  so  I  am  not  yet 
convinced  that  the  great  body  of  the  Royal- 
ists, the  peers  and  gentiy  of  England,  were 
combating  for  the  sake  of  tyranny.  I  can 
not  believe  them  to  have  so  soon  forgotten 
their  almost  unanimous  discontent  at  the 
king's  arbitraiy  government  in  1640,  or  their 
general  concun-ence  in  the  first  salutaiy 
measures  of  the  Parliament.  I  can  not 
think  that  the  temperate  and  constitutional 
language  of  the  royal  declarations  and  an- 

*  These  words  are  ascribed  to  Lord  Chatham, 
in  a  speech  of  Mr.  Grattan,  according  to  Lord 
John  Russell,  in  his  Essay  on  the  History  of  the 
EngUsli  Government,  p.  55. 


swers  to  the  House  of  Commons  in  1G42, 
known  to  have  preceded  from  the  pen  of 
Hyde,  and  as  superior  to  those  on  the  op- 
posite side  in  argument  as  they  were  in  elo- 
quence, was  intended  for  the  willing  slaves 
of  tyranny.  I  can  not  discover  in  tlie  ex- 
treme reluctance  of  the  Royalists  to  take  up 
arms,  and  their  constant  eagerness  for  an 
accommodation  (I  speak  not  of  mere  sold- 
iers, but  of  the  greater  and  more  important 
portion  of  that  party),  that  zeal  for  the  king's 
re-establishment  in  all  his  abused  preroga- 
tives which  some  connect  with  the  very 
names  of  a  Royalist  or  a  Cavalier.* 

*  Clarendon  has  several  remarkable  passages, 
chiefly  toward  the  end  of  the  fifth  book  of  his  His- 
tory, on  the  slowness  and  timidity  of  the  Royalist 
party  before  the  commencement  of  the  civil  war. 
The  peers  at  York,  forming,  in  fact,  a  majority  of 
the  Upper  House,  for  there  were  nearly  forty  of 
them,  displaj-ed  much  of  this.  Want  of  political 
courage  was  a  characteristic  of  our  aristocracy  at 
this  period,  bravely  as  many  behaved  in  the  field. 
But  I  have  no  doubt  that  a  real  jealousy  of  the 
king's  intentions  had  a  considerable  effect. 

They  put  forth  a  declaration,  signed  by  all  their 
hands,  on  the  15th  of  June,  1642,  professing  before 
God  their  full  persuasion  that  tlie  king  had  no  de- 
sign to  make  war  on  the  Parliament,  and  that  they 
saw  no  color  of  preparations  or  counsels  that  might 
reasonably  beget  a  belief  of  any  such  designs  ;  but 
that  all  his  endeavors  tended  to  the  settlement  of 
the  Protestant  religion,  the  just  privileges  of  Par- 
liament, the  liberty  of  the  subject,  &c.  This  was 
an  ill-judged  and  even  absurd  i)ioce  of  hypocrisj-, 
calculated  to  degrade  the  subscribers,  since  the 
design  of  raising  ti'oops  was  hardly  concealed,  and 
every  part  of  the  king's  conduct  since  his  arrival 
at  York  manifested  it.  The  commission  of  an'ay, 
authorizing  certain  persons  in  each  county  to  raise 
troojis,  was  in  fact  issued  immediately  after  this 
declaration.  It  is  rather  mortifying  to  find  Lord 
Falkland's  name,  not  to  mention  others,  in  this 
list ;  but  he  probably  felt  it  impossible  to  refuse 
his  signature  without  throwing  discredit  on  the 
king ;  and  no  man  engaged  in  a  party  ever  did,  or 
ever  can,  act  with  absolute  sincerity ;  or,  at  least, 
he  can  be  of  no  use  to  his  friends  if  he  does  adhere 
to  this  uncompromising  principle. 

The  commission  of  aiTay  was  ill  received  by 
many  of  the  king's  friends,  as  not  being  conforma- 
ble to  law. — Clai'endon,  iii.,  91.  Certainly  it  was 
not  so ;  but  it  was  justifiable  as  the  means  of  op- 
posing the  Parliament's  ordinance  for  the  militia, 
at  least  equally  illegal.  This,  however,  shows 
very  strongly  the  cautious  and  constitutional  tem- 
per of  many  of  the  Royalists,  who  could  demur 
about  the  legality  of  a  measure  of  necessity,  since 
no  other  method  of  raising  an  army  would  have 
been  free  from  similar  exception.  The  same  re- 
luctance to  enter  on  the  war  was  displayed  in  the 
propositions  for  peace,  which  the  king,  in  conse- 
quence of  his  council's  importuuitj",  sent  to  the 


320 


CONSTITUTIONAL  HISTOIIY  OF  ENGLAND 


[Chap.  IX. 


It  is  well  observed  by  Burnet,  in  answer 
to  the  vulgar  notion  that  Cliaries  I.  was  un- 
done by  his  concessions,  that,  but  for  his 
conce.s.sions,  he  would  have  had  no  party  at 
all.  This  is,  in  fact,  the  secret  of  what 
seems  to  astonish  the  Parliamentary  his- 
torian. May,  of  the  powerful  force  that  the 
king  was  enabled  to  raise,  and  the  i)rotracted 
resistance  he  opposed.  He  had  succeeded, 
according  to  tlie  judgment  of  many  real 
friends  of  the  Constitution,  in  putting  the 
House  of  Commons  in  tlie  wrong.  Law, 
justice,  moderation,  once  ranged  against 
him,  had  gone  over  to  his  banner.  His  arms 
might  reasonably  be  called  defensive  if  he 
had  no  other  means  of  preserving  himself 
from  the  condition,  far  worse  than  captivity, 
of  a  sovereign  compelled  to  a  sort  of  suicide 
upon  his  own  honor  and  authority ;  for, 
however  it  may  bo  alleged  that  a  king  is 
bound  in  conscience  to  sacrifice  his  power 
to  the  public  will,  yet  it  could  hardly  be  in- 
excusable not  to  have  practiced  this  disin- 
terested morality,  especially  while  the  voice 
of  his  people  was  by  no  means  unequivo- 
cal, and  while  the  niiijor  part  of  one  house 
of  Parliament  adhered  openly  to  his  cause.* 

It  is,  indeed,  a  question  perfectly  dis- 
tinguishable from  that  of  the  absti-act  jus- 
tice of  the  king's  cause,  whether  he  did  not 
too  readily  abandon  his  post  as  a  constitu- 
tional head  of  the  Parliament ;  whether, 
with  the  gi-eater  part  of  the  peers,  and  a 
very  considerable  minority  in  the  Com- 
mons, resisting  in  their  i)laccs  at  Westmin- 
ster all  violent  encroachments  on  his  rights, 
he  ought  not  rather  to  have  sometimes  per- 
sisted in  a  temperate  though  firm  assertion 
of  them,  sometimes  had  recourse  to  com- 
promise and  gracious  concession,  instead  of 
calling  away  so  many  of  his  adherents  to 
join  his  arms  as  left  neither  numbers  nor 
credit  with  those  who  remained.  There  is 
a  remarkable  passage  in  Lord  Clarendon's 
life,  not  to  quote  Whitelock  and  other  writ- 
two  Houses,  through  the  Earl  of  Southampton,  just 
before  he  raised  his  standard  at  Nottingham. 

*  According  to  a  hst  made  by  the  House  of 
Lords,  May  25,  1642,  tlie  peers  with  the  king  at 
York  were  thirty  two ;  those  who  remained  at 
Westminster,  forty-two.  But  of  the  latter,  more 
than  ten  joined  the  others  hefore  the  commence- 
ment of  the  war,  and  five  or  six  afterward  ;  two  or 
three  of  those  at  York  returned.  During  the  war 
there  were  at  the  outside  thirty  peers  who  sat  in 
the  Parliament. 


ers  less  favorable  to  Charles,  where  he  in- 
timates his  own  opinion  that  the  king  would 
have  had  a  fair  hope  of  withstanding  the 
more  violent  faction,  if,  after  the  queen's 
embarkation  for  Holland  in  Februarj-,  1642, 
he  had  returned  to  Whitehall ;  admitting, 
at  the  same  time,  the  hazards  and  incon- 
veniences to  which  this  course  was  liable.* 
That  he  resolved  on  trying  the  foitune  of 
arms,  his  noble  historian  insinuates  to  have 
been  the  effect  of  the  queen's  influence, 
with  whom,  before  her  departure,  he  had 
concerted  his  future  proceedings.  Yet, 
notwithstanding  the  deference  owing  to  co- 
temporary  opinions,  I  can  not  but  suspect 
that  Clarendon  has,  in  this  instance  as  in 
some  other  passages,  attached  too  great  an 
importance  to  particular  individuals,  meas- 
uring them  rather  by  their  rank  in  the  state 
than  by  that  capacity  and  energy  of  mind 
which,  in  the  leveling  hour  of  revolution, 
are  the  only  real  pledges  of  poUtical  influ- 
ence. He  thought  it  of  the  utmost  conse- 
quence to  the  king  that  he  should  gain  over 
the  Earls  of  Essex  and  Northumberland, 
both,  or  at  least  the  former,  wavering  be- 
tween the  two  parties,  though  voting  en- 
tirely with  the  Commons.  Certainly  the 
king's  situation  required  every  aid,  and  his 
repulsive  hardness  toward  all  who  had  ever 
given  him  offense  displayed  an  obstinate,  un- 
conciliating  character,  which  deprived  him 
of  some  support  he  might  have  received. 
But  the  subsequent  history  of  these  two 
celebrated  earls,  and,  indeed,  of  all  the  mod- 
erate adherents  to  the  Parliament,  will 
hardly  lead  us  to  believe  that  they  could 
have  afforded  the  king  any  protection.  Let 
us  suppose  that  he  had  returned  to  White- 
hall instead  of  proceeding  toward  the  North. 
It  is  evident  that  he  must  either  have  passed 
the  bill  for  the  militia,  or  seen  the  ordi- 
nances of  both  Houses  cairied  into  effect 
without  his  consent.  He  must  have  con- 
sented to  the  abolition  of  Episcopacy,  or  at 
least  have  come  into  some  compromise 
which  would  have  left  the  bishops  hardly  a 
shadow  of  their  jurisdiction  and  pre-emi- 
nence. He  must  have  driven  from  his  per- 
son those  whom  he  best  loved  and  trusted. 
He  would  have  found  it  impossible  to  see 
again  the  queen,  without  awakening  dis- 
trust and  bringing  insult  on  them  both.  The 


*  Life  of  Clarendon,  p.  56. 


Cha.  L— 1642-49.] 


FROM  HENRY  V: 


11.  TO  GEORGE  II. 


321 


Royalist  minority  of  Parliament,  however 
considerable  in  numbers,  was  lukewarm  and 
faint-liearted.  That  thej^  should  have  gained 
strength  so  as  to  keep  a  permanent  superi- 
ority over  their  adversaries,  led  as  they  were 
by  statesmen  so  bold  and  profound  as  Hamp- 
den, Pyra,  St.  John,  Cromwell,  and  A-^ane, 
is  what,  from  the  experience  of  the  last 
twelve  months,  it  was  unreasonable  to  an- 
ticipate. But,  even  if  the  Commons  had 
been  more  favorably  inclined,  it  would  not 
have  been  in  their  power  to  calm  the  mighty 
waters  that  had  been  moved  from  their 
depths.  They  had  permitted  tlie  popu- 
lace to  mingle  in  thoir  discussions,  testifying 
pleasure  at  its  paltry  applause,  and  en- 
couraging its  tumultuous  aggi'essions  on  the 
minority  of  the  Legislature.  What  else 
could  they  expect  than  that,  so  soon  as  they 
ceased  to  satisfy  the  city  apprentices,  or  the 
trained  bands  raised  under  their  militia  bill, 
they  must  submit  to  that  physical  strength 


which  is  the  ultimate  arbiter  of  political 
contentions  ? 

Thus,  with  evil  auspices,  with  much  peril 
of  despotism  on  the  one  hand,  with  more  of 
anarchy  on  the  other,  amid  the  apprehen- 
sions and  sorrows  of  good  men,  the  civil 
war  commenced  in  the  summer  of  1642. 
I  might  now,  perhaps,  pass  over  the  period 
that  intervened,  until  the  restoration  of 
Charles  II.,  as  not  strictly  belonging  to  a 
work  which  imdertakes  to  relate  the  prog- 
ress of  the  English  Constitution;  but  this 
would  have  loft  a  sort  of  chasm  that  might 
disappoint  the  reader ;  and  as  I  have  al- 
ready not  wholly  excluded  our  more  gen- 
eral political  history,  without  a  knowledge 
of  which  the  laws  and  government  of  any 
people  must  be  unintelligible,  it  will  prob- 
ably not  be  deemed  an  unnecessaiy  digres- 
sion if  I  devote  one  chapter  to  the  most 
interesting  and  remarkable  portion  of  Brit- 
ish story. 


CHAPTER  X. 

FROM  THE  BREAKING  OUT  OP  THE  CIVIL  WAR  TO  THE  RESTORATION. 


PART  I. 

Success  of  the  King  in  the  first  Part  of  the  War. 
— Eftbrts  by  the  moderate  Party  for  Peace. — 
Aft'air  at  Brentford.  —  Treaty  of  Oxford.  — Im- 
peachment of  the  dueen. — Waller's  Plot. — Se- 
cession of  some  Peers  to  the  King's  (inarters. 
— Their  Treatment  there  impolitic. — The  anti- 
pacific  Party  gain  the  Ascendant  at  Westmin- 
ster.— The  Parliament  makes  a  new  Great  Seal, 
and  takes  the  Covenant.  —  Persecution  of  the 
Clergy  who  refuse  it. — Impeachment  and  Exe- 
cution of  Laud. — Decline  of  the  King's  Affairs 
in  1644. — Factions  at  Oxford. — Royalist  Lords 
and  Commoners  summoned  to  that  City. — Treaty 
of  Uxbridge.  —  Impossibility  of  Agi'eement.  — 
The  Parliament  insist  on  unreasonable  Terms. — 
Miseries  of  the  War. — Essex  and  Manchester 
suspected  of  Lukewammess. — Self-denying  Or-  | 
dinance. — Battle  of  Naseby. — Desperate  Condi- 
tion of  the  King's  Affairs. — He  throws  himself 
into  the  Hands  of  the  Scots. — His  Struggles  to 
preserve  Episcopacy,  against  the  Advice  of  the 
Clueen  and  Others. — Bad  Conduct  of  the  dueen. 
—  Publication  of  Letters  taken  at  Naseby. — 
Discoverj-  of  Glamorgan's  Treat}'. — King  deliv- 
ered up  by  the  Scots. — Growth  of  the  Independ- 
ents and  Republicans. — Opposition  to  the  Pres- 
byterian Government. — Toleration.  —  Intrigues 
of  tlie  Amiy  with  the  King. — His  Person  seized. 
— The  Pai'liament  yield  to  the  Anny. — Mysteri- 
ous Conduct  of  Cromwell.  —  Imprudent  Hopes 
of  the  Kine. — He  rejects  the  Proposals  of  the 

X 


Ai-my.  —  His  Flight  from  Hampton  Court.  — 
Alanuing  Votes  against  him. — Scots'  Invasion. 
— The  Presbyterians  regain  the  Ascendant. — 
Treaty  of  Newport. — Gradual  Progress  of  a  Re- 
publican Party. — Scheme  among  the  Officers  of 
bringing  Charles  to  Trial. — This  is  finally  deter- 
mined.—Seclusion  of  Presbyterian  Members. — 
Motives  of  some  of  the  King's  Judges. — (Ques- 
tion of  his  Execution  discussed. — His  Charac- 
ter.— Icon  Basilike. 

Factioivs  that,  while  still  under  some 
restraint  from  the  forms,  at  least,  of  Consti- 
tutional law,  excite  our  disgust  by  their 
selfishness  or  intemperance,  are  little  likely 
to  redeem  their  honor  when  their  animosi- 
ties have  kindled  civil  warfare.  If  it  were 
difficult  for  an  upright  man  to  enlist  with 
an  entire  willingness  under  either  the  Roy- 
alist or  the  Parliamentarian  banner  at  the 
commencement  of  hostilities  in  1642,  it  be- 
came far  less  easy  for  him  to  desire  the 
complete  success  of  one  or  the  other  cause 
as  advancing  time  displayed  the  faults  of 
both  in  darker  colors  than  they  had  pre- 
viously worn.  Of  the  Parliament — to  be- 
gin with  the  more  powerful  and  victorious 
party — it  may  be  said,  I  think,  with  not 
I  greater  severity  than  truth,  that  scarce  two 


322 


CONSTITUTIONAL  HISTOEY  OF  ENGLAKD 


[Chap.  X. 


or  three  public  acts  of  justice,  humanitj'',  or 
generosity,  and  veiy  few  of  political  wisdom 
or  courage,  are  recorded  of  them,  from  their 
quarrel  with  the  king  to  their  expulsion  by 
Cromwell. 

Notwithstanding  the  secession  from  Par- 
liament before  the  commencement  of  the 
war  of  nearly  all  the  peers  who  could  be 
reckoned  on  the  king's  side,  and  of  a  pretty 
considerable  part  of  the  Commons,  there 
still  continued  to  sit  at  Westminster  many 
sensible  and  moderate  persons,  who  thought 
that  they  could  not  serve  their  countiy  bet- 
ter than  by  remaining  at  their  posts,  and  la- 
bored continually  to  bring  about  a  pacifica- 
tion by  mutual  concessions.  Such  were 
the  Earls  of  Northumberland,  Holland,  Lin- 
coln, and  Bedford,  among  the  peers ;  Sel- 
den,  White  lock,  HoUis,  Waller,  Pierpoint, 
and  Rudyard,  in  the  Commons.  These, 
however,  would  have  formed  but  a  very  in- 
effectual minority,  if  the  war  itself,  for  at 
least  twelve  months,  had  not  taken  a  turn 
little  expected  by  the  Parliament.  The 
hard  usage  Charles  seemed  to  endure  in  so 
many  encroachments  on  his  ancient  prerog- 
ative awakened  the  sympathies  of  a  gener- 
ous aristocracy,  accustomed  to  respect  the 
established  laws,  and  to  love  monarchy,  as 
they  did  their  own  liberties,  on  the  score 
of  its  prescriptive  title  ;  averse,  also,  to  the 
rude  and  morose  genius  of  Puritanism,  and 
not  a  little  jealous  of  those  upstart  dema- 
gogues who  already  threatened  to  subvert 
the  gi-aduated  pyramid  of  English  society. 
Their  zeal  placed  the  king  at  the  head  of 
a  far  more  considerable  army  than  either 
Success  uf    party  had  anticipated.*    In  the 

thekinpn     ^j.^j    j^j^j^j  j      f  Edgohill, 

the  first  part  '  o  ' 

of  the  war.  though  he  did  not  remain  master 
of  the  field,  yet  all  the  military  consequen- 
ces were  evidently  in  his  favor. f    In  the 

*  May,  p.  165. 

t  Both  sides  claimed  the  victory.  May,  who 
thinks  that  Esses,  by  his  iujudicious  conduct  after 
the  battle,  lost  the  advantage  he  had  gained  in  it, 
admits  that  the  effect  was  to  strengthen  the  king's 
side.  "  Those  v^ho  thought  his  success  impossible, 
began  to  look  upon  him  as  one  who  might  be  a 
conqueror,  and  many  neuters  joined  him,"  p.  176. 
Ludlow  is  of  the  same  opinion  as  to  Essex's  behav- 
ior and  its  consequences  ;  "  Our  anny,  after  some 
refreshment  at  Warwick,  returned  to  London,  not 
like  men  that  had  obtained  a  victory,  but  as  if  they 
had  been  beaten,"  p.  52.  This  shows  that  they 
nad  riot,  in  fact,  obtained  much  of  a  victory ;  and 
Lord  Wharton's  report  to  Parliament  almost  leads 


ensuing  campaign  of  1643,  the  advantage 
was  for  several  months  entirely  his  own ; 
nor  could  he  be  said  to  be  a  loser  on  the 
whole  result,  notwithstanding  some  revers- 
es that  accompanied  the  autumn.  A  line 
drawn  from  Hull  to  Southampton  would 
suggest  no  very  incorrect  idea  of  the  two 
parties,  considered  as  to  their  militaiy  oc- 
cupation of  the  kingdom,  at  the  beginning 
of  September,  1043  ;  for  if  the  Parliament, 
by  the  possession  of  Gloucester  and  Plym- 
outh, and  by  some  force  they  had  on  foot 
in  Cheshire  and  other  midland  parts,  kept 
their  ground  on  the  west  of  this  line,  this 
was  nearly  compensated  by  the  Earl  of 
Newcastle's  possession  at  that  time  of  most 
of  Lincolnshire,  which  lay  within  it.  Such 
was  the  temporary  effect,  partly,  indeed, 
of  what  may  be  called  the  fortune  of  war, 
but  rather  of  the  zeal  and  spirit  of  the  Roy- 
alists, and  of  their  advantage  in  a  more  nu- 
merous and  intrepid  cavahy.* 

It  has  been  frequently  supposed,  and 
doubtless  seems  to  have  been  a  prevailing 
opinion  at  the  time,  that  if  the  king,  in- 
stead of  sitting  down  before  Gloucester  at 
the  end  of  August,  had  marched  upon  Lon- 
don, combining  his  operations  with  Newcas- 
tle's powerful  army,  he  would  have  brought 
the  war  to  a  triumphant  conclusion. f  In 
these  matters  men  judge  principally  by  the 
event.  Whether  it  would  have  been  pru- 
dent in  Newcastle  to  have  left  behind  him 
the  strong  garrison  of  Hull  under  Fairfax, 

us  to  think  the  advantage,  upon  the  whole,  to  have 
been  with  the  king. — Pari.  Hist.,  ii.,  1-195. 

*  May,  212.    Baillie,  373,  391. 

t  May,  Baillie,  Mrs.  Hutchinson,  are  as  much  of 
this  opinion  as  Sir  Philip  Warwick,  and  other  Roy- 
alist writers.  It  is  certain  that  there  was  a  pro- 
digious alann,  and  almost  despondency,  among  the 
Parliamentarians.  They  immediately  began  to 
make  intrenchments  about  London,  which  were 
finished  in  a  month. — May,  p.  214.  In  the  Somers 
Tracts,  iv.,  534,  is  an  interesting  letter  from  a 
Scotsman  then  in  London,  giving  an  account  of 
these  fortifications,  which,  considering  the  short 
time  emploj  ed  about  them,  seem  to  have  been 
very  respectable,  and  such  as  the  king's  army,  with 
its  weak  cavalrj-  and  bad  artilleiy,  could  not  easily 
have  carried.  Lord  Sunderland,  four  days  before 
the  battle  of  Newbury-,  wherein  he  was  killed, 
wrote  to  his  wife,  that  the  king's  affairs  had  never 
been  in  a  more  prosperous  condition ;  that  sitting 
dovrn  before  Gloucester  had  prevented  (hcirjinish- 
ins  the  war  thai  year,  "  which  nothing  could  keep 
us  from  doing  if  we  had  a  mouth's  more  time." — 
Sidney  Letters,  ii.,  671.  He  alludes  in  the  same 
letters  to  the  divisions  in  the  Royal  party. 


ClU.  1.-1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


323 


and  an  unbroken  though  inferior  force,  com- 
manded by  Lord  Willoughby  and  Crom- 
well, in  Lincoln.shire,  1  must  leave  to  mili- 
taiy  critics ;  suspecting,  however,  that  he 
would  have  found  it  difficult  to  draw  away 
the  Yorkshire  gentry  and  yeomanry,  form- 
ing the  strength  of  his  army,  from  their  un- 
protected homes.  Yet  the  Parliamentary 
forces  were  certainly,  at  no  period  of  the 
war,  so  deficient  in  numbers,  discipline,  and 
confidence ;  and  it  may  well  bo  thought  that 
the  king's  want  of  permanent  resources, 
with  his  knowledge  of  the  timidity  and  dis- 
union which  prevailed  in  the  capital,  ren- 
dered the  boldest  and  most  forward  game 
his  ti'ue  policy. 

It  was  natural  that  the  moderate  party 
Efforts  by  in  Parliament  should  acquire 
partyfor""^  sti-ength  by  the  untoward  for- 
peaoe.  tune  of  its  cirms.  Their  aim,  as 
well  as  that  of  the  Constitutional  Royalists, 
was  a  speedy  j)acification ;  neither  party 
so  much  considering  what  terms  might  be 
most  advantageous  to  their  own  side,  as 
which  way  the  nation  might  be  freed  from 
an  incalculably  protracted  calamity.  On 
the  king's  advance  to  Colnbrook  in  Novem- 
ber, 1642,  the  two  Houses  made  an  over- 
ture for  negotiation,  on  which  he  expi'essed 
Affair  at  h's  readiness  to  enter.  But,  dur- 
Brentford.  j^g  {jjg  parley,  some  of  his  troops 
advanced  to  Brentfoi'd,  and  a  sharp  action 
took  place  in  that  town.  The  Parliament 
affected  to  consider  this  such  a  mark  of  per- 
fidy and  bloodthirstiness  as  justified  them 
in  breaking  off  the  ti-eaty  ;  a  step  to  which 
they  were  doubtless  more  inclined  by  the 
king's  reti'eat,  and  their  discoveiy  that  his 
army  was  less  formidable  than  they  had 
apprehended.  It  is  very  probable,  or  rath- 
er certain,  even  from  Clarendon's  account, 
that  many  about  the  king,  if  not  himself, 
were  sufficiently  indisposed  to  negotiate ; 
yet,  as  no  cessation  of  arms  had  been  agi'eed 
upon,  or  even  proposed,  he  can  not  be  said 
to  have  waved  the  unquestionable  right  of 
eveiy  belligerent,  to  obtain  all  possible  ad- 
vantage by  arms,  in  order  to  treat  for  peace 
in  a  more  favorable  position.  But,  as  man- 
kind are  seldom  reasonable  in  admitting  such 
maxims  against  themselves,  he  seems  to 
have  injured  his  reputation  by  this  affair  of 
Brentford. 

A  treaty,  from  which  many  ventured  to 
hope  much,  was  begun  early  in  the  next 


spring  at  Oxford,  after  a  struggle  Treaty  at 
which  had  lasted  through  the  win-  Oxford, 
ter  within  the  walls  of  Parliament.*  But 
though  the  party  of  Pym  and  Hampden  at 
Westminster  were  not  able  to  prevent  ne- 
gotiation against  the  strong  bent  of  the 
House  of  Lords,  and  even  of  the  city, 
which  had  been  taught  to  lower  its  tone  by 
the  interruption  of  trade,  and  especially  of 
the  supply  of  coals  from  Newcastle,  yet 
they  were  powerful  enough  to  make  the 
Houses  insist  on  terms  not  less  unreasona- 
ble than  those  contained  in  their  nineteen 
propositions  the  year  before. f  The  king 
could  not  be  justly  expected  to  comply  with 
these ;  but,  had  they  been  more  moderate, 
or  if  the  Parliament  would  have  in  some 
measure  receded  from  them,  we  have  ev- 
ery reason  to  conclude,  both  by  the  nature 
of  the  terms  he  proposed  in  return,  and  by 
the  positive  testimony  of  Clarendon,  that  he 
would  not  have  come  sincerely  into  any 
scheme  of  immediate  accommodation.  The 
I'eason  assigned  by  that  author  for  the  un- 
willingness of  Charles  to  agi-ee  on  a  cessa- 
tion of  arms  during  the  negotiation,  though 
it  had  been  originally  suggested  by  himself 
(and  which  reason  would  have  been  still 
more  applicable  to  a  treaty  of  peace),  is  one 
so  strange,  that  it  requires  all  the  authority 
of  one  very  unwilling  to  confess  any  weak- 
ness or  duplicity  of  the  king  to  be  believed. 
He  had  made  a  solemn  promise  to  the  queen 
on  her  departure  for  Holland  the  year  be- 
fore, "  that  he  would  receive  no  person  who 

*  Pari.  Hist.,  iii.,  45,  48.  It  seems  natural  to 
tliiuk  that,  if  the  moderate  party  were  able  to  con- 
tend so  well  against  their  opponents  after  the  de- 
sertion of  a  gi'eat  many  Royalist  members  who  had 
joined  the  king,  they  would  have  maintained  a  de- 
cisive majority  had  these  continued  in  their  places. 
But  it  is  to  be  considered,  on  the  other  hand,  that 
the  king  could  never  have  raised  an  anuy  if  he 
had  not  been  able  to  rally  the  peers  and  gentry 
round  his  banner,  and  that  in  liis  army  lay  the  real 
secret  of  the  temporary  strength  of  the  pacific  partj". 

t  Pari.  Hist.,  iii.,  68,  94.  Clarendon,  May, 
Whitelock.  If  we  believe  the  last  (p.  6S),  the 
king,  who  took,  as  usual,  a  very  active  part  in  the 
discussions  upon  this  treaty,  would  frequently  have 
been  inclined  to  come  into  an  adjustment  of  tcmis, 
if  some  of  the  more  warlike  spirits  about  him 
(glancing,  apparently,  at  Rupert)  had  not  over-per- 
suaded his  better  judgment.  This,  however,  does 
not  accord  with  what  Clarendon  tells  us  of  the 
queen's  secret  influence,  nor,  indeed,  with  all  we 
have  reason  to  believe  of  the  king's  disposition 
during  the  war. 


324 


CONSTITUTIONAL  HISTORY  OF  EXQLAND 


[Chap.  X. 


liad  disserved  him  into  any  favor  or  trust, 
without  her  privity  and  consent ;  and  that, 
as  she  had  undergone  many  reproaches  and 
cnhimnies  at  the  entrance  into  the  war,  so 
he  would  never  make  any  peace  but  by  her 
intei-position  and  mediation,  that  the  king- 
dom might  receive  that  blessing  only  from 
her."*  Let  this  be  called,  as  the  reader 
may  please,  the  extravagance  of  romantic 
affection,  or,  rather,  the  height  of  pusillani- 
mous and  criminal  subserviency,  we  can  not 
surely  help  acknowledging  that  this  one 
marked  weakness  in  Charles's  character, 
had  there  been  nothing  else  to  object,  ren- 
dered the  return  of  cordial  harmony  be- 
tween himself  and  his  people  scarce  witliin 
the  bounds  of  natural  possibilitJ^  In  the 
equally  balanced  condition  of  both  forces  at 
this  particular  juncture,  it  may  seem  that 
some  compromise  on  the  great  question  of 
the  militia  was  not  impracticable,  had  the 
king  been  truly  desirous  of  accommodation  ; 
for  it  is  only  just  to  remember  that  the  Par- 
liament had  good  reason  to  demand  some  se- 
curity for  themselves,  when  he  had  so  per- 
emptorily excluded  several  persons  from  am- 
nesty. Both  parties,  in  truth,  were  stand- 
ing out  for  more  than,  either  according  to 
their  situation  as  belligerents,  or  even,  per- 
haps, according  to  the  principles  of  our  Con- 
stitution, they  could  reasonably  claim ;  the 
two  Houses  having  evidently  no  direct  right 
to  order  the  militaiy  force,  nor  the  king,  on 
the  other  hand,  having  a  clear  prerogative 
to  keep  on  foot  an  army,  which  is  not  easily 
distinguishable  from  a  militia,  without  con- 
sent of  Parliament.    The  most  reasonable 

*  Life  of  Clarendon,  p.  79.  This  induced  the 
king  to  find  pretexts  for  avoiding  the  cessation,  and 
was  the  real  cause  of  liis  refusal  to  restore  the 
Earl  of  Northumberland  to  his  post  of  lord-admiral 
during  this  treaty  of  Oxford,  which  was  urged  by 
Hyde.  That  peer  was  at  this  time,  and  for  sever- 
al months  afterward,  inclining  to  come  over  to  the 
king ;  but.  on  the  bad  success  of  Holland  and  Bed- 
ford in  their  change  of  sides,  he  gave  into  the  op- 
posite course  of  politics,  and  joined  the  party  of 
Lords  Say  and  Wharton,  in  determined  hostility 
to  the  king. 

Dr.  Liugard  has  lately  thrown  doubts  upon  this 
passage  in  Clarendon,  but  upon  gi-ounds  which  I 
do  not  clearly  understand. — Hist,  of  Engl.,  x.,  208, 
note.  That  no  vestige  of  its  truth  should  appear, 
as  he  obsei-ves,  in  the  private  correspondence  be- 
tween Charles  and  his  consort  (if  he  means  the  let- 
ters taken  at  Naseby,  and  I  know  no  other),  is  not 
very  singular,  as  the  whole  of  that  correspondence 
is  of  a  much  later  date. 


course,  apparently,  would  have  been  for  the 
one  to  have  waved  a  dangerous  and  disput- 
ed authority,  and  the  other  to  have  desist- 
ed from  a  still  more  unconstitutional  preten- 
sion, which  was  done  by  the  Bill  of  Rights 
in  1689.  The  kingdom  might  have  well 
dispensed,  in  that  age,  with  any  military 
organization  ;  and  this  seems  to  have  been 
the  desire  of  Whitelock,  and  probably  of 
other  reasonable  men.  But,  unhappily, 
when  swords  are  once  drawn  in  civil  war, 
they  are  seldom  sheathed  till  experience 
has  .shown  which  blade  is  the  sharper. 

Though  this  particular  instance  of  the 
queen's  prodigious  ascendency  over  her 
husband  remained  secret  till  the  publica- 
tion of  Lord  Clarendon's  life,  it  was  in  gen- 
eral well  known,  and  put  the  leaders  of 
the  Commons  on  a  remarkable  stroke  of 
policy  in  order  to  prevent  the  renewal  of 
negotiations.  On  her  landing  in  impeachment 
the  North  with  a  supply  of  mon-  'he  queen, 
ey  and  anns,  as  well  as  with  a  few  troops 
she  had  collected  in  Holland,  they  can-ied 
up  to  the  Lords  an  impeachment  for  high 
treason  against  her.  This  measure  (so  ob- 
noxious was  Henrietta)  met  with  a  less  vig- 
orous opposition  than  might  be  expected, 
though  the  moderate  party  was  still  in  con- 
siderable force.*  It  was  not  only  an  in- 
solence which  a  king  less  uxorious  than 
Charles  could  never  pai'don,  but  a  violation 
of  the  primary  laws  and  moral  sentiments 
that  preserve  human  society,  to  which  the 
queen  was  acting  in  obedience.  Scarce  any 
proceeding  of  the  Long  Parliament  seems 
more  odious  than  this,  whether  designed  by 
way  of  intimidation,  or  to  exasperate  the 
king,  and  render  the  composure  of  existing 
diftej-ences  more  impracticable. 

*  I  can  not  discover  in  the  Journals  any  division 
on  this  impeachment.  But  HoUis  inveighs  against 
it  in  his  memoirs  as  one  of  the  flagrant  acts  of  St. 
John's  party ;  and  there  is  an  account  of  the  de- 
bate on  this  subject  in  the  Somers  Tracts,  v.,  500, 
whence  it  appears  that  it  was  opposed  by  May- 
nard.  Waller,  Whitelock,  and  others,  but  support- 
ed by  Pjm,  Strode,  Long.  Gljnn,  and  by  Martin 
with  his  usual  fui-j-  and  rudeness.  The  first  of 
these  carried  up  the  impeachment  to  the  House  of 
Lords. 

This  impeachment  was  not  absolutely  lost  sight 
of  for  some  time.  In  January,  1 644,  the  Lords  ap- 
pointed a  committee  to  consider  what  mode  of 
proceeding  for  bringing  the  queen  to  trial  was 
most  agreeable  to  a  Parliamentary  way,  and  to 
peruse  precedents. — Pari.  Hist.,  194. 


Cha.  1,-1642-49.] 


FROM  HENRY  VII. 


:.  TO  GEORGE  II. 


325 


The  enemies  of  peace  were  strengthened 
Waller's  W  (liscoveiy  of  what  is  usually 
Plot.  called  Waller's  Plot,  a  scheme  for 
making  a  strong  demonstration  of  the  Roy- 
alist party  in  London,  wherein  several  mem- 
bers of  both  Houses  appear  to  have  been 
more  or  less  concerned.  Upon  the  detec- 
tion of  this  conspiracy,  the  two  houses  of 
Parliament  took  an  oiith  not  to  lay  down 
arms  so  long  as  the  papists  now  in  arms 
should  be  jjrotected  from  the  justice  of  Par- 
liament ;  and  never  to  adhere  to,  or  willingly 
assist,  the  forces  raised  by  the  king,  without 
the  consent  of  both  Houses.  Every  indi- 
vidual member  of  the  Peers  and  Commons 
took  this  oath,  some  of  them  being  then  in 
secret  concert  with  the  king,  and  others 
entertaining  intentions,  as  their  conduct  veiy 
soon  evinced,  of  deserting  to  his  side.* 
Such  was  the  commencement  of  a  system 
of  perjury,  which  lasted  for  many  years, 
and  belies  the  pretended  religion  of  that 
hypocritical  age.  But  we  may  always  look 
for  this  effect  from  oppressive  power  and 
the  imposition  of  ])olitical  tests. 

The  king  was  now  in  a  course  of  success, 
which  made  him  rather  hearken  to  the  san- 
guine courtiers  of  Oxford,  where,  according 
to  the  invariable  character  of  an  exiled  fac- 
tion, every  advantage  or  reverse  brought  on 
a  disproportionate  exultation  or  desponden- 
cy, than  to  those  better  counselors  who 
knew  the  prccariousness  of  his  good  fortune. 
He  published  a  declaration,  wherein  he  de- 
nied the  two  houses  at  Westminster  the 
name  of  a  Parliament,  which  he  could  no 
more  take  from  them,  after  the  bill  he  had 
passed,  than  they  could  deprive  him  of  his 
royal  title,  and  by  refusing  which  he  shut 
up  all  avenues  to  an  equal  peace. f  This 
was  soon  followed  by  so  extraordinary  a  po- 
litical error  as  manifests  the  king's  want  of 
judgment,  and  the  utter  improbability  that 
any  event  of  the  war  could  have  restored  to 
Secession  of  England  the  blessings  of  liberty 
toThe'^fil^'s  ""^  repose.  Three  peers  of  the 
quarters.  moderate  party,  the  Earls  of 
Holland,  Bedford,  and  Clare,  dissatisfied 
with  the  preponderance  of  a  violent  faction 


•  Pari.  Hist.,  129. 

t  Pari.  Hist.,  133.  June  20.  Clarendon,  iv.,  155. 
He  published,  however,  a  declaration  soon  after 
the  taking  of  Bristol,  containing  full  assurances  of 
his  determination  to  govern  by  the  known  laws. — 
Pari.  Hist.,  144. 


in  the  Commons,  left  their  places  at  West- 
minster and  came  into  the  king's  quarters. 
It  might  be  presumed,  from  general  policy 
as  well  as  from  his  constant  declarations  of 
a  desire  to  restore  peace,  that  they  would 
have  been  received  with  such  studied  cour- 
tesy as  might  sei-ve  to  reconcile  to  their 
own  mind  a  step  which,  when  taken  with 
the  best  intentions,  is  always  equivocal  and 
humiliating.  There  was  great  reason  to 
believe  that  the  Earl  of  Northumberland, 
not  only  the  first  peer  then  in  England  as  to 
family  and  fortune,  but  a  maa  highly  es- 
teemed for  prudence,  was  only  waiting  to 
obsei-ve  the  reception  of  those  who  went 
first  to  Oxford  before  he  followed  their  steps. 
There  were  even  well-foiuided  hopes  of 
the  Earl  of  Essex,  who,  though  incapable 
of  beti'aying  his  trust  as  commander  of  the 
Parliament's  army,  was,  both  from  personal 
and  public  motives,  disinclined  to  the  war- 
party  in  the  Commons.  There  was  much 
to  expect  from  all  those  who  had  secretly 
wished  well  to  the  king's  cause,  and  from 
those  whom  it  is  madness  to  reject  or  in- 
sult, the  followers  of  fortune,  the  worshipers 
of  power,  without  whom  neither        .  , 

'  Their  treat- 

fortune  nor  power  can  long  sub-  ment  ihere 
sist.  Yet  such  was  the  state  of 
Charles's  council-board  at  Oxford,  that  some 
were  for  arresting  these  proselyte  earls ; 
and  it  was  carried  with  difficulty,  after  they 
had  been  detained  some  time  at  Walling- 
ford,  that  they  might  come  to  the  court. 
But  they  met  there  with  so  many  and  such 
general  slights,  that,  though  they  fought  in 
the  king's  army  at  Newbury,  they  found 
their  position  intolerably  ignominious,  and 
after  about  three  months,  returned  to  the 
Parliament  with  manj^  expressions  of  re- 
pentance, and  strong  testimonies  to  the  evil 
counsels  of  Oxford.* 

*  Clarendon,  iv.,  19-2,  262.  Whitelock,  70.  They 
met  with  a  worse  reception  at  Westminster  than 
at  Oxford,  as,  indeed,  they  had  reason  to  expect. 
A  motion  that  the  Earl  of  Holland  should  be  sent 
to  the  Tower  was  lost  in  the  Commons  by  only 
one  voice,  Pari.  Hist.,  180.  They  were  provoked 
at  his  taking  his  seat  without  permission.  After 
long  refusing  to  consent,  the  Lords  agreed  to  an 
ordinance,  June  29.  1644,  that  no  peer  or  common- 
er who  had  been  in  the  king's  quarters  should  be 
admitted  again  to  sit  in  either  House. — Pari.  Hist., 
271.  This  severity  was  one  cause  of  Essex's  dis- 
content, which  was  increased  when  the  Commons 
refused  him  leave  to  take  Holland  with  him  on  his 
expedition  into  the  West  that  summer. — Baillic, 


326 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


The  king  seems  to  have  been  rather  pass- 
ive in  this  strange  piece  of  impolicy,  but 
by  no  means  to  have  talien  the  hne  that  be- 
came him,  of  repressing  tlie  selfish  jealousy 
or  petty  revengefulness  of  his  court.  If  the 
Earl  of  Holland  was  a  man  whom  both  he 
and  the  queen,  on  the  score  of  his  great  ob- 
ligations to  them,  might  justly  reproach  with 
some  ingi'atitude,  there  was  nothing  to  be 
objected  against  the  other  two,  save  their 
continuance  at  Westminster,  and  compli- 
ance in  votes  that  he  disliked ;  and  if  this 
were  to  be  visited  by  neglect  and  discoun- 
tenance, there  could,  it  was  plain,  be  no 
reconciliation  between  him  and  the  Parlia- 
ment. For  who  could  imagine  that  men  of 
courfige  and  honor,  while  possessed  of  any 
sort  of  strength  and  any  hopes  of  preserving 
it,  would  put  up  with  a  mere  indemnity  for 
their  lives  and  fortunes,  subject  to  be  reck- 
oned as  pardoned  traitors,  who  might  thank 
the  king  for  his  clemencj'  without  presuming 
to  his  favor?  Charles  must  have  seen  his 
superiority  consolidated  by  repeated  victo- 
ries before  he  could  prudently  assume  this 
tone  of  conquest.  Inferior  in  substantial 
force,  notwithstanding  his  transient  advan- 
tages, to  the  Parliament,  he  had  no  proba- 
bility of  regaining  his  station  but  by  defec- 
tions from  their  banner  ;  and  these,  with 
incredible  folly,  he  seemed  to  decline ;  far 
unlike  his  illustrious  father-in-law,  who  had 
cordially  embraced  the  leaders  of  a  rebellion 
much  more  implacable  than  the  present. 
For  the  Oxford  counselors  and  courtiers 
who  set  themselves  against  the  reception  of 
the  three  earls,  besides  their  particular  an- 
imosity toward  the  Earl  of  Holland,*  and 
i.,  426.  Whitelock,  87.  If  it  be  asked  why  this 
Roman  rigor  was  less  impolitic  in  the  Parliament 
than  in  the  king,  I  can  onlj'  answer,  that  the 
stronger  and  the  weaker  have  different  measures 
to  pursue  ;  but  relatively  to  the  pacification  of  the 
kingdom,  upon  such  terms  as  fellow-citizens  ought 
to  require  from  each  other,  it  was  equally  blama- 
ble  in  both  parties,  or  rather  more  so  in  that  pos- 
sessed of  the  greater  power. 

*  It  is  intimated  by  Clarendon  that  some  at  Ox- 
ford, probably  Jerrajm  and  Digby,  were  jealous  of 
Holland's  recovering  the  influence  he  had  possess- 
ed with  the  queen,  who  seems  to  have  retained 
no  resentment  against  him.  As  to  Bedford  and 
Clare,  they  would  probablj-  liave  been  better  re- 
ceived if  not  accompanied  by  so  obnoxious  an  in- 
triguer of  the  old  court.  This  seems  to  account 
for  the  unanimity  whicli  the  historian  describes  to 
have  been  shown  in  the  council  against  their  fa- 
vorable reception.  Light  and  passionate  tempers, 


that  general  feeling  of  disdain  and  distrust 
which,  as  Clarendon  finely  observes,  seems 
by  natui'e  attached  to  all  desertion  and  in- 
constancy, whether  in  politics  or  religion 
(even  among  those  who  reap  the  advantage 
of  it,  and  when  founded  upon  what  they 
ought  to  reckon  the  soundest  reasons),  there 
seems  grounds  to  suspect  that  they  had 
deeper  and  more  selfish  designs  than  they 
cared  to  manifest.  They  had  long  be.set  the 
king  with  solicitations  for  titles,  offices,  pen- 
sions ;  but  these  were  necessarily  too  limit- 
ed for  their  cravings.  They  had  sustained, 
many  of  them,  great  losses ;  they  had  per- 
formed real  or  pretended  services  for  the 
king ;  and  it  is  probable  that  they  looked  to 
a  confiscation  of  enemies'  property  for  their 
indemnification  or  reward.  This  would  ac- 
count for  an  adverseness  to  all  overtures  for 
peace,  as  decided,  at  this  period,  among  a 
great  body  of  the  Cavaliers  as  it  was  with 
the  factions  of  Pym  or  Vane. 

These  factions  were  now  become  final- 
ly predominant  at  Westminster.  „, 

A       ,  1        Ti  ■         T,  Theanti- 

On  the  news  that  Prince  Ru-  pacific  party 
pert  had  taken  Bristol,  the  last  Sant%T' 
and  most  serious  loss  that  the  ■vvestmin- 
Parliament  sustained,  the  Lords 
agreed  on  propositions  for  peace  to  be  sent 
to  the  king,  of  an  unusually  moderate  tone.* 
The  Commons,  on  a  division  of  94  to  6.5,  de- 
termined to  take  them  into  consideration ; 
but  the  Lord-mayor  Pennington  having  pro- 
cured an  address  of  the  citj'  against  peace, 
backed  by  a  tumultuous  mob,  a  small  ma- 
jority was  obtained  against  concurring  with 
the  other  House. f    It  was  after  this  that 

like  that  of  Henrietta,  are  prone  to  forget  inju- 
ries ;  serious  and  melancholic  ones,  like  that  of 
Charles,  never  lose  sight  of  them. 

*  Baillie  deplores  at  this  time  "the  horrible 
fears  and  confusions  in  the  city,  the  king  every 
where  being  victorious.  In  the  city,  a  stiong  and 
insolent  party  for  him,"  p.  391.  "The  malignants 
stirred  a  multitude  of  women  of  the  meaner  and 
more  infamous  rank  to  come  to  the  door  of  both 
Houses,  and  cry  tumultuously  for  peace  on  any 
tenns.  This  tumult  could  not  be  suppressed  but 
by  violence,  and  killing  some  three  or  four  women, 
and  hurting  some  of  them,  and  imprisoning  many," 
p.  300. 

t  Lords  and  Commons'  Journals.  Pari.  Hist  , 
156,  &.C.  Clarendon,  iv.,  183.  HoUis's  Memoirs. 
HoUis  was  a  teller  for  the  raajoritj'  on  the  first  oc- 
casion ;  he  had  left  the  warlike  party  some  months 
(Baillie,  i.,  356) ;  and  his  name  is  in  the  Journals 
repeatedly  from  November,  1642,  as  teller  against 
them,  though  he  is  charged  with  having  said  tlie 


Cha.  I.— 1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


327 


the  lords  above  mentioned,  as  well  as  many 
of  the  commons,  quitted  Westminster. 
The  prevailing  party  had  no  tliouglits  of 
peace  till  they  could  dictate  its  conditions. 
Through  Essex's  great  success  in  raising 
the  siege  of  Gloucester,  the  most  distin- 
guished exploit  in  his  military  life,  and  the 
battle  of  Newbury,  wherein  the  advantage 
was  certainly  theirs,  they  became  secure 
against  any  important  attack  on  the  king's 
side,  the  war  turning  again  to  endless  sieges 
and  skirmishes  of  partisans.  And  they  now 
adopted  two  important  measures,  one  of 
which  gave  a  new  complexion  to  the  quarrel. 

LirtJeton,  the  lord-keeper  of  the  great 
seal,  had  carried  it  away  with  him  to  tlie 
king.  This  of  itself  put  a  stop  to  the  i-egu- 
lar  course  of  the  executive  government,  and 
to  the  administi-ation  of  justice  within  the 
Parliament's  quarters.  No  employments 
could  be  filled  up,  no  writs  for  election  of 
members  issued,  no  commissions  for  hold- 
ing the  assizes  completed,  without  the  in- 
dispensable formality  of  affixing  the  gi-eat 
seal.  It  must  surely  excite  a  smile,  that 
men  who  had  raised  armies,  and  fought  bat- 
tles against  the  king,  should  be  perplexed 
how  to  get  over  so  technical  a  difficulty. 
But  the  greiit  seal,  in  the  eyes  of  the  Eng- 
lish lawyers,  has  a  sort  of  mysterious  effi- 
cacy, and  passes  for  the  depository  of  )-oyal 
authority  in  a  higher  degree  than  the  per- 
The  Parlia-  son  of  the  king.  The  Commons 
a  ne«"g!feat  pvepared  an  ordinance  in  July 
seal.  for  making  a  new  great  seal,  in 

which  the  Lords  could  not  be  induced  to 
concur  till  October.  The  Royalists,  and 
the  king  himself,  exclaimed  against  this  as 
the  most  audacious  ti-eason,  though  it  may 
be  reckoned  a  very  natural  consequence  of 
the  state  in  which  the  Pai  liament  was  plac- 
ed; and  in  the  subsequent  negotiations,  it 
was  one  of  the  minor  points  in  dispute, 
whether  he  should  autliorize  the  proceed- 
ings under  the  great  seal  of  the  two  Hous- 
es, or  they  consent  to  sanction  what  had 
been  done  by  virtue  of  his  own. 

The  second  measure  of  Parliament  was 
of  greater  moment  and  more  fatal  conse- 
quences. I  have  already  mentioned  the 
year  before  that  he  abliorred  the  name  of  accom- 
modatioQ. — Hutchinson,  p.  296.  Though  a  very 
honest,  and  to  a  certain  extent  an  able  man,  he 
was  too  much  carried  away  by  personal  animosi- 
ties ;  and  as  these  shifted,  his  principles  shifted 
also. 


stress  laid  by  the  bigoted  Scots  Presbyte- 
rians on  the  establishment  of  their  own 
church-government  in  England.  Chiefly, 
perhaps,  to  conciliate  this  people,  the  House 
of  Commons  had  entertained  the  bill  for 
abolishing  Episcopacy,  and  this  had  formed 
a  part  of  the  nineteen  propositions  that  both 
Houses  tendered  to  the  king.*  After  the 
action  at  Brentford,  they  concurred  in  a 
declaration  to  be  delivered  to  the  Scots 
commissioners,  resident  in  London,  where- 
in, after  setting  forth  the  malice  of  the  pre- 
latical  clergy  in  hindering  the  reformation 
of  ecclesiastical  government,  and  professing 
their  own  desire  willingly  and  aft'ectionately 
to  pursue  a  closer  union  in  such  matters  be- 
tween the  two  nations,  they  request  their 
bretlu'en  of  Scotland  to  raise  such  forces  as 
they  should  judge  sufficient  for  the  securing 
the  peace  of  their  own  borders  against  ill- 
affected  persons  there,  as  likewise  to  assist 
them  in  suijpressing  the  army  of  papists 
and  foreigners,  which,  it  was  expected, 
would  shortly  be  on  foot  in  England. f 

This  overture  produced  for  many  mouths 
no  sensible  effect.  The  Scots,  with  all 
their  national  wariness,  suspected  that,  in 
spite  of  these  general  declarations  in  favor 
of  their  Church  polity,  it  was  not  much  at 
heart  with  most  of  the  Parliament,  and 
might  be  given  up  in  a  treaty,  if  the  king 
would  concede  some  other  matters  in  dis- 
pute. Accordingly,  when  the  progress  of 
his  arms,  especially  in  the  North,  dui-ing 
the  ensuing  summer,  compelled  the  Parlia- 
ment to  call  in  a  more  pressing  manner,  and 
by  a  special  embassy,  for  their  aid,  they  re- 
solved to  bind  them  down  by  such  a  com- 
pact as  no  wavering  policy  should  ever  re- 
scind. They  insisted,  therefore,  on  the 
adoption  of  the  solemn  League  and  Cove- 
nant, founded  on  a  similar  association  of 
their  own,  five  years  before,  through  which 
they  had  successfully  resisted  the  king,  and 
overthrown  the  prelatic  government.  The 
Covenant  consisted  in  an  oath  to  be  sub- 
scribed by  all  sorts  of  persons  in  both  king- 
doms, whereby  they  bound  themselves  to 
preserve  the  Reformed  religion   in  the 

*  The  resolution,  that  government  by  arclibish- 
op.s,  bishops,  &c.,  was  inconvenient,  and  ought  to 
be  taken  away,  passed  both  Houses  unanimously, 
September  10,  1642.— Pari.  Hist.,  ii.,  14C5.  But 
the  ordinance  to  carry  this  fidlj'  into  effect  was 
not  made  till  October,  1646.  —  Scobell's  Ordi- 
nances, t  Pari.  Hist.,  iii.,  15. 


328 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X 


Church  of  Scotland,  in  doctrine,  worship, 
discipline,  and  government,  according  to  the 
word  of  God  and  practice  of  the  best  Re- 
formed churches  ;  and  to  endeavor  to  bring 
the  churches  of  God  in  the  three  kingdoms 
to  the  nearest  conjunction  and  uniformity 
in  religion,  confession  of  faith,  form  of 
church-government,  directory  for  worship, 
and  catechising ;  to  endeavor,  without  re- 
spect of  persons,  the  extirpation  of  popery, 
prelacy  (that  is,  church-government  by  arch- 
bishops, bishops,  their  chancellors  and  com- 
missaries, deans  and  chapters,  archdeacons, 
and  all  other  ecclesiastical  officers  depend- 
ing on  that  hierarchy),  and  whatsoever 
should  be  found  contrary  to  sound  doctrine 
and  the  power  of  godliness  ;  to  preseiTe  the 
rights  and  privileges  of  the  Parliaments,  and 
the  liberties  of  the  kingdoms,  and  the  king's 
person  and  authority,  in  the  preservation 
and  defense  of  the  true  religion  and  liber- 
ties of  the  kingdoms ;  to  endeavor  the  dis- 
covery of  incendiaries  and  malignants,  who 
hinder  the  reformation  of  religion,  and  di- 
vide the  king  from  his  people,  that  they  may 
be  brought  to  punishment ;  finally,  to  assist 
and  defend  all  such  as  should  enter  into  this 
Covenant,  and  not  suffer  themselves  to  be 
withdrawn  from  it,  whether  to  revolt  to  the 
opposite  party,  or  to  give  into  a  detestable 
indifference  or  neutrality.  In  conformity 
to  the  sti'ict  alliance  thus  established  between 
the  two  kingdoms,  the  Scots  commissioners 
at  Westminster  were  intrusted,  jointly  with 
a  committee  of  both  Houses,  with  very  ex- 
tensive powers  to  administer  the  public  af- 
fairs.* 

Eveiy  member  of  the  Commons  who  re- 
The  Pariia-  mained  at  Westminster,  to  the 
"nbestt'he  ^^'^'^^^  °f  228,  or  perhaps  more. 
Covenant.  and  from  20  to  30  peers  that 
formed  their  Upper  House, f  subscribed  this 

*  This  committee,  appointed  in  February,  1644, 
consisted  of  the  foHowing  persons,  the  most  con- 
.spicnons,  at  that  time,  of  the  Parliament :  the 
Earls  of  Northumberland,  Essex,  Warwick,  and 
Manchester  ;  Lords  Say,  Wharton,  and  Roberts  ; 
Mr.  Pierpoint,  the  two  .Sir  Henry  Vanes,  Sir  Phil- 
ip Stapylton.  Sir  William  Waller,  Sir  Gilbert 
Gerrard,  Sir  William  ArmjTi,  Sir  Arthur  Hazle- 
rig ;  Messrs.  Crew,  Wallop,  St.  John,  Cromwell, 
Brown,  and  Glj-nn. — Pari.  Hist.,  iii.,  248. 

t  Somers  Tracts,  iv.,  533.  The  names  marked 
in  the  Parliamentary  History  as  having  taken  the 
Covenant  are  236. 

The  Earl  of  Lincoln  alone,  a  man  of  great  integ- 
rity and  moderation,  thougli  only  conspicuous  in 


deliberate  pledge  to  overturn  the  Established 
Church ;  many  of  them  with  extreme  re- 
luctance, both  from  a  dislike  of  the  innova- 
tion, and  from  a  consciousness  that  it  raised 
a  most  formidable  obstacle  to  the  restora- 
tion of  peace ;  but  with  a  secret  reserve, 
for  which  some  want  of  precision  in  the 
language  of  this  Covenant  (purposely  intro- 
duced by  Vane,  as  is  said,  to  shelter  his  own 
schemes)  afforded  them  a  sort  of  apologj%* 
It  was  next  imposed  on  all  civil  and  military 
officers,  and  upon  all  the  beneficed  clergy. f 
A  severe  persecution  fell  on  the  faithful  chil- 
dren of  the  Anglican  Church.  Many  had 
already  been  sequestered  from  their  livings, 
or  even  subjected  to  imprisonment,  by  the 
Parliamentai-y  committee  for  scandalous 
ministers,  or  by  subordinate  committees  of 
the  same  kind  set  up  in  each  county  within 
!  their  quarters  ;  sometimes  on  the  score  of 
•  immoralities  or  false  doctiine,  more  fi-e- 

j  the  Journals,  refused  to  take  the  Covenant,  and 
was  excluded,  in  consequence,  from  his  seat  iu  the 

!  House  :  bat  on  his  petition  next  j  ear,  though,  as 

I  far  as  appears,  without  compliance,  was  restored, 
and  the  vote  rescinded.  —  Pari  Hist..  393.  He 

'  regularly  protested  against  all  violent  measures  ; 
and  we  still  find  his  name  in  the  minority  on  such 

[  occasions  after  the  Restoration. 

Baillie  says,  the  desertion  of  about  six  peers  at 
this  time  to  the  king  was  of  great  use  to  the  pass- 
ing of  the  Covenant  in  a  legal  way. — Vol.  i.,  p.  390. 

'  *  Burnet's  Mem.  of  Duke  of  Hamilton,  p.  239. 
I  am  not  quite  satisfied  as  to  this,  which  later 

!  writers  seem  to  have  taken  from  Bumet.    It  may 

'  well  be  supposed  that  the  ambiguity  of  the  Cove- 
nant was  not  very  palpable,  since  the  Scots  Pres- 

[  bj  terians,  a  people  not  easily  cozened,  were  con- 
tent with  its  expression.  According  to  fair  and 
honest  rules  of  interpretation,  it  certainly  bound 

!  the  subscribers  to  the  establishment  of  a  church- 
goveniment  conformed  to  that  of  Scotland,  name- 
ly, the  Presby  terian,  exclusive  of  all  mixture  with 
any  other.    But  Selden,  and  the  other  friends  of 

1  moderate  Episcopacy  who  took  the  Covenant,  jus- 

j  tified  it,  I  suppose,  to  their  consciences,  by  the 

I  pretext  that,  iu  renouncing  the  jurisdiction  of  bish- 

1  ops.  thej-  meant  the  unlimited  jurisdiction  without 
concuiTence  of  any  presbyters.  It  was  not,  how- 
ever, an  action  on  which  they  could  reflect  with 

I  pleasure.  Baxter  saj-s  that  Gataker,  and  some 
others  of  the  assembly,  would  not  subscribe  the 
Covenant  but  on  the  understanding  that  they  did 
not  renounce  primitive  Episcopacy  by  it — Life  of 

j  Baxter,  p.  48.    These  controversial  subtleties  elude 

!  the  ordinary  reader  of  history. 

t  AfVer  the  war  was  ended,  none  of  the  king's 
party  were  admitted  to  compound  for  their  estates 
without  taking  the  Covenant.  This  Clarendon,  in 
one  of  his  letters,  calls  "  making  haste  to  buy  dam- 

!  nation  at  two  years'  purchase.'' — Vol.  ii.,  p.  286. 


Cha.  I.— 164-2-40.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


329 


quently  for  what  they  termed  malignity, 
or  attachment  to  the  king  and  his  party.* 
Yet  waiy  men,  who  meddled 

Persecution  .  ,        ,.  .  .  ,  , 

of  the  clergy  not  With  pohtics,  might  hope  to 
whorefuseit.  ^j^jj^  jj^jg  inquisition.    But  the 

Covenant,  imposed  as  a  general  test,  drove 
out  all  who  were  too  conscientious  to  pledge 
themselves  by  a  solemn  appeal  to  the  Deity 
to  resist  the  polity  which  they  generally  be- 
lieved to  be  of  his  institution.  What  num- 
ber of  the  clergy  were  ejected  (most  of 
them  but  for  refusing  the  Covenant,  and  for 
no  moral  oflense  or  imputed  superstition)  it 
is  impossible  to  ascertain.  Walker,  in  his 
Sufferings  of  the  Clei'gy,  a  folio  volume  pub- 
lished in  the  latter  end  of  Anne's  reign, 
with  all  the  virulence  and  partiality  of  the 
High-Church  faction  in  that  age,  endeavored 
to  support  those  who  had  reckoned  it  at 
8000 ;  a  palpable  over-statement  upon  his 
own  showing,  for  he  can  not  produce  near 
2000  names,  after  a  most  diligent  investiga- 
tion. Neal,  however,  admits  ICOO,  probably 
more  than  one  fifth  of  the  beneficed  rainis- 

*  Neal,  ii.,  19,  &c.,  is  fair  enough  in  censui-iiig 
the  committees,  especially  those  in  the  countiy. 
"The  greatest  part  [of  the  clergy]  were  cast  out 
for  malignity  [attadmient  to  the  royal  cause] ;  su- 
perstition and  false  doctrine  were  hardly  ever  ob- 
jected; yet  the  proceedings  of  the  sequestrators 
were  not  always  justifiable ;  for,  whereas  a  court 
of  judicature  should  rather  be  counsel  for  the  pris- 
oner than  the  prosecutor,  the  commissioners  con- 
sidered the  king's  clergy  as  their  most  dangerous 
enemies,  and  were  ready  to  lay  hold  of  all  oppor- 
tunities to  discharge  them  their  pulpits,  "  p.  24. 
But  if  we  can  rely  at  all  on  White's  Century  of 
Malignant  Ministers  (and  1  do  not  perceive  that 
Walker  lias  been  able  to  controvert  it),  there  were 
a  good  many  cases  of  irregular  life  in  the  clergy, 
so  far,  at  least,  as  liaunting  ale-houses,  whicli, 
however,  was  much  more  common,  and,  conse- 
qaently,  less  indecent  in  that  age  than  at  present. 
See,  also,  Baxter's  Life,  p.  74,  whoso  authority, 
though  open  to  some  exceptions  on  the  score  of 
prejudice,  is  at  least  better  than  that  of  Walk- 
er's. 

The  king's  party  were  not  less  oppressive  to- 
ward ministers  whom  they  reckoned  Puritan, 
which  unluckily  comprehended  most  of  those  who 
were  of  strict  lives,  especially  if  they  preached 
Calvinistically,  unless  they  redeemed  that  suspi- 
cion by  strong  demonstrations  of  loyalty. — Neal,  p. 
21.  Baxter's  Life,  p.  42.  And,  if  they  put  them- 
selves forward  on  this  side,  they  were  sure  to  suf- 
fer most  severely  for  it  on  the  Parliament's  suc- 
cess, an  ordinance  of  April  1,  1643,  having  seques- 
tered the  private  estates  of  all  the  clergy  who  had 
aided  the  king.  Thus  the  condition  of  the  Eng- 
lish clergy  was  every  way  most  deplorable  ;  and, 
in  fact,  they  were  utterly  ruined. 


ters  in  the  kingdom.*  The  biographical  col- 
lections furnish  a  pretty  copious  martyi'ology 
of  men  the  most  distinguished  by  their  Icai-n- 
ing  and  virtues  in  that  age.  The  remorse- 
less and  indiscriminate  bigotry  of  Presby- 
terianism  might  boast  th;it  it  had  heaped 
disgrace  on  Walton,  and  driven  Lydiat  to 
beggary  ;  that  it  trampled  on  the  old  age  of 
Hales,  and  imbittered  with  insult  the  dying 
moments  of  Chillingworth. 

But  the  most  unjustifiable  act  of  these 
zealots,  and  one  of  the  greatest 

i_        c  ^1      T  T)    V  Impeachment 

reproaches  ot  the  Liong  Jr'arlia-  ami  executioa 
ment,  was  the  death  of  Arch-  "f'-^"''- 
bishop  Laud.  In  the  first  days  of  the  ses- 
sion, while  the  fall  of  Strafford  struck  every 
one  with  astonishment,  the  Commons  had 
carried  up  an  impeachment  against  him  for 
high  treason,  in  fourteen  articles  of  charge; 
and  he  had  lain  ever  since  in  the  Tower, 
his  revenues  and  even  private  estate  seques- 
tered, and  in  great  indigence.  After  nearly 
three  years'  neglect,  specific  articles  were 
exhibited  against  him  in  October,  1643,  but 
not  proceeded  on  with  vigor  till  December, 
1G44,  when,  for  whatever  reason,  a  determ- 
ination was  taken  to  pursue  this  unfortu- 
nate prelate  to  death.  The  charges  against 
him,  which  Wild,  Maynard,  and  other  man- 
agers of  the  impeachment  were  to  aggravate 
into  treason,  related  partly  to  those  papistic- 
al innovations  which  had  nothing  of  a  politic- 
al character  about  them,  partly  of  the  vio- 
lent proceedings  in  the  Star  Chamber  and 
High  Commission  Coiuts,  wherein  Laud 
was  very  prominent  as  a  counselor,  but  cer- 
tainly without  any  gi-eater  legal  responsi- 
bility than  fell  on  many  others.  He  de- 
fended himself,  not  always  prudently  or  sat- 
isfactorily, but  with  courage  and  ability ; 
never  receding  from  his  magnificent  notions 
of  spiritual  power,  but  endeavoring  to  shift 
the  blame  of  the  sentences  pronounced  by 
the  council  on  those  who  concuired  with 
him.  The  imputation  of  popery  he  repelled 
by  a  list  of  the  converts  he  had  made  ;  but 
the  word  was  equivocal,  and  he  could  not 
deny  the  difference  between  his  Protestant- 
ism and  that  of  our  Reformation.  Nothing 
could  be  more  monstrous  than  the  allegation 

*  Neal,  p.  9.3.  He  says  it  was  not  tendci-ed,  by 
favor,  to  some  of  the  clergy  who  had  not  been  act- 
ive against  the  Parliament,  and  were  reputed  Cal- 
vinisls,  p.  59.  Sanderson  is  said  to  be  one  instance. 
This  historian,  an  honest  and  well-natured  man  at 
bottom,  justly  censures  its  imposition. 


330 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


of  treason  in  this  case.  The  judges,  on  a 
reference  hj  the  Lords,  gave  it  to  be  under- 
stood, in  their  timid  way,  that  the  charges 
contained  no  legal  treason.*  But,  the  Com- 
mons having  changed  their  impeachment 
into  an  ordinance  for  his  execution,  the  peers 
were  pusillanimous  enough  to  comply.  It 
is  said  by  Clarendon  that  only  seven  lords 
were  in  the  House  on  this  occasion  ;  but 
the  Journals  unfortunately  bear  witness  to 
the  presence  of  twenty.f  Laud  had  amply 
merited  punishment  for  his  tyrannical  abuse 
of  power ;  but  his  execution  at  the  age  of 
seventy,  without  the  slightest  pretense  of 
political  necessity,  was  a  far  more  unjusti- 
fiable instance  of  it  than  any  that  was  al- 
leged against  him. 

Pursuant  to  the  before-mentioned  treaty, 
^        ,      the  Scots  army  of  21,000  men 

Decline  of  the  ,     ,  .        ^r.     ,      i  t 

king^'s  affairs  marched  mto  bngland  in  Janu- 
lu  1644.  1644.   This  was  a  very  seri- 

ous accession  to  Charles's  difficulties,  al- 
ready sufficient  to  dissipate  all  hopes  of  final 
triumph,  except  in  the  most  sanguine  minds. 
His  successes,  in  fact,  had  been  rather  such 
as  to  surprise  well-judging  men  than  to 
make  them  expect  any  more  favorable  ter- 
mination of  the  war  than  by  a  fair  treaty. 
From  the  beginning  it  may  be  said  that  the 
yeomanry  and  ti'ading  classes  of  towns  were 
generally  hostile  to  the  king's  side,  even  in 
those  counties  which  were  in  his  militaiy 
occupation  ;  except  in  a  few,  such  as  Corn- 
wall, Worcester,  Salop,  and  most  of  Wales, 
where  the  prevailing  sentiment  was  chiefly 
Royalist ;t  and  this  disaffection  was  pi-odig- 

*  "  AH  the  judges  answered  that  they  could  de- 
liver no  opinion  in  this  case  in  point  of  treason  by 
the  law,  because  they  could  not  deliver  any  opin- 
ion in  point  of  treason  but  what  was  particularly 
expressed  to  be  treason  in  the  statute  of  25  Edw. 
III.,  and  so  referred  it  wholly  to  the  judgment  of 
this  House." — Lords'  Journals.  17th  of  Dec,  1644. 

t  Lords'  Journals,  4th  of  January.  It  is  not  said 
to  be  done  nem.  con. 

t  "  The  difference  in  the  temper  of  the  common 
people  of  both  sides  was  so  great,  that  they  who 
inclined  to  the  Parliament  left  nothing  unperform- 
ed that  might  advance  the  cause ;  whereas  they 
who  wished  well  to  the  king  thought  they  had 
performed  their  duty  in  doing  so,  and  that  they 
had  done  enough  for  him  in  that  they  had  done 
nothing  against  him."  —  Clarendon,  p.  3,  452. 
"  Most  of  the  gentry  of  the  county  (Nottingham- 
shirei,'  says  Mrs.  Hutchinson,  "were  disafl'ected 
to  the  Parliament;  most  of  the  middle  sort,  the 
able,  substantial  freeholders  and  the  other  com- 
i»<:-^  who  had  not  theii'  dependence  upon  the  ma 


iously  increased  through  the  license  of  his 
ill-paid  and  ill-disciplined  anny.  On  the 
other  hand,  the  gentiy  were,  in  a  gi-eat 
majority,  attached  to  his  cause,  even  in  the 
parts  of  England  which  lay  subject  to  the 
j  Parliament.  But  he  was  never  able  to 
j  make  any  durable  impression  on  what  were 
,  called  the  associated  counties,  extending 
from  Norfolk  to  Sussex  inclusively,  within 
;  which  no  rising  could  be  attempted  with 
any  effect  ;*  while,  on  the  other  hand,  the 
Parliament  possessed  several  garrisons,  and 
kept  up  considerable  forces  in  that  larger 
portion  of  the  kingdom  where  he  might  be 
reckoned  superior.  Their  resources  were 
far  gi-eater ;  and  the  taxes  imposed  by  them, 
though  exceedingly  heavy,  were  more  regu- 
larly paid,  and  less  ruinous  to  the  people, 
than  the  sudden  exactions,  half  plunder,  half 
contribution,  of  the  ravenous  Cavaliers.  The 
king  lost  ground  during  the  winter.  He  had 
built  hopes  on  bringing  over  ti'oops  from  Ire- 
land ;  for  the  sake  of  which  he  made  a 
tiuce,  then  called  the  cessation,  with  the 
rebel  Catholics.  But  this  re-enforcement 
having  been  beaten  and  dispersed  by  Fair- 
fax at  Namptwich,  he  had  the  mortification 
of  finding  that  this  scheme  had  much  in- 
creased his  own  unpopularity,  and  the  dis- 
trust entertained  of  him  even  by  his  adhe- 

lignant  nobility  and  gentry,  adhered  to  the  Parlia- 
ment," p.  81.  This  I  conceive  to  have  been  the 
case  in  much  the  greater  part  of  England.  Bax- 
ter, in  his  Life,  p.  30,  says  just  the  same  thing  in 
a  passage  worthy  of  notice.  Bat  the  Worcester- 
shire populace,  he  says,  were  ■inolent  Royalists,  p. 
39.  Clarendon  observes  in  another  place,  iii.,  41, 
"  There  was  in  this  countj'  (Cornwall),  as  through- 
out the  kingdom,  a  wonderful  and  superstitious 
reverence  toward  the  name  of  a  Parliament,  and 
a  prejudice  to  the  power  of  the  court."  He  after- 
ward, p.  436,  calls  "  an  imphcit  reverence  to  the 
name  of  a  Parliament  the  fatal  disease  of  the  whole 
kingdom."  So  prevalent  was  the  sense  of  the 
king's  arbitrary  government,  especially  in  the  case 
of  ship-money.  Warburton  remarks,  that  he  never 
expressed  any  repentance,  or  made  any  confession 
in  his  public  declarations,  that  his  former  adminis- 

j  tration  had  been  illegal. — Notes  on  Clarendon,  p. 

]  566.    But  this  was  not,  perhaps,  to  be  expected ; 

'  and  his  repeated  promises  to  govern  according  to 

I  law  might  be  construed  into  tacit  acknowledgments 
of  past  eiTors. 

*  The  associated  counties,  properly  speaking, 
were  at  first  Norfolk,  Suffolk,  Essex,  Hertford, 

I  Cambridge,  to  which  some  others  were  added. 

]  Susses,  I  believe,  was  not  a  part  of  the  associa- 
tion ;  but  it  was  equally  within  the  Parliamentary 

<  pale,  though  the  gentrj-  were  remarkably  loyal  in 

j  their  inclinations.    The  same  was  true  of  Kent. 


Cha.  I— 1642-49  ] 


FROM  HENRY  V: 


II.  TO  GEORGE  11. 


331 


rents,  without  the  smallest  advantage.  The 
next  campaign  was  marked  by  the  great  de- 
feat of  Rupert  and  Newcastle  at  IMarston 
Moor,  and  the  loss  of  the  north  of  England ; 
a  blow  so  terrible  as  must  have  brought  on 
his  speedy  ruin,  if  it  had  not  been  in  some 
degree  mitigated  by  his  strange  and  unex- 
pected success  over  Essex  in  the  West,  and 
by  the  tardiness  of  the  Scots  in  making  use 
of  their  victory.  Upon  the  result  of  the 
campaign  of  1644,  the  king's  affairs  were 
in  such  bad  condition  that  nothing  less  than 
a  series  of  victories  could  have  reinstated 
them,  yet  not  so  totally  ruined  as  to  hold 
out  much  prospect  of  an  approaching  term- 
ination to  the  people's  calamities. 

There  had  been,  from  the  veiy  commence- 
Factions  at  meiit  of  the  war,  all  that  distrac- 
Oxford.  jijjjj  jjjg  king's  councils  at  Ox- 
ford, and  all  those  bickerings  and  heart- 
burnings among  his  adherents,  which  natu- 
rally belong  to  men  embarked  in  a  danger- 
ous cause  with  different  motives  and  differ- 
ent views.  The  military  men,  some  of 
whom  had  served  with  the  Swedes  in  Ger- 
many, acknowledged  no  laws  but  those  of 
war,  and  could  not  understand  that,  either 
in  annoying  the  enemy  or  providing  for 
themselves,  they  were  to  acknowledge  any 
restraints  of  the  civil  power.  The  lawyers, 
on  the  other  hand,  and  the  whole  Constitu- 
tional party,  labored  to  keep  up,  in  the 
midst  of  arms,  the  appearances,  at  least,  of 
legal  justice,  and  that  favorite  maxim  of 
Englishmen,  the  supremacy  of  civil  over 
military  authority,  rather  more  strictly,  per- 
haps, than  the  nature  of  their  actual  circum- 
stances would  admit.  At  the  head  of  the 
former  party  stood  the  king's  two  nephews, 
Rupert  and  Maurice,  the  younger  sons  of 
the  late  unfortunate  elector  palatine,  soldiers 
of  fortune  (as  we  may  truly  call  them),  of 
rude  and  imperious  characters,  avowedly 
despising  the  council  and  the  common  law, 
and  supported  by  Charles,  with  all  his  inju- 
diciousness  and  incapacity  for  affairs,  against 
the  greatest  men  of  the  kingdom.  Another 
very  powerful  and  obnoxious  faction  was 
that  of  the  Catholics,  proud  of  their  serv- 
ices and  sacrifices,  confident  in  the  queen's 
protection,  and  looking  at  least  to  a  full  tol- 
eration as  their  just  reward.  They  were 
the  natural  enemies  of  peace,  and  little  less 
hated  at  Oxford  than  at  Westminster.* 

*  Clarendon,  passim.  May,  160.   Baillic,  i.,  41G. 


At  the  beginning  of  the  winter  of  1643 
the  king  took  the  remarkable  step  Rpy^jjsf 
of  summoning  the  peers  and  com-  lords  and 

,»  ,  .  ,     ,  ,  commoners 

moners  of  his  party  to  meet  rar-  summoned 
liament  at  Oxford.  This  was  ev-  '•"y- 
idently  suggested  l)y  the  Constitutionalists 
with  the  intention  of  obtaining  a  supply  by 
more  regular  methods  than  forced  contribu- 
tion, and  of  op]iosing  a  barrier  to  the  milita- 
ry and  [jopish  interests.*  Whether  it  were 
equally  calculated  to  further  the  king's  cause 
may  admit  of  some  doubt.  The  Royalist 
convention,  indeed,  which  name  it  ought 
rather  to  have  taken  than  that  of  Parlia- 
ment, met  in  considerable  strength  at  Ox- 
ford. Forty-three  peers  and  one  hundred 
and  eighteen  commoners  subscribed  a  let- 
ter to  the  Earl  of  Essex,  expressing  their 

See,  in  the  Somers  Tracts,  v.,  493,  a  dialogue  be- 
tween a  gentleman  and  a  citizen,  printed  at  Ox- 
ford, 1643.  Though  of  course  a  Royalist  pamplilet, 
it  shows  the  disunion  that  prevailed  in  that  unfor- 
tunate party,  and  inveighs  against  the  influence  of 
the  papists,  in  consequence  of  which  the  Marquis 
of  Hertford  is  said  to  have  decHned  the  king's  serv- 
ice. Rupert  is  praised,  and  Newcastle  struck  at. 
It  is  written,  on  the  whole,  in  rather  a  lukewarm 
style  of  loyalty.  The  Earl  of  Holland  and  Sir  Ed- 
ward Dering  gave  out  as  their  reason  for  quitting 
the  king's  side,  that  there  was  gi'eat  danger  of  po- 
pery. This  was  much  exaggerated :  yet  Lord 
Sunderland  talks  the  same  language. — Sidney  Pa- 
pers, ii.,  6G7.  Lord  Falkland's  dejection  of  spirits, 
and  constant  desire  of  peace,  must  chiefly  be  as- 
cribed to  his  disgust  with  the  councils  of  Oxford, 
and  the  greater  part  of  those  with  whom  he  was 
associated. 

K  quel  clie  piu  ti  gravera  le  spalle 
Sara  la  t  ompagnia  malvagia  e  ha, 
Nella  quel  tu  cajrai  in  questa  valie. 

We  know  too  little  of  this  excellent  man,  whose 
talents,  however,  and  early  pursuits  do  not  seem 
to  have  particularly  qualified  him  for  public  life. 
It  is  evident  that  he  did  not  plunge  into  the  loyal 
cause  with  all  the  zeal  of  his  friend  Hyde  ;  and 
the  king,  doubtless,  had  no  gi-eat  regard  for  the 
counsels  of  one  who  took  so  very  dift'erent  a  view 
of  some  important  matters  from  himself — Life  of 
Clarendon,  48.  He  had  been  active  against  Straf- 
ford, and  probably  had  a  bad  opinion  of  Laud.  The 
prosecution  of  Finch  for  high  treason  he  had  him- 
self moved.  In  the  Onnond  Letters,  i.,  20,  he 
seems  to  be  struck  at  by  one  writing  from  Oxford, 
June  1,  1643:  "God  forbid  that  the  best  of  men 
and  kings  be  so  used  by  some  bad,  hollow-hearted 
counselors,  who  affect  too  much  the  Parliamentaiy 
waj'.  Many  spare  not  to  name  them  ;  and  I  doubt 
not  but  you  have  heard  their  names." 

*  It  appears  by  the  late  edition  of  Clarendon, 
iv.,  351,  that  he  vi?ls  the  adviser  of  calling  the  Ox- 
ford Parliament.  The  former  editors  omitted  his 
name. 


332 


CONSTITUTIOXAL  HISTORY  OF  EXqLAND 


[Chap.  X. 


anxiety  for  a  treaty  of  peace  ;  twenty-nine 
of  the  former  and  fifty-seven  of  the  latter,  it 
is  said,  being  then  absent  on  the  king's  serv- 
ice, or  other  occasions.*  Such  a  display 
of  numbers,  nearly  double  in  one  House, 
and  nearly  half  in  the  other,  of  those  who 
remained  at  Westminster,  might  have  an 
effect  on  the  nation's  prejudices,  and  at 
least  redeem  the  king  from  the  charge  of 
standing  singly  against  his  Parliament.  But 
they  came  in  no  spirit  of  fervid  loyalty, 
rather  distrustful  of  the  king,  especially  on 
the  score  of  religion  ;  averse  to  some  whom 
he  had  injudiciously  raised  to  power,  such 
as  Digby  and  Cottington ;  and  so  eager  for 
pacification  as  not,  perhaps,  -to  have  been 
unwilling  to  purchase  it  by  greater  conces- 
sions than  he  could  prudently  make.f 
Peace,  however,  was  by  no  means  brought 
nearer  by  their  meeting;  the  Parliament, 
jealous  and  alarmed  at  it,  would  never  rec- 
ognize their  existence ;  and  were  so  pro- 

*  Pari.  Hist,  218.  The  number  who  took  tlie 
Covenant  in  September,  1C43,  appears  by  a  list  of 
the  Long  ParUameut  iu  the  same  work,  vol.  ii.,  to 
be  236 ;  but  twelve  of  these  are  included  in  both 
lists,  having  gone  afterward  into  the  king's  quar- 
ters. Tlie  remainder,  about  one  hundred,  were 
either  dead  since  the  beginning  of  the  troubles,  or 
for  some  reason  absented  themselves  from  both  as- 
semblies. Possibly  the  list  of  those  who  took  the 
Covenant  is  not  quite  complete  ;  nor  do  I  think  the 
king  had  much  more  than  about  sixty  peers  on  his 
side.  The  Parliament,  however,  could  not  have 
produced  thirty. — Lords'  Journals,  Jan.  22,  1644. 
Whitelock,  p.  80,  says  that  two  hundred  and  eighty 
ai>peared  in  the  House  of  Commons,  Jan.,  1644, 
besides  one  hundred  absent  in  the  Parliament's 
service  ;  but  this  can  not  be  quite  exact. 

t  Rushworth  Abr.,  v.,  266  and  296,  where  is  an 
address  to  the  king,  intimating,  if  attentively  con- 
sidered, a  little  apprehension  of  popery  and  arbi- 
trary power.  Baillie  says,  iu  one  of  his  letters, 
"The  first  day  the  Oxford  Parliament  met,  the 
king  made  a  long  speech;  but  many  being  ready 
to  give  in  papers  for  the  removing  of  Digby,  Cot- 
tington, and  others  from  court,  the  meeting  was 
adjourned  for  some  days,"  i.,  429.  Indeed,  the  res- 
toration of  Cottington,  and  still  more  of  Windebank, 
to  the  king's  councils,  was  no  pledge  of  Protestant 
or  Constitutional  measures.  This  opposition,  so 
natural  to  Parliaments  in  any  circumstances,  dis- 
gusted Charles.  In  one  of  his  letters  to  the  queen, 
he  congratulates  himself  on  being  "freed  from  the 
place  of  all  mutinous  motions,  bis  mongrel  Parlia- 
ment." It  may  be  presumed  that  some  of  those 
who  obeyed  the  king's  summons  to  Oxford  were 
influenced  less  by  loyalty  than  a  consideration  that 
their  estates  lay  in  parts  occupied  by  his  troops ; 
of  comse  tlie  same  is  applicable  to  the  Westmin- 
ster Parliament. 


:  voked  at  their  voting  the  lords  and  commons 
at  Westminster  guilty  of  treason,  that,  if 

I  we  believe  a  writer  of  some  authority,  the 
two  Houses  unanimously  passed  a  vote  on 
Essex's  motion,  summoning  the  king  to  ap- 
pear by  a  certain  day.*  But  the  Scots 
commissioners  had  force  enough  to  turn 
aside  such  violent  suggestions,  and  ulti- 

j  mately  obtained  the  concuirence  of  both 
Houses  in  propositions  for  a  treaty. f  They 
had  begun  to  find  themselves  less  likely  to 
.sway  the  councils  of  Westminster  than  they 
had  expected,  and  dreaded  the  rising  as- 
cendency of  Cromwell.  The  treaty  was 
opened  at  Uxbridge  in  January,  1645.  But 
neither  the  king  nor  his  adversaries  entered 
on  it  with  minds  sincerely  bent  on  Treaty  of 
peace  :  they,  on  the  one  hand,  res-  l-'^'^ni'se. 
olute  not  to  swerve  from  the  utmost  rigor 
of  a  conqueror's  terras,  without  having  con- 
quered; and  he,  though  more  secretly,  cher- 
ishing illusive  hopes  of  a  more  triumphant 
restoration  to  power  than  any  treaty  could 
be  expected  to  effect.J 

*  Baillie,  441.  I  can  find  no  mention  of  this  in 
the  Journals;  but,  as  Baillie  was  then  in  London, 
and  in  constant  intercourse  with  the  leaders  of 
Parliament,  there  must  have  been  some  foundation 
I  for  his  statement,  though  he  seems  to  have  been 
inaccurate  as  to  the  fact  of  the  vote. 

t  Pari.  Hist.,  299,  et  post.  Clarendon,  v.,  16. 
Whitelock,  110,  &.c.    Rush.  Abr.,  v.,  449,  &c. 

i  It  was  impossible  for  the  king  to  avoid  this 
treaty.  Not  only  bis  Oxford  Parliament,  as  might 
naturally  be  expected,  were  openly  desirous  of 
peace,  but  a  great  part  of  the  army  had,  in  Au- 
gust, 1644,  while  opposed  to  that  of  Essex  in  the 
West,  taken  the  extraordmary  step  of  sending  a 
letter  to  that  general,  declaring  their  intentions  for 
the  rights  and  liberties  of  the  people,  privileges  of 
ParUament,  and  Protestant  religion  against  popish 
innovations  ;  and  that  on  the  faith  of  subjects,  the 
honor  and  reputation  of  gentlemen  and  soldiers, 
they  would  with  their  lives  maintain  that  which 
his  majesty  should  publicly  promise  in  order  to  a 
bloodless  peace  ;  they  went  on  to  request  that  Es- 
sex, with  six  more,  would  meet  the  general  (Earl 
of  Brentford)  with  six  more,  to  consider  of  all 
means  possible  to  reconcile  the  unhappy  differ- 
ences and  misunderstandings  that  have  so  long  af- 
flicted the  kingdom. — Sir  Edward  Walker's  His- 
torical Discourses,  59.  The  king  was  acquainted 
with  this  letter  before  it  was  sent,  but  after  some 
hands  bad  been  subscribed  to  it.  He  consented, 
but  evidently  with  great  reluctance,  and  even  in- 
dignation; as  his  own  expressions  testily  in  this 
passage  of  Walker,  whose  manuscript  here,  as  in 
many  other  places,  contains  interlineations  by 
Charles  himself.  It  was  doubtless  rather  in  a  mu- 
tinous spirit,  which  had  spread  widely  through  the 
army,  and  contributed  to  its  utter  ruin  in  the  next 


ChA.  I.— 1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


333 


The  three  leading  topics  of  discussion 
,  ., .,  among  the  negotiators  at  Ux- 
ity  of  bridge  were,  the  Church,  the  mi- 
agreement,  jjjj^^  ^jjg  g^j^jg  Ireland. 

Bound  by  their  unhappy  Covenant,  and 
watched  by  their  Scots  colleagues,  the  Eng- 
lish commissioners  on  the  Parliament  side 
demanded  the  complete  establishment  of  a 
Pi-esbyterian  polity,  and  the  substitution  of 
what  was  called  the  directory  for  the  An- 
glican Liturgy.  Upon  this  head  there  was 
little  prospect  of  a  union.  The  king  had 
deeply  imbibed  the  tenets  of  Andrew  and 
Laud,  believing  an  Episcopal  government 
indispensably  necessaiy  to  the  valid  admin- 
istration of  the  sacraments,  and  the  very 
existence  of  a  Christian  Church.  The 
Scots,  and  a  portion  of  the  English  clergy, 
were  equally  confident  that  their  Presbyte- 
rian form  was  established  by  the  apostles  as 
a  divine  model,  from  which  it  was  unlaw- 
ful to  depart.*  Though  most  of  the  lai- 
ty in  this  kingdom  entertained  less  narrow 
opinions,  the  Parliamentary  commissioners 
thought  the  king  ought  rather  to  concede 
such  a  point  than  themselves,  especially  as 
his  former  consent  to  the  abolition  of  Epis- 
copacy in  Scotland  weakened  a  good  deal 
the  force  of  his  plea  of  conscience ;  while 
the  Royalists,  even  could  they  have  per- 
suaded their  master,  thought  Episcopacy, 
though  not  absolutely  of  divine  right  (a  no- 
tion which  they  left  to  the  churchmen),  yet 
so  highly  beneficial  to  religion,  and  so  im- 
portant to  the  monarchy,  that  nothing  less 
than  exti-eme  necessity,  or  at  least  the 

campaign.  I  presume  it  was  at  the  king's  desire 
that  the  letter  was  signed  bj'  the  general,  as  well 
as  by  Prince  Maurice,  and  all  the  colonels,  I  be- 
lieve, in  his  army,  to  take  ofi'  the  appearance  of  a 
faction ;  but  it  certainly  originated  with  Wilraot, 
Percy,  and  some  of  those  whom  he  thought  ill  af- 
fected.— See  Clarendon,  iv.,  527,  et  post.  Rushw. 
Abr.,  v..  348,  358. 

*  The  king's  doctors.  Steward  and  Sheldon,  ar- 
gued at  Uxbridge  that  Episcopacy  was  jure  divino ; 
Henderson  and  others  that  Presbytery  was  so. — 
Whitelock,  132.  These  churchmen  should  have 
been  locked  up  Uke  a  jurj',  without  food  or  fire,  till 
they  agreed. 

If  we  may  believe  Clarendon,  the  Earl  of  Loudon 
offered  in  the  name  of  the  Scots,  that  if  the  king 
would  give  up  Episcopacy,  they  would  not  press 
any  of  the  other  demands.  It  is  certain,  however, 
that  they  would  never  have  suffered  him  to  become 
the  master  of  the  English  Parliament ;  and,  if  this 
offer  was  sincerely  made,  it  must  have  been  fiom 
a  conviction  that  he  could  not  become  such. 


prospect  of  a  signal  advantage,  could  justify 
its  abandonment.  They  offered,  however, 
what  in  an  earlier  stage  of  their  dissensions 
would  have  satisfied  fihnost  every  man,  that 
limited  scheme  of  Episcopal  hierfirchj', 
above  mentioned  as  approved  by  Usher, 
rendering  the  bishop  among  his  presbyters 
much  like  the  king  in  Parliament,  not  free 
to  exercise  his  jurisdiction,  nor  to  confer  or- 
ders without  their  consent,  and  offered  to 
leave  all  ceremonies  to  the  minister's  dis- 
cretion. Such  a  compromise  would  proba- 
bly have  pleased  the  English  nation,  averse 
to  nothing  in  their  established  church  ex- 
cept its  abuses  ;  but  the  Parliamentary  ne- 
gotiators would  not  so  much  as  enter  into 
discussion  upon  it.* 

They  were  liardly  less  unyielding  on  the 
subject  of  the  militia.  They  began  with  a 
demand  of  naming  all  the  commanders  by 
sea  and  land,  including  the  lord-lieutenant 
of  Ireland  and  all  governors  of  garrisons,  for 
an  unlimited  time.  The  king,  though  not 
very  willingly,  proposed  that  the  command 
should  be  vested  in  twenty  persons,  half  to 
be  named  by  himself,  half  by  the  Parlia- 
ment, for  the  term  of  three  years,  which 
he  afterward  extended  to  seven  ;  at  the  ex- 
piration of  which  time  it  should  revert  to 
the  crown.  But  the  utmost  concession 
that  could  be  obtained  from  the  other  side 
was  to  limit  their  exclusive  possession  of 
this  power  to  seven  years,  leaving  the  mat- 
ter open  for  an  ulterior  arrangement  by  act 
of  Parliament  at  their  termination.!  Even 
if  this  ti'eaty  had  been  conducted  between 
two  belligerent  states,  whom  rivalry  or  am- 
bition often  excite  to  press  every  The  Pariia- 
demand  which  superior  power 

■»  *^  on  unreason- 

can  extort  from  weakness,  there  aWe  terms. 

yet  was  nothing  in  the  condition  of  the  king's 

affairs  which  should  compel  him  thus  to  pass 

under  the  yoke,  and  enter  his  capital  as  a 

prisoner.    But  we  may  also  remark  that, 

according  to  the  great  principle,  that  the 

English  Constitution,  in  all  its  component 

parts,  was  to  be  maintained  by  both  sides  in 

this  contest,  the  question  for  Parliament 

*  Rushworth,  Wliitelock,  Clarendon.  The  latter 
tells  in  his  life,  which  reveals  several  things  not 
found  in  his  history,  that  the  king  was  veiy  angiy 
with  some  of  his  Uxbridge  commissioners,  espe- 
cially Mr.  Bridgman,  for  making  too  great  conces- 
sions with  respect  to  Episcopacy.  He  lived,  how- 
ever, to  make  himself  much  greater. 

t  Whitelock,  133. 


334 


CONSTITUTIONAL  HISTORY  OF  ENiGLAND 


[Chap.  X. 


was  not  what  their  militaiy  advantages  or 
resources  for  war  entitled  them  to  ask,  but 
what  was  required  for  the  due  balance  of 
power  under  a  limited  monarchy.  They 
could  rightly  demand  no  further  concession 
fi'om  the  king  than  was  indispensable  for 
their  own  and  the  people's  security  ;  and  I 
leave  any  one  who  is  tolei'ably  acquainted 
with  the  state  of  England  at  the  beginning 
of  1645,  to  decide  whether  their  privileges 
and  the  public  liberties  incurred  a  greater 
lisk,  by  such  an  equal  partition  of  power 
over  the  sword  as  the  king  proposed,  than 
his  prerogative  and  personal  freedom  would 
have  encountered  by  abandoning  it  altogeth- 
er to  their  discretion.    I  am  far  from  think- 
ing that  the  acceptance  of  the  king's  propo- 
sitions at  Uxbridge  would  have  restored 
tranquillity  to  England.   He  would  still  have 
repined  at  the  limitations  of  monarchy,  and 
others  would  have  conspired  against  its  ex- 
istence.   But  of  the  various  consequences 
which  we  may  picture  to  ourselves  as  ca- 
pable of  resulting  from  a  pacification,  that 
which  appears  to  me  the  least  likely  is,  that 
Charles  should  have  re-established  that  ar- 
bitraiy  power  which  he  had  exercised  in 
the  earlier  period  of  his  reign.  Whence, 
in  fact,  was  he  to  look  for  assistance  ?  Was 
it  with  such  creatures  of  a  court  as  Jermyn 
or  Ashburnham,  or  with  a  worn-out  veteran 
of  office,  like  Cottington,  or  a  rash  adventur- 
er, like  Digby,  that  he  could  outwit  Vane, 
or  overawe  Cromwell,  or  silence  the  press 
and  tlie  pulpit,  or  strike  with  panic  the  stern 
Puritan  and  the  confident  fanatic?  Some 
there  were,  beyond  question,  both  soldiei's 
and  courtiers,  who  hated  the  veiy  name  of 
a  limited  monarchy,  and  nmrmured  at  the 
constitutional  language  which  the  king,  from 
the  time  he  made  use  of  the  pens  of  Hyde 
and  Falkland,  had  systematically  employed 
in  his  public  declarations.*    But  it  is  as 
certain  that  the  great  majority  of  his  Ox- 
ford Parliament,  and  of  those  upon  whom 
he  must  have  depended,  either  in  the  field 
or  in  council,  were  apprehensive  of  any  vic- 
tory that  might  render  him  absolute,  as  that 

*  The  creed  of  this  party  is  set  forth  in  the  Be- 
hemoth of  Hobbes ;  which  is,  in  other  words,  the 
application  of  those  principles  of  government  which 
are  laid  down  iu  tlie  Leviathan,  to  the  Constitu- 
tion and  state  of  England  in  the  civil  war.  It  is 
republished  in  Baron  Maseres's  Tracts,  ii.,  5C5,  567. 
Sir  Philip  Warwick,  in  his  Memoirs,  198,  hints 
something  of  the  same  kind. 


Essex  and  Manchester  were  unwilling  to 
conquer  at  the  expense  of  the  Constitution.* 
The  Catholics,  indeed,  generally  speaking, 
would  have  gone  great  lengths  in  asserting 
his  authority.  Nor  is  this  any  reproach  to 
that  body,  by  no  means  naturally  less  at- 
tached to  their  country  and  its  liberties 
than  other  Englishmen,  but  driven  by  an 
unjust  persecution  to  see  their  only  hope 
of  emancipation  in  the  nation's  servitude. 
They  could  not  be  expected  to  sympathize 
in  that  patriotism  of  the  seventeenth  cen- 
tury, which,  if  it  poured  warmth  and  radi- 
ance on  the  Protestant,  was  to  them  as  a 
devouring  fire.  But  the  king  could  have 
made  no  use  of  the  Catholics  as  a  distinct 
body  for  any  political  purpose,  without 
uniting  all  other  parties  against  him.  He 
had  already  given  so  much  offense,  at  the 
commencement  of  the  war,  by  accepting  the 
services  which  the  Catholic  gentry  were  for- 
ward to  offer,  that  instead  of  a  more  manly 
justification,  which  the  temper  of  the  times, 
he  thought,  did  not  permit,  he  had  recourse 
to  the  useless  subterfuges  of  denying  or  ex- 
tenuating the  facts,  and  even  to  a  strangely 
improbable  recrimination ;  asserting,  on  sev- 
eral occasions,  that  the  number  of  papists  in 
the  Parliament's  army  was  much  greater 
than  in  his  own.f 

*  Warburton,  iu  the  notes  subjoined  to  the  late 
edition  of  Clarendon,  vii.,  563,  mentions  a  conver- 
sation he  had  with  the  Duke  of  Argyle  and  Lord 
Cobham  (both  soldiers,  and  the  fii'st  a  distinguished 
one)  as  to  the  conduct  of  the  king  and  the  Earl  of 
Essex  after  the  battle  of  Edgehill.  They  agreed 
it  was  inexplicable  on  both  sides  by  any  mihtaty 
principle.  Warburton  explained  it  by  the  unwill- 
ingness to  be  too  victorious,  felt  by  Essex  himself, 
and  by  those  whom  the  king  was  forced  to  consult. 
Father  Orleans,  in  a  passage  with  which  the  bishop 
probably  was  acquainted,  confirms  this ;  and  his 
authority  is  very  good  as  to  the  secret  of  the  court. 
Rupert,  he  says,  proposed  to  march  to  London. 
"Mais  I'esprit  Auglois,  qui  ne  se  dement  point 
meme  dans  les  plus  attaches  a  la  royante,  Tesprit 
Anglois,  dis-je,  toujours  entete  de  ces  libertez  si 
funestes  au  repos  de  la  nation,  porta  la  plus  grande 
partie  da  cousei!  a  s'opposer  a  ce  desseiu.  Le 
pretexte  fut  qu'il  etoit  dangereux  pour  le  roy  de 
I'entreprendre,  et  pour  la  ville  que  le  Prince  Robert 
I'executast,  jeune  comme  il  etoit,  emporte,  et  ca- 
pable d'y  mettre  le  feu.  La  vraie  raison  etoit  qu'ils 
craignoieut  que,  si  le  roy  entroit  dans  Londres  les 
armes  a  la  main,  il  ue  pretendist  sur  la  nation  une 
espece  de  droit  de  couquete,  qui  le  rendist  trop 
absolu." — Revolut.  d'Angleterre,  iii.,  104. 

t  Rush  worth  Abr.,  iv.,  550.  At  the  very  time 
that  he  was  publicly  denying  his  employment  of 
papists,  he  wrote  to  Newcastle,  commanding  him 


ChA.  I.— 1642-1!).] 


FROM  HEXRY  VII.  TO  GEORGE  II. 


335 


It  may  still,  indeed,  bo  questioned  wheth- 
er, admitting  the  pi-opositions  tendered  to 
the  king  to  have  been  unreasonable  and  in- 
secure, it  might  not  have  been  expedient, 
in  the  perilous  condition  of  his  affairs,  rather 
to  have  tried  the  chances  of  peace  than 
those  of  war.  If  he  could  have  determined 
frankly  and  without  reserve  to  have  re- 
linquished the  Church,  and  called  the  lead- 
ers of  the  Presbyterian  party  in  both  Houses 
to  his  councils,  it  is  impossible  to  prove  that 
he  might  not  both  have  regained  his  power 
over  the  militia  in  no  long  course  of  time, 
and  prevailed  on  the  Parliament  to  consent 
to  its  own  di.ssolution.  The  dread  that 
party  felt  of  the  Republican  spirit  rising 
among  the  Independents  would  have  in- 
duced them  to  place  in  the  hands  of  any 
sovereign  they  could  ti'ust  full  as  much  au- 
thority as  our  Constitution  pei'mits.  But 
no  one  who  has  paid  attention  to  the  history 
of  that  period  will  conclude  that  they  could 
have  secured  the  king  against  their  com- 
mon enemy,  had  he  even  gone  wholly  into 
their  own  measures.*  And  this  were  to 
suppose  such  an  entire  change  in  his  char- 
acter and  ways  of  thinking  as  no  external 
circumstances  could  produce.  Yet  his  pros- 
pects from  a  continuance  of  hostilities  were 
so  unpromising  that  most  of  the  Royalists 
would  probably  have  hailed  his  almost  un- 
conditional submission  at  Uxbridge.  Even 

to  make  use  of  all  his  subjects'  sei'vices,  without 
examining  their  consciences,  except  as  to  loyalty. 
— Ellis's  Letters,  iii.,  291,  from  an  original  in  the 
Museum.  No  one  can  rationally  blame  Charles  for 
any  thing  in  this  but  his  inveterate  and  useless 
habit  of  falsehood. — See  Clarendon,  iii.,  610. 

It  is  probable  that  some  foreign  Catholics  were 
in  the  Parliament's  service.  But  Dodd  says,  vpith 
great  appearance  of  ti'uth,  that  no  one  English  gen- 
tleman of  that  persuasion  was  in  arms  on  their  side. 
— Church  History  of  Engl.,  iii.,  28.  He  reports  as 
a  matter  of  hearsay,  that,  out  of  about  five  hundred 
gentlemen  who  lost  their  lives  for  Charles  in  the 
civil  war,  one  hundred  and  ninety-four  were  Cath- 
olics. They  were,  doubtless,  a  very  powerful  fac- 
tion in  the  court  and  army.  Lord  Spencer  (after- 
ward Earl  of  Sunderland),  in  some  remarkable  let- 
ters to  his  wife  from  the  king's  quarters  at  Shrews- 
bury, in  September,  16-12,  speaks  of  the  iusolency 
of  the  papists  with  great  dissatisfaction. — Sidney 
Papers,  ii.,  667. 

*  It  can  not  be  doubted,  and  is  admitted  in  a  re- 
markable conversation  of  Hollis  and  Whitelock 
with  the  king  at  Oxford  in  November,  1614,  that 
the  exorbitant  terms  demanded  at  Uxbridge  were 
carried  by  the  violent  party,  who  disliked  all  paci- 
fication.— Whitelock,  113. 


the  steady  Richmond  and  Southampton,  it 
is  said,  implored  him  to  yield,  and  depre- 
cated his  misjudging  confidence  in  promises 
of  foreign  aid,  or  in  the  successes  of  Mon- 
trose.* The  more  lukewai'm  or  discon- 
tented of  his  adherents  took  this  opportu- 
nity of  abandoning  an  almost  hopeless  cause  ; 
between  the  breach  of  the  treaty  of  Ux- 
bridge and  the  battle  of  Naseby,  several  of 
the  Oxford  peers  came  over  to  the  Parlia- 
ment, and  took  an  engagement  never  to  bear 
arms  against  it.  A  few  instances  of  such 
defection  had  occurred  before. f 

It  remained  only,  after  the  rupture  of 
the  treaty  at  Uxbridge,  to  ti'y  once  Miseries  of 
more  the  fortune  of  war.  The 
people,  both  in  the  king's  and  Parliament's 
quarters,  but  especially  the  former,  heard 
with  dismay  that  peace  could  not  be  at- 
tained. Many  of  the  perpetual  skirmishes 
and  captures  of  towns  which  made  every 
man's  life  and  fortune  precarious,  have  found 
no  place  in  general  history,  but  may  be 
traced  in  the  journal  of  Whitelock,  or  in  the 
Mercuries  and  other  fugitive  sheets,  great 
numbers  of  which  are  still  extant ;  and  it 
will  appear,  I  believe,  from  these,  that 
scarcely  one  county  in  England  was  ex- 
empt, at  one  time  or  other  of  the  Avar,  from 
becoming  the  scene  of  this  unnatural  con- 
test. Compared,  indeed,  with  the  civil 
wars  in  France  in  the  preceding  centm-y, 
there  had  been  fewer  acts  of  enormous  cru- 
elty, and  less  atrocious  breaches  of  public 
faith;  but  much  blood  had  been  wantonly 
shed,  and  articles  of  capitulation  had  been 
very  indifl'erently  kept.  "  Either  side," 
says  Clarendon,  "having  somewhat  to  ob- 
ject to  the  other,  the  requisite  honesty  and 
justice  of  observing  conditions  was  mutual- 
ly, as  it  were  by  agi'eement,  for  a  long  time 

*  Baillie,  ii.,  91.  He  adds,  "That  which  has 
been  the  greatest  snare  to  the  king  is  the  unhappy 
success  of  Monti'ose  in  Scotland."  There  seems, 
indeed,  gi-eat  reason  to  think  that  Charles,  always 
sanguine,  and  incapable  of  calculating  probabilities, 
^was  unreasonably  elated  by  victories  from  which 
no  pennanent  advantage  ought  to  have  been  ex- 
pected. Burnet  confirms  this  on  good  authority. — 
Introduction  to  History  of  his  Times,  51. 

t  Whitelock,  109, 137, 142.  Rushw.  Abr.,  v.,  163. 
The  first  deserter  (except,  indeed,  the  Earls  of  Hol- 
land and  Bedford)  was  Sir  Edward  Bering,  who 
came  into  the  Parliament's  quarters  in  Feb.,  1644. 
He  was  a  weak  man  of  some  learning,  who  had 
already  played  a  very  changeable  part  before  the 
war. 


336 


CONSTITUTIONAL  HISTORY  OF  ENGI^AND 


[Chap.  X. 


violated.'"*  The  Royalist  army,  especial- 
ly the  cavaliy,  commauded  by  men  either 
wholly  unpi-incipled,  or  at  least  regardless 
of  the  people,  and  deeming  them  ill  aff  ected, 
the  Princes  Rupert  and  Maurice,  Goring 
and  Wilmot,  lived  without  restraint  of  law 
or  militaiy  discipline,  and  committed  every 
excess  even  in  friendly  quarters. f  An  os- 
tentatious dissoluteness  became  character- 
istic of  the  cavalier,  as  a  formal  austerity 
was  of  the  Pm-itan  ;  one  spoiling  his  neigh- 
bor in  the  name  of  God,  the  other  of  the 

*  A  flagrant  instance  of  this  vras  the  plonder  of 
Bristol  by  llupert,  in  breach  of  tlie  capitulation.  I 
suspect  that  it  was  the  policj-  of  one  party  to  ex- 
aggerate the  cruelties  of  the  other;  hut  the  short 
caiTatives  dispersed  at  the  time  give  a  vsretched 
picture  of  slaughter  and  devastation. 

t  Clarendon  and  Whitelock,  passim.  Baxter's 
Life,  p.  44,  5.5.  The  license  of  Maurice's  and  Go- 
ring's  annies  in  the  West  first  led  to  the  defensive 
insurrection,  if  so  it  should  be  called,  of  the  club- 
men ;  that  is,  of  yeomen  and  couutiy  people,  anned 
only  with  clubs,  who  hoped,  by  numbers  and  con- 
cert, to  resist  efTectually  the  military  marauders  of 
both  parties,  declaring  themselves  neither  for  king 
nor  Parliament,  but  for  their  own  libeity  and  prop- 
erty.  They  were,  of  course,  regarded  with  dislike 
on  both  sides  ;  by  the  king's  party  when  they  first 
appeared  in  1644,  because  they  crippled  the  royal 
ai-my's  operations,  and  still  more  openly  by  the 
Parliament  next  year,  when  they  opposed  Fair- 
fax's endeavor  to  caiTj'  on  the  war  in  the  counties 
bordering  on  the  Severn.  They  ai)pcared  at  times 
in  great  strength  ;  but  the  want  of  anus  and  disci- 
pline made  it  not  veiy  difficult  to  suppress  them.— 
Clarendon,  v.,  197.  Whitelock,  137.  Pari.  Hist., 
379,  390. 

The  king  himself,  whose  disposition  was  veiy 
harsh  and  severe,  except  toward  the  few  he  took 
into  his  bosom,  can  hardly  be  exonerated  from  a 
responsibility  for  some  acts  of  inhumanity  (see 
Whitelock,  67,  and  Somers  Tracts,  iv.,  502 ;  v., 
369  ;  Maseres's  Tracts,  i.,  144,  for  the  ill  ti-eatment 
of  prisoners) ;  and  he  might  probably  have  checked 
the  outrages  which  took  place  at  the  storming  of 
Leicester,  where  he  was  himself  present.  Cer- 
tainly no  imputation  of  this  nature  can  be  laid  at 
the  door  of  the  Parliamentai-y  commanders,  though 
some  of  them  were  guilty  of  the  ati-ocity  of  putting 
their  Irish  prisoners  to  death,  in  obedience,  how- 
ever, to  an  ordinance  of  Parliament. — Pari.  Hist., 
iii.,  295  ;  Kushworth' s  Abridgment,  v.,  402.  It 
passed  October  24,  1644.  and  all  remissness  in  ex- 
ecuting it  was  to  be  reckoned  a  favoring  of  the 
Irish  rebellion.  When  we  read,  as  we  do  perpet- 
ually, these  violent  and  barbarous  proceedings  of 
the  Parliament,  is  it  consistent  witli  honesty  or  hu- 
manity to  hold  up  that  assembly  to  admiration, 
while  the  faults  on  the  king's  side  are  studiously- 
aggravated  ?  The  partiality  of  Oldmixon,  Harris. 
Macaulay,  and  now  of  Mr.  Brodie  and  Mr.  Godwin, 
is  full  as  glarmg,  to  say  the  very  least,  as  that  of 
Hume. 


king.  The  Parliament's  troops  were  not 
quite  free  from  these  military  vices,  but  dis- 
played them  in  a  much  less  scandalous  de- 
gi'ee,  owing  to  their  more  religious  habits 
and  the  influence  of  their  Presbyterian  chap- 
lains, to  the  better  example  of  their  com- 
manders, and  to  the  comparative,  though 
not  absolute,  punctuality  of  their  pay.*"  But 
this  pay  was  raised  through  unheard-of  as- 
sessments, especially  an  excise  on  liquoi-s,  a 
new  name  in  England,  and  thi'ough  the  se- 
questration of  the  estates  of  all  the  king's 
adherents  :  resources,  of  which  he  also  had 
availed  himself,  pai'tly  by  the  rights  of  war, 
])artly  by  the  grant  of  his  Oxford  Parlia- 
ment.t 

A  war  so  calamitous  seemed  likely  to  en- 
dure till  it  had  exhausted  the  nation.  With 
ail  the  Pai-liament's  superiority,  they  had 
yet  to  subdue  nearlj'  half  the  kingdom.  The 
Scots  had  not  advanced  southward,  con- 
tent with  reducing  Newcastle  and  the  rest 
of  the  northern  counties.  These  they 
ti'eated  almost  as  hostile,  without  distinction 
of  peu-ties,  not  only  exacting  contributions, 
but  committing,  unless  they  are  much  be- 
lied, great  excesses  of  indiscipline ;  their 
Presbyterian  gravity  not  having  yet  over- 
come the  ancient  national  propensities. t  In 

*  Clarendon  and  Baxter. 

t  The  excise  was  first  imposed  by  an  ordinance 
of  both  Houses  in  July,  1643  (Husband's  Collection 
of  Ordinances,  p.  267),  and  aftei-ward  by  the  king's 
convention  at  Oxford.  See  a  \-iew  of  the  financial 
expedients  adopted  by  both  parties  in  Lingard,  x., 
243.  The  plate  brought  in  to  the  Parliament's 
commissioners  at  Guildhall  in  1642,  for  which  they 
allowed  the  value  of  the  silver,  and  one  shilling 
per  ounce  more,  is  stated  by  Neal  at  £1,267,326, 
an  extraordinary  proof  of  the  wealth  of  London ; 
yet  I  do  not  know  his  authoritj",  though  it  is  prob- 
ably good.  The  University  of  Oxford  gave  all  they 
had  to  the  king,  but  could  not,  of  course,  vie  with 
the  citizens. 

The  sums  raised  within  the  Parliament's  quar- 
ters, from  the  beginning  of  the  war  to  1647,  are 
reckoned  in  a  pamphlet  of  that  year,  quoted  in  Sin- 
clair's Hist,  of  the  Revenue,  i.,  2i?3,  at  £17,512,400. 
But,  on  reference  to  the  ti-act  itself,  I  find  tliis 
written  at  random.  The  contributions,  however, 
were  really  very  great ;  and  if  we  add  those  to  the 
king,  and  the  loss  by  waste  and  plunder,  we  may 
form  some  judgment  of  the  effects  of  the  civil  war. 

t  The  Independents  raised  loud  clamors  against 
the  Scots  army  ;  and  the  northern  counties  naturally 
complained  of  the  burden  of  supporting  them  as  well 
as  of  their  excesses.  Many  passages  in  White- 
lock's  joui-nal  during  1645  and  1546  relate  to  this. 
HoUis  endeavors  to  deny  or  extenuate  the  charges  ; 
but  he  is  too  prejudiced  a  writer,  and  Baillie  him- 


\ 


Cha.  I.— 1642-19.] 

the  midland  and  western  parts  the  king  had 
just  the  worse,  without  having  sustained  ma- 
terial loss  ;  and  another  summer  might  pass 
away  in  marches  and  countermarches,  in 
skirmishes  of  cavaliy,  in  tedious  sieges  of 
paltry  fortifications,  some  of  them  mere 
country  houses,  which  nothing  but  an  amaz- 
ing deficiency  in  that  branch  of  military 
Essex  and  Science  could  have  rendered  ten- 
Manchester  able.     This  proti'actiou  of  the 

suspected  of  ,11  •  •  » 

lukewarm-  war  had  long  given  rise  to  no  un- 
natural  discontent  with  its  man- 
agement, and  to  suspicions,  first  of  Essex, 
then  of  Manchester  and  others  in  command, 
as  if  they  were  secretly  reluctant  to  com- 
plete the  triumph  of  their  employers.  It 
is,  indeed,  not  impossible  that  both  these 
peei-s,  especially  the  former,  out  of  their 
desire  to  see  peace  restored  on  terms  com- 
patible with  some  degree  of  authority  in 
the  crown,  and  with  the  dignity  of  their 
own  order,  did  not  always  press  their  ad- 
vantages against  the  king  as  if  he  had  been 
a  public  enemy.*  They  might  have  thought 

BC-lf  acknowledges  a  great  deal. — ^Vol.  ii.,  p.  138, 
142,  106. 

*  Tlie  chief  imputation  against  Manchester  was 
for  not  following  up  his  victory  in  the  second  battle 
of  Newbury,  with  which  Ciomwell  openly  taxed 
him. — See  Ludlow,  i.,  133.  There  certainly  ap- 
pears to  liave  been  a  want  of  military  energy  on 
this  occasion ;  but  it  is  said  by  BaiUie  (ii.,  76)  that 
all  the  general  officers,  Cromwell  not  excepted, 
concurred  in  Manchester's  determination.  Essex 
had  been  suspected  from  the  time  of  the  affair  at 
Brentford,  or,  rather,  from  the  battle  gf  Edgehill 
(Baillie  and  Ludlow)  ;  and  his  whole  conduct,  ex- 
cept in  the  celebrated  march  to  relieve  Gloucester, 
confirmed  a  reasonable  distrust  either  of  his  mili- 
tary talents,  or  of  his  zeal  in  the  cause.  "  He 
loved  monarchy  and  nobility,"  says  Wliitelock,  p. 
108,  "  and  dreaded  those  who  had  a  design  to  de- 
stroy both."  Yet  Essex  was  too  much  a  man  of 
honor  to  enter  on  any  private  intrigues  with  the 
king.  The  other  peers  employed  under  the  Par- 
liament, Stamford,  Denbigh,  Willoughby,  were  not 
successful  enough  to  redeem  the  suspicions  that 
fell  upon  their  zeal. 

All  our  Republican  writers,  such  as  Ludlow  and 
Mrs.  Hutchinson  in  that  age,  Mrs.  Macaulay  and 
Mr.  Brodie  more  of  late,  speak  acrimoniously  of 
Essex.  "  Most  will  be  of  opinion,"  says  Mr.  B. 
(History  of  British  Empire,  iii.,  565),  "  that  as  ten 
thousand  pounds  a  year  out  of  the  sequestered 
lands  were  settled  upon  him  for  his  services,  he 
was  rewarded  infijiitely  beyond  his  merits."  Tlie 
reward  was  doubtless  magnificent;  but  the  merit 
of  Essex  was  this,  that  he  made  himself  the  most 
prominent  object  of  vengeance  in  case  of  failui-e.  by- 
taking  tlie  command  of  an  army  to  oppose  the  king 
in  person  at  Edgehill :  a  command  of  which  no 
Y 


337 

that,  having  drawn  the  sword  avowedlj'  for 
the  preseiTation  of  his  person  and  dignity 
as  much  as  for  the  rights  and  liberties  of 
the  people,  they  were  no  further  bound  by 
their  trust  than  to  render  him  and  his  ad- 
herents sensible  of  the  impracticability  of 
refusing  their  terms  of  accommodation. 

There  could,  however,  be  no  doubt  that 
Fairfax  and  Cromwell  were  far  self-denying 
superior,  both  by  their  own  tal-  Ordinance, 
ents  for  war  and  the  discipline  they  had  in- 
troduced into  their  army,  to  the  earlier  Par- 
liamentary commanders,  and  that,  as  a  mil- 
itary arrangement,  the  Self-denj'ing  Ordi- 
nance was  judiciously  conceived.  This, 
which  took  from  all  members  of  both  Houses 
their  commands  in  the  army,  or  civil  em- 
ploj'ments,  was,  as  is  well  known,  the  first 
gi-eat  victory  of  the  Independent  party 
which  had  grown  up  lately  in  Parliament 
under  Vane  and  Cromwell.*  They  earned 
another  measure  of  no  less  importance,  col- 
lateral to  the  former — the  new  modeling, 
as  it  was  called,  of  the  army  ;  reducing  it 
to  twenty-one  or  twenty-two  thousand  men  ; 
discharging  such  officers  and  soldiers  as 
were  i-eckoned  unfit,  and  completing  their 
regiments  by  more  select  levies.  The  or- 
dinance, after  being  once  rejected  by  the 
Lords,  passed  their  House  with  some  mod- 
ifications in  April,  t    But  many  joined  them 

other  man  in  his  rank  was  capable,  and  which 
could  not,  at  that  time,  have  been  intrusted  to  any 
man  of  inferior  rank  without  dissolving  the  whole 
confederacy  of  the  Parliament. 

It  is  to  be  observed,  moreover,  that  the  two  bat- 
tles of  Newbury,  like  that  of  Edgehill,  were  by  no 
means  decisive  victories  on  the  side  of  the  Parlia- 
ment; and  that  it  is  not  clear  whether  either  Es- 
sex or  Manchester  could  have  pushed  the  king 
much  more  than  they  did.  Even  after  Naseby,  his 
party  made  a  pretty  long  resistance,  and  he  had 
been  as  much  blamed  as  they  for  not  pressing  his 
advantages  with  vigor. 

*  It  had  been  voted  by  the  Lords  a  year  before, 
Dec.  12,  1643,  "  That  the  opinion  and  resolution  of 
this  House  is  from  henceforth  not  to  admit  the 
members  of  either  house  of  Parliament  into  any 
place  or  office,  excepting  such  places  of  great  trust 
as  are  to  be  executed  by  persons  of  eminency  and 
known  integrity,  and  are  necessary  for  the  govern- 
ment and  safety  of  the  kingdom."  But  a  motion 
to  make  this  resolution  into  an  ordinance  was  car- 
ried in  the  negative. — Lords'  Journals.  Pari.  Hist., 
187.  The  first  motion  had  been  for  a  resolution 
without  this  exception,  that  no  place  of  profit  should 
be  executed  by  the  members  of  either  House. 

t  Whitelock,  p.  118,  120.  It  was  opposed  by 
him,  but  supported  by  Pierpoint,  who  carried  it  up 


FROM  HENRY  VIL  TO  GEORGE  IL 


338 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  X. 


on  this  occasion  for  those  military  reasons 
which  I  have  mentioned,  deeming  almost 
any  termination  of  the  war  better  than  its 
continuance.  The  king's  rejection  of  their 
terms  at  Uxbridge  had  disgusted,  however 
unreasonably,  some  of  the  men  hitherto 
accounted  moderate,  such  as  the  Earl 
of  Northumberland  and  Pierpoint;  who, 
deeming  reconciliation  impracticable,  took 
from  this  time  a  different  line  of  politics 
from  that  they  had  previously  followed,  and 
were  either  not  alive  to  the  danger  of  new- 
modeling  the  army,  or  willing  to  hope  that 
it  might  be  disbanded  before  that  danger 
could  become  imminent.  From  Fairfax,  too, 
the  new  general,  they  saw  little  to  feai"  and 
much  to  expect ;  while  Cromwell,  as  a 
member  of  the  House  of  Commons,  was 
positively  excluded  by  the  ordinance  itself. 
But,  through  a  successful  inti-igue  of  his 
friends,  this  great  man,  aheady  not  less  form- 
idable to  the  Presbyterian  faction  than  to 
the  Royalists,  was  permitted  to  continue 
lieutenant-general.*  The  most  popular  jus- 
tification for  the  Self-denj'ing  Ordinance, 
and  yet,  perhaps,  its  real  condemnation. 
Battle  of  '^^^  soon  found  at  Naseby ;  for 
Naseby.  there  Faiifax  and  Cromwell  tri- 
umphed not  only  over  the  king  and  the  mon- 
archy, but  over  the  Parliament  and  the  na- 
tion. 

It  does  not  appear  to  me  that  a  brave  and 
Desperate  prudent  man,  in  the  condition  of 
thek'ng^saf-  Charles  the  First,  had,  up  to  that 
fairs.  unfortunate  day,  any  other  alter- 


to  the  Lords.  The  Lords  were  chiefly  of  the  Pres- 
"byterian  partj-,  though  Say,  Wharton,  and  a  few 
more  were  connected  with  the  Independents. 
They  added  a  proviso  to  the  ordinance  raising 
forces  to  he  commanded  by  Fairfax,  that  no  officer 
refasingthe  Covenant  should  be  capable  of  serving, 
which  was  thrown  out  in  the  Lower  House.  But 
another  proviso  was  carried  in  the  Commons  by 
82  to  63,  that  the  officers,  though  appointed  by  the 
general,  should  be  approved  by  both  houses  of 
Parliament.  Cromwell  was  one  of  the  tellers  for 
the  minority. — Commons'  Journals,  Feb.  7  and  ]3, 
164.5. 

In  the  original  ordinance  the  members  of  both 
Houses  were  excluded  during  the  war ;  but  in  the 
second,  which  was  carried,  the  measure  was  not 
made  prospective.  This,  which  most  historians 
have  overlooked,  is  well  pointed  out  by  Mr.  God- 
win. By  virtue  of  this  alteration,  many  officers 
were  elected  in  the  course  of  1645  and  1646 ;  and 
the  effect,  whatever  might  be  designed,  was  vei*y 
advantageous  to  the  Republican  and  Independent 
factions.  *  Whitelock,  p.  145. 


native  than  a  vigorous  prosecution  of  the 
war,  in  hope  of  such  decisive  success  as, 
though  hardly  within  probable  calculation, 
is  not  unprecedented  in  the  changeful  tide 
of  fortune.  I  can  not,  therefore,  blame  him 
either  for  refusing  unreasonable  terms  of 
accommodation,  or  for  not  relinquishing  al- 
together the  contest;  but  after  his  defeat 
at  Naseby,  his  affairs  were,  in  a  military 
sense,  so  in-etrievable,  that  in  prolonging 
the  war  with  as  much  obstinacy  as  the 
broken  state  of  his  party  would  allow,  he 
displayed  a  good  deal  of  that  indifference  to 
the  sufferings  of  the  kingdom  and  of  his  own 
adherents  which  has  been  sometimes  im- 
puted to  him.  There  was,  from  the  hour 
of  that  battle,  one  only  safe  and  honorable 
course  remaining.  He  justly  abhoiTed  to 
reign,  if  so  it  could  be  named,  the  slave  of 
Parliament,  with  the  sacrifice  of  his  con- 
science and  his  friends.  But  it  was  by  no 
means  necessary  to  reign  at  all.  The  sea 
was  for  many  months  open  to  him  ;  in 
France,  or,  still  better,  in  Holland,  lie  would 
have  found  his  misfortunes  respected,  and 
an  asylum  in  that  decent  privacy  which  be- 
comes an  exiled  sovereign.  Those  veiy 
hopes  which  he  too  fondly  cherished,  and 
which  lured  him  to  destruction — hopes  of 
regaining  power  through  the  disunion  of  his 
enemies — might  have  been  entertained  with 
better  reason,  as  with  greater  safety,  in  a 
foreign  land.  It  is  not,  perhaps,  very  prob- 
able that  he  would  have  been  restored ;  but 
his  restoration  in  such  circumstances  seems 
less  desperate  than  through  any  treaty  that 
he  could  conclude  in  captivity  at  home.* 

Whether  any  such  thoughts  of  abandon- 
ing a  hopeless  contest  were  ever  entertained 
by  the  king  during  this  particular  period,  it 
is  impossible  to  pronounce ;  we  should  in- 
fer the  contrary  from  all  his  actions.  It 
must  be  said  that  many  of  his  counselors 
seem  to  have  been  as  pertinacious  as  him- 
self, having  strongly  imbibed  the  same  san- 
guine spirit,  and  looking  for  deliverance,  ac- 


*  [It  was  the  opinion  of  Montreuil,  that  the  plan 
of  flight  which  the  king  was  meditating  before  he 
took  refuge  with  the  Scots  "  is  by  far  the  best,  and 
in  even,'  point  of  view  necessarj' ;  for  the  Parlia- 
ment will  by  that  time  have  fallen  into  dissensions, 
and  the  throne  will  be  far  more  easily  restored  if 
the  king  come  back  to  it  from  abroad  than  if  he 
were  to  issue  from  a  prison.  I  only  fear  that  flight 
will,  perhaps,  be  no  longer  possible."  Jan.  10 
1646.— Raumer,  p.  340.] 


Cha.  I.— 1G42-49.] 


FROM  HENRY  VII.  TO  GEORGE  TT. 


339 


cording  to  their  several  fancies,  from  the 
ambition  of  Cromwell  or  the  discontent  of 
the  Scots  ;  but,  whatever  might  have  been 
the  king's  disposition,  he  would  not  have 
dared  to  retire  from  England.  That  sinis- 
ter domestic  rule,  to  which  he  had  so  long 
been  subject,  controlled  every  action.  Care- 
less of  her  husband's  happiness,  and  already 
attached,  probably,  to  one  whom  she  after- 
ward married,  Henrietta  longed  only  for  his 
recovery  of  a  power  which  would  become 
her  own.*  Henc6,  while  she  constantly 
laid  her  injunctions  on  Charles  never  to  con- 
cede any  thing  as  to  the  militia  or  the  Irish 
Catholics,  she  became  desirous,  when  no 
other  means  presented  itself,  that  he  should 
sacrifice  what  was  still  nearer  to  his  heart, 
the  Episcopal  church-government.  The 
Queen-regent  of  France,  whose  sincei'ity 
in  desiring  the  king's  restoration  there  can 
be  no  ground  to  deny,t  was  equally  per- 

*  Whether  there  are  sufficient  grounds  for  con- 
cluding that  Henrietta's  connection  with  Jennyn 
was  criminal,  I  will  not  pretend  to  decide ;  though 
Warburton  has  settled  the  matter  iu  a  veiy  sum- 
mary style. — See  one  of  his  notes  on  Clarendon, 
vol.  vii.,  p.  636.  But  I  doubt  whether  the  bishop 
had  authority  for  what  he  there  says,  though  it  is 
likely  enough  to  be  true. — See,  also,  a  note  of  Lord 
Dartmouth  on  Burnet,  i.,  63. 

t  Clarendon  speaks  often  in  his  History,  and 
still  more  frequently  in  his  private  letters,  with 
great  resentment  of  the  conduct  of  France,  and 
sometimes  of  Holland,  during  our  civil  wars.  I 
must  confess  that  I  see  nothing  to  warrant  this. 
The  States-General,  against  whom  Charles  had  so 
shamefully  been  plotting,  interfered  as  much  for  the 
purpose  of  mediation  as  they  could  with  the  slight- 
est prospect  of  success,  and  so  as  to  give  offense 
to  the  ParUament  (Rushworth  Abridged,  v.,  567; 
Baillie,  ii.,  78;  Whitelock,  141,  148;  Hanis's  Life 
of  Cromwell,  246)  ;  and  as  to  France,  though 
Kicheliea  had  instigated  the  Scots  malcontents, 
and  possibly  those  of  England,  yet  after  his  death 
in  1642,  no  sort  of  suspicion  ought  to  lie  on  the 
French  government ;  the  whole  conduct  of  Anne 
of  Austria  having  been  friendly,  and  both  the  mis- 
sion of  Harcourt  in  1643,  and  the  present  negotia- 
tions of  Montreuil  and  Bellievre,  perfectly  well  in- 
tended. That  Mazarin  made  promises  of  assistance 
which  he  had  no  design,  nor  perhaps  any  power, 
to  fulfill,  is  true  ;  but  this  is  the  common  trick  of 
Buch  statesmen,  and  argues  no  malevolent  purpose. 
But  Hyde,  out  of  his  just  dislike  of  the  queen,  hat- 
ed all  French  connections,  and  bis  passionate  loy- 
alty made  him  think  it  a  crime,  or  at  least  a  piece 
of  base  pusillanimity,  in  foreign  states,  to  keep  on 
any  terms  with  the  rebellious  Parliament.  The 
case  was  altered  after  the  retirement  of  the  re- 
gent Anne  from  power:  Mazarin's  latter  conduct 
was,  as  is  well  known,  exceedingly  adverse  to  the 
royal  cause. 


suaded  that  he  could  hope  for  it  on  no  less 
painful  conditions.  They  reasoned,  of 
course,  very  plausibly  from  the  gi"eat  prec- 
edent of  flexible  consciences,  tlie  recon- 
ciliation of  Henrietta's  illustrious  father  to 
the  Catholic  Church.  As  he  could  neither 
have  regained  his  royal  power,  nor  restored 
peace  to  France  without  this  compliance 
with  his  subjects'  prejudices,  so  Charles 
could  still  less  expect,  in  circumstances  by 
no  means  so  favorable,  that  he  should  avoid 
a  concession,  in  the  eyes  of  almost  all  men 
but  himself,  of  incomparably  less  importance. 
It  was  in  expectation,  or,  per-  -j-j^^  ^-^^ 
haps,  rather  in  the  hope,  of  this  throws  him- 
sacrifice,  that  the  French  envoy,  hands  of  the 
Montreuil,  entered  on  his  ill-star- 
red  negotiation  for  the  king's  taking  shelter 
with  the  Scots  army  ;  and  it  must  be  con- 
fessed that  several  of  his  best  friends  were 
hardly  less  anxious  that  he  should  desert  a 
church  he  could  not  protect.*  They  doubt- 
ed not,  reasoning  from  their  own  characters, 
that  he  would  ultimately  give  way;  but 
that  Charles,  unchangeably  resolved  on  this 
headjf  should  have  put  himself  in  the  power 

The  account  given  by  Mr.  D'Israeli  of  Tabran's 
negotiations  in  the  fifth  volume  of  his  Commentaries 
on  the  Reign  of  Charles  I.,  though  it  does  not  con- 
tain any  thing  very  important,  tends  to  show  Maz- 
arin's inclination  toward  the  royal  cause  in  1644 
and  1645. 

*  Colepepper  writes  to  Asliburnham,  in  Febru- 
ary, 1646,  to  advance  the  Scots  treaty  with  all  his 
power.  "  It  is  the  only  way  left  to  save  the  crown 
and  the  kingdom ;  all  other  ti-icks  will  deceive  you. 
....  It  is  no  time  to  dally  on  distinctions  and  crit- 
icisms. All  the  world  will  laugh  at  them  when  a 
crown  is  in  question." — Clar.  Papers,  ii.,  207. 

The  king  had  positively  declared  his  resolution 
not  to  consent  to  the  establishment  of  Presbytery. 
This  had  so  much  disgusted  both  the  Scots  and 
English  Presbyterians  (for  the  latter  had  been  con- 
cerned in  the  negotiation),  that  Montreuil  wrote  to 
say  he  thought  they  would  rather  make  it  up  with 
the  Independents  than  treat  again.  "  De  sorte 
qu'il  ue  faut  plus  marchander,  et  que  V.  M.  se  doit 
hater  d'envoyer  aux  deux  Parlemens  son  consenti- 
ment  aux  trois  propositions  d'Uxbridge ;  ce  qu'e- 
tant  fait,  elle  sera  surete  dans  I'armee  d'Ecosse" 
(15th  Jan.,  164G).— P.  211. 

t  I  assure  you,"  he  writes  to  Capel,  Hopton,  &c., 
Feb.  2,  1646,  "  whatever  paraphrases  or  prophecies 
may  be  made  upon  my  last  message  (pressing  the 
two  Houses  to  consent  to  a  personal  treaty),  I  shall 
never  part  with  the  Church,  the  essentials  of  my 
crown,  or  my  friends." — P.  206.  Baillie  could  not 
believe  the  report  that  the  king  intended  to  take 
refuge  in  the  Scots  anny,  as  "  there  would  be  no 
shelter  there  for  him  unless  he  would  take  the 


340 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  X. 


of  men  fully  as  bigoted  as  himself  (if  he 
really  conceived  that  the  Scots  Presbyteri- 
ans would  shed  their  blood  to  re-establish 
the  prelacy  they  abhorred),  was  an  addi- 
tional proof  of  that  delusion  which  made  him 
fancy  that  no  government  could  be  estab- 
lished without  his  concurrence  ;  unless,  in- 
deed, we  should  rather  consider  it  as  one 
of  those  desperate  courses,  into  which  he 
who  can  foresee  nothing  but  evil  from  eveiy 
calculable  line  of  action  will  sometimes 
plunge  at  a  venture,  borrowing  some  ray  of 
hope  from  the  uncertainty  of  its  conse- 
quences.* 

It  was  an  inevitable  effect  of  this  step, 
that  the  king  surrendered  his  personal  lib- 
erty, which  he  never  afterward  recovered. 
Considering  his  situation,  we  may  at  first 
think  the  Parliament  tolerably  moderate  in 
oflering  nearly  the  same  terms  of  peace  at 
Newcastle  which  he  had  rejected  at  Ux- 
bridge  ;  the  chief  difference  being,  that  the 
power  of  the  militia  which  had  been  de- 
manded for  commissioners  nominated  and 
removable  by  the  two  Houses  during  an  in- 
definite period,  was  now  proposed  to  reside 
in  the  two  Houses  for  the  space  of  twenty 
years,  which  rather  more  unequivocally  in- 
dicated their  design  of  making  the  Parlia- 
ment perpetual. f  But,  in  fact,  they  had  so 
abridged  the  royal  prerogative  by  their  for- 
mer propositions,  that,  preserving  the  de- 
cent semblance  of  monarchy,  scarce  any 
thing  further  could  be  exacted.    The  king's 

Covenant,  and  follow  the  advice  of  his  Pariiament. 
Hard  pills  to  be  swallowed  by  a  willful  and  an  un- 
advised prince." — Vol.  ii.,  p.  203. 

*  Not  long  after  the  king  had  taken  shelter  with 
the  Scots,  he  wrote  a  letter  to  Ormond,  which  was 
intercepted,  wherein  he  assured  him  of  his  expec- 
tation that  their  army  would  join  with  his,  and  act 
in  conjunction  with  Montrose,  to  procure  a  happy 
peace  and  the  restoration  of  his  rights. — White- 
lock,  p.  208.  Charles  had  bad  luck  with  his  letters, 
■which  fell,  too  frequently  for  his  fame  and  inter- 
ests, into  the  hands  of  his  enemies.  But  who, 
save  this  most  ill-judging  of  princes,  would  have  en- 
tertained an  idea  that  the  Scots  Presbyterian  army 
would  co-operate  with  Montrose,  whom  they  ab- 
horred, and  very  justly,  for  his  ti'eachery  and  cni- 
eltj',  above  all  men  living  ? 

t  Pari.  Hist,  499.  Wliitelock,  215,  218.  It  was 
voted,  17th  of  June,  that  after  tlicse  twenty  years, 
the  king  was  to  exercise  no  power  over  the  mili- 
tia without  the  previous  consent  of  Pai'liament, 
who  were  to  pass  a  bill  at  any  time  respecting  it, 
if  tliey  should  judge  the  kingdom's  safety  to  be 
concerned,  which  should  be  valid  without  the  king's 
assent. — Commons'  Journal. 


circumstances  were,  however,  so  altered, 
that  by  persisting  in  hie  refusal  of  those 
propositions,  he  excited  a  natural  indigna- 
tion at  his  obstinacy  in  men  who  felt  their 
own  right  (the  conqueror's  right)  to  dictate 
terms  at  pleasure.  Yet  this  might  have  had 
a  nobler  character  of  firmness  if,  during  all 
the  tedious  parlies  of  the  last  three  years  of 
his  life,  he  had  not,  by  tardy  and  partial  con- 
cessions, given  up  so  much  of  that  for  which 
he  contended,  as  rather  to  appear  like  a  ped- 
ler  haggling  for  the  best  bargain  than  a  sov- 
ereign unalterably  determined  by  conscience 
and  public  spirit.  We  must,  however,  for- 
give much  to  one  placed  in  such  unparalleled 
difficulties.  Charles  had  to  con-  Charles's 
tend,  during  his  unhapy  resi-  struggles  to 
dence  at  Newcastle,  not  merely  Episcopacy, 
with  revolted  subjects  in  the  "f^'^^t  the 

advice  of  the 

pride  of  conquest,  and  with  bigot-  queea  and 
ed  priests,  as  blindly  confident  in 
one  set  of  doubtful  propositions  as  he  was  in 
the  opposite,  but  with  those  he  had  trusted 
the  most  and  loved  the  dearest.  We  have 
in  the  Clarendon  State  Papers  a  series  of 
letters  from  Paris,  written,  some  by  the 
queen,  others  jointly  by  Colepepper,  Jer- 
myn,  and  Asliburnham,  or  the  two  former, 
m-ging  him  to  sacrifice  Episcopacy  as  the 
necessary  means  of  his  restoration.  We 
have  the  king's  answers,  that  display,  in  an 
interesting  manner,  the  struggles  of  his 
mind  under  this  severe  trial.*  No  candid 
reader,  I  think,  can  doubt  that  a  serious 
sense  of  obligation  was  predominant  in 
Charles's  persevering  fidelity  to  the  English 
Cliurch ;  for  though  he  often  alleges  the  in- 
compatibility of  Presbyterianism  with  mon- 
archy, and  says  very  justly,  "  I  am  most 
confident  that  religion  will  much  sooner  re- 
gain the  militia  than  tlie  militia  will  relig- 
ion,"f  yet  these  arguments  seem  rather  in- 

'  P.  248.  "Show  me  any  precedent,"  he  says 
in  another  place,  "  wherever  Presbyterian  govern- 
ment and  regal  was  together  without  perpetual 
rebellions,  which  was  the  cause  that  necessitated 
the  king  my  father  to  change  that  government  in 
Scotland.  And  even  in  France,  where  they  are 
but  on  tolerance,  which  in  likelihood  shall  cause 
moderation,  did  they  ever  sit  still  so  long  as  they 
had  power  to  rebel  ?  And  it  can  not  be  otherwise ; 
for  the  ground  of  their  doctrine  is  anti-monarchic- 
al."—P.  260.    See,  also,  p.  273. 

t  "  The  design  is  to  unite  you  with  the  Scots 
nation  and  the  Presbj-teriaus  of  England  against 
the  anti-monai"chical  party,  the  Independents.  .  .  . 
If  by  conscience  it  is  intended  to  assert  iJiat  Epis- 


Cha.  I.— 16-12-'19.] 


FROM  HENRY  VII.  TO  GEORGE  IT. 


341 


tended  to  weigh  ■with  those  who  slighted  his  1 
scruples  than  the  paramount  motives  of  his 
heart.  He  could  hardly  avoid  perceiving 
that,  as  Colepepper  told  him  in  his  rough 
style,  the  question  was,  whether  he  would 
choose  to  be  a  king  of  Presbytery  or  no 
king.  But  the  utmost  length  which  he 
could  prevail  on  himself  to  go  was  to  offer 
the  continuance  of  the  Presbyterian  disci- 
pline, as  established  by  the  Parliament,  for 
three  years,  during  which  a  conference  of 
divines  might  be  had,  in  order  to  bring  about 
II  settlement.  Even  this  he  would  not  pro- 
pose without  consulting  two  bishops,  Juxon 
and  Duppa,  wliether  he  could  lawfully  do 
so.  They  returned  a  very  cautious  answer, 
assenting  to  the  proposition  as  a  temporary 
measure,  but  plainly  endeavoring  to  keep 
the  king  fixed  in  his  adherence  to  the  Epis- 
copal Chui-ch.* 

copacy  is  jure  diviuo  exclusive,  whereby  no  Prot- 
estant, or,  rather,  Christian  church,  can  be  acknowl- 
edged for  such  without  a  bishop,  we  must  therein 
crave  leave  wholly  to  difler.  And  if  we  be  in  an 
error,  we  are  in  good  conipanj-,  there  not  being,  as 
we  have  cause  to  believe,  six  persons  of  the  Prot- 
estant religion  of  the  other  ojjinion  Come, 

the  question  in  short  is,  whether  you  will  choose 
to  be  a  king  of  Presbytery,  or  no  king,  and  yet 
Presbytery  or  perfect  Independency  to  be?" — P. 
2fi3.  They  were,  however,  as  much  against  his  giv- 
ing up  the  militia,  or  his  party,  as  in  favor  of  his 
abolishing  Episcopacy. 

Charles  was  much  to  be  pitied  throughout  all 
this  period  ;  none  of  his  correspondents  understood 
the  state  of  affairs  so  well  as  himself:  he  was 
with  the  Scots,  and  saw  what  they  were  made  of, 
while  the  others  fancied  absurdities  through  their 
own  private  self-interested  views.  It  is  very  cer- 
tain that  by  sacrificing  Episcopacy  he  would  not 
have  gained  a  step  with  the  Parliament ;  and  as  to 
reigning  in  Scotland  alone,  suspected,  insulted,  de- 
graded, this  would,  perhaps,  just  have  been  possi- 
ble for  himself;  but  neither  Henrietta  nor  her 
friends  would  have  found  an  asylum  there. 

•  Juxon  had  been  well  treated  by  the  Parlia- 
ment, in  consequence  of  his  pnident  abstinence 
from  politics  and  residence  in  their  quarters.  He 
dates  his  answer  to  the  king  from  his  palace  at 
Fulham.  He  was,  however,  dispossessed  of  it 
not  long  after  by  virtue  of  the  ordinance  directing 
the  sale  of  bishops'  lands,  Nov.  16,  1646. — Pari. 
Hist,  528.    A  committee  was  appointed,  Nov.  2, 

1646,  to  consider  of  a  fitting  maintenance  to  be  al- 
lowed the  bishops,  both  those  who  had  remained 
under  the  Parhament,  and  those  who  had  deserted 
it. — Journals.  I  was  led  to  this  passage  by  Mr. 
Godwin,  Hist,  of  Commonwealth,  ii.,250.  Wheth- 
er any  thing  further  was  done,  I  have  not  observed  ; 
bat  there  is  an  order  in  the  Journals,  1st  of  May, 

1647,  that  whereas  divers  of  the  late  tenants  of  Dr. 
Juxon,  late  bishop  of  London,  have  refused  to  pay 


Pressed  thus  on  a  topic,  so  important,' 
above  all  others,  in  his  eyes,  the  king  gave 
a  proof  of  his  sincerity  by  greater  conces- 
sions of  power  than  he  had  ever  intended. 
Ho  had  some  time  before  openly  offered  to 
let  the  Parliament  name  all  the  commis- 
sioners of  the  militia  for  seven  years,  and 
all  the  officers  of  state  and  judges  to  hold 
their  places  for  life.*  He  now  empowered 
a  secret  agent  in  London,  Mr.  William  Mur- 
ray, privately  to  sound  the  Parliamentary 
leaders,  if  they  would  consent  to  the  estab- 
lishment of  a  moderated  Episcopacy  after 
three  or  five  years,  on  condition  of  his  de- 
parting from  the  right  of  the  militia  during 
his  whole  life.f  This  dereliction  of  the 
main  ground  of  contest  brought  down  the 
queen's  indignation  on  his  head.  She  wrote 
several  letters,  in  an  imperious  and  unfeel- 
ing tone,  declaring  that  she  would  never  set 
her  foot  in  England  as  long  as  the  Parlia- 
ment should  exist-t  Jcrmyn  and  Colepep- 
per assumed  a  style  hardly  less  dictatorial 
in  their  letters,§  till  Charles  withdrew  the 
proposal,  which  Murray  seeins  never  to 
have  communicated. II    It  was,  indeed,  the 


the  rents  or  other  suras  of  money  due  to  him  as  bish- 
op of  London  at  or  before  the  1st  of  November  last, 
the  trustees  of  bishops'  lands  are  directed  to  receive 
the  same,  and  pay  them  over  to  Dr.  Juxon.  Though 
this  was  only  justice,  it  shows  that  justice  was 
done,  at  least  in  this  instance,  to  a  bishop.  Juxon 
must  have  been  a  very  pmdent  and  judicious  man, 
though  not  learned,  which  probably  was  all  the 
better. 

*  Jan.  29,  1646.  Pari.  Hist,  436.  Whitelock 
says,  "  Many  sober  men  and  lovers  of  peace  were 
earnest  to  have  comjjlied  with  what  the  king  pro- 
posed ;  but  the  major  part  of  the  House  was  con- 
traiy,  and  the  new-elected  members  joined  those 
who  were  averse  to  compliance." — P.  207. 

t  Clar.  Papers,  p.  275. 

t  Clar.  Papers,  p.  294,  297,  300.  She  had  said 
as  much  before  (King's  Cabinet  Opened,  p.  28) ;  so 
that  this  was  not  a  burst  of  passion.  "  Conservez- 
vous  la  militia,"  she  says  in  one  place,  p.  271,  "  et 
n'abandonnez  jamais  ;  et  par  cela  tout  rcvicndra.'' 
Charles,  however,  disclaimed  all  idea  of  violating 
his  faith  in  case  of  a  treaty,  p.  273 ;  but  observed 
as  to  the  militia,  with  some  truth,  that  "  the  retain- 
ing of  it  is  not  of  so  much  consequence — I  am  far 
from  saying,  none — as  is  thought,  without  the  con- 
currence of  other  things,  because  the  militia  here 
is  not,  as  in  France  and  other  countries,  a  formed 
powerful  strength ;  but  it  serves  more  to  hold  oflf 
ill  than  to  do  much  good  ;  and  certainly,  if  the  pul- 
pits teach  not  obedience  (which  will  never  be,  if 
Presbyterian  goveniment  be  absolutely  settled), 
the  crown  will  have  little  comfort  of  the  militia." — 
P.  296.  §  P.  301.  II  P.  313.  ■ 


342 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X, 


evident  effect  of  despair  and  a  natural  wea- 
riness of  his  thorny  crown.  He  now  began 
to  express  serious  thoughts  of  making  his 
escape,*  and  seems  even  to  hint  more  than 
once  at  a  resignation  of  his  government  to 
the  Prince  of  Wales;  but  Henrietta  for- 
bade him  to  think  of  an  escape,  and  alludes 
to  the  other  with  contempt  and  indignation. f 
With  this  selfish  and  tj'rannical  woman,  that 
life  of  exile  and  privacy  which  religion  and 
Bad  condact  letters  would  have  rendered  tol- 
of  the  queen,  erable  to  the  king,  must  have 
been  spent  in  hardly  less  bitterness  than  on 
a  dishonored  throne.  She  had  displayed  in 
France  as  Uttle  virtue  as  at  home;  the 
small  resources  which  should  have  been 
frugally  dispensed  to  those  who  had  lost  all 
for  the  royal  cause,  were  squandered  upon 
her  favorite  and  her  French  servants. t  So 
totally  had  she  abandoned  all  regard  to  Eng- 
lish interests,  that  Hyde  and  Cape],  when 
retired  to  Jersey,  the  governor  of  which. 
Sir  Edward  Carteret,  still  held  out  for  the 
king,  discovered  a  plan  formed  by  the  queen 
and  Jermyn  to  put  that  island  into  the  hands 
of  France. §  They  were  exceedingly  per- 
plexed at  this  discovery,  conscious  of  the 
impossibility  of  defending  Jersey,  and  yet 
detei-mined  not  to  let  it  be  torn  away  from 


*  P.  24.5,  247,  278,  314.  In  one  place  he  says 
that  he  will  go  to  France  to  char  his  reputation  to 
the  queen,  p.  265.  He  wrote  in  great  distress  of 
mind  to  Jermyn  and  Colepepper,  on  her  threaten- 
ing to  retire  from  all  business  into  a  monastery,  in 
consequence  of  his  refusal  to  comply  with  her 
wishes,  p.  270. — See,  also,  Montreuil's  memoir  in 
Thurloe's  State  Papers,  i.,  8.5,  whence  it  appears 
that  the  king  had  thoughts  of  making  his  escape 
in  Jan.,  1647. 

t  "  For  the  proposition  to  Bellievre  (a  French 
agent  at  Newcastle,  after  Montreuil's  recall),  I  hate 
it.  If  any  such  thing  should  be  made  public,  you 
are  tmdone  ;  your  enemies  will  make  a  malicious 
use  of  it.  Be  sure  }"0u  never  own  it  again  in  any 
discourse,  otherwise  than  as  intended  as  a  foil,  or 
an  hyperbole,  or  any  other  ways,  except  in  sober 
earnest,"  &c.,  p.  304.  The  queen  and  her  counsel- 
ors, however,  seem  afterward  to  have  retracted  in 
some  measure  what  they  had  said  about  his  escape, 
and  advised  that  if  he  could  not  be  suffered  to  go 
into  Scotland,  he  would  try  Ireland  or  Jersey,  p. 
312. 

Her  dislike  to  the  king's  escape  showed  itself, 
according  to  Clarendon,  vi.,  192,  even  at  a  time 
when  it  appeared  the  only  means  to  secure  his 
life,  during  his  confinement  in  the  Isle  of  Wight. 
Some  may  suspect  that  Henrietta  had  consoled 
herself  too  well  with  Lord  Jermyn  to  wish  for  her 
husband  s  return.  }  P.  344.  §  P.  279. 


the  sovereignty  of  the  British  crown.  No 
better  expedient  occun-ed  than,  as  soon  as 
the  project  should  be  ripe  for  execution,  to 
dispatch  a  message  "  to  the  Earl  of  North- 
umberland or  some  other  person  of  honor,"' 
asking  for  aid  to  presei-ve  the  island.  This 
was,  of  course,  in  other  words,  to  sun'ender 
it  into  the  jrower  of  the  Parliament,  which 
they  would  not  name  even  to  themselves ; 
but  it  was  evidently  more  coasistent  with 
their  loyalty  to  the  king  and  his  family  than 
to  trust  the  good  faith  of  Mazarin.  The 
scheme,  however,  was  abandoned,  for  we 
hear  no  more  of  it. 

It  must,  however,  be  admitted  at  the 
present  day,  that  there  was  no  better  expe- 
dient for  saving  the  king's  life,  and  some 
portion  of  the  royal  authority  for  his  de- 
scendants (a  frank  renunciation  of  Episco- 
pacy, perhaps,  only  excepted),  than  such 
an  abdication,  the  time  for  which  had  come 
before  he  put  himself  into  the  hands  of  the 
Scots.  HLs  own  party  had  been  weakened, 
and  the  number  of  his  well-wishers  dimin- 
ished, by  something  more  than  the  events 
of  war.  The  last  unfortunate  year  had,  in 
two  memorable  instances,  revealed  fresh 
proofs  of  that  culpable  imprudence,  speak- 
ing mildly,  which  made  wise  and  honest 
men  hopeless  of  any  permanent  accommo- 
dation.    At  the  battle  of  Nase-  Publication 

by,  copies  of  some  letters  to  the  ^en  «  Nsle- 
queen,  chiefly  written  about  the  by. 
time  of  the  ti-eaty  of  Uxbridge,  and  strange- 
ly preserved,  fell  into  the  hands  of  the  ene- 
my, and  were  instantly  published.*  No 

*  Clarendon  and  Hume  inveigh  against  the  Par- 
Uament  for  this  publication,  in  which  they  are  of 
course  followed  by  the  whole  rabble  of  Charles's 
admirers.  But  it  could  not  reasonably  be  expect- 
ed that  such  material  papers  should  be  kept  back : 
nor  were  the  Parliament  under  any  obUgation  to 
do  so.  The  former  writer  insinuates  that  they 
were  garbled ;  but  Charles  himself  never  pretend- 
ed this  (see  Supplement  to  Evelyn's  Diary,  p.  101); 
nor  does  there  seem  any  foundation  for  the  surmise. 
His  own  friends  garbled  them,  however,  after  the 
restoration :  some  passages  are  omitted  in  the  edi- 
tion of  King  Charles's  Works ;  so  that  they  can 
only  be  read  accurately  in  the  original  pubUcation, 
called  the  King's  Cabinet  Opened,  a  small  tract^ 
quarto,  or  in  the  modem  compilations,  such  as  the 
Parliamentarj-  Historj-,  which  have  copied  it.  Lud- 
low says  he  has  been  informed  that  some  of  the 
letters  taken  at  Naseby  were  suppressed  by  those 
intrusted  with  them,  who  since  the  king's  restora- 
tion have  been  rewarded  for  it. — Memoirs,  i.,  15G. 
But  I  should  not  he  inclined  to  believe  this. 


Cha.  I.— 1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


343 


other  losses  of  that  fatal  day  were  more  in- 
jurious to  his  cause.  Besides  many  proofs 
of  a  contemptible  subserviency  to  one  justlj' 
deemed  irreconcilable  to  the  civil  and  relig- 
ious interests  of  the  kingdom,  and  many  ex- 
pressions indicating  schemes  and  hopes  in- 
consistent with  any  practicable  peace,  and 
especially  a  design  to  put  an  end  to  the  Par- 
liament,* he  gave  her  power  to  tieat  with 

There  is,  however,  an  anecdote  which  may  be 
mentioned  in  this  place :  A  Dr.  Hickman,  after- 
ward Bishop  of  Derry,  wrote  in  1690  the  following 
letter  to  Sprat,  bishop  of  Rochester,  a  copy  of 
which,  in  Dr.  Birch's  hand- writing,  may  be  found  in 
the  British  Museum.  It  was  printed  by  liim  in  the 
Appendix  to  the  "  Inquiry  into  the  Share  King 
Charles  I.  had  in  Glamorgan's  Transactions,"  and 
from  thence  by  Harris,  in  his  Life  of  Charles  I.,  p. 
144: 

"My  Lord, — Last  week  Mr.  Bennet  [a  bookseller] 
left  with  me  a  manuscript  of  letters  from  King 
Charles  I.  to  his  queen,  and  said  it  was  your  lord- 
ship's desire  and  Dr.  Felling's  that  my  Lord  Roches- 
ter should  read  them  over,  and  see  what  was  fit  to 
be  left  out  in  the  intended  edition  of  them.  Ac- 
cordingly, my  lord  has  read  them  over,  and  upon 
the  whole  matter  says  he  is  verj-  much  amazed  at 
the  design  of  printing  them,  and  thinks  that  the 
king's  enemies  could  not  have  done  him  a  greater 
discourtesy.  He  showed  me  many  passages  which 
detract  very  much  from  the  reputation  of  the  king's 
prudence,  and  something  from  his  integrity ;  and,  in 
short,  he  can  find  nothing  throughout  the  whole  col- 
lection but  what  will  lessen  the  character  of  the 
king,  and  offend  all  those  who  wish  well  to  his 
jnemorj".  He  thinks  it  very  unfit  to  expose  anj' 
man's  conversation  and  familiarity  with  his  wife,  bnt 
especially  that  king's ;  for  it  was  apparently  his 
blind  side,  and  his  enemies  gained  great  advantage 
by  showing  it.  But  my  lord  hopes  his  friends  will 
spare  him,  and  therefore  he  has  ordered  me  not  to 
deliver  the  book  to  the  bookseller,  but  put  it  into 
your  lordship's  hands  ;  and  when  you  have  read  it, 
he  knows  you  will  be  of  his  opinion.  If  your  lord- 
ship has  not  time  to  read  it  all,  my  lord  has  turned 
down  some  leaves  where  he  makes  his  chief  objec- 
tions. If  your  lordship  sends  any  servant  to  town, 
I  beg  you  will  order  him  to  call  here  for  the  book, 
and  that  you  would  take  care  about  it." 

Though  the  description  of  these  letters  answers 
perfectly  to  those  in  the  King's  Cabinet  Opened, 
which  certainly  "  detract  much  from  the  reputation 
of  Charles's  pmdence,  and  something  from  his  in- 
tegrity," it  is  impossible  that  Rochester  and  the 
others  could  be  ignorant  of  so  well-known  a  pub- 
lication ;  and  we  must  consequentl3-  infer  that 
some  letters  injurious  to  the  king's  character  have 
been  suppressed  by  the  caution  of  his  friends. 

*  The  king  had  long  entertained  a  notion,  in 
which  he  was  encouraged  by  the  Attorney-general 
Herbert,  that  the  act  against  the  dissolution  of  the 
Parliament  without  its  own  consent  was  void  in  it- 
self.— Life  of  Clarendon,  p.  86.  This  high  monarch- 
ical theory  of  the  nullity  of  statutes  in  restraint  of 


the  English  Catholics,  promising  to  take 
away  all  penal  laws  against  them  as  soon  as 
God  should  enable  him  to  do  so,  in  consid- 
eration of  such  powerful  assistance  as  might 
deserve  so  great  a  favor,  and  enable  him  to 
effect  it.*  Yet  it  was  certain  that  no  Par- 
liament, except  in  absolute  duress,  would 
consent  to  repeal  these  laws.  To  what  sort 
of  victory,  therefore,  did  he  look?  It  was 
remembered  that,  on  taking  the  sacrament 
at  Oxford  some  time  before,  he  had  solemn- 
ly protested  that  he  would  maintain  the 
Protestant  religion  of  the  Church  of  Eng- 
land, without  any  connivance  at  popery. 
What  ti'ust  could  be  reposed  in  a  prince 
capable  of  forfeiting  so  solemn  a  pledge? 
Were  it  even  supposed  that  he  intended  to 
break  his  word  with  the  Catholics,  after  ob- 

the  prerogative  was  never  thoroughly  eradicated 
till  the  Revolution,  and  in  all  contentious  between 
the  crown  and  Parliament  destroyed  the  confidence, 
without  which  no  accommodation  could  be  durable. 

*  "  There  is  little  or  no  appeai-ance  but  that  this 
summer  will  be  the  hottest  for  war  of  any  that  hath 
been  yet ;  and  be  confident  that,  in  making  peace, 
I  shall  ever  show  my  constancy  in  adhering  to  bish- 
ops and  all  our  friends,  not  forgetting  to  put  a  short 
period  to  this  perpetual  Parliament." — King's  Cab- 
inet Opened,  p.  7.  "  It  being  presumption,  and  no 
piety,  so  to  trust  to  a  good  cause  as  not  to  use  all 
lawful  means  to  maintain  it,  I  have  thought  of  one 
means  more  to  furnish  thee  with  for  my  assistance 
than  hitherto  thou  hast  had:  it  is,  that  I  give  thee 
power  to  promise  in  my  name,  to  whom  thou  think- 
est  most  lit,  that  I  will  take  away  all  the  penal  laws 
against  the  Roman  Catholics  in  England  as  soon  as 
God  shall  enable  me  to  do  it ;  so  as  by  their  means, 
or  in  their  favors,  I  may  have  so  powerful  assist- 
ance as  may  deserve  so  great  a  favor,  and  enable 
me  to  do  it.  But  if  thou  ask  what  I  call  that  as- 
sistance, I  answer,  that  when  thou  knowest  what 
may  be  done  for  it,  it  will  be  easily  seen  if  it  de- 
serve to  be  so  esteemed.  I  need  not  tell  thee  what 
secrecy  this  business  requires  ;  yet  this  I  will  say, 
that  this  is  the  greatest  point  of  confidence  I  can 
express  to  thee ;  for  it  is  no  thanks  to  me  to  trust 
thee  in  any  thing  else  but  in  this,  which  is  the  only 
point  of  difference  in  opinion  betwixt  us  ;  and  yet 
I  know  thou  wilt  make  as  good  a  bargain  for  me, 
even  in  this,  as  if  thou  wert  a  Protestant." — Id. 
ibid.  "  As  to  my  calling  those  at  London  a  Parlia- 
ment, I  shall  refer  thee  toDigby  for  particular  sat- 
isfaction ;  this  in  general :  if  there  had  been  but 
two,  besides  myself,  of  my  opinion.  I  had  not  done 
it ;  and  the  argument  that  prevailed  with  me  was, 
that  the  calling  did  no  ways  acknowledge  them  to 
be  a  Parliament,  upon  which  condition  and  con- 
struction I  did  it,  and  no  otherwise,  and  accordingly 
it  is  registered  in  the  council  books,  with  the  council's 
unanimous  approbation." — Id.,  p.  4.  The  one  coun- 
selor who  concurred  with  the  king  was  Secretary 
Nicholas.— Supplement  to  E vel>-n's  Memoirs,  p.  90. 


344 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


taining  such  aid  as  they  could  render  him, 
would  his  insincerity  be  less  flagrant?* 
These  suspicions  were  much  aggi-avated 
by  a  second  discovery  that  took 

Discovery"!      ,  ^  i  c 

Glamorgan's  place  soon  attei-ward,  ol  a  secret 
treaty.  treaty  between  the  Earl  of  Gla- 
morgan and  the  confederate  Irish  Catholics, 
not  merely  promising  the  repeal  of  t'ue  pe- 
nal laws,  but  the  establishment  of  their  re- 
ligion in  far  the  gi'eater  part  of  Ireland.! 
The  Marquis  of  Ormond,  as  well  as  Lord 
Digby,  who  happened  to  be  at  Dublin,  loud- 
ly exclaimed  against  Glamorgan's  presump- 
tion in  concluding  such  a  treaty,  and  com- 
mitted him  to  prison  on  a  charge  of  ti'eason. 
He  produced  two  commissions  from  the 
king,  secretly  granted  without  any  seal  or  the 
knowledge  of  any  minister,  containing  the 
fullest  powers  to  treat  with  the  Irish,  and 
promising  to  fulfill  any  conditions  into  which 
he  should  enter.  The  king,  informed  of 
this,  disavowed  Glamorgan,  and  asserted  in 
a  letter  to  the  Parliament  that  he  had  mere- 
ly a  commission  to  raise  men  for  his  service, 
but  no  power  to  treat  of  any  thing  else, 
without  the  privity  of  the  lord-lieutenant, 
much  less  to  capitulate  any  thing  concerning 
religion,  or  any  property  belonging  either  to 
church  or  laity. t    Glamorgan,  however,  was 


*  The  queen  evidently  suspected  t)iat  he  might 
be  brought  to  abandon  the  Catholics. — King's  Cab- 
inet Opened,  p.  30,  31.  And,  if  fear  of  her  did  not 
prevent  him,  I  make  no  question  that  he  would 
have  done  so,  could  he  but  have  carried  his  other 
points. 

t  Pari.  Hist.,  428.  Somers  Tracts,  v.,  542.  It  ap- 
pears by  several  letters  of  the  king,  publislied 
among  those  taken  at  Naseby,  that  Ormond  had 
power  to  promise  the  Irish  a  repeal  of  the  penal 
laws,  and  tbe  use  of  private  chapels,  as  well  as  a 
suspension  of  Pojuings'  law.  —  King's  Cabinet 
Opened,  p.  16,  19  ;  Rushw.  Abr.,  v.,  539.  Glamor- 
gan's treaty  granted  them  all  the  churches,  with 
the  revenues  thereof,  of  which  they  had  at  any  time 
since  October,  1641,  been  in  possession;  that  is, 
the  re-establishment  of  their  religion:  they,  on  the 
other  hand,  were  to  famish  a  very  large  army  to  the 
king  in  England. 

t  Rushw.  Abr.,  v.,  582,  594.  This,  as  well  as  some 
letters  taken  on  Lord  Digby's  rout  at  Sherborne 
about  the  same  time,  made  a  prodigious  impression. 
■'  Many  good  men  were  sorry  that  the  king's  actions 
agi'eed  no  better  with  his  words ;  that  he  openly 
protested  before  God,  with  horrid  imprecations, 
that  he  endeavored  nothing  so  much  a.^  the  preser- 
vation of  the  Protestant  religion,  and  rooting  out  of 
poperj- ;  yet  in  the  mean  time,  underhand,  he  prom- 
ised to  the  Irish  rebels  an  abrogation  of  the  laws 
against  them,  which  was  contrary  to  his  late  ex- 
pressed promises  in  these  words,  '  I  will  never 


soon  released,  and  lost  no  portion  of  the 
king's  or  his  family's  favor. 

This  transaction  has  been  the  subject  of 
much  historical  controversy.  The  ene- 
mies of  Charles,  both  in  his  own  and  later 
ages,  have  considered  it  as  a  proof  of  his  in- 
difference at  least  to  the  Protestant  religion, 
and  of  his  readiness  to  accept  the  assistance 
of  Irish  rebels  on  any  conditions.  His  ad- 
vocates for  a  long  time  denied  the  authen- 
ticity of  Glamorgan's  commissions  ;  but  Dr. 
Birch  demonstrated  that  they  were  genu- 
ine ;  and,  if  his  dissertation  could  have  left 
any  doubt,  later  evidence  might  be  adduced 
in  confirmation.*    Hume,  in  a  veiy  artful 

abrogate  the  laws  against  the  papists.'  And  agaia 
he  said,  '  I  abhor  to  think  of  bringing  foreign  sold- 
iers into  the  kingdom,'  and  yet  he  solicited  the  Duke 
of  Lorrain,  the  French,  the  Danes,  and  die  very 
Irish,  for  assistance." — May's  Breviate  of  Hist,  of 
Parliament  in  Maseres's  Tracts,  i.,  61.  Charles  had 
certainly  never  scrapled  (I  do  not  say  that  he  ought 
to  have  done  so)  to  make  application  in  every  quar- 
ter for  assistance  ;  and  began  in  1642  witi)  sending 
a  Col.  Cochran  on  a  secret  mission  to  Denmark,  in 
the  hope  of  obtaining  a  subsidiary  force  from  that 
kingdom.  There  was,  at  least,  no  danger  to  the  na- 
tional independence  from  such  allies.  "We  fear 
this  shall  undo  the  king  forever,  that  no  repentance 
shall  ever  obtasn  a  pardon  of  this  act,  if  it  be  true, 
from  his  Parliaments."  —  BaiUie,  ji.,  1S5,  Jan.  20, 
1646.  The  king's  disavowal  had  some  effect;  it 
seems  as  if  even  those  who  were  prejudiced  against 
him  could  hardly  believe  bim  guilty  of  such  aa 
apostasy,  as  it  appeared  in  their  eyes. — P.  175. 
And,  in  fact,  though  the  Catholics  had  demanded 
nothing  unreasonable  either  in  its  own  nature  or  ac- 
cording to  the  circumstances  wherein  they  stood, 
it  threw  a  great  suspicion  on  the  king's  attachment 
to  his  ovrn  faith,  when  he  was  seen  to  abandon  al- 
together, as  it  seemed,  the  Protestant  cause  in  Ire- 
land, while  he  was  struggling  so  tenaciously  for  a 
particular  form  of  it  in  Britain.  Nor  was  his  nego- 
tiation less  impolitic  than  dishonorable.  Without 
depreciating  a  very  brave  and  injured  people,  it 
may  be  said  with  certainty  that  an  Irish  army  could 
not  have  had  the  remotest  chance  of  success  against 
Fairfax  and  Cromwell ;  the  courage  being  equal  on 
our  side,  the  skill  and  discipline  incomparably  su- 
perior; and  it  was  evident  that  Charles  could  never 
reign  in  England  but  on  a  Protestant  interest. 

*  Birch's  Inquiry  into  the  Share  which  King 
Charles  I.  had  in  the  Transactions  of  the  Earl  of 
Glamorgan,  1747.  Four  letters  of  Charles  to  Gla- 
morgan, now  in  the  British  Museum  (Sloaue  MSS., 
4161),  in  Birch's  hand-writing,  but  of  which  he  was 
not  aware  at  the  time  of  that  publication,  decisively 
show  the  king's  dupUcitj".  In  the  iirst,  which  was 
meant  to  be  seen  by  Digby,  dated  Feb.  3,  1646.  he 
blames  him  for  having  been  drawn  to  consent  to 
conditions  much  beyond  his  instructions.  "  If  you 
had  advised  with  my  lord-lieutenant,  as  yon  prom- 
ised me,  all  this  had  been  helped;"  and  tells  him 


Cha.  I.— 1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


345 


niid  very  unfair  statement,  admitting  the 
authenticity  of  these  insti'uments,  endeavors 
to  show  that  they  were  never  intended  to 
give  Glamorgan  any  power  to  treat  without 
Ormond's  approbation.  B ut  they  are  woi-d- 
ed  in  the  most  unconditional  manner,  with- 
out any  reference  to  Ormond.    No  common 

he  had  commanded  as  much  favor  to  be  shown  him 
as  might  possibly  stand  with  his  service  and  safety. 
On  Feb.  28,  he  writes,  by  a  private  hand.  Sir  John 
Winter,  that  lie  is  every  day  more  and  more  con- 
firmed in  the  trast  that  he  had  of  him.  In  a  third 
letter,  dated  April  5,  he  says,  in  a  cipher,  to  which 
the  key  is  given,  "  you  can  not  be  but  confident  of 
my  making  good  all  iiisti-uctions  and  promises  to 
you  and  nuncio."  The  fourth  letter  is  dated  April 
6,  and  is  in  these  words :  "  Herbert,  as  I  doubt  not 
but  you  have  too  much  courage  to  be  dismayed  or 
discouraged  at  the  usage  like  yon  have  had,  so  I 
assure  you  that  my  estimation  of  you  is  nothing  di- 
miuished  by  it,  but  rather  begets  in  me  a  desire  of 
revenge,  and  reparation  to  us  both  (for  in  this  I  hold 
myself  equally  interested  with  you),  whereupon, 
not  doubting  of  your  accustomed  care  and  industry 
in  my  service,  I  assure  you  of  the  continuance  of 
my  favor  and  protection  to  you,  and  that  iu  deeds 
more  than  iu  words  I  shall  show  myself  to  be  your 
most  assured  constant  friend.    C.  R." 

These  letters  have  latelj'  been  republished  by 
Dr.  Lingai-d,  Hist,  of  Eng.,  x.,  note  B.,  from  War- 
ner's Hist,  of  the  Civil  War  in  Ireland.  The  cipher 
may  be  found  in  the  Biogiaphia  Britannica,  under 
the  article  "Bales."  Dr.  L.  endeavors  to  prove 
that  Glamorgan  acted  all  along  with  Ormond's  priv- 
ity ;  and  it  must  be  owned  that  the  expression  in 
the  king's  last  letter  about  revenge  and  reparation, 
which  Dr.  L.  does  not  advert  to,  has  a  very  odd  ap- 
pearance. 

The  controversy  is,  I  suppose,  completely  at  an 
end,  so  that  it  is  hardly  necessary  to  mention  a  let- 
ter from  Glamorgan,  then  Marquis  of  Worcester,  to 
Clarendon,  after  the  Restoration,  which  has  every 
internal  mark  of  credibi'ity,  and  displays  the  king's 
unfairness. — Clar.  State  Pap.,  ii.,  201,  and  Lingard, 
ubi  supra.  It  is  remarkable  that  the  transaction  is 
never  mentioned  in  the  Histoi-y  of  the  Rebellion. 
The  noble  author  was,  however,  convinced  of  the 
genuineness  of  Glamorgan's  commission,  as  appeai-s 
by  a  letter  to  Secretary  Nicholas.  "  I  must  tell 
you,  I  care  not  how  little  I  say  in  that  business  of 
Ireland,  since  those  strange  powers  and  iustiuc- 
tions  given  to  your  favorite  Glamorgan,  which  ap- 
pear to  be  so  inexcusable  to  justice,  piety,  and 
pnidence ;  and  I  fear  there  is  veiy  much  in  that 
transaction  of  Ireland,  both  before  and  since,  that 
you  and  I  were  never  thought  wise  enough  to  be 
advised  with  in.  Oh  !  Mr.  Secretaiy,  those  strata- 
gems have  given  me  more  sad  hours  than  all  the 
misfortunes  in  war  which  have  befallen  the  king, 
and  look  like  the  effects  of  God's  anger  toward 
us." — Id.,  p.  237.  See,  also,  a  note  of  Mr.  Laing, 
Hist,  of  Scotland,  iii.,  557,  for  another  letter  of  the 
king  to  Glamorgan,  from  Newcastle,  in  July,  1646, 
not  less  explicit  than  the  foregobig. 


reader  can  think  them  consistent  with  the 
king's  story.  I  do  not,  however,  impute  to 
him  any  intention  of  ratifying  the  terms  of 
Glamorgan's  treaty.  His  want  of  faith  was 
not  to  the  Protestant,  but  to  the  Catholic. 
Upon  weighing  the  whole  of  the  evidence, 
it  appears  to  me  that  he  purposely  gave 
Glamorgan,  a  sanguine  and  injudicious  man, 
whom  he  could  easily  disown,  so  ample  a 
commission  as  might  remove  the  distrust 
that  the  Irish  were  likely  to  entertain  of  a 
negotiation  wherein  Ormond  should  be  con- 
cerned ;  while  by  a  certain  latitude  in  the 
style  of  the  instrument,  and  by  his  own  let- 
ters to  the  lord-lieutonant  about  Glamor- 
gan's errand,  ho  left  it  open  to  assert,  in  case 
of  necessity,  that  it  was  never  intended  to 
exclude  the  former's  privity  and  sanction. 
Charles  had,  unhappily,  long  been  in  tke 
habit  of  perverting  his  natural  acuteness  to 
the  mean  subterfuges  of  equivocal  language. 

By  these  discoveries  of  the  king's  insin- 
cei'ity,  and  by  what  seemed  his  infatuated 
obstinacy  in  refusing  terms  of  accommoda- 
tion, both  nations  became  more  and  more 
alienated  from  him ;  the  one  hardly  re- 
strained from  casting  him  oft",  the  other 
ready  to  leave  him  to  his  fate.*'  „,  , . 

mi  !■  1  [•  The  king  de- 

This  ill  opinion  of  the  king  forms  liveiedupby 
one  apology  for  that  action  which  ""^ 
has  exposed  the  Scots  nation  to  so  much 
reproach — their  delivei-y  of  his  person  to  the 
English  Parliament.  Perhaps,  if  wo  place 
ourselves  in  their  situation,  it  will  not  ap- 

Buniet's  Mem.  of  Dukes  of  Hamilton,  284.  Bail- 
lie's  letters,  throughout  164C,  indicate  his  appre- 
hension of  the  prevalent  spirit,  which  he  dreaded 
as  implacable,  not  only  to  monarchy,  but  to  Presby- 
tery and  the  Scots  nation.  "  The  leaders  of  the 
people  seem  inclined  to  have  no  shadow  of  a  king, 
to  have  libeity  for  all  rehgions,  a  lame  Erastian 
Presbytei-y,  to  be  so  injurious  to  us  as  to  chase  us 
hence  with  the  sword,"  148.  March  31,  1G46. 
"  The  common  word  is,  that  they  will  have  the  king 
prisoner.  Possibly  they  may  grant  to  the  prince  to 
be  a  duke  of  Venice.  Tlie  militia  must  be  abso- 
lutely, for  all  time  to  romc,  in  the  power  of  the 
Parliament  alone,"  &c.,  200.  On  the  king's  re- 
fusal of  the  propositions  sent  to  Newcastle,  the 
Scots  took  great  pains  to  prevent  a  vote  against 
him,  226.  There  was  still,  however,  danger  of  this, 
236,  Oct.  13,  and  p.  243.  His  intrigues  with  both 
parties,  the  Presbyterians  and  Independents,  were 
now  known,  and  all  sides  seem  to  have  been  ripe 
for  deposing  him,  245.  These  letters  are  a  curious 
contrast  to  the  idle  fancies  of  a  speedy  and  triumph- 
ant restoration,  which  Clai-eudon  himself  as  well 
as  others  of  less  judgment,  seem  to  have  cutei'- 
tained. 


346 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


pear  desei'ving  of  quite  such  indignant  cen- 
sure. It  would  have  shown  more  gener- 
osity to  have  offered  the  king  an  alternative 
of  retiring  to  Holland ;  and  from  what  we 
now  know,  he  probably  would  not  have  neg- 
lected the  opportunity.  But  the  conse- 
quence might  have  been  his  solemn  depo- 
sition from  the  English  throne ;  and,  how- 
ever we  may  think  such  banishment  more 
honorable  than  the  acceptance  of  degrading 
conditions,  the  Scots,  wo  should  remember, 
saw  nothing  in  the  king's  taking  the  Cove- 
nant, and  sweeping  away  prelatic  super- 
stitions, but  the  bounden  duty  of  a  Christian 
sovereign,  which  only  the  most  perverse 
self-will  induced  him  to  set  at  naught.* 
They  had  a  right,  also,  to  consider  the  in- 
terests of  his  family,  which  the  threatened 
establishment  of  a  republic  in  England  would 
defeat.  To  cany  him  back  with  their  army 
into  Scotland,  besides  being  equally  ruinous 
to  the  English  monarchy,  would  have  ex- 
posed their  nation  to  the  most  serious  dan- 
gers. To  undertake  his  defense  by  arms 
against  England,  as  the  ardent  Royalists  de- 
sired, and,  doubtless,  the  determined  Re- 
publicans no  less,  would  have  been,  as  was 
proved  afterward,  a  mad  and  culpable  re- 
newal of  the  miseries  of  both  kingdoms. f 

*  "  Though  he  should  swear  it,"  says  Baillie, 
"  no  mail  vfHI  believe  tliat  he  sticks  upon  Episco- 
pacy for  any  conscience,"  ii.,  205.  And  again  :  "  It 
is  pity  that  base  liypocrisy,  when  it  is  pellucid, 
shall  still  bo  entertained.  No  oaths  did  ever  per- 
enade  me  that  Episcopacy  was  ever  adliered  to  on 
any  conscience,"  224.  This  looks  at  first  like  mere 
bigotry ;  but  when  we  remember  that  Charles  had 
abolished  Episcopacy  in  Scotland,  and  was  ready 
to  abolish  Protestantism  in  Ireland,  BaiUie's  preju- 
dices will  appear  less  unreasonable.  The  king's 
private  letters  in  the  Clarendon  Papers  have  con- 
vinced me  of  his  conscientiousness  about  church- 
government  ;  but  of  this  his  cotcmporaries  could 
not  be  aware. 

t  Hollis  maintains  that  the  violent  party  were 
very  desirous  that  the  Scots  should  carry  the  king 
with  them,  and  that  nothing  could  have  been  more 
injurious  to  his  interests.  If  we  may  believe  Berk- 
ley, who  is  much  confirmed  by  Baillie,  the  Presby- 
terians had  secretly  engaged  to  the  Scots  that  the 
anny  should  be  disbanded,  and  the  king  brought  up 
to  London  with  honor  and  safety. — Memoirs  of  Sir 
J.  Berkley,  in  Maseres's  Tracts,  i.,  358.  Baillie,  ii., 
257.  This  affords  no  bad  justification  of  the  Scots 
for  delivering  him  up. 

"  It  is  veiy  like,"  says  Baillie,  "  if  he  had  done 
any  duty,  though  he  had  never  taken  the  Covenant, 
but  permitted  it  to  have  been  put  in  an  act  of  Par- 
liament in  both  kingdoms,  and  given  so  satisfactoi-y 
an  answer  to  the  rest  of  the  propositions  as  easily 


Ho  had  voluntarily  come  to  their  camp ;  no 
faith  was  pledged  to  him;  their  very  right 
to  retain  liis  person,  though  they  had  argued 
for  it  with  tlie  English  Parliament,  seemed 
open  to  much  doubt.  The  circumstance, 
unquestionably,  which  has  always  given  a 
character  of  apparent  baseness  to  this  trans- 
action, is  the  payment  of  cf 400,000  made  to 
them  so  nearly  at  the  same  time  that  it  has 
passed  for  the  price  of  the  king's  person. 
This  sum  was  part  of  a  larger  demand  on 
the  score  of  aiTears  of  pay,  and  had  been 
agreed  upon  long  before  we  have  any  proof 
or  reasonable  suspicion  of  a  stipulation  to 
deliver  up  the  king.*  That  the  Parliament 
would  never  have  actually  paid  it  in  case 
of  a  refusal  to  comply  with  this  requisition, 
there  can  be,  I  presume,  no  kind  of  doubt ; 
and  of  this  the  Scots  must  have  been  fully 
aware ;  but  whether  there  were  any  such 
secret  bargain  as  had  been  supposed,  or 
whether  they  would  have  delivei-ed  him  up 
if  there  had  been  no  pecuniaiy  expectation 
in  the  case,  is  what  I  can  not  perceive  suf- 
ficient grounds  to  pronounce  with  confi- 
dence, though  I  am  much  inclined  to  believe 
the  affirmative  of  the  latter  question.  And 
it  is  deserving  of  particular  observation,  that 
the  party  in  the  House  of  Commons  which 

he  might,  and  sometimes  I  know  he  was  wilUng, 
certainly  Scotland  had  been  for  him  as  one  man ; 
and  the  body  of  England,  upon  many  grounds,  was 
upon  a  disposition  to  have  so  cordially  embraced 
him,  that  no  man,  for  his  life,  durst  have  muttered 
against  his  present  restitution ;  but  remaining  what 
he  was  in  all  his  maxims,  a  full  Canterburian  both 
in  matters  of  religion  and  state,  he  still  inclined  to 
a  new  war,  and  for  that  end  resolved  to  go  to  Scot- 
land. Some  great  men  there  pressed  the  equity 
of  Scotland's  protecting  of  him  on  any  terms.  This 
untimeous  excess  of  friendship  has  ruined  that  un- 
happy prince  ;  for  the  better  party  finding  the  con- 
clusion of  the  king's  coming  to  Scotland,  and  thereby 
their  own  present  ruin,  and  the  ruin  of  the  whole 
cause,  the  making  the  malignants  masters  of  Church 
and  State,  the  drawing  the  whole  force  of  England 
upon  Scotland  for  their  perjurious  Wolation  of  their 
covenant,  they  resolved  by  all  means  to  cross  that 
design."— P.  253. 

*  The  votes  for  payment  of  the  sum  of  £400,000 
to  the  Scots  are  on  Aug.  21,  27,  and  Sept.  1,  though 
it  was  not  fully  agreed  between  the  two  nations 
till  Dec.  8.— Whitelock,  220,  229.  But  Wbitelock 
dates  the  commencement  of  the  understanding  as 
to  the  delivery  of  the  king  about  Dec.  24,  p.  231. — 
See  Conmions'  Journals.  BaiUie,  ii.,  246,  253.  Bur- 
net's  Memoirs  of  Hamilton,  293,  <5cc.  Laing,  iii.. 
362;  and  Mr.  Godwin's  History  of  the  Common- 
wealth, ii.,  258 ;  a  work  in  which  great  attention 
has  been  paid  to  the  order  of  time. 


Cha.  I.— 1642-49.] 


FROM  HENRY  \TI.  TO  GEORGE  II. 


347 


sought  most  earnestly  to  obtain  possession 
of  the  king's  person,  and  carried  all  the  votes 
for  payment  of  money  to  the  Scots,  was 
that  which  had  no  further  aim  than  an  ac- 
commodation with  him,  and  a  settlement  of 
the  government  on  the  basis  of  its  funda- 
mental laws,  though  doubtless  on  terms  very 
derogatory  to  his  prerogative;  while  those 
who  opposed  each  part  of  the  negotiation 
were  the  zealous  enemies  of  the  king,  and, 
in  some  instances,  at  least,  of  the  monarchy. 
The  Journals  bear  witness  to  this.* 

Whatever  might  have  been  the  conse- 
Growthofthe  quence  of  the  king's  accepting 
'^dTeptbu-  ^he  propositions  of  Newcastle, 
cans.  his  chance  of  restoration  upon 

any  terms  was  now,  in  all  appearance,  veiy 
slender.  He  had  to  encounter  enemies 
more  dangerous  and  implacable  than  the 
Presbyterians.  That  faction,  which  from 
small  and  insensible  beginnings  had  acquired 
continued  strength,  through  ambition  in  a 
few,  through  fanaticism  in  manj-,  through 
a  despair  in  some  of  i-econciling  the  preten- 
sions of  royalty  with  those  of  the  people, 
was  now  rapidly  ascending  to  superiority. 
Though  still  weak  in  the  House  of  Com- 
mons, it  had  spread  prodigiously  in  the  ar- 
ray, especially  since  its  new-modeling  at 
the  time  of  the  Self-denying  Ordinance.} 
The  Presbyterians  saw  with  dismay  the 
growth  of  their  own  and  the  Constitution's 
enemies.  But  the  Royalists,  who  had  less 
to  fear  from  confusion  than  from  any  settle- 
ment that  the  Commons  would  be  brought 
to  make,  rejoiced  in  the  increasing  disunion, 
and  fondly  believed,  like  their  master,  that 

*  Joamals,  Aug.  and  Sept.  Godwin,  ubi  supra. 
Baillie,  ii.,  passim. 

t  Baillie,  who  in  Jan.,  1644,  speaks  of  the  Inde- 
pendents as  rather  troablesome  than  formidable, 
and  even  says,  "Xoman,  I  know,  in  either  of  the 
Houses,  of  any  note,  is  for  them,"  437  ;  and  that 
"  Lord  Say's  power  and  reputation  is  none  at  all;  ' 
admits,  in  a  few  months,  the  alarming  increase  of 
Independency  and  sectarianism  in  the  Earl  of  Man- 
chester's armj- ;  more  than  two  parts  in  three  of 
die  officers  and  soldiers  being  with  them,  and  those 
the  most  resolute  and  confident,  though  they  had  no 
considerable  force  either  in  Essex's  or  Waller's 
army,  nor  in  the  Assembly  of  Divines  or  the  Parlia- 
ment, ii.,  5, 19,  20.  This  was  owing,  in  a  great  de- 
gree, to  the  influence,  at  that  period,  of  Cromwell 
over  Manchester.  "  The  man,"  he  says,  "  is  a  very 
wise  and  active  head,  universally  well  beloved,  as 
religious  and  stout ;  being  a  known  Independent, 
and  most  of  the  soldiers  who  love  new  ways  put 
themselves  under  his  command,"  CO. 


one  or  other  party  must  seek  assistance  at 
their  hands.* 

The  Independent  paity  comprehended, 
besides  the  members  of  that  re-  opposition  to 
ligious  denomination,!  a  count-  P^^byte- 

^  ^  ' '  nan  govem- 

less  brood  of  fanatical  sectaries,  nient. 
nursed  in  the  lap  of  Presbyterianism,  and 
fed  with  the  stimulating  aliment  she  fur- 
nished, till  their  intoxicated  fancies  could 
neither  be  restrained  within  the  limits  of 
her  creed  nor  those  of  her  discipline. J 
The  Presbyterian  zealots  were  systemat- 
ically intolerant.  A  common  cause  made 
toleration  the  doctrine  of  the  sectaries. 
About  the  beginning  of  the  war,  it  had 

*  The  Independent  party,  or,  at  least,  some  of 
its  most  eminent  members,  as  Lord  Say  and  Mr.  St. 
John,  were  in  a  secret  correspondence  with  Oxford, 
through  the  medium  of  Lord  Saville,  in  the  spring 
of  1645,  if  we  believe  Hollis,  who  asserts  that  he 
had  seen  their  letters,  asking  offices  for  themselves. 
— Mem.  of  Hollis,  sect.  43.  Baillie  refers  this  to  an 
earlier  period,  the  beginning  of  1644,  i.,  427  ;  and  I 
conceive  that  Hollis  has  been  incorrect  as  to  the 
date.  The  king,  however,  was  certainly  playing  a 
game  with  them  in  the  beginning  of  1C46,  as  well 
as  with  the  Presbyterians,  so  as  to  give  both  parties 
an  opinion  of  his  insincerity.  —  Clarendon  State 
Papers,  214;  and  see  two  remarkable  letters  writ- 
ten by  his  order  to  Sir  Henry  Vane,  226,  urging  a 
union,  in  order  to  overthrow  the  Presbyterian  gov- 
ernment. 

t  The  principles  of  the  Independents  are  set 
forth  candidly,  and  even  favorably,  by  Collier,  829, 
as  well  as  by  Neal,  ii.,  98.  For  those  who  are  not 
much  acquainted  with  ecclesiastical  distinctions,  it 
may  be  useful  to  mention  the  two  essential  charac- 
teristics of  this  sect,  by  which  they  differed  from 
the  Presbyterians.  The  first  was,  that  all  churches 
or  separate  congregations  were  absolutely  inde- 
pendent of  each  other  as  to  jurisdiction  or  disci- 
pline, whence  they  rejected  all  synods  and  repre- 
sentative assemblies  as  possessing  authority,  though 
they  generally  admitted,  to  a  very  limited  degree, 
the  alliance  of  churches  for  mutual  counsel  and  sup- 
port. Their  second  characteristic  was  the  denial 
of  spiritual  powers  communicated  Lq  ordination  by 
apostolical  succession,  deeming  the  call  of  a  con- 
gregation a  sufficient  warrant  for  the  exercise  of 
the  ministi-y. — See  Orme's  Life  of  Owen  for  a 
clear  view  and  able  defense  of  the  principles  main- 
tained by  this  party.  I  must  add,  that  Neal  seems 
to  have  proved  that  the  Independents,  as  a  body, 
were  not  systematically  adverse  to  monarchy. 

t  Edwards's  Gangrseua,  a  noted  book  in  that  age, 
enumerates  one  hundred  and  seventy -six  heresies, 
which,  however,  are  reduced  by  him  to  sixteen 
heads;  and  these  seem  capable  of  further  consolida- 
tion.— Neal,  249.  The  House  ordered  a  general 
fast,  Feb.,  1647,  to  beseech  God  to  stop  the  giowth 
of  heresy  and  blasphemy.  —  Whitelock,  236  :  a 
Presbyterian  artifice  to  alann  the  nation. 


348 


C0X3TITUTI0NAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


been  deemed  expedient  to  call  to- 

Toletation.        ,  ,  ,        r  ■ 

gether  an  assembly  oi  divmes, 
nominated  by  the  Parliament,  and  consist- 
ing not  only  of  clergymen,  but,  according 
to  the  Presbyterian  usage,  of  lay  members, 
peers  as  well  as  commoners,  by  whose  ad- 
vice a  general  reformation  of  the  Chu7xh 
was  to  be  planned.*  These  were  chiefly 
Presbyterian  ;  though  a  small  minority  of 
Independents,  and  a  few  moderate  Episco- 
palians, headed  by  Selden,f  gave  them  much 
trouble.  The  general  imposition  of  the  Cov- 
enant, and  the  substitution  of  the  Directory 
for  the  Common  Prayer  (which  was  for- 
bidden to  be  used  even  in  any  private  fam- 
ily by  an  ordinance  of  August,  1645),  seem- 
ed to  assure  the  triumph  of  Presbyterian- 
ism,  which  became  complete,  in  point  of 
law,  by  an  ordinance  of  February,  1G46, 
establishing  for  three  years  the  Scots  model 
of  classes,  synods,  and  general  assemblies 
throughout  England. t  But  in  this  veiy 
ordinance  there  was  a  reservation  which 
wounded  the  spiritual  arrogance  of  that 
party.  Their  favorite  tenet  had  always 
been  the  independency  of  the  Church. 

*  Pari.  Hist.,  ii.,  1479.  They  did  not  meet  till 
July  1,  1643.  Rush.  Abr.,  v.,  123.  Neal,  42.  Col- 
lier, 823.  Though  this  assemblj-  showed  abundance 
of  bigotry  and  naiTOwness,  they  were  by  no  means 
so  contemptible  as  Clarendon  represents  them,  ii., 
423;  and  perhaps  equal  in  learning,  good  sense, 
and  other  merits,  to  any  lower  hoase  of  convocation 
that  ever  made  a  figure  in  England. 

t  Whitelock,  71.  Neal,  103.  Selden,  who  owed 
no  gratitude  to  the  Episcopal  Church,  was  from  the 
beginning  of  its  dangers  a  steady  and  active  friend, 
displaying,  whatever  may  have  been  said  of  his 
timidity,  full  as  much  courage  as  could  reasonably 
be  expected  from  a  studious  man  advanced  in 
years.  Baillie,  iu  1641,  calls  him  "the  avowed 
proctor  of  the  bishops,"  i.,  245  ;  and  when  provoked 
by  his  Erastian  opposition  in  1646,  presumes  to 
talk  of  his  "  insolent  absurdity,"  ii.,  96.  Selden  sat 
in  the  Assembly  of  Divines ;  and  by  his  great  knowl- 
edge of  the  ancient  languages  and  of  ecclesiastical 
antiquities,  as  well  as  by  his  sound  logic  and  calm, 
clear  judgment,  obtained  au  undeniable  superioritj', 
which  he  took  no  pains  to  conceaL 

t  Scobell.  Rush.  Abr.,  v.,  576.  Pari.  Hist.,  iii., 
444.  Neal,  199.  The  latter  says  this  did  not  pass 
the  Lords  till  June  C.  But  this  is  not  so.  White- 
lock  very  rightly  opposed  the  prohibition  of  the  use 
of  the  Common  Prayei-,  and  of  the  silencing  Epis- 
copal ministers,  as  contraiy  to  the  principle  of  lib- 
erty of  conscience  avowed  by  the  Parliament,  and 
like  what  had  been  complained  of  in  the  bishops, 
226.  239.  281.  But  in  Sept.,  1647,  it  was  voted  that 
the  indulgence  in  favor  of  tender  consciences  should 
not  extend  to  tolerate  the  Common  Prayer. — Id., 
274. 


They  had  rejected,  with  as  ranch  abhor- 
rence as  the  Catholics  themselves,  the  roy- 
al supremacy,  so  far  as  it  controlled  the 
exercise  of  spiritual  discipline.  But  the 
House  of  Commons  were  inclined  to  part 
with  no  portion  of  that  prerogative  which 
they  had  wrested  from  the  crown.  Be- 
sides the  Independents,  who  were  still 
weak,  a  party  called  Erastians,*  and  chief- 
ly composed  of  the  common  lawyers,  under 
the  guidance  of  Selden,  the  sworn  foe  of 
every  ecclesiastical  usurpation,  withstood 
the  assembly's  pretensions  with  success. 
They  negatived  a  declaration  of  the  divine 
right  of  Presbyterian  government.  They 
*  The  Erastians  were  named  from  Erastus,  a 
German  physician  in  the  sixteenth  century.  The 
denomination  is  often  used  in  the  present  age  igno- 
rantly,  and  therefore  indefinitely;  but  I  apprehend 
that  the  fundamental  principle  of  his  followers  was 
this :  That  in  a  commonwealth  where  the  magistrate 
professes  Christianity,  it  is  not  convenient  that  of- 
fenses against  religion  and  morality  should  be  pun- 
ished by  the  censures  of  the  Church,  especially  by 
excommunication.  Probably  he  may  have  gone 
further,  as  .Selden  seems  to  have  done  (Neal,  194J, 
and  denied  the  right  of  exclusion  from  church  com- 
munion, even  without  reference  to  the  temporal 
power ;  but  the  limited  proposition  was  of  course 
sufficient  to  raise  the  practical  controversy.  The 
Helvetic  divines,  Gualter  and  BuUinger,  strongly 
concurred  in  this  with  Erastus  :  "  Contendimus  dis- 
ciplinam  esse  debere  iu  ecclesii,  sed  satis  esse,  si 
ea  administretur  a  magistratu." — Erastus,  de  Ex- 
communicatione,  p.  350 ;  and  a  still  stronger  passage 
iu  p.  379.  And  it  is  said  that  Archbishop  Whitgiflt 
caused  Erastus's  book  to  be  printed  at  his  own  ex- 
pense.— See  one  of  Warburton's  notes  on  Neal. 
Calvin,  and  the  whole  of  his  school,  held,  as  is  well 
known,  a  veiy  opposite  tenet. — See  Erasti  Theses 
de  Excommunicatione,  4to,  1379. 

The  ecclesiastical  constitution  of  England  is 
nearly  Erastian  in  theorj-,  and  almost  wholly  so  in 
jjractice.    Every  sentence  of  the  spiritual  judge  is 

I  liable  to  be  reversed  by  a  ci\-il  tribunal,  the  Court 

!  of  Delegates  by  virtue  of  the  king's  supremacj'  over 
all  causes.    And,  practically,  what  is  called  church 

!  discipline,  or  the  censures  of  ecclesiastical  govern- 
ors for  offenses,  has  gone  so  much  into  disuse,  and 
what  remains  is  so  contemptible,  that  I  believe  no 
one,  except  those  who  derive  a  little  profit  from  it, 
would  regret  its  abolition. 

"  The  most  part  of  the  House  of  Commons,"  says 
Baillie,  ii.,  149,  "especially  the  lavryers,  whereof 
there  are  many,  aud  divers  of  them  verj-  able  men, 
are  either  half  or  whole  Erastians,  believing  no 
church-goverament  to  be  of  divine  right,  but  all  to 
be  a  human  constitution,  depending  on  the  will  of 
the  magistrate."  '■  The  pope  and  king,"  he  says  in 
another  place,  196,  "were  never  more  earnest  for 
the  headship  of  the  Church  than  the  pluralit>'  of  this 
Parliament." — See,  also,  p.  183;  and  Whitelock, 

1  169. 


Cha.  I.— 1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


• 

349 


voted  a  petition  from  the  assemblj^  com- 
plaining of  a  recent  ordinance  as  an  en- 
croachment on  spiritual  jurisdiction,  to  be  a 
breach  of  privilege.  The  Presbyterian  tri- 
bunals were  made  subject  to  the  appellant 
control  of  Parliament,  as  those  of  the  An- 
glican Church  had  been  to  that  of  the 
crown.  The  cases  wherein  spiritual  ceu- 
sui'es  could  be  pronounced,  or  the  sacra- 
ment denied,  instead  of  being  left  to  the 
clergy,  were  defined  by  law.*  Whether 
fi'om  dissatisfaction  on  this  account,  or  some 
other  reason,  the  Presbyterian  discipline 
was  never  cairied  into  eflect,  except  to  a 
certain  extent  in  London  and  in  Lanca- 
shire ;  but  the  beneficed  clergy  throughout 
England,  till  the  return  of  Charles  IL,  were 
chiefly,  though  not  entirely,  of  that  denom- 
ination.f 

This  pai-ty  was  still  so  far  predominant, 
having  the  strong  support  of  the  city  of 
London  and  its  corporation,t  with  almost 

*  Pari.  Hist.,  459,  et  alibi.  Rushw.  Abr.,  v.,  578, 
et  alibi.  Whitelock,  165,  169,  173,  176,  et  post. 
Baillie'sLetters,  passim.  Neal,  23,  &c.,  194,  et  post. 
Collier,  841.  The  Assembly  attempted  to  sustain 
their  own  cause  by  counter  votes  ;  and,  the  minor- 
ity of  Independents  and  Erastiaus  having  with- 
drawn, it  was  carried  with  the  single  dissent  of 
Lightfoot,  that  Christ  had  established  a  government 
in  his  Church  independent  of  the  civil  magisti'ate. 
—Neal,  223. 

t  Neal,  228.  Warburton  saj  s,  in  his  note  on  this 
passage,  that  "the Presbyterian  was  to  all  inlcnts 
and  purposes  the  established  religion  during  the 
time  of  the  Commonwealth;"  but,  as  coercive  dis- 
cipline and  synodical  government  are  no  small  in- 
tents and  purposes  of  that  religion,  this  assertion 
requires  to  be  modified,  as  it  has  been  in  my  text. 
Besides  which,  there  were  many  ministers  of  the 
Independent  sect  in  benefices,  some  of  whom,  prob- 
ably, had  never  received  ordination.  "  Both  Bap- 
tists and  Independents,"  says  a  very  well  infoniied 
writer  of  the  latter  denomuiation,  "were  in  the 
practice  of  accepting  the  livings,  that  is,  the  tem- 
poralities of  the  Church.  They  did  not,  however, 
view  themselves  as  parish  ministers,  and  bound  to 
administer  all  the  ordinances  of  religion  to  the  par- 
ish population.  They  occupied  the  pai-ochial  edi- 
fices, and  received  a  portion  of  the  tithes  for  their 
maintenance,  but  in  all  other  respects  acted  accord- 
ing to  their  own  principles." — Omie's  Life  of  Owen, 
136.  This  he  thinks  would  have  produced  vei-y 
serious  evils,  if  not  happily  checked  by  the  Res- 
toration. "During  the  Commonwealth,"  he  ob- 
serves afterward,  245,  "  no  system  of  church-gov- 
ernment can  be  considered  as  having  been  properly 
or  fully  established.  The  Presbyterians,  if  any,  en- 
joyed this  distinction." 

X  The  city  began  to  petition  for  the  establishment 
of  Presbytei-y,  and  against  toleration  of  sectaries. 


all  the  peers  who  remained  in  their  House, 
that  the  Independents  and  other  sectaries 
neither  opposed  this  ordinance  for  its  tem- 
porary establishment,  nor  sought  any  thing 
further  than  a  toleration  for  their  own  wor- 
ship. The  question,  as  Neal  well  observes, 
was  not  between  Presbytery  and  Independ- 
ency, but  between  Presbytery  with  a  tol- 
eration and  without  one.*     Not  me)ely 

early  in  1646 ;  and  not  long  after  came  to  assume 
what  seemed  to  the  Commons  too  dictatorial  a  tone. 
This  gave  much  oifense,  and  contributed  to  drive 
some  members  into  the  opposite  faction. — Neal,  193, 
221,  241.    Whitelock,  207,  240. 

*  Vol.  ii.,  268.  See,  also,  207,  and  other  places. 
This  is  a  remark  that  requires  attention  ;  many  are 
apt  to  misunderstand  the  question.  "  For  this 
point  (toleration)  both  they  and  we  contend,"  saj  s 
Baillie,  "tanquam  pro  aris  et  focis,"  ii.,  175.  "Not 
only  they  praise  your  magisti-ate"  (writing  to  a  Mr. 
Spang  in  Holland),  "  who  for  policy  gives  some  se- 
cret tolerance  to  divers  religions,  wherein,  as  I  con- 
ceive, your  divines  preach  against  them  as  great 
sinners,  but  avow  that  by  God's  command  the  mag- 
isti'ate  is  discharged  to  put  the  least  discourtesy  on 
any  man,  Jew,  Turk,  Papist,  Socinian,  or  whatever, 
for  his  religion,"  18.  See,  also,  61,  and  many  other 
passages.  "  The  anny"  (says  Hugh  Peters,  in  a 
tract  entitled  A  Word  for  the  Anny,  and  Two  Words 
to  the  People,  1647)  "never  hindered  the  state  from 
a  state  religion,  having  only  wished  to  enjoy  now 
what  the  Puritans  begged  under  the  prelates ; 
when  we  desire  more,  blame  us,  and  shame  us." 
In  another,  entitled  Vox  Militaris,  the  author  says, 
"Wo  did  never  engage  against  this  platform,  nor 
for  that  platform,  nor  ever  will,  except  better  in- 
formed ;  and,  therefore,  if  the  state  establisheth 
Presbytery  we  shall  never  oppose  it." 

The  question  of  toleration,  in  its  most  important 
shape,  was  brought  at  this  time  before  Parliament, 
on  occasion  of  one  Paul  Best,  who  had  written 
against  the  doctrine  of  the  Trinity.  According  to 
the  common  law,  heretics,  on  being  adjudged  by 
the  spiritual  court,  were  delivered  over  to  be  burned 
under  the  writ  de  hceretico  comburendo.  This  pun- 
ishment had  been  inflicted  five  times  under  Eliza- 
beth ;  on  Wielmacker  and  Ter  Wort,  two  Dutch 
Anabaptists,  who,  like  many  of  that  sect,  enter- 
tained Arian  tenets,  and  were  burned  in  Smithfield 
in  1575 ;  on  Matthew  Hammond  in  1579,  Tliomas 
Lewis  in  1583,  and  Francis  Ket  in  1588  ;  all  bunied 
by  Scambler,  bishop  of  Norwich.  It  was  also  in- 
flicted onBartholomew  Legat  and  Edward  Wight- 
man,  under  James,  in  1614 ;  the  first  burned  b}'  King, 
bishop  of  London,  the  second  by  Neyle  of  Litchfield. 
A  third,  by  birth  a  Spaniard,  incurred  the  same 
penalty  ;  but  the  compassion  of  the  people  sliowed 
itself  so  strongly  at  Legat's  execution,  that  James 
thought  it  expedient  not  to  carry  the  sentence  into 
efi'ect.  Such  is  the  venomous  and  demoralizing 
spirit  of  bigotry,  that  Fuller,  a  writer  remarkable 
for  good  nature  and  gentleness,  expresses  his  in- 
dignation at  the  pity  which  was  manifested  by  the 
spectators  of  Legat's  sufTurings.  —  Church  Hist., 


350 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


tCHAP.  X. 


from  their  own  exclusive  bigotry,  but  from 
a  political  alarm  by  no  means  ungi'ounded, 
the  Presbyterians  stood  firmly  against  all 
liberty  of  conscience.  But  in  this,  again, 
they  could  not  influence  the  House  of  Com- 
mons to  suppress  the  sectaries,  though  no 
open  declaration  in  favor  of  indulgence  was 
as  yet  made.  It  is  still  the  boast  of  the  In- 
dependents that  they  first  brought  forward 
the  great  principles  of  religious  toleration 
(I  mean  as  distinguished  from  maxims  of 
political  expediency),  which  had  been  con- 
fined to  a  few  philosophical  minds ;  to  Sir 
Thomas  More,  in  those  days  of  his  better 
judgment  when  he  planned  his  republic  of 
Utopia,  to  Thuanus,  or  L'Hospital.  Such 
principles  are  indeed  naturally  congenial  to 
the  persecuted,  and  it  is  by  the  alternate 
oppression  of  so  many  diffei'ent  sects  that 
they  have  now  obtained  their  universal  re- 
ception. But  the  Independents  also  assert 
that  they  first  maintained  them  while  in 
power ;  a  far  higher  praise,  which,  howev- 
er, can  only  be  allowed  them  by  compari- 
son. Without  invidiously  glancing  at  their 
early  conduct  in  New  England,*  it  must  be 
part  ii.,  p.  62.  In  the  present  case  of  Paul  Best, 
the  old  sentence  of  fire  was  not  suggested  by  any 
one ;  but  an  ordinance  was  brought  in,  Jan.,  1646, 
to  punish  him  with  death,  Whitelock,  190.  Best 
made,  at  length,  such  an  explanation  as  was  ac- 
cepted, Neal,  214 ;  but  an  ordinance  to  suppress 
blasphemies  and  heresies  as  capital  offenses  was 
brought  in. — Commons'  Journals,  April,  1646.  The 
Independents  gaining  strength,  this  was  long  de- 
layed ;  but  the  ordinance  passed  both  Houses  May 
2,  1648.— Id.,  303.  Neal,  338,  justly  observes,  that 
it  shows  the  governing  Presbyterians  would  have 
made  a  terrible  nse  of  their  power,  had  they  been 
supported  by  the  sword  of  the  civil  magistrate. 
The  denial  of  the  Trinity,  incarnation,  atonement, 
or  inspiration  of  any  book  of  the  Old  or  New  Testa- 
ment, was  made  felony.  Lesser  offenses,  such  as 
Anabaptism,  or  denying  the  lawfulness  of  Presby- 
terian government,  were  panisbable  by  imprison- 
ment till  the  party  should  recant.  It  was  much  op- 
posed, especially  by  Whitelock.  The  writ  de 
hseretico  comburendo,  as  is  well  known,  was  taken 
away  by  act  of  Parliament  in  1677. 

*  "  In  all  New  England,  no  liberty  of  living  for  a 
Presbyterian.  Whoever  there,  were  they  angels 
for  life  and  doctrine,  will  essay  to  set  up  a  different 
way  from  them  [the  Independents],  shall  be  sure 
of  present  banishment." — Baillie,  ii.,  4,  also  17.  I 
am  surprised  to  find  a  late  writer  of  that  countrj- 
(Dwight's  Travels  in  New  England)  attempt  to  ex- 
tenuate at  least  the  intolerance  of  the  Independents 
towai'd  the  Q,uakers,  who  came  to  settle  there,  and 
which,  we  see,  extended  also  to  the  Presbyterians. 
But  M  •.  Orme,  with  more  judgment,  observes  that 
the  New  England  congregations  did  not  sufficiently 


!  admitted  that  the  continuance  of  the  penal 
j  laws  against  Catholics,  the  prohibition  of 
the  Episcopalian  worship,  and  the  punish- 
ment of  one  or  two  anti-Trinitarians  under 
Cromwell,  are  proofs  that  the  tolerant  prin- 
ciple had  not  yet  acquired  perfect  vigor. 
If  the  Independent  sectaries  were  its  earli- 
est advocates,  it  was  the  Anglican  writers, 
the  school  of  Chillingwoith,  Hales,  Taylor, 
Locke,  and  Hoadley,  that  rendered  it  victo- 
rious.* 

The  king,  as  I  have  said,  and  his  party 
cherished  too  sanguine  hopes  from  the  dis- 
union of  their  opponents,  f  Though  warn- 
ed of  it  by  the  Parliamentary  commission- 
ers at  Uxbridge,  though,  in  fact,  it  was  quite 
notorious  and  undisguised,  they  seem  never 
to  have  comprehended  that  many  active 
spirits  looked  to  the  entire  subversion  of 
the  monarchy.  The  king  in  particular  was 
haunted  by  a  prejudice,  natural  to  his  obsti- 
nate and  undiscerning  mind,  that  he  was 
necessaiy  to  the  settlement  of  the  nation ; 

adhere  to  the  principle  of  Independency,  and  acted 
too  much  as  a  body,  to  which  he  ascribes  their  per- 
secution of  the  Quakers  and  others. — Life  of  Owen, 
p.  335.  It  is  certain  that  the  Congregational  scheme 
leads  to  tolerarion,  as  the  National  Church  scheme 
is  adverse  to  it,  for  manifold  reasons  which  the 
reader  will  discover. 

*  Though  the  wi-itings  of  Chillingworth  and  Hales 
are  not  directly  in  behalf  of  toleration,  no  one  could 
relish  them  without  imbibing  its  spirit  in  the  fullest 
measure.  The  great  work  of  Jeremy  Taylor,  on 
the  Liberty  of  Prophesying,  was  published  in  1647, 
and,  if  we  except  a  few  concessions  to  the  temper 
of  the  times,  which  are  not  reconcilable  to  its  gen- 
eral principles,  has  left  little  for  those  who  followed 
him.  Mr.  OiTne  admits  that  the  Remonstrants  of 
Holland  maintained  the  principles  of  toleration  very 
early,  p.  50,  but  refers  to  a  tract  by  Leonard  Busher, 
an  Independent,  in  1614,  as  "containing  the  most 
enlightened  and  scriptural  \-iews  of  religious  liber- 
ty," p.  99.  He  quotes  other  writings  of  the  same 
sect  under  Charles  I. 

t  Several  proofs  of  this  occur  in  the  Clarendon 
State  Papers.  A  letter,  in  particular,  from  Cole- 
pepper  to  Digby,  in  Sept.,  1643,  is  so  extravagantly 
sanguine,  considering  the  posture  of  the  king's  af- 
fairs at  that  time,  that,  if  it  was  perfectly  sincere, 
Colepepper  must  have  been  a  man  of  less  ability 
than  has  generally  been  supposed. — Vol.  ii.,  p.  188. 
Neal  has  some  sensible  remarks  on  the  king's  mis- 
take in  supposing  that  any  party  which  he  did  not 
join  must  in  the  end  be  ruined,  p.  268.  He  had  not 
lost  this  strange  confidence  after  his  very  life  had 
become  desperate ;  and  told  Sir  Jolm  Bowring, 
when  he  advised  him  not  to  spin  out  the  time  at  the 
treaty  of  Newport,  that  "  any  interests  would  be 
glad  to  come  in  with  him." — See  Bowring's  Me- 
moirs in  Halifax's  Miscellanies,  132. 


Cha.  L— 1042-49.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


351 


so  that,  if  he  remained  firm,  the  whole  Par- 
liament and  army  mu.st  be  at  his  feet.  Yet 
during  the  negotiations  at  Newcastle  there 
was  daily  an  imminent  danger  that  the  ma- 
jority of  Parliament,  iiTitated  by  his  delays, 
would  come  to  some  vote  excluding  him 
from  the  throne.  The  Scots  Presbyteri- 
ans, whatever  we  may  think  of  thoir  be- 
havior, were  sincerely  attached,  if  not  by 
loyal  affection,  yet  by  national  pride,  to  the 
blood  of  their  ancient  kings.  They  thought 
and  spoke  of  Charles  as  of  a  headstrong 
child,  to  be  restrained  and  chastised,  but 
never  cast  off.*  But  in  England  he  had 
absolutely  no  friends  among  the  prevailing 
pai'ty ;  many  there  were  who  thought  mon- 
archy best  for  the  nation,  but  none  who 
cared  for  the  king. 

This  schism,  nevertheless,  between  the 
Parliament  and  the  army  was,  at  least  in 
appearance,  very  desirable  for  Charles,  and 
seemed  to  afford  him  an  opportunity  which 
a  discreet  prince  might  improve  to  great 
advantage,  though  it  unfortunately  deluded 
him  with  chimerical  expectations.!    At  the 

*  Baillie's  letters  are  full  of  this  feeling,  and  must 
be  reckoned  fair  evidence,  since  no  man  could  be 
more  bigoted  to  Presbyter}',  or  more  bitter  against 
the  Royalist  party.  I  have  somewhere  seen  Bail- 
lie  praised  for  his  mildness.  His  letters  give  no 
proof  of  it.  Take  the  following  specimens  :  "  Mr. 
Maxwell,  of  Ross,  has  printed  at  Oxford  so  despe- 
rately malicious  an  invective  against  our  assemblies 
and  presbyteries,  that,  liowever  I  could  hardly  con- 
Bent  to  the  hanging  of  Canterbury  or  of  any  Jesuit, 
yet  I  could  give  my  sentence  freely  against  that  un- 
happy man's  life,"  ii.,  99.  "  God  has  struck  Cole- 
man with  death ;  he  fell  in  an  ague,  and  after  three 
or  four  days  expired.  It  is  not  good  to  stand  in 
Christ's  way."— P.  199. 

Baillie's  judgment  of  men  was  not  more  conspicu- 
ous than  his  moderation.  "  Vane  and  Cromwell  are 
of  horrible  hot  fancies  to  put  all  in  confusion,  but 
not  of  any  deep  reach.  St.  John  and  Pierpoint  ai'e 
more  stayed,  but  not  great  heads." — P.  258.  The 
drift  of  all  his  letters  is,  that  every  man  wlio  resisted 
the  jus  divinum  of  Presbytery  was  knave  or  fool,  if 
not  both.  They  are,  however,  eminently  service- 
able as  historical  documents. 

t  "Now  formyowuparticularresolntion,"he  says 
in  a  letter  to  Digby,  March  26,  1646,  "  it  is  this.  I 
am  endeavoring  to  get  to  London,  so  tliat  the  condi- 
tions may  be  such  as  a  gentleman  may  own,  and 
that  tlie  rebels  may  acknowledge  me  king;  being 
not  without  hope  that  I  shall  be  able  so  to  draw 
either  the  Presbyterians  or  Independents  to  side 
with  me  for  extirpating  the  one  or  the  other,  that  I 
shall  be  really  king  again." — Carte-'s  Ormond,  iii., 
452,  quoted  by  Mr.  Brodie,  to  whom  I  am  indebted 
for  the  passage.    I  have  mentioned  akeady  his 


conclusion  of  the  war,  which  the  useless 
obstinacy  of  tlie  Royalists  had  protracted 
till  the  beginning  of  1G47,*  the  Commons 
began  to  take  measui'es  for  breaking  the 
force  of  their  remaining  enemy.  They  re- 
solved to  disband  a  part  of  the  army,  and  to 
send  the  rest  into  Ireland. f  They  formed 
schemes  for  getting  rid  of  Cromwell,  and 
even  made  some  demur  about  continuing 
Fairfax  in  command. t  But  in  all  measures 
overture  about  this  time  to  Sir  Henry  Vane  through 
Ashburuham. 

'  Clarendon,  followed  by  Hume  and  several  oth- 
ers, appears  to  say  that  Raglan  Castle  in  Monmouth- 
shire, defended  by  the  Marquis  of  Worcester,  was 
the  last  that  suiTendered,  namely,  in  August,  164C. 
I  use  the  expression  appears  to  say,  because  the 
last  edition,  which  exhibits  his  real  text,  shows 
that  he  paid  this  compliment  to  Peudennis  Castle 
in  Cornwall,  and  that  his  original  editors  (I  sup- 
pose to  do  honor  to  a  noble  family)  foisted  in  the 
name  of  Raglan.  It  is  true,  however,  of  neither. 
The  Nortli  Welsh  castles  held  out  considerably 
longer ;  that  of  Harlech  was  not  taken  till  April, 
1G47,  which  put  an  end  to  the  war. — Whitelock. 

Clarendon,  still  more  unyielding  than  his  master, 
extols  the  long  resistance  of  his  party,  and  says  that 
those  who  sun-endered  at  the  first  summons  ob- 
tained no  better  tcnns  than  they  who  made  the 
stoutest  defense  ;  as  if  that  were  a  sufficient  justifi- 
cation for  prolonging  a  civil  war.  In  fact,  however, 
they  did  the  king  some  harm,  inasmucli  as  they  im- 
peded the  eiforts  made  in  Parliament  to  disband 
the  amiy.  Several  votes  of  the  Commons  show 
this  :  see  the  Journals  of  12th  May  and  31st  July, 
1646. 

t  Tlie  resolution  to  disband  Fairfax's  regiment 
next  Tuesday  at  Chelmsford  passed  16th  May,  1647, 
by  136  to  11.5,  Algernon  .Sidney  being  a  teller  of  the 
noes.  —  Commons'  Journals.  In  these  votes  the 
House,  that  is,  the  Presbyterian  majority,  acted 
with  extreme  impradeuee,  not  having  provided  for 
the  payment  of  the  army's  aiTears  at  the  time  they 
were  thus  disbanding  them.  Whitelock  advised 
HoUis  and  his  party  not  to  press  the  disbanding; 
and  on  finding  them  obstinate,  drew  off,  as  he  tells 
us,  from  that  connection,  and  came  nearer  to  Crom- 
well, p.  248.  This,  however,  ho  had  begun  to  do 
rather  earlier.  Independently  of  the  danger  of  dis- 
gusting the  army,  it  is  probaljle  that,  as  soon  as  it 
was  disbanded,  the  Royalists  would  have  been  up 
in  arms.  For  the  growth  of  this  discontent,  day  by 
day,  perase  Whitelock's  Journals  for  March  and  the 
three  following  months,  as  well  as  the  Parliament- 
ary Histoiy. 

t  It  was  only  carried  by  159  to  147,  March  5, 1647, 
that  the  forces  should  be  commanded  by  Fairfax. 
But  on  the  8th,  tlie  House  voted  without  a  division 
that  no  officer  under  him  should  be  above  the  rank 
of  a  colonel,  and  that  no  member  of  the  House 
should  have  any  command  in  the  army.  It  is  easy 
to  see  at  whom  this  was  leveled. — Commons'  Jour- 
nals. They  voted  at  the  same  time  that  the  officers 
should  all  take  the  Covenant,  which  had  been  re- 


352 


CONSTITUTIOXAL  HISTOEY  OF  ENGLAND 


[Chap.  X. 


that  exact  promptitude  and  energy,  treacli- 
eiy  and  timidity  are  apt  to  enfeeble  the 
resolutions  of  a  popular  assembly.  Their 
r    demonstrations  of  enmity  were, 

liitngtips  ot  . 

the  army  with  liowover,  SO  alarming  to  the  ar- 
the  kin^.  ^-^^  knew  themselves  dislik- 

ed by  the  people,  and  dependent  for  their 
pay  on  the  Parliament,  that  as  early  as 
April,  1G47,  an  overture  was  secretly  made 
to  the  king,  that  they  would  replace  him 
in  his  power  and  dignity.  He  cautiously 
answered  that  he  would  not  involve  the 
kingdom  in  a  fresh  war,  but  should  ever  feel 
the  sti-ongest  sense  of  this  offer  from  the 
army.*  Whether  they  were  discontented 
at  the  coldness  of  this  reply,  or,  as  is  more 
probable,  the  offer  had  only  proceeded  from 
a  minority  of  the  officers,  no  further  over- 
ture was  made,  till  not  long  aftemard  the 
His  person  manceuver  of  Joj-ce  had  placed 
seized.      jjjg  king's  person  in  their  power. 

The  first  effect  of  this  military  violence 
The  Pariia-  ^^^^  ^'^  display  the  Parliament's 
ment  yield    deficiency  in  political  courage. 

to  the  armv.  »  ■      j  ii  i 

'  It  contamed,  we  well  know,  a 
store  of  energetic  spirits,  not  apt  to  swerve 
from  their  attachments ;  but  where  two 
parties  are  almost  equally  balanced,  the  de- 
fection which  external  circumstances  must 
produce  among  those  timid  and  feeble  men 
fi'om  whom  no  assembly  can  be  free,  even 
though  they  should  form  but  a  small  minor- 
ity, wUl  of  course  give  a  character  of  cow- 
ai'dice  and  vacillation  to  counsels,  which  is 
imputed  to  the  whole.  They  immediately 
expunged,  by  a  rhajority  of  96  to  79,  a  vote 
of  reprehension  passed  some  weeks  before, 
upon  a  remonstrance  from  the  anny  which 
the  Presbyterians  had  liighly  resented,  and 
gave  other  proofs  of  retracing  their  steps. 
But  the  army  was  not  inclined  to  accept 
their  submission  in  full  discharge  of  the 
provocation.  It  had  schemes  of  its  own  for 
the  reformation  and  settlement  of  the  king- 
dom more  extensive  than  those  of  the  Pres- 
jected  two  years  before ;  and,  by  a  majority  of  136 
to  108,  that  they  should  all  coufoi-m  to  the  grovem- 
ment  of  the  Church  established  by  both  houses  of 
Parliament. 

*  Clar.  State  Papers,  ii.,  36.5.  The  anny,  in  a  dec- 
laration not  long  after  the  kine  fell  into  their  power, 
June  24,  use  these  expressions  ;  "  We  clearly  pro- 
fess that  we  do  not  see  how  there  can  be  any  peace 
to  this  kingdom  firm  or  lasting,  without  a  due  pro- 
vision for  the  rights,  quiet,  and  immuuitj'  of  his 
majesty,  his  royal  family,  and  his  late  partakers." 
—Pari.  Hist.,  647. 


byterian  faction.  It  had  its  own  wrongs 
also  to  revenge.  Advancing  toward  Lou- 
don, the  general  and  council  of  war  sent  up 
charges  of  treason  against  eleven  principal 
members  of  that  party,  who  obtained  leave 
to  retire  bej-ond  sea.  Here  may  be  said  to 
have  fallen  the  legislative  power  and  civil 
government  of  England,  which  from  this 
hour  till  that  of  the  Restoration  had  never 
more  than  a  momentaiy  and  precarious 
gleam  of  existence,  perpetually  interrupted 
by  the  sword. 

Those  who  have  once  bowed  their  knee 
to  force,  must  expect  that  force  will  be  for- 
ever their  master.  In  a  few  weeks  after 
this  submission  of  the  Commons  to  the  ar- 
my, they  were  insulted  by  an  unruly,  tu- 
multuous mob  of  apprentices,  engaged  in 
the  Presbyterian  politics  of  the  city,  who 
compelled  them  by  actual  violence  to  re- 
scind several  of  their  late  votes.*  Tram- 
pled upon  by  either  side,  the  two  speakers, 
several  peers,  and  a  great  number  of  the 
Lower  House,  deemed  it  somewhat  less 
ignominious,  and  certainly  more  politic,  to 
tlii'ow  themselves  on  the  protection  of  the 
army.  They  were,  accordingly,  soon  re- 
stored to  their  places,  at  the  price  of  a  more 
complete  and  in-etrievable  subjection  to  the 
militarj'  power  than  they  had  already  un- 
dergone. Though  the  Presbyterians  main- 
tained a  pertinacious  resistance  within  the 
walls  of  the  House,  it  was  evident  that  the 
real  power  of  command  was  gone  from 
them,  and  that  Cromwell,  with  the  army, 
must  either  become  arbiter  between  the 
king  and  Pai-liament,  or  crush  the  remaining 
authority  of  both. f 

*  Hollis  censures  the  speakers  of  the  two  Houses 
and  others  who  fled  to  the  army  from  this  mob ;  the 
riot  being  "  a  sudden  tamnltuous  thing  of  young  idle 
people  without  design."  Possibly  this  might  be  the 
case  ;  but  the  tumult  at  the  door  of  the  House,  26th 
July,  was  such  that  it  could  not  be  diWded.  Their 
votes  were  plainly  null,  as  being  made  under  du- 
ress. Yet  the  Presbyterians  were  so  strong  in  the 
Commons,  that  a  resolution  to  annul  all  proceedings 
during  the  speakers  absence  was  lost  by  97  to  93, 
after  his  return ;  and  it  was  only  voted  to  repeal 
them.  A  motion  to  declare  that  the  Houses,  from 
26th  July  to  6th  August,  had  been  under  a  force, 
was  also  lost  by  73  to  75. — Journals,  9th  and  17th  Au- 
gust. The  Lords,  however,  passed  an  ordinance  to 
this  effect ;  and  after  once  more  rejecting  it,  the 
Commons  agreed  on  August  20,  with  a  proviso  that 
no  one  should- be  called  in  question  for  what  had 
been  done. 

t  These  transactions  are  best  read  in  the  Com- 


Cha.  I.— 1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


353 


There  are  few  circumstances  in  our  his- 
toi-y  which  have  caused  more  per- 

Mysterious  'J  .  . 
conduct  of  plexity  to  inquu-ers  than  the  con- 
Cromwell,  j^^j.  Cromwell  and  his  friends 
toward  the  king  iu  the  year  1647.  Those 
who  look  only  at  the  ambitious  and  dissem- 
bhng  character  of  that  leader,  or  at  the  fierce 
Republicanism  imputed  to  Iretou,  will  hard- 
ly believe  that  either  of  them  could  harbor 
any  thing  like  sincere  designs  of  restoring 
him  even  to  that  remnant  of  sovereignty 
which  the  Parhament  would  have  spared ; 
yet  when  we  consider  attentively  the  pub- 
lic documents  and  private  memoirs  of  that 
period,  it  does  appear  probable  that  their 
first  intentions  toward  the  king  were  not 
unfavonible,  and  so  far  sincere  that  it  was 
their  project  to  make  use  of  his  name  rath- 
er than  totally  to  set  him  aside  ;  but  wheth- 
er by  gratifying  Cromwell  and  his  associ- 
ates with  honors,  and  throwing  the  whole 
administration  into  their  hands,  Charles 
would  have  long  contrived  to  keep  a  tarnish- 
ed crown  on  his  head,  must  be  very  prob- 
lematical.  

raons'  Jom-nals  and  the  Parliamentary  History,  and 
next  to  tliose  in  Wliitelock.  Hollis  relates  them 
with  great  passion;  and  Clarendon,  as  he  does 
every  thing  else  that  passed  in  London,  very  im- 
perfectly. He  accounts  for  the  Earl  of  Manches- 
ter and  the  speaker  Lcnthal's  retiring  to  the  army 
by  their  persuasion  that  the  chief  officers  had  nearly 
concluded  a  treaty  with  the  king,  and  resolved  to 
have  their  shares  in  it.  This  is  a  very  unnecessary 
sarraise.  Lcnthal  was  a  poor-spirited  man,  alwaj  s 
influenced  by  those  whom  he  thought  the  strongest, 
and  in  this  instance,  according  to  Ludlow,  p.  206, 
persuaded  against  his  will  by  Hazlerig  to  go  to  the 
army.  Manchester,  indeed,  had  more  courage  and 
honor ;  but  he  was  not  of  much  capacity,  and  his 
Parliamentary  conduct  was  not  systematic.  But, 
npon  the  whole,  it  is  obvious,  on  reading  the  list 
of  names  (Pari.  Hist..  757),  that  the  king's  friends 
were  rather  among  those  who  stayed  behind,  espe- 
cially in  the  Lords,  than  among  those  who  went  to 
the  army.  Seven  of  eight  peers  who  continued  to 
sit  fix)m  2Gth  July  to  Cth  of  August,  1647,  were  im- 
peached for  it  afterward  (Pari.  Hist.,  764),  and  they 
were  all  of  the  most  moderate  partj'.  If  the  king 
had  any  previous  connection  with  the  city,  he  acted 
very  disingenuously  iu  his  letter  to  Fairfax,  Aug. 
3,  while  the  contest  was  still  pending,  wherein  he 
condemns  the  tumult,  and  declares  his  unwilling- 
ness that  his  friends  should  join  with  the  city  against 
the  army,  whose  proposals  he  had  rejected  the  day 
before  with  an  imprudence  of  which  he  was  now 
sensible.  This  letter,  as  actually  sent  to  Fairfax, 
is  in  the  Parliamentary  Historv',  734,  and  may  be 
compared  with  a  rough  draught  of  the  same,  pre- 
served in  Clarendon  Papers,  373,  from  which  it  ma- 
terially differs,  being  much  shai"per  against  the  city. 

z 


The  new  jailers  of  this  unforturxite  prince 
began  by  treating  him  with  unus-  ,      ,  . 

^  _  Imprudent 

ual  indulgence,  especially  in  per-  hopes  of 
mitting  his  Episcopal  chaplains  to  "'^  """S- 
attend  him.  This  was  deemed  a  pledge  of 
what  he  thought  an  invaluable  advantage  in 
dealing  with  the  army,  that  they  would  not 
insist  upon  the  Covenant,  which,  in  fact,  was 
nearly  as  odious  to  them  as  to  the  Royalists, 
though  for  very  different  reasons.  Charles, 
naturally  sanguine,  and  utterly  incapable  in 
every  part  of  his  life  of  taking  a  just  view 
of  affairs,  was  extravagantly  elated  by  these 
equivocal  testimonials  of  good-will.  He 
blindly  listened  to  private  insinuations  from 
rash  or  treacherous  friends,  that  the  soldiers 
were  with  him,  just  after  his  seizure  by 
Joyce.  "  I  would  have  you  to  know,  sh," 
he  said  to  Fairfax,  "  that  I  have  as  good  an 
interest  in  the  army  as  yourself;"  an  opin- 
ion as  injudiciously  uttered  as  it  was  absurd- 
ly conceived.*    These  sti-ange  expectations 

*  Fairfax's  Memoirs  in  Maseres's  Collection  of 
Tracts,  vol.  i.,  p.  447.  "  By  this,"  says  Fairfax, 
who  had  for  once  found  a  man  less  discerning  of 
the  times  than  himself,  "  I  plainly  saw  the  broken 
reed  he  leaned  on.  The  agitators  had  brought  the 
king  into  an  opinion  that  the  army  was  fur  him." 
Ireton  said  plainly  to  the  king,  "  Sir,  you  liave  an 
intention  to  be  the  arbitrator  between  the  Parlia- 
ment and  us  ;  and  we  mean  to  be  so  between  your 
majesty  and  the  Parliament." — Berkley's  Memoirs. 
Ibid.,  p.  360. 

This  folly  of  the  king,  if  Mrs.  Hutchinson  is  well 
iufonned,  alienated  Ireton,  who  had  been  more  in- 
clined to  ti-ust  him  than  is  commonly  believed. 
''Cromwell,"  she  says,  "was  at  that  time  so  incor- 
ruptibly  faithful  to  his  trust  and  the  people's  in- 
terest, that  ho  could  not  be  drawn  iu  to  practice 
even  his  own  usual  and  natui-al  dissimulation  on 
this  occasion.  His  .son-in-law  Ireton,  that  was  as 
faithful  as  he,  was  not  so  fully  of  the  opinion  till  he 
had  tried  it,  and  found  to  the  contrary,  but  that  the 
king  might  have  been  managed  to  comply  with  the 
public  good  of  his  people,  after  he  could  no  longer 
uphold  his  own  violent  will;  bnt,  upon  some  dis- 
com-ses  with  him,  the  king  uttering  these  words  to 
him,  '  I  shall  play  my  game  as  well  as  I  can,'  Ireton 
replied,  '  If  your  majesty  have  a  game,  you  must 
give  us  also  the  liberty  to  play  ours.'  Colonel 
Hutchinson  privately  discoursing  with  liis  cousin 
about  the  communications  he  had  had  with  the 
king,  Ireton's  expressions  were  these  :  '  He  gave 
us  words,  and  we  paid  him  in  his  own  coin,  when 
we  found  he  had  no  real  intention  to  the  people's 
good,  but  to  prevail,  by  our  factions,  to  regain  by 
art  what  he  had  lost  in  fight.'  ' — P.  274. 

It  must  be  said  for  the  king  that  he  was  by  no 
means  more  sanguine  or  more  blind  than  his  dis- 
tinguished historian  and  minister.  Clarendon's 
private  letters  are  full  of  strange  and  absurd  ex- 


3.54 


COXSTITUTIONAL  HISTORY  OF  ENSLAXD 


[Chap.  X. 


account  for  the  ill  reception  which,  in  the 
hasty  irritation  of  disappointment,  he  gave 
to  the  proposals  of  the  army,  when  they 
were  actuallj'  tendered  to  him  at  Hampton 
Court,  and  which  seems  to  have  eventually 
He  rejects  These  propo- 

the  proposals  sals  appear  to  have  been  drawn 
of  the  army.  Ireton,  a  lawyer  by  educa- 

tion, and  a  man  of  much  courage  and  capac- 
ity. He  had  been  supposed,  like  a  large 
proportion  of  the  officers,  to  aim  at  a  settle- 
ment of  the  nation  under  a  democratical  pol- 
ity ;  but  the  army,  even  if  their  wishes  in 
general  went  so  far,  which  is  hardly  evident, 
were  not  yet  so  decidedly  masters  as  to  dic- 
tate a  form  of  government  uncongenial  to 
the  ancient  laws  and  fixed  prejudices  of  the 
people.  Something  of  this  tendency  is  dis- 
coverable in  the  propositions  made  to  the 
king,  which  had  never  appeared  in  those  of 
the  Parliament.  It  was  proposed  that  Par- 
liaments should  be  biennial ;  that  they 
should  never  sit  less  than  a  hundred  and 
twenty  days,  nor  more  than  two  hundred 
and  forty ;  that  the  representation  of  the 
Commons  should  be  reformed,  by  abolishing 
small  boroughs  and  increasing  the  number 
of  members  for  counties,  so  as  to  render 
the  House  of  Commons,  as  near  as  might 

pectations.  Even  so  late  as  October,  1647,  he 
writes  to  Berkley  in  high  hopes  from  the  anuy,  and 
presses  him  to  make  no  concessions  except  as  to 
persons.  "If  they  see  you  veill  not  yieki,  they 
must ;  for  sure  they  have  as  much  or  more  need  of 
the  king  than  he  of  them."— P.  379.  The  whole 
tenor,  indeed,  of  Clarendon's  correspondence  dem- 
onstrates that,  notwithstanding  the  fine  remarks 
occasionally  scattered  through  liis  history,  he  was 
no  practical  statesman,  nor  had  any  just  concep- 
tion, at  the  time,  of  the  course  of  affairs.  He  never 
flinched  from  one  principle,  not  very  practicable  or 
rational  in  the  circumstances  of  the  king  —  that 
nothing  was  to  be  receded  from  which  had  ever 
been  demanded.  This  may  be  called  magnanimity ; 
but  no  foreign  or  domestic  dissension  could  be  set- 
tled if  all  men  were  to  act  upon  it,  or  if  all  men, 
like  Charles  and  Clarendon,  were  to  expect  that 
Providence  would  interfere  to  support  what  seems 
to  them  the  best,  that  is,  their  own  cause.  The 
following  passage  is  a  specimen:  "Truly  I  am  so 
unfit  to  bear  a  part  in  carrying  on  this  new  conten- 
tion [by  negotiation  and  concession],  that  I  would 
not,  to  presei-ve  myself,  wife,  and  children  from  the 
lingering  death  of  want  by  famine  (for  a  sadden 
death  would  require  no  courage),  consent  to  the 
lessening  any  part  which  I  take  to  be  in  the  func- 
tion of  a  bishop,  or  the  taking  away  the  smallest 
prebendary  in  the  Church,  or  to  be  bound  not  to  en- 
deavor to  alter  any  such  alteration.'' — Id.,  vol.  iii., 
p.  2,  Feb.  4,  1648. 


be,  an  equal  representation  of  the  whole. 
In  respect  of  the  militia  and  some  other 
points,  they  either  followed  the  Parliament- 
ary propositions  of  Newcastle,  or  modified 
them  favorably  for  the  king.  They  except- 
ed a  very  small  number  of  the  king's  adhe- 
rents from  the  privilege  of  paying  a  compo- 
sition for  their  estates,  and  set  that  of  the 
rest  considerably  lower  than  had  been  fixed 
by  the  Parliament.  They  stipulated  that 
the  Royalists  should  not  sit  in  the  next  Par- 
liament. As  to  religion,  they  provided  for 
liberty  of  conscience,  declared  against  the 
imposition  of  the  Covenant,  and  by  insisting 
on  the  reti'enchment  of  the  coercive  juiis- 
diction  of  bishops  and  the  abrogation  of  pen- 
alties for  not  reading  the  Common  Prayer, 
left  it  to  be  implied  that  both  might  contin- 
ue established.*  The  whole  tenor  of  these 
propositions  was  in  a  style  far  more  re- 
spectful to  the  king,  and  lenient  toward  hia 
adherents,  than  had  ever  been  adopted  since 
the  beginning  of  the  war.  The  sincerity, 
indeed,  of  these  overtures  might  be  very 
questionable,  if  Cromwell  had  been  concern- 
ed in  them ;  but  they  proceeded  from  those 
elective  tribunes  called  Agitators,  who  had 
been  established  in  every  regiment  to  su- 
perintend the  interests  of  the  army  ;f  and 
the  terms  were  surely  as  good  as  Charles 
had  any  reason  to  hope.  The  severities 
against  his  party  were  mitigated.  The 
gi-and  obstacles  to  all  accommodation,  the 
Covenant  and  Pre.sbyterian  establishment, 

*  Pari.  Hist.,  738.  Clarendon  talks  of  these  pro- 
posals as  worse  than  any  the  king  had  ever  received 
from  the  Parliament ;  and  Hollis  says  they  "  dis- 
solved the  whole  frame  of  the  monarchy."  It  is 
hard  to  see,  however,  that  they  did  so  in  a  greater 
degree  than  those  which  he  had  himself  endeavored 
to  obtain  as  a  commissioner  at  Uxbridge.  As  to 
the  Church,  they  were  manifestly  the  best  that 
Charles  had  ever  seen.  As  to  his  prerogative  and 
the  power  of  the  monarchy,  he  was  so  thoroughly 
beaten,  that  no  treaty  could  do  him  any  essential 
service ;  and  he  had,  in  ti"uth,  only  to  make  his 
election,  whether  to  be  the  nominal  chief  of  an  aris- 
tocratical  or  a  democratical  republic.  In  a  well- 
written  tract,  called  Vox  Militaris,  containing  a  de- 
fense of  the  aimy's  proceedings  and  intentions,  and 
published  apparently  in  July,  1647,  their  desire  to 
preserve  the  king's  rights,  according  to  their  notion 
of  them,  and  the  general  laws  of  the  realm,  is 
sti"ongly  asserted. 

t  The  precise  meaning  of  this  word  seems  ob- 
scure. Some  have  supposed  it  to  be  a  corruption 
of  adjutators,  as  if  the  modem  term  adjutant  meant 
the  same  thing.  But  I  find  agitator  always  so 
spelled  in  the  pamphlets  of  the  time. 


Cha.  I. -1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  IT. 


355 


were  at  once  removed  ;  or,  if  some  difficul- 
ty might  occur  as  to  the  latter,  in  conse- 
quence of  the  actual  possession  of  benefices 
by  the  Presbyterian  clergy,  it  seemed  not 
absolutely  insuperable.  For  the  changes 
projected  in  the  constitution  of  Parliament, 
they  were  not  necessarily  injurious  to  the 
monarchy.  That  Parliament  should  not  be 
dissolved  until  it  had  sat  a  certain  time,  was 
so  salutaiy  a  provision,  that  the  triennial 
act  was  hardly  complete  without  it. 

It  is,  however,  probable,  from  the  king's 
exti'eme  tenaciousness  of  his  prerogative, 
that  these  were  the  conditions  that  he  found 
it  most  difficult  to  endure.  Having  obtain- 
ed, through  Sir  John  Berkley,  a  sight  of 
the  propositions  before  they  were  openly 
made,  he  expressed  much  displeasure,  and 
said  that  if  the  army  were  inclined  to  close 
with  him,  tliey  would  never  have  demand- 
ed such  hard  terms.  He  seems  to  have 
principally  objected,  at  least  in  words,  to  the 
exception  of  seven  unnamed  persons  from 
pardon,  to  the  exclusion  of  his  party  from 
the  next  Parliament,  and  to  the  want  of  any 
articles  in  favor  of  the  Church.  Berkley 
endeavored  to  show  him  that  it  was  not 
likely  that  the  ai-my,  if  meaning  sincerely, 
should  ask  less  than  this.  But  the  king, 
still  tampering  with  the  Scots,  and  keeping 
his  eyes  fixed  on  the  city  and  Parliament, 
at  that  moment  came  to  an  open  breach 
with  the  army,  disdainfully  refused  the 
propositions  when  publicly  tendered  to  him, 
with  such  expressions  of  misplaced  resent- 
ment and  preposterous  confidence  as  con- 
vinced the  officers  that  they  could  neither 
conciliate  nor  ti-ust  him.*  This  unexpect- 
ed haughtiness  lost  him  all  chance  with 
those  proud  and  Republican  spirits ;  and 
as  they  succeeded  about  the  same  time  in 
bridling  the  Presbyterian  party  in  Parlia- 
ment, there  seemed  no  necessity  for  an 
agreement  witli  the  king,  and  their  former 
determinations  of  altering  the  frame  of  gov- 
eiTiment  returned  with  more  revengeful 
fury  against  his  person. f 

*  Berkley's  Memoirs,  3G6.  He  told  Lord  Capel 
about  this  time  that  he  expected  a  war  between 
Scotland  and  England  ;  that  the  Scots  hoped  for 
the  assistance  of  the  Presbyterians  ;  and  that  he 
wished  his  own  party  to  rise  in  arms  on  a  proper 
conjuncture,  without  which  he  could  not  hope  for 
much  benefit  from  the  others. — Clarendon,  v.,  476. 

t  Berkley,  363,  &c.  Compare  the  letter  of  Ash- 
bamham,  published  in  1648,  and  reprinted  in  1764; 


Charles's  continuance  at  Hampton  Court, 


also  the  memoirs  of  HoUis,  Huntingdon,  and  Fair- 
fax, which  are  all  in  Maseres's  Collection ;  also 
Lvidlow,  Hutchinson,  Clarendon,  Buniet's  Memoirs 
of  Hamilton,  and  some  dispatches  in  1647  and  1648, 
from  a  Royalist  in  London,  printed  in  the  append- 
ix to  the  second  volume  of  the  Clarendon  Papers. 
This  correspondent  of  Secretary  Nicholas  believes 
Cromwell  and  Ireton  to  have  all  along  planned  the 
king's  destraction,  and  set  the  Levelers  on,  till 
they  proceeded  so  violently  that  they  were  forced 
to  restrain  them.  This,  also,  is  the  conclusion  of 
Major  Huntingdon,  in  his  Reasons  for  laying  down 
his  Commission.  But  the  contrary  appears  to  me 
more  probable. 

Two  anecdotes,  well  known  to  those  conversant 
in  English  histoiy,  are  too  remarkable  to  be  omit- 
ted. It  is  said  by  the  editor  of  Lord  On-ery's  Me- 
moirs, as  a  relation  which  he  had  licard  from  that 
noble  person,  that  in  a  conversation  with  Cromwell 
concerning  the  king's  death,  the  latter  told  him,  he 
and  his  friends  had  once  a  mind  to  have  closed 
witli  the  king,  fearing  that  the  Scots  and  Presby- 
terians might  do  .so  ;  when  one  of  their  spies,  who 
was  of  the  king's  bedchamber,  gave  them  informa- 
tion of  aletter  from  his  majesty  to  the  queen,  sewed 
up  in  the  skirt  of  a  saddle,  and  directing  them  to 
an  irm  where  it  might  be  found.  They  obtained 
the  letter  accordingly,  in  which  the  king  said  that 
he  was  courted  by  both  factions,  the  Scots  Presby- 
terians and  the  army ;  that  those  which  bade  fair- 
est for  him  should  have  him ;  but  he  thought  he 
should  rather  close  with  the  Scots  than  the  other. 
Upon  this,  finding  themselves  unlikely  to  get  good 
terms  from  the  king,  they  from  that  time  vowed 
Ids  destruction. — Carte's  Ormond,  ii.,  12. 

A  second  anecdote  is  alluded  to  by  some  earlier 
writers,  but  is  particularly  told  in  the  following 
words  by  Richardson,  the  painter,  author  of  some 
anecdotes  of  Pope,  edited  by  Spenco.  "  Lord  Bo- 
linghroke  told  as,  June  12,  1742  (Mr.  Pope,  Lord 
Marchmont,  and  myself),  that  the  second  Earl  of 
Oxford  had  often  told  him  that  he  had  seen,  and 
had  in  his  hands,  an  original  letter  that  Charles 
the  First  wrote  to  his  queen,  in  answer  to  one  of 
hers  that  had  been  intercepted,  and  then  forward- 
ed to  him,  wherein  she  had  reproached  him  for 
having  made  those  villains  too  great  concessions, 
viz.,  that  Cromwell  should  be  lord-lieuteuaut  of  Ire- 
land for  life  without  account ;  that  that  kingdom 
should  be  in  the  hands  of  the  party,  with  an  army 
there  kept  which  should  know  no  bead  but  the 
lieutenant ;  that  Cromwell  should  have  a  garter, 
&c. ;  that  in  this  letter  of  the  king's  it  was  said  that 
she  should  leave  him  to  manage,  who  was  better 
informed  of  all  circumstances  than  she  could  be ; 
but  she  might  be  entirely  easy  as  to  whatever  con- 
cessions ho  should  make  them,  for  that  he  should 
know  in  due  time  how  to  deal  with  the  rogues, 
who,  instead  of  a  silken  garter,  should  be  fitted 
with  a  hempen  cord.  So  the  letter  ended ;  which 
answer  as  they  waited  for,  so  they  intercepted  ac- 
cordingly ;  and  it  determined  his  fate.  This  letter 
Lord  Oxford  said  he  had  offered  £500  for." 

The  authenticity  of  this  latter  story  has  been 


356 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X, 


u  „.  , .     there  can  be  little  doubt,  would 

His  flight  ' 

from  Hamp-  have  exposed  him  to  such  inimi- 
ton  Court.    ^^^^  ^.j^j^^  j^j^^j.^      escaping  from 

thence,  he  acted  on  a  reasonable  principle 
of  self-preservation.  He  might  probably, 
with  due  precautions,  have  reached  France 
or  Jersey ;  but  the  hastiness  of  his  retreat 
from  Hampton  Court  giving  no  time,  he  fell 
again  into  the  toils,  through  the  helplessness 
of  his  situation,  and  the  unfortunate  counsels 
of  one  whom  he  ti'usted.*  The  fortitude 
of  his  own  mind  sustained  him  in  this  state 
of  captivity  and  entire  seclusion  from  his 
friends.  No  one,  however  sensible  to  the 
infirmities  of  Charles's  disposition,  and  the 
defects  of  his  understanding,  can  refuse  ad- 
miration to  that  patient  firmness  and  unaid- 
ed acuteness  which  he  displayed  through- 
out the  last  and  most  melancholy  year  of 
his  life.  He  had  now  abandoned  all  exj)ec- 
tation  of  obtaining  any  present  terms  for  the 
Church  or  crown.  He  proposed,  therefore, 
what  he  had  privately  empowered  Murray 
to  offer  the  year  before,  to  confirm  the 

constantly  rejected  by  Hume  and  the  advocates  of 
Charles  in  general ;  and,  for  one  reason  among  oth- 
ers, that  it  looks  like  a  misrepresentation  of  that 
told  hy  Lord  On-ery,  which  both  stands  on  good 
authority,  and  is  ijerfectly  conformable  to  all  the 
memoirs  of  the  time.  I  have,  liovrever,  been  in- 
formed, that  a  memorandum  nearly  conformable  to 
Richardson's  anecdote  is  extant,  in  the  hand-writ- 
ing of  Lord  Oxford. 

It  is  possible  that  this  letter  is  the  same  with 
that  mentioned  by  Lord  Orrery,  and  in  that  case 
was  written  in  the  month  of  October.  Cromwell 
seems  to  have  been  in  treaty  with  the  king  as  late 
as  September,  and  advised  him,  according  to  Berk- 
ley, to  i-eject  the  proposals  of  the  Parliament  in 
that  month.  Herbert  mentions  an  intercepted  let- 
ter of  the  queen  (Memoirs,  60) ;  and  even  his  story 
proves  that  Cromwell  and  his  party  broke  off  with 
Charles  from  a  conviction  of  his  dissimulation. — 
See  Laing's  note,  iii.,,  562,  and  the  note  by  Strype, 
therein  referred  to,  on  Kennet's  Complete  Hist,  of 
England,  iii.,  170,  which  speaks  of  a  "  constant  tra- 
dition" about  this  story,  and  is  more  worthy  of  no- 
tice because  it  was  written  before  the  publication 
of  Lord  On-ery's  Memoirs,  or  of  the  Richardsoniana. 

*  Ashburnham  gives  us  to  understand  that  the 
king  had  made  choice  of  the  Isle  of  Wight  previ- 
ously to  his  leaving  Hampton  Court,  but  probably 
at  his  own  suggestion.  This  seems  confirmed  by 
the  king's  letter  in  Burnet's  Mem.  of  Dukes  of 
Hamilton,  326.  Clarendon's  account  is  a  romance, 
with  a  little  mixture,  probably,  of  trutli.  But  Ash- 
bumham's  Narrative,  published  in  1830,  proves  that 
he  suggested  the  Isle  of  Wight,  in  consequence  of 
the  king's  being  forced  to  abandon  a  design  he  had 
formed  of  going  to  London,  the  Scots  commission- 
ers retracting  their  engagement  to  support  him. 


Presbyterian  government  for  three  years, 
and  to  give  up  the  militia  during  his  whole 
life,  with  other  concessions  of  importance.* 
To  presei-ve  the  Church  lands  from  sale, 
to  shield  his  friends  from  proscription,  to 
obtain  a  legal  security  for  the  restoration  of 
the  monarchy  in  his  son,  were  from  hence- 
forth the  main  objects  of  all  his  efforts.  It 
was,  however,  far  too  late  even  for  these 
moderate  conditions  of  peace.  Upon  his 
declining  to  pass  four  bills,  tendered  to  him 
as  preliminaries  of  a  treaty,  which  on  that 
very  account,  besides  his  objections  to  part 
of  their  contents,  he  justly  considered  as 
unfair,  the  Parliament  voted  that 

Alarming 

no  more  addresses  should  be  votes  agaiast 
made  to  him,  and  that  they 
would  receive  no  more  messages. f  He  was 
placed  in  close  and  solitary  confinement ; 
and  at  a  meeting  of  the  principal  officers  at 
Windsor,  it  was  concluded  to  bring  him  to 
trial,  and  avenge  the  blood  shed  in  the  war 
by  an  awful  example  of  punishment;  Crom- 
well and  Ireton,  if  either  of  them  had  been 
ever  favorable  to  the  king,  acceded  at  this 
time  to  the  severity  of  the  rest. 

Yet  in  the  midst  of  this  peril  and  seem- 
ing abandonment,  his  affairs  were  really 
less  desperate  than  they  had  been,  and  a 
few  rays  of  light  broke  for  a  time  through 
the  clouds  that  enveloped  him.    From  the 

*  Pari.  Hist.,  799. 

t  Jan.  1.5.  This  vote  was  carried  by  141  to  92. 
— Id.,  831  ;  and  see  Append,  to  2d  vol.  of  Clar. 
State  Papers.  Cromwell  was  now  vehement 
against  the  king,  though  he  had  voted  in  his  favor 
on  Sept.  22. — Journals,  and  Berkley,  372.  A  proof 
that  the  king  was  meant  to  be  wholly  rejected  is, 
that  at  this  time,  in  the  list  of  the  navy,  the  ex- 
pression "  his  majesty's  ship"  was  changed  to  "the 
Parliament's  ship." — Whitelock.  291. 

The  four  bills  were  founded  on  four  propositions 
(for  which  I  refer  to  Hume  or  the  Parliamentarj- 
Histoi-y,  not  to  Clarendon,  who  has  misstated 
them)  sent  down  from  the  Lords.  The  Lower 
House  voted  to  agree  with  them  by  115  to  106 : 
Sidney  and  Evelyn  tellers  for  the  ayes,  Martin  and 
Morley  for  the  noes.  The  increase  of  the  minorityis 
remarkable,  and  shows  how  much  the  king's  refu- 
sal of  the  terms  offered  him  in  September,  and  his 
escape  from  Hampton  Court,  had  swollen  the  Com- 
monwealth's party,  to  which,  by-the-way,  Colonel 
Sidney  at  this  time  seems  not  to  have  belonged. 
Ludlow  says  that  party  hoped  the  king  would  not 
grant  the  four  bills,  i.,  224.  The  Commons  publish- 
ed a  declaration  of  their  reasons  for  making  no  fur- 
ther addresses  to  the  king,  wherein  they  more  than 
insinuate  his  participation  in  the  murder  of  his  fa- 
ther by  Buckingham.— Pari.  Hist.,  847. 


Cha.  1.-1642-49.] 


TROM  HENRY  VII.  TO  GEORGE  II. 


357 


hour  that  the  Scots  delivered  him  up  at 
Newcastle,  they  seem  to  have  felt  the  dis- 
credit of  such  an  action,  and  longed  for  the 
opportunity  of  redeeming  their  public  name. 
They  perceived  more  and  more  that  a  well- 
disciplined  army,  under  a  subtle  chief  invet- 
erately  hostile  to  them,  were  rapidly  he- 
coming  masters  of  England.  Instead  of 
that  covenanted  alliance,  that  unity  in 
(Jhurch  and  State  they  had  expected,  they 
were  to  look  for  all  the  jealousy  and  dissen- 
sion that  a  complete  discordance  in  civil  and 
spiritual  polity  could  inspire.  Their  com- 
missionei-s,  therefore,  in  England,  the  Earl 
of  Lanark,  always  a  moderate  Royalist,  and 
the  Earl  of  Lauderdale,  a  warm  Presbyte- 
rian, had  kept  up  a  secret  intercourse  with 
Scots  inva-  the  king  at  Hampton  Court.  Af- 
ter  his  detention  at  Carisbrook, 
tliey  openly  declared  themselves  against  the 
four  bills  proposed  by  the  English  Parlia- 
ment, and  at  length  concluded  a  private 
treaty  with  him,  by  which,  on  certain  terms 
quite  as  favorable  as  he  could  justly  expect, 
they  bound  themselves  to  enter  England 
witli  an  army,  in  order  to  restore  him  to 
his  freedom  and  dignity.*  This  invasion 
was  to  be  combined  with  risings  in  various 
parts  of  the  counti-y  ;  the  Presbyterian  and 
Royalist,  though  still  retaining  much  of  ani- 
mosity toward  each  other,  concurring  at 
least  in  abhorrence  of  military  usurpation ; 
and  the  common  people  having  very  gener- 
ally returned  to  that  affectionate  respect  for 
the  king's  person  which  sympathy  for  his 
sufferings,  and  a  sense  how  little  they  had 
been  gainers  by  the  change  of  government, 
must  naturally  have  excited. f    The  unfor- 

*  Clarendon,  whose  aversion  to  the  Scots  vrarps 
)iis  jud^ent,  says  that  this  treaty  contained  many 
things  dishonorable  to  the  English  nation. — Hist., 
v.,  532.  The  king;  lost  a  good  deal  in  the  eyes  of 
this  uncompromising  statesman  by  the  concessions 
ho  made  in  the  Isle  of  Wight. — State  Papers,  387. 
I  can  not,  for  my  own  part,  see  any  thing  deroga- 
tory to  England  in  the  treaty,  for  the  temporary 
occupation  of  a  few  fortified  towns  in  the  North  can 
hardly  be  called  so.  Charles,  there  is  some  reas- 
on to  think,  had  on  a  former  occasion  made  offei-s 
to  the  Scots  far  more  inconsistent  with  his  duty  to 
this  kingdom. 

t  Clarendon.  May,  Breviate  of  the  Hist,  of  the 
Parliament,  in  Maseres's  Tracts,  i.,  113.  White- 
lock,  307,  317,  &.C.  In  a  conference  between  the 
two  Houses,  July  25,  1648,  the  Commons  gave  as 
a  reason  for  insisting  on  the  king's  surrender  of  the 
militia  as  a  preliminary  to  a  treaty,  that  such  was 
the  disafl'ection  to  the  Parliament  on  all  sides,  that 


tunate  issue  of  the  Scots  expedition  imder 
the  Duke  of  Hamilton,  and  of  the  various 
insurrections  throughout  England,  quelled 
by  the  vigilance  and  good  con-  The  Presby- 
duct  of  Fairfax  and  Cromwell,  gX"he"as- 
is  well  known.  But  these  form-  cendant. 
idable  manifestations  of  the  public  sentiment 
in  favor  of  peace  with  the  king  on  honora- 
ble conditions,  wherein  the  city  of  London, 
ruled  by  the  Pre.sbyterian  ministers,  took 
a  share,  compelled  the  House  of  Commons 
to  retract  its  measures.  They  came  to  a 
vote,  by  165  to  99,  that  they  would  not  al- 
ter the  fundamental  government  by  king, 
Lords,  and  Commons  ;*  they  abandoned 
their  impeachment  against  seven  peers,  the 
most  moderate  of  the  Upper  House,  and 
the  most  obnoxious  to  the  army  ;f  they  re- 
stored the  eleven  members  to  their  seats  ;t 
they  revoked  their  resolution  against  a  per- 
sonal treaty  with  the  king,  and  even  that 
which  required  his  assent  by  certain  pre- 
liminary articles. §  In  a  word,  the  party, 
for  distinction's  sake  called  Presbyterian,  but 
now  rather  to  be  denominated  Constitution- 
al, regained  its  ascendency.  This  change 
in  the  counsels  of  Parliament  brought  on 
the  treaty  of  Newport. 

The  treaty  of  Newport  was  set  on  foot 
and  managed  by  those  politicians  of  Treaty  of 
the  House  of  Lords  who,  having  Newport, 
long  suspected  no  danger  to  themselves  but 
from  the  power  of  the  king,  had  discovered, 

without  the  militia  they  could  never  be  secure. — 
Rush.  Abr.,  vi.,  444.  "  The  chief  citizens  of  Lon- 
don," says  May,  122,  "  and  others  called  Presbyte- 
rians, though  the  Presbyterian  Scots  abominated 
this  army,  wished  good  success  to  these  Scots  no 
less  than  the  Malignants  did.  Whence  let  the 
reader  judge  of  the  times."  The  fugitive  sheets  of 
this  year,  such  as  the  Mercurius  Aulicus,  bear  wit- 
ness to  the  exulting  and  insolent  tone  of  the  Roy- 
alists. They  chuckle  over  Fairfax  and  Cromwell 
as  if  they  had  caught  a  couple  of  rats  in  a  trap. 

*  April  28,  1648.    ?arl.  Hist.,  883. 

t  June  6.  These  peers  were  the  Earls  of  Suf- 
folk, Middlesex,  and  Lincoln,  Lords  Willoughby 
of  Parham,  Berkley,  Hunsdon,  and  Maynard.  They 
were  impeached  for  sitting  in  the  House  during  the 
tumults  from  26tli  of  July  to  6th  of  August,  1647. 
The  Earl  of  Pembroke,  who  had  also  continued  to 
sit  merely  because  he  was  too  stupid  to  discover 
which  party  was  likely  to  prevail,  escaped  by 
truckling  to  the  new  powers.  t  June  8. 

$  See  Pari.  Hist.,  823,  892,  904,  921,  924,  959, 
996,  for  the  different  votes  on  this  subject,  where- 
in the  Presbyterians  gradually  beat  the  Independ- 
ent or  Republican  party,  but  with  very  small  and 
1  precarious  majorities. 


358 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


somewhat  of  the  latest,  that  the  crown  it- 
self was  at  stake,  and  that  theu"  own  privi- 
leges were  set  on  the  same  cast.  Nothing 
was  more  remote  from  the  intentions  of  the 
Earl  of  Northumberland  or  Lord  Say  than 
to  see  themselves  pushed  from  their  seats 
by  such  upstarts  as  Ireton  and  Hanison, 
and  their  present  mortification  afforded  a 
proof  how  men  reckoned  wise  in  their  gen- 
eration become  the  dupes  of  their  own  self- 
ish, crafty,  and  pusillanimous  policy.  They 
now  gi'ow  anxious  to  see  a  treaty  concluded 
with  the  king.  Sensible  that  it  was  neces- 
sary to  anticipate,  if  possible,  the  return  of 
Cromwell  from  the  North,  they  implored 
him  to  comply  at  once  with  all  the  propo- 
sitions of  Parliament,  or  at  least  to  yield  in 
the  first  instance  as  far  as  he  meant  to  go.* 

*  Clarendon,  vi.,  155.  He  is  very  absurd  in  im- 
agining that  any  of  the  Parliamentary  commission- 
ers would  have  been  satisfied  with  "  an  act  of  in- 
demnity and  oblivion." 

That  the  Parliament  had  some  reason  to  expect 
the  king's  firmness  of  purpose  to  give  way,  in  spite 
of  all  his  Iiaggling,  will  appear  from  the  following 
short  review  of  what  had  been  done.  1.  At  New- 
market, in  June,  1642,  he  absolutely  refused  the 
nineteen  propositions  tendered  to  him  by  the  Lords 
and  Commons.  2.  In  the  treaty  of  Oxford,  March, 
1643,  he  seems  to  have  made  no  concessions,  not 
even  promising  an  amnesty  to  those  he  had  already 
excluded  from  pardon.  3.  In  the  treaty  of  Ux- 
bridge,  no  mention  was  made  on  his  side  of  ex- 
clusion from  pardon ;  he  oflfered  to  vest  the  militia 
for  seven  years  in  commissioners  jointly  appointed 
by  himself  and  ParUameut,  so  that  it  should  after- 
ward return  to  him,  and  to  limit  the  jurisdiction  of 
the  bishops.  4.  In  the  winter  of  1645,  he  not  only 
offered  to  disband  his  forces,  but  to  let  the  militia 
be  vested  for  seven  years  in  commissioners  to  be 
appointed  by  the  two  Houses,  and  afterward  to  be 
settled  by  bill ;  also  to  give  the  nomination  of  offi- 
cers of  state  and  judges  pro  hac  vice  to  the  Houses. 
5.  He  went  no  further  in  substance  till  May,  1647, 
when  he  offered  the  militia  for  ten  years,  as  well 
as  great  limitations  of  Episcopacy,  and  the  contin- 
uance of  Presbyterian  government  for  three  years ; 
the  whole  matter  to  be  afterward  settled  bj'  bill 
on  the  advice  of  the  Assembly  of  Divines,  and 
twenty  more  of  his  own  nomination.  6.  In  his  let- 
ter from  Carisbrook,  Nov.,  1647,  he  gave  up  the 
militia  for  his  hfe.  This  was,  in  effect,  to  sacri- 
fice almost  every  thing  as  to  immediate  power; 
but  he  struggled  to  save  the  Church  lands  from 
confiscation,  which  would  have  rendered  it  hardly 
practicable  to  restore  Episcopacy  in  future.  His 
further  concessions  in  the  treaty  of  Newport,  though 
very  slowly  extorted,  were  comparatively  ti-ifliiig. 

What  Clarendon  thoughtof  theti'eatyofNewport 
may  be  imagined.  "You  may  easily  conclude,'' 
lie  writes  to  Digby,  "  how  fit  a  counselor  I  am  like 
to  be,  when  the  best  that  is  proposed  is  that  which 


They  had  not,  liowever,  mitigated  in  any 
degree  the  rigorous  conditions  so  often  pro- 
posed ;  nor  did  the  king,  during  this  treaty, 
obtain  any  reciprocal  concession  worth  men- 
tioning in  return  for  his  sun-ender  of  almost 
all  that  could  be  demanded.  Did  the  posi- 
tive adherence  of  the  Parliament  to  all 
these  propositions,  in  circumstances  so  per- 
ilous to  themselves,  display  less  unreasona- 
ble pertinacity  than  that  so  often  imputed 
to  Charles  ]  Or  if,  as  was  the  fact,  the 
majority  which  the  Presbyterians  had  ob- 
tained was  so  precarious  that  they  dared 
not  hazard  it  by  suggesting  any  more  mod- 
erate counsels,  what  rational  security  would 
I  would  not  consent  unto  to  preserve  the  kingdom 
from  ashes.  1  can  tell  you  worse  of  myself  than 
this,  which  is.  that  there  may  be  some  reasonable 
expedients  which  possibly  might  in  truth  restore 
and  preser\-e  all,  in  which  I  conld  bear  no  part.'' — 
P.  459.  See,  also,  p.  351  and  416.  I  do  not  di- 
vine what  he  means  by  this,  miless  it  were  the 
king's  abdication.  But  what  he  could  not  have 
approved  was,  that  the  king  had  no  thoughts  of 
dealing  sincerely  with  the  Parliament  in  this  treaty, 
and  gave  Ormond  directions  to  obey  all  his  wife's 
commands,  but  not  to  obey  any  further  orders  he 
might  send,  nor  to  be  startled  at  his  great  conces- 
sions respecting  Ireland,  for  they  would  come  to 
nothing. — Carte's  Papers,  i.,  185.  See  Mr.  Brodie's 
remarks  on  this,  iv.,  143-146.  He  had  agreed  to 
give  up  the  government  of  Ireland  for  twenty  }■  ears 
to  the  Parliament.  In  his  lettersent  fromHolmby  in 
May,  1647,  he  had  declared  that  he  would  give  full 
satisfaction  with  respect  to  Ireland.  But  he  thus 
explains  himself  to  the  queen  :  "  I  have  so  coach- 
ed that  article,  that,  if  the  Irish  give  me  cause,  I 
may  interpret  it  enough  to  their  advantage  ;  for  I 
only  say  that  I  will  give  them  (the  two  Houses) 
full  satisfaction  as  to  the  management  of  the  war, 
nor  do  I  promise  to  continue  the  war;  so  that,  if  I 
find  reason  to  make  a  good  peace  there,  my  en- 
gagement is  at  an  end ;  wherefore  make  this  my 
interpretation  known  to  the  Irish.''  "'What  reli- 
ance," says  Mr.  Laing,  from  whom  I  transcribe  this 
passage  (which  I  can  not  find  in  the  Clarendon 
State  Papers,  quoted  by  him),  'could  ParUament 
place  at  the  beginning  of  the  dispute,  or  at  any  subse- 
quent period,  on  the  word  or  moderation  of  a  prince, 
whose  solemn  and  written  declarations  were  so 
full  of  equivocation  ?" — Hist,  of  Scotland,  iii.,  409. 
It  may  here  be  added,  that,  though  Charles  had 
given  his  parole  to  Colonel  Hammond,  and  bad  the 
sentinels  removed  in  consequence,  he  was  engag- 
ed during  most  part  of  his  stay  at  Carisbrook  in 
j  schemes  for  an  escape. — See  Col.  Cooke's  Narrative, 
printed  with  Herbert's  Memoirs ;  and  in  Hushw. 
I  Abr.,  vi.,  534.  But  his  enemies  were  apprised  of 
1  this  intention,  and  even  of  an  attempt  to  escape 
'  by  removing  a  bar  of  his  wuidow,  as  appears  by 
j  the  letters  from  the  committee  of  Derby  House, 
Cromwell,  and  others,  to  Colonel  Hammond,  pub- 
I  lished  in  1764. 


Cha.  I.— 1642-49.] 


FROM  HENRY  VU.  TO  GEORGE  11. 


359 


the  treaty  have  aflbided  him,  had  he  even 
come  at  once  into  all  their  requisitions  ? 
His  real  error  was  to  have  entered  upon 
any  ti-eaty,  and  still  more  to  have  drawn  it 
out  by  tardy  and  ineffectual  capitulations. 
There  had  long  been  only  one  course  either 
for  safety  or  for  honor,  the  abdication  of  his 
royal  office ;  now  probably  too  late  to  pre- 
serve liis  life,  but  still  more  honorable  than 
the  treaty  of  Newport.  Yet,  though  he 
was  desirous  to  make  his  escape  to  France, 
I  have  not  observed  any  hint  that  he  had 
thoughts  of  resigning  the  crown,  whether 
from  any  mistaken  sense  of  obligation,  or 
from  an  apprehension  that  it  might  affect 
the  succession  of  his  son. 

There  can  be  no  more  eiToneous  opinion 
than  that  of  such  as  believe  that  the  desire 
of  overturning  the  monarchy  produced  tlie 
civil  war,  rather  than  that  the  civil  war 
brought  on  the  former.  In  a  peaceful  and 
ancient  kingdom  like  England,  the  thought 
of  change  could  not  spontaneously  arise.  A 
very  few  speculative  men,  by  the  study  of 
antiquity,  or  by  observation  of  the  prosperi- 
ty of  Venice  and  Holland,  might  be  led  to 
an  absti-act  preference  of  Republican  poli- 
tics ;  some  fanatics  might  aspire  to  a  Jew- 
ish theocracy ;  but  at  the  meeting  of  the 
Long  Parliament,  we  have  not  the  slightest 
cau.se  to  suppose  that  any  party,  or  any 
number  of  persons  among  its  members,  had 
formed  what  must  then  have  appeared  so 
extravagant  a  conception.*  The  insupera- 
ble distrust  of  the  king's  designs,  the  irrita- 
tion excited  by  the  sufferings  of  the  war, 
the  impracticability,  which  every  attempt 

*  Clarendon  mentious  an  expression  that 
dropped  from  Henry  Martin  iu  conversation  not 
long  after  the  meeting  of  the  Parliament :  "  I  do 
not  think  one  man  wise  enough  to  govern  ns  all." 
This  may  doubtless  be  taken  in  a  sense  perfectly 
compatible  with  our  limited  monarchy.  But  Mar- 
tin's Bcpublicanism  was  soon  apparent:  he  was 
sent  to  the  Tower  ,in  August,  1643,  for  language 
reflecting  on  the  king. — Pari.  Hist.,  161.  A  Mr. 
Chillingworth  had  before  incurred  the  game  pun- 
ishment for  a  like  offense,  December  1,  1641. — 
Nalson,  ii.,  714.  Sir  Henr>'  Ludlow,  father  of  the 
regicide,  was  also  censured  on  the  same  account. 
As  the  opposite  faction  grew  stronger,  Martin  was 
not  only  restored  to  his  seat,  but  the  vote  against 
him  was  expunged.  Vane,  I  presume,  took  up 
Republican  principles  pretty  early  j  perhaps,  also, 
Hazlerig.  With  these  exceptions,  I  know  not 
that  we  can  fix  on  any  individual  member  of  Par- 
liament the  charge  of  an  intention  to  subvert  the 
Constitutbn  till  1646  or  1647. 


at  negotiation  displayed,  of  obtaining  his  ac- 
quiescence to  tenns  deemed  indispensable, 
gradually  created  a  powerful  faction,  whose 
chief  bond  of  union  was  a  determination  to 
set  him  aside.*  What  further  scheme 
they  had  planned  is  uncertain ;  none,  prob- 
ably, iu  which  any  number  were  agreed : 
some  looked  to  the  Prince  of  Wales,  oth- 
ers perhaps,  at  one  time,  to  the  elector  pal- 
atine ;f  but  necessity  itself  must  have  sug- 
gested to  many  the  idea  of  a  Republican 

'  Pamphlets  maybe  found  as  early  as  1643  which 
breathe  this  spirit,  but  they  are  certainly  rare  till 
1645  and  1646.  Such  are  "Plain  English,"  1643; 
"The  Characterof  an  Anti-mahgnant,"  1645;  "Last 
Warning  to  all  the  Inhabitants  of  London,"  1647. 

t  Charles  Louis,  elector  palatine,  elder  brother 
of  the  Princes  Rupert  and  Maurice,  gave  cause  to 
suspect  that  he  was  looking  toward  the  throne.  He 
left  the  king's  quarters,  where  he  had  been  at  the 
commencement  of  the  war,  and  retired  to  Holland; 
whence  he  wrote,  as  well  as  his  mother,  the  Q,ueen 
of  Bohemia,  to  the  Parliament,  disclaiming  and  re- 
nouncing Prince  Rupert,  and  begging  their  own 
pensions  might  be  paid.  He  came  over  to  London 
in  August,  1644,  took  the  Covenant,  and  courted 
the  Parliament.  They  showed,  however,  at  first, 
a  good  deal  of  jealousy  of  him,  and  intimated  that 
his  affairs  would  prosper  better  by  his  leaving  the 
kingdom.— Whitelock,  101.  Rush.  Abr.,  iv.,  359. 
He  did  not  take  this  hint,  and  obtained  next  year 
an  allowance  of  £8000  per  annum. — Id.,  145.  Lady 
Rauelagh,  in  a  letter  to  Hyde,  March,  1644,  con- 
juring him,  by  his  regard  for  Lord  Falkland's  mem- 
ory, to  use  all  his  influence  to  procure  a  message 
from  the  king  for  a  treatj',  adds,  "  Methinks  what  I 
have  informed  my  sister,  and  what  she  will  inform 
you,  of  the  posture  the  prince  elector's  affairs  aro 
in  here,  should  be  a  motive  to  hasten  away  this 
message." — Clar.  State  Papers,  ii.,  167.  Clai-endon 
himself,  in  a  letter  to  Nicholas,  Dec.  12, 1646  (where 
he  gives  his  opinion  that  the  Independents  look 
more  to  a  change  of  the  king  and  his  line  than  of 
the  monarchy  itself,  and  would  restore  the  full  pre- 
rogative of  the  crown  to  one  of  their  own  choice), 
proceeds  iu  these  remarkable  words  :  "  And  I  pray 
Cfod  they  have  not  such  a  nose  of  wax  ready  for 
their  impression.  This  it  is  makes  me  tremble 
more  than  all  their  discourses  of  destroying  mon- 
archy ;  and  that  toward  this  end,  they  find  assist- 
ance from  those  who  from  their  hearts  abhor  their 
confusions."— P. 308.  These expressionsseemmore 
applicable  by  far  to  the  elector  than  to  Cromwell. 
But  the  former  was  not  dangerous  to  the  Parlia- 
ment, though  it  was  deemed  fit  to  treat  him  with 
respect.  In  March,  1647,  we  find  a  committee  of 
both  Houses  appointed  to  receive  some  intelligence 
which  the  prince  elector  desired  to  communicate  to 
the  Parliament  of  great  importance  to  the  Protes- 
tant religion. —Whitelock,  241.  Nothing  further  ap- 
1  pears  about  this  intelligence,  which  looks  as  if  he 
were  merely  afraid  of  being  forgotten.  He  left 
1  England  in  1649,  and  died  in  1680. 


360 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


settlement.  In  the  new-modeled  army  of 
1645,  composed  of  Independents  and  enthu- 
siasts of  eveiy  denomination,  a  fervid  eager- 
ness for  changes  in  the  civil  polity,  as  weU 
as  in  religion,  was  soon  found  to  pi-edomi- 
nate.  Not  checked,  like  the  two  Houses, 
by  attachment  to  forms  and  by  the  influence 
of  lawyers,  they  lanched  forth  into  varied 
projects  of  reform,  sometimes  judicious,  or 
at  least  plausible,  sometimes  wildly  fanat- 
ical. They  reckoned  the  king  a  tyrant, 
whom,  as  they  might  fight  against,  they 
might  also  put  to  death,  and  whom  it  were 
folly  to  provoke  if  he  were  again  to  become 
their  master.  Elated  with  their  victories, 
they  began  already,  in  imagination,  to  carve 
out  the  kingdom  for  themselves,  and  re- 
membered that  saying  so  congenial  to  a 
revolutionary  army,  that  the  first  of  mon- 
firchs  was  a  successful  leader,  the  first  of 
nobles  were  his  followers.* 

The  knowledge  of  this  innovating  spirit 
Gradual  in  the  army  gave  confidence  to  the 
a Tpubi,-  violent  party  in  Parliament,  and 
can  party,  increased  its  numbers  by  the  ac- 
cession of  some  of  those  to  whom  nature 
has  given  a  fine  sense  for  discerning  their 
own  advantage.  It  was  doubtless  swollen 
through  the  publication  of  the  king's  letters, 
and  his  pertinacity  in  clinging  to  his  prerog- 
ative ;  and  the  complexion  of  the  House  of 
Commons  was  materially  altered  by  the  in- 
troduction at  once  of  a  large  body  of  fresh 
members.  They  had,  at  the  beginning,  ab- 
stained from  issuing  writs  to  replace  those 
whose  death  or  expulsion  had  left  their  seats 
vacant.  These  vacancies,  by  the  disabling 
votes  against  all  the  king's  party,f  became 
so  numerous,  that  it  seemed  a  glaring  viola- 
tion of  the  popular  principles  to  which  they 
aj)pealed,  to  carry  on  the  public  business 
with  so  maimed  a  representation  of  the 
j)eople.  It  was,  however,  plainly  impossi- 
ble to  have  elections  in  many  parts  of  the 

"  Baxter's  Life,  50.  He  ascribes  the  increase 
of  enthusiasm  in  tlie  araiy  to  the  loss  of  its  Presby- 
terian chaplains,  who  left  it  for  their  benefices,  on 
the  reduction  of  the  king's  party  and  the  new- 
modeling  of  the  troops.  The  officers  then  took  on 
them  to  act  as  preachers. — Id.,  54 ;  and  Neal,  183. 
I  conceive  that  the  year  1645  is  that  to  which  we 
must  refer  the  appearance  of  a  Republican  party 
in  considerable  numbers,  though  not  yet  among  the 
House  of  Commons. 

t  These  passed  again.st  the  Royalist  members 
separately,  and  for  the  most  part  in  the  first  months 
of  the  war. 


kingdom  while  the  royal  army  was  in 
strength;  and  the  change,  by  filling  up 
nearly  two  hundred  vacancies  at  once,  was 
likely  to  become  so  important,  that  some 
feared  that  the  Cavaliers,  others  that  the 
Independents  and  Republicans,  might  find 
their  advantage  in  it.*  The  latter  party 
were  generally  earnest  for  new  elections, 
and  earned  their  point  against  the  Presby- 
terians in  September,  1645,  when  new 
writs  were  ordered  for  all  the  places  which 
were  left  deficient  of  one  or  both  repre- 
sentatives.f  The  result  of  these  elections, 
though  a  few  persons  rather  friendly  to  the 
king  came  into  the  House,  was,  on  the 
whole,  very  favorable  to  the  army.  The 
Self-denying  Ordinance  no  longer  being  in 
operation,  the  principal  officers  were  elect- 
ed on  eveiy  side,  and,  with  not  many  ex- 
ceptions, recruited  the  ranks  of  that  small 
body  which  had  ah-eady  been  marked  by 
implacable  dislike  of  the  king,  and  by  zeal 
for  a  total  new-modeling  of  the  govera- 
ment.t  In  the  summer  of  1646,  this  party 
had  so  far  obtained  the  upper  hand,  that, 
according  to  one  of  our  best  authorities,  the 
Scots  commissioners  had  all  imaginable  dif- 
ficulty to  prevent  his  deposition.  In  the 
course  of  the  year  1647,  more  overt  proofs 
of  a  design  to  change  the  established  Con- 
stitution were  given  by  a  party  out  of  doors. 
A  petition  was  addressed  "  to  the  supreme 

*  "  The  best  Mends  of  the  Parliament  were  not 
without  fears  what  the  issue  of  the  new  elections 
might  be ;  for  though  the  people  durst  not  choose 
such  as  were  open  enemies  to  them,  yet  probably 
they  would  such  as  were  most  likely  to  be  for  3 
peace  on  any  tenus,  corruptly  preferring  the  frui- 
tion of  their  estates  and  sensual  enjoyments  before 
the  public  interest,"  &c. — Ludlow,  i.,  168.  This  is 
a  fair  confession  how  little  the  CommonwealA  party 
had  the  support  of  the  nation. 

t  C.  Journals.  Whitelock,  168.  Theboronghof 
Soathwark  had  just  before  petitioned  for  a  new 
writ,  its  member  being  dead  or  disabled. 

i  That  the  House  of  Commons,  inDecember,  1645, 
entertained  no  views  of  altering  the  fundamental 
Constitution,  appears  from  some  of  their  resolutions 
as  to  conditions  of  peace  :  "That  Fairfax  should 
have  an  earldom,  with  £5000  a  year;  Cromwell 
and  Waller  baronies,  with  half  that  estate  ;  Essex, 
Northumberland,  and  two  more  be  made  dukes ; 
Manchester  and  Salisbuiy,  marquises,  and  other 
peers  of  their  party  be  elevated  to  higher  ranks; 
Hazlerig.  Stapylton,  and  Skipton  to  have  pensions." 
—Pari.  Hist.,  403.  Whitelock,  182.  These  votes 
do  not  speak  much  for  the  magnanimity  and  disin- 
terestedness of  that  assemhly,  though  it  may  suit 
]iolitical  romancers  to  declaim  about  it. 


CHA.  I.— 1642-19.] 


FROM  HENEY  VII.  TO  GEORGE  IT. 


361 


authority  of  this  nation,  the  Commons  as- 
sembled in  Parliament."  It  was  voted 
upon  a  division  that  the  House  dislikes  this 
petition,  and  can  not  approve  of  its  being 
delivered  ;  and  afterward,  by  a  majority  of 
only  94  to  8G,  that  it  was  seditious  and  in- 
solent, and  should  be  burned  by  the  hang- 
man.* Yet  the  first  decisive  proof,  per- 
haps, which  the  Journals  of  Parliament  af- 
ford of  the  existence  of  a  Republican  par- 
ty, was  the  vote  of  22d  September,  1647, 
that  they  would  once  again  make  applica- 
tion to  the  king  for  those  things  which  they 
judged  necessary  for  the  welfare  and  safe- 
ty of  the  kingdom.  This  was  can'ied  by 
70  to  23. t  Their  subsequent  resolution  of 
January  4,  1648,  against  any  further  ad- 
dresses to  the  king,  which  passed  by  a  ma- 
jority of  141  to  91,  was  a  virtual  renuncia- 
tion of  allegiance.  The  Lords,  after  a 
warm  debate,  concuiTed  in  this  vote  ;  and 
the  army  had,  in  November,  1647,  before 
the  king's  escape  from  Hampton  Court, 
published  a  declaration  of  their  design  for 
the  settlement  of  the  nation  under  a  sover- 
eign representative  assembly,  which  should 

•  Commons'  Journals,  May  4  and  18, 1C47.  This 
minority  were  not,  in  general,  Republican,  but  were 
auwiUing  to  increase  the  irritation  of  the  army  by 
so  sti-ong  a  vote. 

t  Commons'  Journals.  Whitelock,  271.  Pari. 
Hist.,  781.  They  had  just  been  exasperated  by  his 
evasion  of  their  propositions. — Id.,  778.  By  the 
smaJlness  of  the  numbers,  and  the  names  of  the 
tellers,  it  seems  as  if  the  Presbyterian  party  had 
been  almost  entirely  absent;  which  may  be  also 
inferred  from  other  parts  of  the  Journals. — See  Oc- 
tober 9  for  a  long  list  of  absentees.  Hazlerig  and 
Evelyn,  both  of  the  army  faction,  told  the  ayes, 
Martin  and  Sir  Peter  Wentworth  the  noes.  The 
House  had  divided  the  day  before  on  the  question 
for  going  into  a  committee  to  take  this  matter  into 
consideration,  84  to  34,  Cromwell  and  Evelyn  tell- 
ing the  majorit}',  Wentworth  and  Rainsborough  the 
minority.  I  suppose  it  is  from  some  of  these  divi- 
sions that  Baron  Maseres  has  reckoned  the  Repub- 
lican party  in  the  House  not  to  exceed  thirty. 

It  was  resolved  on  Nov.  6,  1647,  that  the  King 
of  England,  for  the  time  being,  was  bound  in  jus- 
tice, and  by  the  duty  of  his  office,  to  give  his  assent 
to  all  such  laws  as  by  the  Lords  and  Commons  in 
Parliament  shall  be  adjudged  to  be  for  the  good  of 
the  kingdom,  and  by  them  tendered  unto  him  for 
his  assent.  But  the  previous  question  was  earned 
on  the  following  addition :  "  And  in  case  the  laws 
so  oflFered  unto  him  shall  not  thereupon  be  assented 
nnto  by  him,  that  nevertheless  they  are  as  valid  to 
aU  intents  and  purposes  as  if  his  assent  had  been 
thereunto  had  and  obtained,  which  they  do  insist 
opon  as  an  undoubted  right."— Com.  Jour. 


possess  authority  to  make  or  repeal  laws, 
and  to  call  magistrates  to  account. 

We  are  not  certainly  to  conclude  that  all 
who,  in  1648,  had  made  up  their  minds 
against  the  king's  restoration,  were  equally 
averse  to  all  regal  government.  The  Prince 
of  Wales  had  taken  so  active,  and,  for  a  mo- 
ment, so  successful  a  share  in  the  war  of 
that  year,  that  his  father's  enemies  were 
become  his  own.  Meetings,  however,  were 
held,  whore  the  military  and  Parliamenta- 
ry chiefs  discussed  the  schemes  of  raising 
the  Duke  of  York,  or  his  younger  brother 
the  Duke  of  Gloucester,  to  the  throne. 
Cromwell  especially  wavered,  or  pretended 
to  waver,  as  to  the  settlement  of  the  na- 
tion ;  nor  is  there  any  evidence,  so  far  as  I 
know,  that  he  had  ever  professed  himself 
averse  to  monarchy,  till,  dextrously  mount- 
ing on  the  wave  which  he  could  not  stem, 
he  led  on  those  zealots  who  had  resolved 
to  celebrate  the  inauguration  of  their  new 
Commonwealth  with  the  blood  of  a  victim 
king.* 

It  was  about  the  end  of  1647,  as  I  have 
said,  that  the  principal  ofificers  took 
the  determination,  which  had  been  amoug^the 
already  menaced  by  some  of  the  "f 

.      .  .  bringing 

agitators,  of  bi'inging  the  king,  as  diaries  to 

the  first  and  gi'eatest  delinquent, 

to  public  justice. f    Too  stern  and  haughty, 

*  Ludlow  says  that  Cromwell,  "finding  the  king's 
friends  grow  strong  in  1648,  began  to  court  the  Com- 
monwealth's party.  The  latter  told  him  he  knew 
how  to  cajole  and  give  them  good  words  when  he 
had  occasion  to  make  tise  of  them  ;  whereat,  break- 
ing out  into  a  rage,  he  said  they  were  a  proud  sort 
of  people,  and  only  considerable  in  their  own  con- 
ceits."— P.  240.  Does  this  look  as  if  he  had  been 
reckoned  one  of  them  ? 

t  Clarendon  says  that  there  were  many  consulta- 
tions among  the  officers  about  the  best  mode  of  dis- 
posing of  the  king ;  some  were  for  deposing  him, 
others  for  poison  or  assassination,  which,  he  fancies, 
would  have  been  put  in  practice  if  they  could  have 
prevailed  on  Hammond.  But  this  is  not  warranted 
by  our  better  authorities. 

It  is  hard  to  say  at  what  time  the  first  bold  man 
dared  to  talk  of  bringing  the  king  to  justice.  But 
in  a  letter  of  Baillie  to  Alexander  Henderson,  May 
19,  1646,  he  says,  "  If  God  have  hardened  him.  so 
far  as  I  can  perceive,  this  people  will  strive  to  have 
him  in  tlieir  power,  and  make  an  example  of  him ; 
I  abhor  to  think  what  tlir.y  speak  of  execution  .'"  ii., 
20 ;  published,  also,  in  Dalrymple's  Memorials  of 
Charles  I.,  p.  166.  Proofs  may  also  be  brought  from 
pamphlets  by  Lilburne  and  others  inlfi47,  especially 
toward  the  end  of  that  year ;  and  the  remonstrance 
of  the  Scots  Parliament,  dated  Aug.  13,  alludes  to 


362 


CONSTITUTIONAL  HISTOHY  OF  ENGLAND 


[Chap.  X. 


too  confident  of  the  righteousness  of  their 
actions,  to  think  of  private  assassination, 
they  sought  to  gi'atify  their  pride  by  the 
solemnity  and  notoriousness,  by  the  very 
infamy  and  eventual  danger  of  an  act  un- 
precedented in  the  history  of  nations. 
_  .  .  ,   ,  Throughout  the  year  1G48,  this 

This  IS  final-  *  ' 

ly  Jetermin-  design,  though  Suspended,  be- 
came faraifiar  to  the  people's  ex- 
pectation.* The  Comraonwealtirs  men 
and  the  Levelers,  the  various  sectaries 
(admitting  a  few  exceptions),  gi-e\v  clamor- 
ous for  the  king's  death.  Petitions  were 
pi'esented  to  the  Commons,  praying  for  jus- 
tice on  all  delinquents,  from  the  highest  to 
the  lowest  ;t  and  not  long  afterwai-d,  the 
general  officers  of  the  army  came  forward 
with  a  long  remonstrance  against  any  treaty, 
and  insisting  that  the  capital  and  grand  au- 
thor of  their  troubles  be  speedily  brought  to 
justice,  for  the  treason,  blood,  and  mischief 
whereof  he  had  been  guilty,  t    This  was 

Buch  language. — Rush.  Abr.,  vi.,  245.  Berkley,  in- 
deed, positively  assures  us,  tliat  the  resolution  was 
taken  at  Windsor,  in  a  council  of  officers,  soon  af- 
ter the  king's  confinement  at  Carisbrook  ;  and  this 
with  so  much  particularit}"  of  circumstance,  that,  if 
we  reject  his  account,  we  must  set  aside  the  whole 
of  his  memoirs  at  the  same  time. — Maseres's  Tracts, 
i.,  383.  But  it  is  fully  confirmed  by  an  independent 
testimony,  William  Allen,  himself  one  of  the  coun- 
cil of  officers  and  adjutant-general  of  the  army,  who, 
in  a  letter  addressed  to  Fleetwood,  and  published 
in  1659,  declai'es,  that  after  much  consultation  and 
prayer  at  Windsor  Castle,  in  the  beginning  of  1648, 
they  had  "  come  to  a  verj'  clear  and  joint  resolution 
that  it  was  their  duty  to  call  Charles  Stuait,  that 
man  of  blood,  to  an  account  for  the  blood  he  had 
shed,  and  mischiefhe  had  done  to  hisutmost,  against 
the  Lord's  cause  and  people  in  these  poor  nations." 
This  is  to  be  found  in  Somers  Tracts,  vi.,  499.  The 
only  discrepancy,  if  it  is  one,  between  him  and 
Berkley,  is  as  to  the  precise  time,  which  the  other 
seems  to  place  in  the  end  of  1647.  But  this  might 
be  lapse  of  memory  in  either  party  ;  nor  is  it  clear, 
on  looking  attentively  at  Berkley's  nan-ation,  that 
lie  determines  the  time.  Ashbumham  says,  "  For 
some  days  before  the  king's  remove  from  Hampton 
Court,  there  was  scarcely  a  day  in  which  several 
alarms  were  not  brought  him  by  and  from  several 
considerable  persons,  both  well  afTected  to  him  and 
likely  to  know  much  of  what  was  then  in  agitation, 
of  the  resolution  which  a  violent  party  in  the  army 
had  to  take  away  his  life.  And  that  such  a  design 
there  was,  there  were  strong  insinuations  to  per- 
suade."— See,  also,  his  Narrative,  published  in  1830. 

*  Somers  Tracts,  v.,  160,  162. 

t  Sept.  11.  Pari.  Hist,  1077.  May's  Breviate  in 
Maseres's  Tracts,  vol.  i.,  p.  127.    Wbitelock,  335. 

i  Nov.  17.  Pari.  Hist.,  1077.  Whitelock,  p.  355. 
A  motion,  Nov.  30,  that  the  House  do  now  proceed 


soon  followed  by  the  vote  of  the  Presbyte- 
rian party,  that  the  answers  of  the  king  to 
the  propositions  of  both  Houses  are  a  ground 
for  the  House  to  proceed  upon  for  the  set- 
tlement of  the  peace  of  the  kingdom,*  by 
the  violent  expulsion,  or,  as  it  ^  i  ^ 

'      _  Secmsion  of 

was  called,   seclusion  of  all  the  Presbyterian 

Presbyterian  members  from  the  ™^°'''*"- 
House,  and  the  ordinance  of  a  minority, 
constituting  the  high  court  of  justice  for  the 
trial  of  the  kiug.f 

A  very  small  number  among  those  who 
sat  in  this  sti-ange  ti-ibunal  upon  Charles  the 
First  were  undoubtedly  capable  of  taking 
statesman-like  views  of  the  interests  of  their 
party,  and  might  consider  his  death  a  poU- 
tic  expedient  for  consolidating  the  new  set- 
tlement. It  seemed  to  involve  the  army, 
which  had  openly  abetted  the  act,  and  even 
the  nation  by  its  passive  consent,  in  such 
inexpiable  guilt  toward  the  royal  famDy, 
that  neither  common  prudence  nor  a  sense 
of  shame  would  permit  them  to  suffer  ite 
restoration.  But  by  the  far  greater  pail; 
of  the  regicides  such  considerations  were 
either  overlooked  or  kept  in  the  back-gi'ound. 
Their  more  powerful  motive  was  that  fierce 
fanatical  hatred  of  the  king,  the  natural  fruit 
of  long  civil  dissension,  inflamed  by  preach- 
ers more  dark  and  sanguinary  than  those 
they  addressed,  and  by  a  peneited  study 
of  the  Jewish  Scriptures.  They  had  been 
wrought  to  believe,  not  that  his  execution 
would  be  justified  by  state-necessity  or  any 
such  feeble  gi'ounds  of  human  reasoning, 
but  that  it  was  a  bounden  duty,  which  with 
a  safe  conscience  they  could  not  neglect. 
Such  was  the  persuasion  of  Ludlow  and 
Hutchinson,  the  most  respectable  names 
among  the  regicides  ;  both  of  them  free 
from  all  suspicion  of  interestedness  or  hy- 
pocrisy, and  less  intoxicated  than  Motives  of 
the  rest  by  fanaticism.  "  I  was  t™g's1od|- 
fully  persuaded,"  saj'S  the  for-  es. 

on  the  remonstrance  of  the  army,  was  lost  by  125 
to  58  (printed  53  in  Pari.  Hist.). — Commons'  Jour- 
nals. So  weak  was  still  the  Republican  party.  It 
is,  indeed,  remarkable  that  this  remonstrance  it- 
self is  rather  against  the  king  than  absolutely 
asainst  all  monarchy ;  for  one  of  the  proposals  con- 
tained in  it  is  that  kings  should  be  chosen  by  the 
people,  and  have  no  negative  voice. 

*  The  division  was  on  the  previous  question, 
which  was  lost  by  129  to  83. 

t  No  di^-ision  took  place  on  any  of  the  votes  re- 
specting the  king's  tiial. 


Cha.  I.— 1642-49.] 


FEOM  HENRY  VII.  TO  GEORGE  U. 


363 


mer,  "  that  an  accommodatiou  with  the 
king  was  unsafe  to  the  people  of  England, 
and  unjust  and  wiclved  in  the  nature  of  it. 
The  former,  besides  that  it  was  obvious  to 
nil  men,  the  king  himself  had  proved,  by  the 
duplicity  of  his  dealing  with  the  Parliament, 
which  manifestly  appeared  in  his  own  pa- 
pers, taken  at  the  battle  of  Naseby  and 
elsewhere.  Of  the  latter  I  was  convinced 
by  the  express  words  of  God's  law ;  '  that 
blood  defileth  the  land,  and  the  land  can  not 
be  cleansed  of  the  blood  that  is  shed  there- 
in but  by  the  blood  of  him  that  shed  it.' — 
(Numbers,  xxxv.,  33.)  And  therefore  I 
could  not  consent  to  leave  the  guilt  of  so 
much  blood  on  the  nation,  and  thereby  to 
draw  down  the  just  vengeance  of  God  upon 
us  all,  when  it  was  most  evident  that  the 
war  had  been  occasioned  by  the  invasion  of 
our  rights  and  open  breach  of  om"  laws  and 
Constitution  on  the  king's  part."*  "  As  for 
Mr.  Hutchinson,'"  says  his  high-souled  con- 
sort, "  although  he  was  veiy  much  confirm- 
ed in  his  judgment  concerning  the  cause, 
yet  being  here  called  to  an  extraordinary 
action,  whereof  many  were  of  several  minds, 
he  addressed  himself  to  God  by  prayer,  de- 
sunug  the  Lord  that,  if  through  any  human 
frailty  he  were  led  into  any  eiTor  or  false 
opinion  in  those  great  transactions,  he  would 
open  his  eyes,  and  not  suffer  him  to  pro- 
ceed, but  that  he  would  confirm  his  spiiit 
in  the  ti'uth,  and  lead  him  by  a  right-en- 
lightened conscience  ;  and  finding  no  check, 
but  a  confirmation  in  his  conscience,  that  it 
was  his  duty  to  act  as  he  did,  he,  upon  se- 
rious debate,  both  privately  and  in  his  ad- 
dresses to  God,  and  in  conferences  with 
conscientious,  upright,  unbiased  persons, 
proceeded  to  sign  the  sentence  against  the 
king.  Although  he  did  not  then  believe 
but  it  might  one  day  come  to  be  again  dis- 
puted among  men,  yet  both  he  and  others 
thought  they  could  not  refuse  it  without 
giving  up  the  people  of  God,  whom  they 
had  led  forth  and  engaged  themselves  unto 
by  the  oath  of  God,  into  the  hands  of  God's 
and  their  enemies ;  and  therefore  he  cast 
himself  upon  God's  protection,  acting  ac- 
cording to  the  dictates  of  a  conscience 
which  he  had  sought  the  Lord  to  guide ; 
and  accordingly  the  Lord  did  signalize  his 
favor  afterward  to  him."f 

The  execution  of  Charles  the  First  has 
*  Ludlow-,  i.,  267.  t  Hutchinson,  p.  303. 


been  mentioned  in  later  ages  by  „    ,.  , 

°       *'    Question  oi 

a  few  with  unlimited  praise,  by  his  execution 
some  with  faint  and  ambiguous 
censure,  by  most  with  vehement  reproba- 
tion. My  own  judgiuent  will  possibly  be 
anticipated  by  the  reader  of  the  preceding 
pages.  I  shall  certainly  not  rest  it  on  the 
imaginary  sacredness  and  divine  origin  of 
royaltjs  nor  even  on  tlie  irresponsibility 
with  which  the  law  of  almost  eveiy  coun- 
try invests  the  person  of  its  sovereign.  Far 
be  it  from  me  to  contend  that  no  cases  may 
be  conceived,  that  no  instances  may  be  found 
in  history,  wherein  the  sympathy  of  man- 
kind and  the  sound  principles  of  political 
justice  would  approve  a  public  judicial  sen- 
tence as  the  due  reward  of  tyi-auny  and 
perfidiousness.  But  we  may  confidently 
deny  tliat  Charles  the  First  was  thus  to  be 
singled  out  as  a  warning  to  tyrants.  His 
offenses  were  not,  in  the  worst  interpreta- 
tion, of  that  atrocious  character  which  calls 
down  the  vengeance  of  insulted  humanity, 
regardless  of  positive  law.  His  govei-nment 
had  been  very  arbitrary  ;  but  it  may  well 
be  doubted  whether  any,  even  of  his  min- 
isters, could  have  suffered  death  for  their 
share  in  it,  without  introducing  a  principle 
of  bai'barous  vindictiveness.  Far  from  the 
sanguinary  misanthropy  of  some  monarchs, 
or  the  revengeful  fuiy  of  others,  he  had  in 
no  instance  displayed,  nor  does  the  minut- 
est scrutiny  since  made  into  his  character 
entitle  us  to  suppose,  any  malevolent  dispo- 
sitions beyond  some  proneness  to  anger,  and 
a  considerable  degree  of  harshness  in  his 
demeanor.*  As  for  the  charge  of  having 
*  The  king's  manners  veere  not  good.  He  spoke 
and  behaved  to  ladies  with  indelicacy  in  public. — 
See  Warburton's  Notes  on  Clarendon,  vii.,  629,  and 
a  passage  in  Milton's  Defeusio  pro  Populo  Angli- 
cano,  quoted  by  Harris  and  Brodie.  He  once  for- 
got himself  so  far  as  to  cane  the  younger  Sir  Henry 
Vane  for  coming  into  a  room  of  the  palace  resei-ved 
for  persons  of  higher  rank. — Carte's  Ormond,  i.,  356, 
where  other  instances  are  mentioned  by  that  friend- 
ly writer.  He  had,  in  truth,  none  who  loved  him, 
till  his  misfortunes  softened  his  temper  and  excited 
sympathy. 

An  anecdote,  strongly  intimating  the  violence  of 
Charles's  temper,  has  been  rejected  by  his  advo- 
cates. It  is  said  that  Burnet,  in  searcliing  the 
Hamilton  papers,  found  that  the  king,  on  discover- 
ing the  celebrated  letter  of  the  Scots  covenanting 
lords  to  the  King  of  France,  was  so  incensed  that 
he  sent  an  order  to  Sir  William  Balfour,  heutenaut- 
governor  of  the  Tower,  to  cut  oft'  the  head  of  his 
1  prisoner.  Lord  Loudon ;  but  that  the  Marquis  of 
I  Hamilton,  to  whom  Balfour  immediatel}'  communi- 


364 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  X. 


caused  the  bloodshed  of  the  "war,  upon 
which,  and  not  on  any  former  misgovern- 
ment,  his  condemnation  was  grounded,  it 
was  as  il!  established  as  it  would  have  been 
insufficient.  Well  might  the  Earl  of  North- 
umberland say,  when  the  ordinance  for  the 
king's  trial  was  before  the  Lords,  that  the 
gi'eatest  part  of  the  people  of  England  were 
not  yet  satisfied  whether  the  king  levied 
war  first  against  the  Houses,  or  the  Houses 
against  him.*  The  fact,  in  my  opinion, 
was  entirely  othei-wise.  It  is  quite  anoth- 
er question  whether  the  Paa-liament  were 
justified  in  their  resistance  to  the  king's 
legal  authority.  But  we  may  contend  that, 
when  Hotham,  by  their  command,  shut  the 
gates  of  Hull  against  his  sovereign,  when 
the  militia  was  called  out  in  different  coun- 
ties by  an  ordinance  of  the  two  Houses, 
both  of  which  preceded  by  several  weeks 
any  levying  of  forces  for  the  king,  the  bonds 
of  our  constitutional  law  were  by  them  and 
their  servants  snapped  asunder ;  and  it 
would  be  the  mere  pedanhy  and  chicane 
of  pohtical  casuistiy  to  inquire,  even  if  the 
fact  could  be  better  ascertained,  whether 
at  EdgehiU,  or  in  the  minor  skirmishes  that 
preceded,  the  first  carbine  was  dischai-ged 
by  a  Cavalier  or  a  Roundhead.  The  ag- 
gi-essor  in  a  war  is  not  the  first  who  uses 
force,  but  the  first  who  renders  force  nec- 
essaiy. 

But,  whether  we  may  think  this  war  to 
have  originated  in  the  king's  or  the  Parlia- 


third  of  the  Commons,  by  the  principal 
body  of  the  gentry,  and  a  large  proportion  of 
other  classes.  If  his  adherents  did  not  form, 
as  I  think  they  did  not,  the  majority  of  the 
people,  they  were  at  least  more  numerous, 
beyond  comparison,  than  those  who  de- 
manded or  approved  of  his  death.  The 
steady,  deliberate  perseverance  of  so  con- 
siderable a  bod}'  in  any  cause  takes  away 
the  right  of  punishment  from  the  conquer- 
ors, beyond  what  their  own  safety  or  reas- 
onable indemnification  may  require.  The 
vanquished  are  to  be  judged  by  the  rules  of 
national,  not  of  municipal  law.  Hence,  if 
Charles,  after  having  by  a  course  of  victo- 
ries or  the  defection  of  the  people  prostra- 
ted all  opposition,  had  abused  his  triumph  by 
the  execution  of  Essex  or  Hampden,  Fairfax 
or  Cromwell,  I  think  that  later  ages  would 
have  disapproved  of  their  deaths  as  positive- 
ly, though  not  quite  as  vehemently,  as  they 
have  of  his  own.  The  line  is  not  easily 
drawn,  in  absU'act  reasoning,  between  the 
ti'eason  which  is  justly  punished,  and  the 
social  schism  which  is  beyond  the  proper 
boundaries  of  law  ;  but  the  civil  war  of  Eng- 
land seems  plainly  to  fall  within  the  latter 
description.  These  objections  strike  me  as 
unanswerable,  even  if  the  trial  of  Charles 
had  been  sanctioned  by  the  voice  of  the  na- 
tion through  its  legitimate  representatives, 
or  at  least  such  a  fair  and  full  convention  as 
might,  in  gi-eat  necessity,  supply  the  place 
of  lawful  authority.    But  it  was,  as  we  all 


ment's  aggi-ession,  it  is  still  evident  that  the  |  know,  the  act  of  a  bold  but  very  small  nii- 

noritj-,  who,  having  forcibly  expelled  their 
colleagues  fi'om  Parliament,  had  usurped, 
under  tire  protection  of  a  military  force,  that 
power  which  all  England  reckoned  illegal. 
I  c£in  not  perceive  what  there  was  in  the 
imagined  solemnity  of  this  proceeding,  in 
that  insolent  mockery  of  the  forms  of  jus- 
tice, accompanied  by  all  iinfairness  and  in- 
humanity in  its  circumstances,  which  can 
alleviate  the  guilt  of  the  transaction  ;  and  if 
it  be  alleged  that  many  of  the  regicides  were 
firmly  persuaded  in  their  consciences  of  the 
right  and  duty  of  condemning  the  king,  we 
may  surely  remember  that  private  murder- 
ers have  often  had  the  same  apology. 

In  discussing  each  particular  ti-ansaction 
in  the  life  of  Charles,  as  of  any  oth-  jjis  char- 
er  sovereign,  it  is  required  by  the 
truth  of  history  to  spare  no  just  animadver- 
sion upon  his  faults,  especially  where  much 


former  had  a  fair  case  with  the  nation,  a 
cause  which  it  was  no  plain  violation  of 
justice  to  defend.  He  was  supported  by 
the  greater  part  of  the  Peers,  by  full  one 

cated  this,  urged  so  strons'ly  on  the  king  that  the 
city  would  be  up  iu  anus  ou  this  violence,  that 
with  reluctance  he  withdrew  the  wan-ant.  This 
story  is  told  by  Oldmixon,  Hist,  of  the  Stuarts,  p. 
140.  It  was  brought  forward  on  Burnet's  authority, 
and  also  on  that  of  the  Dake  of  Hamilton,  killed  in 
1712,  by  Dr.  Birch,  no  incompetent  judge  of  histori- 
cal evidence  :  it  seems  confirmed  by  an  intimation 
given  by  Burnet  himself  in  his  Memoirs  of  the 
Duke  of  Hamilton,  p.  161.  It  is  also  mentioned  by 
Scott  of  Scotstar\-et,  a  cotemporary  writer.  Har- 
ris, p.  3.30,  quotes  other  authorities,  earlier  than  the 
anecdote  told  of  Bumet;  and.  upon  the  whole,  I 
think  the  story  deserving  credit,  and  by  no  means 
80  much  to  be  slighted  as  the  Oxford  editor  of  Bur- 
net has  thought  fit  to  do. 

*  Clement  Walker,  Hist,  of  Independency,  Part 
II.,  p.  53. 


Cha.  I— 164a-49.] 


FROM  HENRY  VU.  TO  GEORGE  II. 


365 


art  has  been  employed  by  the  writers  most 
in  repute  to  cariy  the  sti-eam  of  public  prej- 
udice in  an  opposite  direction.    But  when 
we  come  to  a  general  estimate  of  his  char- 
acter, we  should  act  unfairly  not  to  give 
their  full  weight  to  those  peculiar  circum- 
stances of  his  condition  in  this  worldly  scene, 
which  tend  to  account  for  and  extenuate  his 
failings.    The  station  of  kings  is,  in  a  moral 
sense,  so  unfavorable,  that  those  who  are 
least  prone  to  seiTile  admu'ation  should  be 
on  their  guard  against  the  opposite  error  of 
an  uncandid  severity.    There  seems  no 
fiiirer  method  of  estuuating  the  inti-insic 
worth  of  a  sovereign  than  to  ti-eat  him  as  a 
subject,  and  to  judge,  so  far  as  the  history 
of  his  life  enables  us,  what  he  would  have 
been  in  that  more  private  and  happier  con- 
dition from  which  the  chance  of  bii-th  has 
excluded  him.    Tried  by  this  test,  we  can 
not  doubt  that  Charles  the  First  would  have 
been  not  altogether  an  amiable  man,  but  one 
deserving  of  general  esteem ;  his  firm  and 
conscientious  virtues  the  same,  his  devia- 
tions from  right  far  less  fi-equent  than  upon 
the  throne.    It  is  to  be  pleaded  for  this 
prince  that  his  youth  had  breathed  but  the 
contaminated  air  of  a  profligate  and  servile 
court,  that  he  had  imbibed  the  lessons  of 
arbitraiy  power  fi'om  all  who  surrounded 
him,  that  he  had  been  beh'ayed  by  a  father's 
culpable  blindness  into  the  dangerous  soci- 
ety of  an  ambitious,  unprincipled  favorite. 
To  have  maintained  so  much  coiTectness  of 
morality  as  his  enemies  confess,  was  a  proof 
of  Charles's  vii-tuous  dispositions  ;  but  his 
advocates  are  compelled,  also,  to  own  that  he 
did  not  escape  as  Httle  injured  by  the  pois- 
onous adulation  to  which  he  had  listened. 
Of  a  temper  by  nature,  and  by  want  of  re- 
straint, too  passionate,  though  not  vindic- 
tive ;  and,  though  not  cruel,  certainly  defi- 
cient in  gentleness  and  humanitj',  he  was  en- 
tirely unfit  for  the  very  difl^cult  station  of 
royalty,  and  especially  for  that  of  a  Constitu- 
tional king.   It  is  impossible  to  excuse  his  vi- 
olations of  liberty  on  the  score  of  ignorance, 
especially  after  the  Petition  of  Right,  be- 
cause his  impatience  of  opposition  from  his 
council  made  it  unsafe  to  give  him  any  ad- 
vice that  thwarted  his  determination.  His 
other  gi-eat  fault  was  want  of  sincerity :  a 
fault  that  appeared  in  all  parts  of  his  life, 
and  from  which  no  one  who  has  paid  the 
subject  any  attention  will  pretend  to  excul- 


pate him.  Those,  indeed,  who  know  noth- 
ing but  what  they  find  in  Hume,  may  be- 
lieve, on  Hume's  authority,  that  the  king's 
cotemporaries  never  dreamed  of  imputing 
to  him  any  deviation  from  good  faith  ;  as  if 
the  whole  conduct  of  the  Parliament  had 
not  been  evidently  founded  upon  a  distrust, 
which  on  many  occasions  they  very  explic- 
itly declared.  But,  so  far  as  this  insinceri- 
ty was  shown  in  the  course  of  his  troubles, 
it  was  a  failing  which  untoward  circumstan- 
ces are  apt  to  produce,  and  which  the  ex- 
treme hypocrisy  of  many  among  his  adver- 
saries might  sometimes  palliate.  Few  per- 
sonages in  histoiy,  we  should  recollect, 
have  had -so  much  of  their  actions  revealed 
and  commented  upon  as  Charles ;  it  is, 
perhaps,  a  mortifying  truth,  that  those  who 
have  stood  highest  with  posterity  have  sel- 
dom been  those  who  have  been  most  accu- 
rately known. 

The  turn  of  his  mind  was  rather  pecu- 
liar, and  laid  him  open  with  some  justice  to 
very  opposite  censures — for  an  extreme  ob- 
stinacy in  retaining  his  opinion,  and  for  an 
excessive  facility  in  adopting  that  of  others. 
But  the  apparent  incongruity  ceases  when 
we  observe  that  he  was  tenacious  of  ends 
and  u-resolute  as  to  means ;  better  fitted  to 
reason  than  to  act ;  never  swerving  from  a 
few  main  principles,  but  diffident  of  his  own 
judgment  in  its  application  to  the  course  of 
aflairs.  His  chief  talent  was  an  acuteness 
in  dispute  ;  a  talent  not  usually'  much  exer- 
cised by  kings,  but  which  the  strange  events 
of  his  life  called  into  action.  He  had,  un- 
fortunately for  himself,  gone  into  the  study 
most  fashionable  in  that  age,  of  polemical 
theology ;  and,  though  not  at  all  learned, 
had  read  enough  of  the  English  divines  to 
maintain  their  side  of  the  current  conti-o- 
versies  with  much  dexterity.  But  this  un- 
kingly  talent  was  a  poor  compensation  for 
the  continual  mistakes  of  his  judgment  in 
the  art  of  government  and  the  conduct  of 
his  affairs.* 


*  Clarendon,  Collier,  and  the  Higli-Churcli  writers 
in  general,  are  veiy  proud  of  the  saperioiity  they 
fancy  the  king  to  have  obtained  in  a  long  argu- 
mentation held  at  Newcastle  with  Henderson,  a 
Scots  minister,  on  church  authority  and  government. 
This  was  conducted  in  writing,  and  the  papers  af- 
terward published.  They  may  be  read  in  the  king's 
Works,  and  in  Collier,  p.  8-42.  It  is  more  than  in- 
sinuated that  Henderson  died  of  mortification  at  Iiia 
defeat.    He  certainly  had  not  the  excuse  of  the 


366 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


It  s«ems  natural  not  to  leave  untouched 
1  B  1  kf  ^'"^  place  the  famous  prob- 
lem of  the  Icon  Basilike,  which 
has  been  deemed  an  u-refragable  evidence 
both  of  the  virtues  and  the  talents  of  Charles. 
But  the  authenticity  of  this  work  can  hard- 
ly be  any  longer  a  question  among  judicious 
men.  We  have  letters  from  Gauden  and 
his  family,  asserting  it  as  his  own  in  the 
most  express  terms,  and  making  it  the 
ground  of  a  claim  for  reward.  We  know 
that  the  king's  sons  were  both  convinced 
that  it  was  not  their  father's  composition, 
and  that  Clarendon  was  satisfied  of  the 
same.  If  Gauden  not  only  set  up  a  false 
claim  to  so  famous  a  work,  but  persuaded 
those  nearest  to  the  king  to  surrender  that 
precious  record,  as  it  had  been  reckoned, 
of  his  dying  sentiments,  it  was  an  instance 
of  successful  impudence  which  has  hardly 
a  parallel.  But  I  should  be  content  to  rest 
the  case  on  that  intenial  evidence,  Avhich 
has  been  so  often  alleged  for  its  authenticj- 
ty.  The  Icon  has  to  my  judgment  all  the 
air  of  a  fictitious  composition.  Cold,  stiff, 
elaborate,  without  a  single  allusion  that  be- 
speaks the  superior  knowledge  of  facts 
which  the  king  must  have  possessed,  it 
contains  little  but  those  rhetorical  common- 
places which  would  suggest  themselves  to 
any  forger.  The  prejudices  of  party,  which 
exercise  a  strange  influence  in  matters  of 
taste,  have  caused  this  book  to  be  extrava- 
gantly praised.  It  has,  doubtless,  a  certain 
air  of  grave  dignity,  and  the  periods  are 
more  artificially  constructed  than  was  usual 
in  that  age  (a  circumstance  not  in  favor  of 
its  authenticity) ;  but  the  style  is  encum- 
bered with  frigid  metaphors,  as  is  said  to  be 
the  case  in  Gauden's  acknowledged  writ- 
ings ;  and  the  thoughts  are  neither  beauti- 
ful, nor  always  exempt  from  affectation. 
The  king's  letters  during  his  imprisonment, 
preserved  in  the  Clarendon  State  Papers, 
and  especially  one  to  his  son,  from  which 
an  extract  is  given  in  the  History  of  the 

pliilosophei-,  who  said  he  had  no  shame  in  yielding 
to  the  master  of  fifty  legions.  Bat  those  who  take 
the  ti'onble  to  read  these  papers  will  probably  not 
think  one  party  so  much  the  sti-ouger  as  to  shorten 
the  other's  days.  They  show  that  Charles  held 
those  exti-avagant  tenets  about  the  authority  of  the 
Church  and  of  the  fathers  which  are  irreconcilable 
with  Protestantism  in  any  country  where  it  is  not 
established,  and  are  likely  to  drive  it  out  where  it 
is  so. 


Rebellion,  are  more  satisfactory  proofs  of 
his  integrity  than  the  labored  self-panegj-r- 
ics  of  the  Icon  Basilike.* 


PART  II. 
Abolition  of  the  Monarcliy,  and  of  the  House  of 
Lords. —  Commonwealth.  —  Schemes  of  Crom- 
well.—  His  Conversations  with  Whitelock. — 
Unpopularity  of  the  Parliament. — Their  Fall. — 
Little  Parliament. — Instrument  of  Government. 
—  Parliament  called  by  CromweU.  —  Dissolved 
by  him. — Intrigues  of  the  King  and  his  Party. 
— Insurrectionary  Movements  m  1665. — Rigor- 
ous Measures  of  Cromwell. — His  arbitrary  Gov- 
ernment.— He  summons  another  Parliament. — 
Designs  to  take  the  Crown  ;  the  Project  fails, 
but  his  Authority  as  Protector  is  augmented. — 
He  aims  at  forming  a  new  House  of  Lords. — 
His  Death,  and  Character. — Richard  his  Son 
succeeds  him. — Is  supported  by  some  prudent 
Men,  but  opposed  by  a  Coalition. — Calls  a  Par- 
liament. —  The  Army  overtlirow  both.  —  Long 
Parliament  restored. — Expelled  again,  and  again 
restored.  —  Impossibility  of  establishing  a  Re- 
public.— Intrigues  of  the  Royalists. — Tliey  unite 
with  the  Presbyterians. — Conspiracy  of  1659. — 
Interference  of  Mouk.  —  His  Dissimulation.  — 
Secluded  Members  return  to  their  Seats. — Diffi- 
culties about  the  Restoration.  —  New  ParUa- 
ment. — King  restored. — ^Whether  previous  Con- 
ditions required. — Plan  of  reviving  the  Treaty 
of  Newport  inexpedient. — ^Difficulty  of  framing 
Conditions.  —  Conduct  of  the  Convention  about 
this  not  blamable,  except  in  respect  of  the  Mi- 
litia.— Conduct  of  Monk. 

The  death  of  Charles  the  First  was 
pressed  foi-ward  rather  through  , 

'  ,11  Abolition  of 

personal  hatred  and  superstition  the  monar- 
than  out  of  any  notion  of  its  ne- 
cessity  to  secure  a  Republican  administra- 
tion. That  party  was  still  so  weak,  that 
the  Commons  came  more  slowly,  and  with 
more  diflference  of  judgment  than  might  be 
expected,  to  an  absolute  renunciation  of 
monarchy.  They  voted,  indeed,  that  the 
people  are,  under  God,  the  original  of  all 
just  power ;  and  that  whatever  is  enacted 
by  the  Commons  in  Parliament  liath  the 
force  of  law.  although  the  consent  and  con- 
cun-ence  of  the  king  or  House  of  Peers  be 
not  had  thereto :  terms  manifestly  not  ex- 

*  The  note  on  this  passage,  which,  on  account 
of  its  length,  was  placed  at  the  end  of  the  volume 
in  the  first  two  editions,  is  withdrawn  in  this,  as 
relating  to  amatter of  literarj- controversy  little  con- 
nected with  the  general  objects  of  this  work.  It  is 
needless  to  add,  that  the  author  entertains  not  the 
smallest  doubt  about  the  justness  of  the  arguments 
he  had  employed. — Xole  to  the  Third  Edition. 


Cha.  I.— 1642-49.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


367 


elusive  of  the  nominal  continuance  of  the 
two  latter.  They  altered  the  public  style 
from  the  king's  name  to  that  of  the  Pai'lia- 
ment,  and  gave  other  indications  of  their 
intentions  ;  but  the  vote  for  the  abolition  of 
monarchy  did  not  pass  till  the  7th  of  Febru- 
ary, after  a  debate,  according  to  Whitelock, 
but  without  a  division.  None  of  that  clam- 
orous fanaticism  showed  itself,  Avhich,  with- 
in the  memory  of  many,*  produced,  from  a 
far  more  numerous  assembly,  an  instanta- 
neous decision  against  monarchy.  Wise 
men  might  easily  perceive  that  the  regal 
power  was  only  suspended  through  the 
force  of  circumstances,  not  abrogated  by 
any  real  change  in  public  opinion. 

The  House  of  Lords,  still  less  able  than 
,  , the  crown  to  withstand  the  inroads 

and  of  the 

House  of  of  democracy,  fell  by  a  vote  of  the 
Lords.  Commons  at  the  same  time.  It 
had  contituied,  during  the  whole  progress 
of  the  war,  to  keep  up  ?is  much  dignity  as 
the  state  of  affairs  would  pennit;  tenacious 
of  small  privileges,  and  offering  much  tem- 
pgrary  opposition  in  higher  matters,  though 
always  receding  in  the  end  from  a  conten- 
tion wherein  it  could  not  be  successful. 
The  Commons,  in  return,  gave  them  re- 
spectful language,  and  discountenanced  the 
rude  innovators  who  talked  against  the 
rights  of  the  peerage.  They  voted,  on  oc- 
casion of  some  mmors,  that  they  held  them- 
selves obliged,  by  the  fundamental  laws  of 
the  kingdom  and  their  covenant,  to  pre- 
serve the  peerage,  with  the  rights  and  priv- 
ileges belonging  to  the  House  of  Peers, 
equally  with  their  own.f  Yet  this  was 
with  a  secret  resei-ve  that  the  Lords  should 
be  of  the  same  mind  as  themselves  ;  for  the 
Upper  House  having  resented  some  words 
dropped  from  Sir  John  Evelyn  at  a  confer- 
ence concerning  the  removal  of  the  king  to 
Warwick  Castle,  importing  that  the  Com- 
mons might  be  compelled  to  act  without 
them,  the  Commons  vindicating  their  mem- 
ber as  if  his  words  did  not  bear  that  inter- 
pretation, yet  added,  in  the  same  breath,  a 
plain  liint  that  it  was  not  beyond  their  own 
views  of  what  might  be  done ;  "  hoping  that 
their  lordships  did  not  intend  by  their  infer- 

*  1827. 

t  Pari.  Hist.,  349.  The  council  of  war  more  than 
once,  in  the  year  1647,  declared  their  intention  of 
presei-ving  the  rights  of  the  peerage. — Whitelock, 
288,  and  Sir  William  Waller's  Vindication,  192. 


ence  upon  the  words,  even  in  the  sense 
they  took  the  same,  so  to  bind  up  this 
House  to  one  way  of  proceeding  as  that  in 
no  case  whatsoever,  though  never  so  ex- 
traordinary, though  never  so  much  import- 
ing the  honor  and  interest  of  the  kingdom, 
the  Commons  of  England  might  not  do  their 
duty,  for  the  good  and  safety  of  the  king- 
dom, in  such  a  way  as  they  may,  if  they 
can  not  do  it  in  such  a  way  as  they  would 
and  most  desire."* 

After  the  violent  seclusion  of  the  Consti- 
tutional party  from  the  House  of  Commons, 
on  the  6th  of  December,  1648,  very  few, 
not  generally  more  than  five,  peers  contin- 
ued to  meet.  Their  number  was  suddenly 
increased  to  twelve  on  the  second  of  Janua- 
ry, when  the  vote  of  the  Commons,  that  it 
is  high  treason  in  the  King  of  England  for 
the  time  being  to  levy  war  against  Parlia- 
ment, and  the  ordinance  constituting  the 
high  court  of  justice,  were  sent  up  for  their 
concurrence.  These  were  unanimously 
rejected  with  more  spirit  than  some,  at 
least,  of  their  number  might  be  expected 
to  display ;  yet,  as  if  apprehensive  of  giving 
too  much  umbrage,  they  voted  at  their  next 
meeting  to  prepare  an  ordinance,  making  it 
treasonable  for  any  future  King  of  England 
to  levy  war  against  the  Parliament :  a  meas- 
ure quite  as  unconstitutional  as  that  they 
had  rejected.  They  continued  to  linger  on 
the  verge  of  annihilation  during  the  month, 
making  petty  orders  about  writs  of  eiTor, 
from  four  to  six  being  present :  they  even 
met  on  the  30th  of  January.  On  the  1st 
of  February,  six  peers  forming  the  House, 
it  was  moved  "  that  they  would  take  into 
consideration  the  settlement  of  the  govern- 
ment of  England  and  Ireland,  in  this  pres- 
ent conjuncture  of  things  upon  the  death  of 
the  king,"  and  ordered  that  these  lords  fol- 
lowing (naming  those  present  and  three 
more)  be  appointed  to  join  with  a  propor- 
tionable number  of  the  House  of  Commons 
for  that  purpose.  Soon  after,  their  speak- 
er acquainted  the  House  that  he  had  that 
morning  received  a  letter  from  the  Earl  of 
Northumberland,  "with  a  paper  inclosed, 
of  veiy  great  concernment;"  and  for  the 
present  the  House  ordered  that  it  should 
be  sealed  up  with  the  speaker's  seal.  This 
probably  related  to  the  impending  dissolu- 
tion of  their  House;  for  they  found  next 
*  Commons'  Journal,  13th  and  19th  of  May,  1646. 


3G3 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


daj'  that  theii"  messengers  sent  to  the  Com- 
mons had  not  been  admitted.  They  per- 
sisted, however,  in  meeting  till  the  6th, 
when  they  made  a  trifling  order,  and  ad- 
journed '"till  ten  o'clock  to-morrow."* 
That  mon-ow  was  the  25th  of  April,  IGGO. 
For  the  Commons,  having  the  same  day  re- 
jected, by  a  majority  of  forty-fom-  to  twen- 
tj^-nine,  a  motion  that  they  would  take  the 
advice  of  the  House  of  Lords  in  the  exer- 
cise of  the  legislative  power,  resolved  that 
the  House  of  Peers  was  useless  and  danger- 
ous, and  ought  to  be  abolished. f  It  should 
be  noticed  that  there  was  no  intention  of 
taking  away  the  dignity  of  peerage  ;  the 
Lords,  throughout  the  whole  duration  of 
the  Commonwealth,  retained  their  titles, 
not  only  in  common  usage,  but  in  all  legal 
and  Parliamentaiy  documents.  The  Earl 
of  Pembroke,  basest  among  the  base,  con- 
descended to  sit  in  the  House  of  Commons 
as  knight  for  the  county  of  Berks  ;  and  was 
received,  notwithstanding  his  proverbial 
meanness  and  stupidity,  with  such  excess- 
ive honor  as  displayed  the  character  of  those 
low-minded  upstarts,  who  formed  a  suffi- 
ciently numerous  portion  of  the  House  to 
give  their  tone  to  its  proceedings. t 

Thus  by  militarj'  force,  with  the  appro- 
Common-  bation  of  an  inconceivably  small  pro- 
wealth,  portion  of  the  people,  the  king  was 
put  to  death,  the  ancient  fundamental  laws 
were  overthrown,  and  a  mutilated  House  of 
Commons,  wherein  very  seldom  more  than 
seventy  or  eighty  sat,  was  invested  with  the 
supreme  authority.    So  little  countenance 

*  Lords'  Journals. 

t  Commons'  Joanjals.  It  had  been  proposed  to 
continue  the  Honse  of  Lords  as  a  court  of  judica- 
ture, or  as  a  court  of  consultation,  or  in  some  way 
or  other  to  keep  it  up.  The  majority-,  it  wiU  be  ob- 
served, was  not  verj'  great ;  so  far  was  the  demo- 
cratic scheme  from  being  universal  even  within  the 
House. — Whitelock,  377.  Two  di\nsions  had  al- 
ready taken  place;  one  on  Jan.  9,  when  it  was  car- 
ried by  thii-ty-one  to  eighteen,  that  "  a  message 
from  the  Lords  should  be  received:"  Cromwell 
strongly  supporting  the  motion,  and  being  a  teller 
for  it;  and  again  on  Jan.  IS,  when,  the  opposite 
party  prevailing,  it  was  negatived  by  twenty -five 
to  eighteen,  to  ask  their  assent  to  the  vote  of  the 
4th  instant,  that  the  sovereignty  resides  in  the 
Commons ;  which,  doubtless,  if  true,  could  not  re- 
quire the  Lords'  concurrence. 

\  Whitelock,  396.  They  voted  that  Pembroke, 
as  well  as  Salisbury  and  Howard  of  Escrick,  who 
followed  the  ignominious  example,  should  be  added 
to  all  committees. 


had  these  late  proceedings  even  from  those 
who  seemed  the  ruling  faction,  that,  when 
the  executive  council  of  state,  consisting  of 
foity-one,  had  been  nominated,  and  a  test 
was  proposed  to  them,  declaring  their  ap- 
probation of  all  that  had  been  done  about 
the  king  and  the  kingly  office,  and  about  the 
House  of  Lords,  only  nineteen  would  sub- 
scribe it,  though  there  were  fourteen  regi- 
cides on  the  list.*  It  was  agreed,  at  length, 
that  they  should  subscribe  it  only  as  to  the 
future  proceedings  of  the  Commons.  With 
such  dissatisfaction  at  headquarters,  there 
was  little  hoi^e  from  the  body  of  the  nation. f 
Hence,  when  an  engagement  was  tendered 
to  all  civil  officers  and  beneficed  clergy,  con- 
taining only  a  promise  to  live  faithful  to  the 
Commonwealth,  as  it  was  established  with- 
out a  king  or  House  of  Lords  (though  the 
slightest  test  of  allegiance  that  any  govern- 
ment could  require),  it  was  taken  with  infi- 
nite reluctemce,  and,  in  fact,  refused  by  vei-y 
many ;  the  Presbyterian  ministers  espe- 
cially showing  a  determined  averseness  to 
the  new  Republican  organization. J 

This,  however,  was  established  (such  is 
the  dominion  of  the  sword)  far  beyond  the 
conti'ol  of  any  national  sentiment.  Thirty 
thousand  veteran  soldiers  guarantied  the 
mock  Parliament  they  had  permitted  to 
reign.  The  sectaries,  a  numerous  bodj', 
and  still  more  active  than  numerous,  pos- 
sessed, under  the  name  of  committees  for 
various  purposes  appointed  by  the  House 
of  Commons,  the  principal  local  authorities, 
and  restrained  by  a  vigilant  scratiny  the 

*  Commons' Journals.  Whitelock.  It  had  been 
referred  to  a  committee  of  five  members,  Lisle, 
Holland,  Robinson,  Scott,  and  Ludlow,  to  recom- 
mend thirty -five  for  a  council  of  state ;  to  whose 
nominations  the  Honse  agreed,  and  added  their 
own. — Ludlow,  i.,  288.  They  were  appointed  for  a 
year;  but  in  1650  the  House  only  left  out  two  of 
the  former  Ust,  besides  those  who  were  dead. — 
Whitelock,  441.  In  1651  the  change  was  more 
considerable. — Id.,  48S. 

t  Six  judges  agreed  to  hold  on  their  commissions, 
six  refused.  Whitelock,  who  makes  a  poor  figure 
at  this  time  on  his  own  showing,  consented  to  act 
still  as  commissioner  of  the  great  seal.  Those  who 
remained  in  office  afi'ected  to  stipulate  that  the 
fundamental  laws  should  not  be  abolished ;  and  the 
House  passed  a  vote  to  this  efiect. — Whitelock, 
378. 

t  Whitelock,  444,  et  alibi.  Baxter's  Life,  64.  A 
committee  was  appointed,  April,  1649,  to  inquire 
about  ministers  who  asperse  the  proceedings  of 
Parliament  in  their  pulpits. — A^Tiitelock,  395. 


Commonwealth.] 


FROM  HEXRY  VII.  TO  GEORGE  II. 


369 


muruiiii-s  of  a  disaffected  majority.  Love, 
an  einineot  Presbyterian  minister,  lost  his 
head  for  a  conspiracy,  by  the  sentence  of  a 
high  court  of  justice,  a  ti'ibuual  that  super- 
seded trial  by  jury.*  His  death  struck 
hoiTor  and  consternation  into  that  arrogant 
priesthood,  who  had  begun  to  fancy  them- 
selves almost  beyond  the  scope  of  criminal 
law.  The  Cavaliers  were  prostrate  in  the 
dust ;  and,  anxious  to  retrieve  something 
from  the  wreck  of  their  long  sequestered 
estates,  had  generally  httle  appetite  to  em- 
bark afresh  in  a  hopeless  cause  ;  besides 
that  the  mutual  animosities  between  their 
party  and  the  Presbyterians  were  still  too 
irreconcilable  to  admit  of  any  sincere  co-op- 
eration. Hence  neither  made  any  consid- 
erable effort  in  behalf  of  Charles  on  his 
march,  or  rather  flight,  into  England :  a 
measure,  indeed,  too  palpably  desperate  for 
prudent  men  who  had  learned  the  strength 
of  theii'  adversaries ;  and  the  great  victoiy 
of  Worcester  consummated  the  ti'iumph  of 
the  infant  Commonwealth,  or,  rather,  of  its 
future  master. 

A  ti'.iiu  of  favoring  events,  more  than  any 
Schemes  of  deep-laid  policy,  had  now  brought 
Cromwell,  sovereignty  within  the  reach  of 
Cromwell.  His  first  schemes  of  ambition 
may  probably  have  extended  no  further  than 
a  title  and  estate,  with  a  great  civil  and  niil- 
itaiy  command  in  the  king's  name.  Power 
had  fallen  into  his  hands  because  they  alone 
were  fit  to  wield  it :  he  was  taught  by  ev- 
ery succeeding  event  his  own  undeniable 
superiority  over  his  cotemporaries  in  mar- 
tial renown,  in  civil  prudence,  in  decision  of 
character,  and  in  the  public  esteem  which 
naturally  attached  to  these  qualities.  Per- 
haps it  was  not  till  after  the  battle  of  Wor- 
cester that  he  began  to  fix  his  thoughts,  if 
not  on  the  dignity  of  royalty,  yet  on  an 
equivalent  right  of  command.     Two  re- 


*  State  Trials,  v.,  43.  Baxter  says  that  Love's 
death  hurt  the  new  Common-n-ealth  more  than 
would  be  easily  believed,  and  made  it  odious  to  all 
the  religious  partj'  in  the  land  except  the  sectaries. 
— Life  of  Baxter,  67.  But  "oderiut  dummetuant" 
is  the  device  of  those  who  rule  in  revolutions. 
Clarendon  speaks,  on  the  coutraiy,  of  Love's  exe- 
cution triumphantly.  He  had  been  distinguished 
by  a  violent  sermon  during  the  treaty  of  Uxbridge, 
for  which  the  Parliament,  on  the  complaiut  of  the 
king's  commissioners,  put  him  in  confinement ; 
Thurloe,  i.,  65 ;  State  Trials,  201 :  though  the  noble 
historian,  as  usual,  represents  this  otherwise.  He 
also  misstates  Love's  dying  speech. 

A  A 


markable  conversations,  m  which  „ 

iiri  -,11  conver- 

\\  hitelock  bore  a  part,  seem  to  sanons  with 
place  beyond  contr-oversy  the  na- 
tiu'e  of  his  designs.  About  the  end  of  1651, 
Whitelock  himself,  St.  John,  Widdriugton, 
Lenthall,  Harrison,  Desborough.  Fleet- 
wood, and  AMialley,  met  Cromwell,  at  his 
own  request,  to  consider  the  settlement  of 
the  nation.  The  four  former  were  in  fa- 
vor of  monarchy,  Whitelock  inclining  to 
Charles,  Widdriugton  and  others  to  the 
Duke  of  Gloucester;  Desborough  and 
Whalley  were  against  a  single  person's 
government,  and  Fleetwood  uncertain. 
Ci'omwell,  who  had  evidently  procured 
this  conference  in  order  to  sift  the  inclina- 
tions of  so  many  leading  men,  and  to  give 
some  intimation  of  his  own,  broke  it  up  with 
remarking,  that,  if  it  might  be  done  with 
safety  and  preservation  of  their  rights  as 
Englishmen  and  Christians,  a  settlement  of 
somewhat  with  monarchical  power  in  it 
would  be  very  effectual.*  The  obsenation 
he  here  made  of  a  disposition  among  the 
lawyers  to  elect  the  Duke  of  Gloucester, 
as  being  exempt  by  his  youth  from  the  pre- 
possessions of  the  t^vo  elder  brothers,  may, 
perhaps,  have  put  Cromwell  on  releasing 
him  from  confinement,  and  sending  him  to 
join  his  family  beyond  sea.f 

Twelve  months  after  this  time,  in  a  more 
confidential  discourse  with  Whitelock  alone, 
the  general  took  occasion  to  complain  both 
of  the  chief  officers  of  the  army  and  of  the 
Parliament :  the  first,  as  inclined  to  factious 
murmurings,  and  the  second,  as  engrossing 
all  offices  to  themselves,  divided  into  par- 


*  Whitelock,  516. 

t  The  Parliament  had  resolved,  24th  of  July,  1650, 
that  Henry  Stuart,  son  of  the  late  king,  and  the 
Lady  EUznbeth,  daughter  of  the  late  king,  be  re- 
moved forthwith  beyond  the  seas,  out  of  the  hmits 
of  this  Commonwealth.  Yet  this  intention  seems 
to  have  been  soon  changed  ;  for  it  is  resolved,  Sept. 
11,  to  give  the  Duke  of  Gloucester  £1500  per  an- 
num for  his  maintenance  so  long  as  he  should  be- 
have himself  inoffensiveh'.  Whether  this  proceed- 
ed from  liberality,  or  from  a  vague  idea  that  they 
might  one  day  make  use  of  him,  is  hard  to  say. 
Clarendon  mentions  the  scheme  of  makmg  the  Duke 
of  Gloucester  king  in  one  of  his  letters  (iii.,  38, 11th 
of  Nov.,  1651) ;  but  says,  "  Truly  I  do  beUeve  that 
Cromwell  might  as  easily  procure  himself  to  be 
chosen  king  as  the  Duke  of  Gloucester;  for,  as 
none  of  the  king's  party  would  assist  the  la^t,  so  I 
am  pei-suaded  both  Presbyterians  and  Independents 
would  have  much  sooner  the  former  than  any  of  the 
race  of  him  whom  they  have  murthered." 


370 


CONSTITUTIONAL  HISTOKY  OF  ENGLAND 


[Chap.  X. 


ties,  delaying  business,  guilty  of  gross  injus- 
tice and  partiality,  and  designing  to  perpet- 
uate their  own  authority.  Whitelock,  con- 
fessing part  of  this,  urged  that,  having  taken 
commissions  fi'om  them  as  the  supreme 
power,  it  would  be  difficult  to  find  means  to 
restrain  them.  "What,"  said  Cromwell, 
"if  a  man  should  take  upon  him  to  be  king  ?" 
"  I  think,"  answered  Whitelock,  "  that  rem- 
edy would  be  worse  than  the  disease." 
"Why,"  rejoined  the  other,  "do  you  think 
so  1"  He  then  pointed  out  that  the  statute 
of  Henry  VH.  gave  a  security  to  those  who 
acted  under  a  king  which  no  other  govera- 
ment  could  furnish ;  and  that  the  i-everence 
paid  by  the  people  to  that  title  would  serve 
to  curb  the  extravagancies  of  those  now 
in  power.  Whitelock  replied,  that  their 
friends  having  engaged  in  a  persuasion, 
though  eiToneous,  that  their  rights  and  lib- 
erties would  be  better  preserved  under  a 
commonwealth  than  a  monarchy,  this  state 
of  the  question  would  be  wholly  changed  by 
Cromwell's  assumption  of  the  title,  and  it 
would  become  a  private  conti'oversy  be- 
tween his  family  and  that  of  the  Stuarts. 
Finally,  on  the  other's  encouragement  to 
speak  fully  his  thoughts,  he  told  him  "  that 
no  expedient  seemed  so  desirable  as  a  pri- 
vate treaty  with  the  king,  in  which  he  might 
not  only  provide  for  the  security  of  his 
friends  and  the  gi-eatness  of  his  family,  but 
set  limits  to  monarchical  power,  keeping 
the  command  of  the  militia  in  his  own 
hands."  Cromwell  merely  said  "that  such 
a  step  would  require  great  consideration ;" 
but  broke  off  with  marks  of  displeasm-e,  and 
consulted  Whitelock  much  less  for  some 
years  afterward.* 

These  projects  of  usurpation  could  not 
deceive  the  watchfulness  of  those  whom 
Cromwell  pretended  to  sei-ve.  He  had,  on 
several  occasions,  thrown  off  enough  of  his 
habitual  dissimulation  to  show  the  Com- 
monwealth's men  that  he  was  theirs  only 
iby  accident,  with  none  of  their  fondness  for 

*  Id.,  p.  548.  Lord  Orreiy  told  Burnet  tbat  he 
ttai  once  mentioned  to  Cromwell  a  report  that  he 
■was  to  bring  in  the  kine,  who  should  marry  his 
daughter,  and  obsei'ved  that  he  saw  no  better  ex- 
pedient. Cromwell,  vrithout  expressing  any  dis- 
pleasure, said,  "The  king  can  not  forgive  his  fa- 
ther's blood ;"  which  the  other  attempted  to  an- 
swer.— Burnet,  i.,  93.  It  is  certain,  however,  that 
such  a  compromise  would  have  been  dishonorable 
for  one  party,  and  infamous  for  the  other. 


Republican  polity.    The  Parlia-  ,  . 

'  I       •'  Unpopnlanty 

ment,  in  its  present  wreck,  con-  of  the  Paiiia- 
tained  few  leaders  of  superior 
ability  ;  but  a  natural  instinct  would  dictate 
to  such  an  assembly  the  distinist  of  a  popu- 
lar general,  even  if  there  had  been  less  to 
alaiTQ  them  in  his  behavior.*    They  had  no 
means,  however,  to  withstand  him.  The 
creatures  themselves  of  military  force,  their 
pretensions  to  direct  or  conti-ol  the  army 
could  only  move  scora  or  resentment.  Their 
claim  to  a  legal  authority,  and  to  the  name 
of  representatives  of  a  people  who  rejected 
1  and  abhorred  them,  was  perfectly  impudent 
j  When  the  House  was  fullest,  their  num- 
bers did  not  much  exceed  one  hundred ;  but 
i  the  ordinaiy  divisions,  even  on  subjects  of 
j  the  highest  moment,  show  an  attendance  of 
i  but  fifty  or  sixty  members.    They  had  re- 
1  tained  in  their  hands,  notwitstanding  the 
appointment  of  a  councD  of  state,  most  of 
'  whom  were  from  their  own  body,  a  great 
part  of  the  executive  goverament,  especially 
the  disposal  of  offices,  f    These  they  largely 
shared  among  themselves  or  their  depend- 
ents ;  and  in  many  of  their  votes  gave  occa- 
sion to  such  charges  of  injustice  and  partial- 
ity as,  whether  time  or  false,  will  attach  to 
a  body  of  men  so  obviously  self-interested. t 

*  Cromwell,  in  his  letter  to  the  ParUament  after 
the  battle  of  Worcester,  called  it  a  crowning  mercy. 
This,  though  a  very  intelligible  expression,  was 
taken  in  an  invidious  sense  by  the  Republicans. 

t  Journals,  passim. 

t  One  of  their  most  scandalous  acts  was  the  sale 
of  the  Earl  of  Craven's  estate.  He  had  been  out 
of  England  during  the  war,  and  could  not,  there- 
fore, be  reckoned  a  delinquent.  But  evidence  was 
offered  that  he  had  seen  the  king  in  Holland ;  and 
upon  this  charge,  though  he  petitioned  to  be  heard, 
and,  as  is  said,  indicted  the  informer  for  perjury, 
whereof  he  was  convicted,  they  voted  by  33  to  31 
that  his  lands  should  be  sold;  Hazlerig,  the  most 
savage  zealot  of  the  whole  faction,  being  a  teller 
for  the  ayes.  Vane  for  the  noes. — Journals,  Cth  of 
March,  1651,  and  22d  of  June,  1632.  State  Trials, 
v.,  323.  On  the  20th  of  July  in  the  same  year,  it 
was  referred  to  a  committee  to  select  thirty  delin- 
quents, whose  estates  should  be  sold  for  the  use 
of  the  nav}'.  Thus,  long  after  the  cessation  of  hos- 
tiUty,  the  Royalists  continued  to  stand  in  jeopardy, 
not  only  collectively,  but  personally,  from  this  ar- 
bitrary and  \-indictive  faction.  Nor  were  these 
quahties  displayed  against  the  Royalists  alone: 
one  Josiah  Primatt,  who  seems  to  have  been  con- 
nected with  Lilbume,  Wildm.in,  and  the  Levelera, 
having  presented  a  petition  complaiuuig  that  Sir 
Arthur  Hazlerig  had  violently  dispossessed  him  of 
some  colUeries,  the  House,  after  voting  every  part 
of  the  petition  to  be  false,  adjudged  him  to  pay  a 


COMMOSWEALTH.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


371 


It  seems  to  be  a  pretty  general  opinion,  that 
R  popular  assembly  is  still  more  frequently 
influenced  by  corrupt  and  dishonest  motives 
in  the  disti-ibution  of  favors,  or  the  decision 
of  private  affaii-s,  than  a  ministiy  of  state  ; 
whether  it  be  that  it  is  more  probable  that  a 
man  of  disinterestedness  and  integi'ity  may 
in  the  course  of  events  rise  to  the  conduct 
of  government  than  that  such  virtues  should 
belong  te  a  majority,  or  that  the  clandestine 
management  of  court  corruption  renders  it 
less  scandalous  and  more  easily  varnished 
than  the  shamelessness  of  Parliamentaiy  in- 
iquity. 

The  Republican  interest  in  the  nation 
was  almost  wholly  composed  of  two  parties, 
both  offshoots  deriving  sti-ength  from  the 
gi-eat  stock  of  the  army ;  the  Levelers,  of 
whom  Lilburne  and  Wildman  are  the  most 
known,  and  the  Anabaptists,  Fifth  Monar- 
chy-men, and  other  fanatical  sectaries,  head- 
ed by  Harrison,  Hewson,  Overton,  and  a 
great  number  of  officers.  Though  the  sect- 
aries seemed  to  build  their  revolutionary 
scliemes  more  on  their  own  religious  views 
than  the  Levelere,  they  coincided  in  most 
of  their  objects  and  demands.*    An  equal 

fine  of  £3000  to  the  Commonwealth,  £2000  to  Hazle- 
rig,  and  £2000  more  to  the  commissioners  for  com- 
positions.— Journals,  15th  of  Jan.,  1651-2.  There 
had  been  a  project  of  erecting  a  university  at  Dur- 
ham, in  favor  of  vphich  a  committee  reported  (18th 
of  June,  1651),  and  for  which  the  chapter  lands 
would  have  made  a  competent  endowment.  Hazle- 
rig,  however,  got  most  of  them  into  his  own  hands, 
and  thus  frustrated,  perhaps,  a  design  of  great  im- 
portance to  education  and  literature  in  this  country; 
for  had  a  university  once  been  established,  it  is 
Just  possible,  though  not  very  likely,  that  the  estates 
■would  not  have  reverted,  on  the  king's  restoration, 
to  their  former,  but  much  less  useful  possessors. 

*  Mrs.  Hutchinson  speaks  very  favorably  of  the 
Levelers,  as  they  appeared  about  1647,  declaring 
against  the  factions  of  tlie  Presbyterians  and  Inde- 
pendents, and  the  ambitious  views  of  tlieir  leaders, 
and  especially  against  the  unreasonable  privileges 
claimed  by  the  houses  of  Parliament  collectively 
and  personally.  "  Indeed,  as  all  virtues  are  medi- 
urns  and  have  their  extremes,  there  rose  up  after 
in  that  House  a  people  who  endeavored  the  level- 
ing of  all  estates  and  qualities,  which  those  sober 
Levelers  were  never  guilty  of  desiring;  but  were 
men  of  just  and  sober  principles,  of  honest  and  re- 
ligious ends,  and  were  therefore  hated  by  all  the 
designing,  self-interested  men  of  both  factions. 
Colonel  Hutchinson  had  a  gi'eat  intimacy  with 
many  of  these  ;  and  so  far  as  they  acted  according 
to  the  just,  pious,  and  pubhc  spirit  which  they  pro 
fessed,  owned  them  and  protected  them  as  far  as 
he  had  power.    Tliese  were  they  who  first  began 


representation  of  the  people  in  short  Par 
liaments,  an  extensive  alteration  of  the  com- 
mon law,  the  abolition  of  tithes,  and,  indeed, 
of  all  regular  stipends  to  the  ministry,  a  full 
toleration  of  religious  worship,  were  refor- 
mations which  they  concurred  in  requiring, 
as  the  only  substantial  fruits  of  their  ardu- 
ous stnjggle.*    Some  among  the  wilder 
sects  dreamed  of  overthrowing  all  civil  in- 
stitutions.   These  factions  were  not  with- 
out friends  in  the  Commons  ;  but  the  great- 
er part  were  not  inclined  to  gratify  them 
by  taking  away  the  provision  of  the  Church, 
and  much  less  to  divest  themselves  of  their 
own  authority.    They  voted,  indeed,  that 
tithes  should  cease  as  soon  as  a  competent 
maintenance  should  be  otherwise  provided 
for  the  clergy. f    They  appointed  a  com- 
mission to  consider  the  reformation  of  the 
law,  in  consequence  of  repeated  petitions 
against  many  of  its  inconveniences  and  abu- 
ses ;  who,  though  taxed,  of  course,  with  dil- 
atoriness  by  the  ardent  innovators,  suggest- 
ed many  useful  improvements,  several  of 
which  have  been  adopted  in  more  regular 
times,  though  with  too  cautious  delay. ( 
They  proceeded  rather  slowly  and  reluct- 
antly to  frame  a  scheme  for  future  Parlia- 
ments, and  resolved  that  they  should  consist 

to  discover  the  ambition  of  Lieut.-general  Crom- 
well and  his  idolaters,  and  to  suspect  and  dislike 
it."— P.  285. 

*  Whitelock,  399,  401.  The  Levelers  rose  in 
arms  at  Banbury  and  other  places,  but  were  soon 
put  down,  chiefly  through  the  energy  of  CromweU, 
and  their  ruigleaders  shot. 

t  It  was  referred  to  a  committee,  29th  April, 
1052,  to  consider  how  a  convenient  and  competent 
maintenance  for  a  godly  and  able  ministry  may  be 
settled,  in  lieu  of  tithes.  A  proposed  addition, 
that  tithes  be  paid  as  before  till  such  maintenance 
be  settled,  was  canied  by  27  to  17. 

t  Journals,  19th  of  Jan.,  1652.  Hale  was  the 
first  named  on  this  commission,  and  took  an  active 
part;  but  he  was  associated  with  some  furious  Lev- 
elers, Desborough,  Tomlinson,  and  Hugh  Peters, 
so  that  it  is  liard  to  know  how  far  he  concurred  in 
the  alterations  suggested.  Many  of  them,  howev- 
er, seem  to  bear  marks  of  his  hand. — Whitelock, 
475,  517,  519,  820,  et  alibi.  There  had  been  pre- 
viously a  committee  for  the  same  purpose  in  1650. 
— See  a  list  of  the  acts  prepared  by  them  in  Somers 
Tracts,  vi.,  177 ;  several  of  them  are  worthy  of  at- 
tention. Ludlow,  indeed,  blames  the  commission 
for  slowness  ;  but  their  delay  seems  to  have  been 
very  justifiable,  and  their  suggestions  highly  valu- 
able. It  even  appears  that  they  drew  up  a  book 
containing  a  regular  digest  or  code,  which  was  or- 
dered to  be  printed.— Journals,  20th  of  January, 
1653. 


372 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chat.  X. 


of  400,  to  be  chosen  in  due  proportion  by  the 
several  counties,  nearly  upon  the  model  sug- 
gested by  Lilburne,  and  afterward  carried 
,  „  into  effect  by  Cromwell.*    It  was 

Their  fall.      .  ,  i      i  i  , 

With  much  delay  and  difficulty, 
amid  the  loud  murmurs  of  their  adherents, 
that  they  could  be  brought  to  any  vote  in 
regard  to  their  own  dissolution.  It  passed 
on  November  17,  1651,  after  some  very 
close  divisions,  that  they  should  cease  to 
exist  as  a  Parliament  on  November  3, 1654. f 
The  Republicans  out  of  doors,  who  deemed 
annual,  or  at  least  biennial.  Parliaments  es- 
sential to  theh  definition  of  liberty,  were 
indignant  at  so  unreasonable  a  prolongation. 
Thus  they  forfeited  the  good-will  of  the 
only  paity  on  whom  they  could  have  relied. 
Cromwell  dexti-ously  aggravated  their  faults : 
he  complained  of  their  delaying  the  settle- 
ment of  the  nation ;  he  persuaded  the  fanat- 
ics of  his  concuiTence  in  their  own  schemes ; 
the  Parliament,  in  tui'n,  conspired  against  his 
power,  and,  as  the  conspiracies  of  so  many 
can  never  be  secret,  let  it  be  seen  that  one 
or  other  must  be  destroyed  ;  thus  giving  his 
forcible  expulsion  of  them  the  pretext  of 
self-defense.  They  fell  with  no  regi-et,  or, 
ratJier,  with  much  joy  of  the  nation,  except 
a  few  who  dreaded  more  from  the  alterna- 
tive of  militaiy  usm'pation  or  anarchy  than 
from  an  assembly  which  still  retained  the 
names  and  forms  so  precious  in  the  eyes 

*  A  committee  was  named,  15th  of  May,  1649,  to 
take  into  cousideratiou  the  settling  of  the  succes- 
sion of  future  Parliaments  and  regulating  theii- 
elections.  Nothing  more  appears  to  have  been 
done  till  Oct.  11th,  when  the  committee  was  or- 
dered to  meet  next  day,  and  so  de  die  in  diem,  and 
to  give  an  account  thereof  to  the  House  on  Tues- 
day come  fortnight ;  all  that  came  to  have  voices, 
but  the  special  care  thereof  commended  to  Sir 
Hem-y  Vane,  Colonel  Ludlow,  mid  Mr.  Robinson. 
We  lind  nothing  further  till  Jan.  3d,  1650,  when 
the  committee  is  ordered  to  make  its  report  the 
next  Wednesday.  This  is  done  accordingly,  Jan. 
9,  when  Sir  H.  Vane  reports  the  resolutions  of  the 
committee,  one  of  which  was,  that  the  number  in 
future  ParUaments  should  be  400.  This  was  car- 
ried, after  negativing  the  previous  questioji  in  a 
committee  of  the  whole  House.  They  proceeded 
several  days  aftei^ward  on  the  same  basiness. — 
See,  also,  Ludlow,  p.  313,  435. 

t  Two  divisions  had  taken  place,  Nov.  14  (the 
first  on  tlie  previous  question),  on  a  motion  that  it 
is  convenient  to  declare  a  certain  time  for  the  con- 
tinuance of  this  Parliament,  50  to  46,  and  49  to  47. 
On  the  last  division,  Cromwell  and  St.  John  were 
tellers  for  the  ayes. 


of  tliose  who  adhere  to  the  ancient  institu- 
tions of  their  counti-y.* 

It  was  now  the  deep  policy  of  Cromwell 
to  render  himself  the  sole  refuge  Lime  par- 
of  those  who  valued  the  laws,  or  ''anient, 
the  regular  ecclesiastical  ministi'y,  or  their 
own  estates,  all  in  peril  from  the  mad  en- 
thusiasts who  were  in  hopes  to  prevail.^ 
These  he  had  admitted  into  that  motley 
convention  of  one  hundred  and  twenty  per- 
sons, sometimes  called  Barebone's  Parlia- 
ment, but  more  commonly  the  Little  Pai- 
liament,  on  whom  his  council  of  officers 
pretended  to  devolve  the  govern-  , 

*  <5  Instrument 

inent,  mingling  them  with  a  suffi-  of  Guvem- 

cient  proportion  of  a  superior  class 

whom  he  could  direct.*    This  assembly 


*  Whitelock  was  one  of  these ;  and  being  at 
that  time  out  of  Cromwell's  favor,  inveighs  much 
against  this  destruction  of  the  power  fi-om  which 
he  had  taken  his  commission,  p.  552,  554.  St.  John 
appears  to  have  concuiTed  in  the  measure.  In  fact, 
there  had  so  long  been  an  end  of  law,  that  one  usur- 
pation might  seem  as  rightful  as  another.  But, 
while  any  House  of  Commons  remained,  there  was 
a  stock  left  from  wliich  the  ancient  Constitution 
might  possibly  germinate.  Mrs.  Macaulay,  whose 
lamentations  over  the  Rump  did  not  certainly  pro- 
ceed from  this  cause,  thus  vents  her  wrath  on  the 
English  nation :  "  An  acquiescence  thus  universal 
in  the  insult  committed  on  the  guardians  of  the  In- 
fant RepubUc,  and  the  first  step  toward  the  usur- 
pation of  Cromwell,  fixes  an  indelible  stain  on  the 
character  of  the  English,  as  a  people  basely  and 
incorrigibly  attached  to  the  sovereignty  of  individ- 
uals, and  of  natures  too  ignoble  to  endure  an  em- 
pu'e  of  equal  laws,"  vol.  v.,  p.  112. 

t  Hanison,  when  Ludlow  asked  him  why  he  had 
joined  Cromwell  to  turn  out  the  Parliament,  said, 
he  thought  Cromwell  would  own  and  favor  a  set 
of  men  who  acted  on  higher  principles  than  those 
of  civil  liberty  ;  and  quoted  fi'om  Daniel,  "  that  the 
saints  shall  take  the  kingdom  and  possess  it.'' 
Ludlow  argued  against  him ;  but  what  was  argu- 
ment to  such  a  head  ?— Mem.  of  Ludlow,  p.  565. 
Not  man}-  months  after,  Cromwell  sent  his  coadju- 
tor to  Carisbrook  Castle. 

t  Hume  speaks  of  this  assembly  as  chiefl}'  com- 
posed of  the  lowest  mechanics.  But  this  was  not 
the  case.  Some  persons  of  inferior  rank  there 
were,  but  a  large  proportion  of  the  members  were 
men  of  good  family,  or,  at  least,  military  distinc- 
tion, as  the  list  of  the  names  in  the  Parliamentary 
Histoiy  is  sufficient  to  prove  ;  and  Whitelock  re- 
marks, "  It  was  much  wondered  at  by  some  that 
these  gentlemen,  many  of  them  being  persons  of 
fortune  and  knowledge,  would  at  tliis  summons, 
and  from  those  hands,  take  upon  them  the  supreme 
authority  of  this  nation,"  p.  559.  With  respect  to 
this,  it  may  be  obsen'ed,  that  tliose  who  have  lived 
in  revolutions  find  it  almost  necessary,  whether 
their  own  interests  or  those  of  their  country  are 


Commonwealth.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


373 


took  cnre  to  avoid  the  censure  which  their 
predecessors  had  incurred,  by  passing  a 
good  many  bills,  and  applying  themselves 
with  a  vigorous  hand  to  the  reformation  of 
what  tlieir  party  deemed  the  most  essen- 
tial grievances,  those  of  the  law  and  of  the 
Church.  They  voted  the  abolition  of  the 
Comt  of  Chancery,  a  measure  provoked  by 
its  insufferable  delay,  its  engi-ossing  of  al- 
most nil  suits,  and  the  uncertainty  of  its  de- 
cisions. They  appointed  a  committee  to 
consider  of  a  new  body  of  the  law,  without 
naming  any  lawyer  upon  it.*  They  nom- 
inated a  set  of  commissioners  to  preside  in 
courts  of  justice,  among  whom  they  with 
difficulty  admitted  two  of  that  profession  :| 
they  irritated  the  clergy  by  enacting  that 
marriages  should  be  solemnized  befoi'e  jus- 
tices of  the  peace  ;t  they  alarmed  them  still 
more  by  manifesting  a  determination  to  take 
awaj'  their  tithes,  without  security  for  an 
equivalent  maintenance. §  Thus  having 
united  against  itself  these  two  powerful 
bodies,  whom  neither  kings  nor  Parliaments 
in  England  have  in  general  offended  with 
impunity,  this  little  synod  of  legislators  was 
ripe  for  destruction.  Their  last  vote  was 
to  negative  a  report  of  their  own  commit- 
tee, recommending  that  such  as  should  be 
approved  as  preachers  of  the  Gospel  .should 
enjoy  the  maintenance  already  settled  by 
law;  and  that  the  payment  of  tithes,  as  a 
just  property,  should  be  enforced  by  the 

tbeir  aim,  to  comply  with  all  changes,  and  take  a 
greater  part  in  stappoi-ting  them,  than  men  of  in- 
flexible consciences  can  approve.  No  one  felt  this 
more  than  Wliitclock ;  and  his  remark  in  this  place 
is  a  satire  upon  all  his  conduct.  He  was  at  the 
moment  dissatisfied,  and  out  of  Cromwell's  favor, 
but  lost  no  time  in  regaining  it. 

*  Journals,  August  19.  This  was  carried  by  46 
to  38  against  Cromwell's  party  ;  yet  Cromwell,  two 
years  afterward,  published  an  ordinance  for  regu- 
lating and  limiting  the  jurisdiction  of  chancery, 
which  offended  Whitelock  so  much  that  he  resign- 
ed the  great  seal,  not  liaving  been  consulted  in 
framing  the  regulations.  This  is  a  rare  instance 
in  his  life  ;  and  he  vaunts  much  of  his  conscience 
accordingly,  but  thankfoUy  accepted  the  office  of 
commissioner  of  the  treasui-y  instead,  p.  631,  625. 
He  does  not  seem,  by  his  own  account,  to  have 
given  much  satisfaction  to  suitors  in  equity  (p.  548) ; 
yet  the  fault  may  have  been  theirs,  cr  the  system's. 

t  4th  of  October. 

t  This  had  been  proposed  by  the  coimnission  for 
amendment  of  the  law  appointed  in  the  Long  Par- 
liament. The  great  number  of  dissenters  from  the 
established  religion  rendered  it  a  very  reasonable 
measure.  $  Thurloe,  i.,  369  ;  iii.,  132. 


magistrates.  The  House  having,  by  the 
majority  of  two,  disagreed  with  this  re- 
port,* the  speaker,  two  days  after,  having 
secured  a  majority  of  those  present,  pro- 
posed the  sun-ender  of  their  power  into  the 
hands  of  Cromwell,  who  put  an  end  to  the 
opposition  of  the  rest  by  turning  them  out 
of  doors. 

It  can  admit  of  no  doubt  that  the  despot- 
ism of  a  wise  man  is  more  tolerable  than 
that  of  political  or  religious  fanatics  ;  and  it 
rarely  happens  that  there  is  any  better 
remedy  in  revolutions  which  have  given  the 
latter  an  ascendant.  Cromwell's  assump- 
tion, therefore,  of  the  title  of  Protector  was 
a  necessary  and  wholesome  usurpation, 
however  he  may  have  caused  the  necessity  ; 
it  secured  the  nation  from  the  mischievous 
lunacy  of  the  Anabaptists,  and  from  the 
more  cool-blooded  tyranny  of  that  little  ol- 
igarchy which  arrogjited  to  itself  the  name 
of  Commonwealth's  men.  Though  a  gi-oss 
and  glaring  evidence  of  the  omnipotence  of 
the  army,  the  instrument  under  which  he 
took  his  title  accorded  to  him  no  unneces- 
saiy  executive  authority.  The  sovereign- 
ty still  resided  in  the  Parliament ;  he  had 
no  negative  voice  on  their  laws.  Until  the 
meeting  of  the  next  Parliament,  a  power 
was  given  him  of  making  temporary  ordi- 
nances ;  but  this  was  not,  as  Hume,  on  the 
authority  of  Clarendon  and  Warwick,  has 
supposed,  and  as  his  conduct,  if  that  were 
any  proof  of  the  law,  might  lead  us  to  in- 
fer, designed  to  exist  in  future  inteiTals  of 
the  Legislature. f    It  would  be  scarcely 

*  Journals,  2d  and  10th  of  Dec,  1653.  White- 
lock.  See  the  sixth  volume  of  the  Somers  Tracts., 
p.  266,  for  a  long  and  rather  able  vindication  of  this 
Parliament  by  one  of  its  members.  Ludlow  also 
speaks  pretty  well  of  it,  p.  471  ;  and  says,  ti'uly 
enough,  that  Cromwell  frightened  the  lawj'ers  and 
clergy,  by  showing  what  the  Parliament  meant  to 
do  with  them,  which  made  them  in  a  hun-y  to  have 
it  destroyed. — See,  also,  Pari.  Hist.,  1412,  1414. 

t  Sec  the  Instrument  of  Government  in  White- 
lock,  p.  571 ;  or  Somers  Tracts,  vi.,  257.  Ludlow 
says  that  some  of  the  officers  opposed  this ;  but 
Lambert  forced  it  down  their  throats,  p.  276.  Crom- 
well made  good  use  of  this  temporary  power.  The 
union  of  Scotland  with  England  was  by  one  of  these 
i  ordinances,  April  12  (Whitelock,  586)  ;  and  he  im- 
posed an  assessment  of  .£120,000  monthly,  for  three 
months,  and  £90,000  for  the  next  three,  instead  of 
£70,000,  which  had  been  paid  before  (Id.,  591),  be- 
sides many  other  ordinances  of  a  legislative  nature. 
"I  am  very  glad,"  says  Fleetwood  (Feb.,  1655. 
Thurloe,  iii.,  183),  "  to  hear  his  liiglmess  has  declin- 


374 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


worth  while,  however,  to  pay  much  atten-  i 
tion  to  a  form  of  government  which  was  so  : 
httle  regarded,  except  as  it  marks  the  jeal- ! 
ousy  of  royal  power,  which  those  most  at- 
tached to  Cromwell,  and  least  capable  of 
any  proper  notions  of  liberty,  continued  to  ( 
entertain.  | 
In  the  ascent  of  this  bold  usurper  to  great-  | 
ness,  he  had  successively  employed  and 
thrown  away  several  of  the  powerful  fac-  ! 
lions  who  distracted  the  nation.    He  had  , 
encouraged  the  Levelers  and  persecuted  j 
them  ;  he  had  flattered  the  Long  Parlia- 1 
ment  and  betrayed  it ;  he  had  made  use  of 
the  sectaries  to  crush  the  Commonwealth  ; 
he  had  spurned  the  sectaries  in  his  last  ad- 
vance to  power.    These,  with  the  Royal-  , 
ists  and  the  Presbyterians,  forming,  in  ef- 1 
feet,  the  whole  people,  though  too  disunited 
for  such  a  coalition  as  must  have  overthrown 
him,  were  the  perpetual,  irreconcilable  en-  i 
amies  of  his  administration.    Master  of  his  I 
army,  which  he  well  knew  how  to  manage,  | 
surrounded  by  a  few  deep  and  experienced  ^ 
counselors,  furnished  by  liis  spies  with  the 
completest  intelligence  of  all  designs  against 
him,  he  had  no  gi-eat  cause  of  alarm  from  j 
open  resistance.    But  he  was  bound  by  the 
»,  ,.      ^  Instrument  of  Government  to  call 

Parliament 

called  by  a  Parliament;  and  in  any  Parlia- , 
Cromwell,  j^g^^  jjjg  adversaries  must  be  form-  j 
idable.  He  adopted  in  both  those  which  ^ 
he  summoned  the  reformed  model  already  | 
determined,  limiting  the  number  of  repre-  ■ 
sentatives  to  400,  to  be  chosen  partly  in  the  j 
counties,  according  to  then-  wealth  or  sup-  j 
posed  population,  by  electors  possessing  ei-  | 
ther  freeholds,  or  any  real  or  movable  prop- , 
erty  to  the  value  of  d£200 ;  paitlj-  by  the  ! 
more  considerable  boroughs,  in  whose  vaii-  | 
ous  rights  of  election  no  change  appeeirs  to  j 
have  been  made.*  This  alteration,  con-  ' 
formable  to  the  equalizing  principles  of  the  j 
age,  did  not  produce  so  considerable  a  dif-  j 
ference  in  the  persons  returned  as  it  per-  | 
haps  might  at  present.f    The  couit-party,  | 

ed  the  legislative  power,  which  by  the  Instrument 
of  Government,  in  my  opinion,  he  could  not  exer- 
cise after  this  last  Parliament's  meeting."  And 
the  Parliament  of  16.56,  at  the  Protector's  desire, 
confirmed  all  ordinances  made  since  the  dissolution 
of  the  Long  Parliament. — Thnrloe,  vi.,  243. 

*  I  infer  this  from  the  report  of  a  committee  of 
privileges  on  the  election  for  Lj-nn,  Oct.  20,  1665. 
— See,  also.  Journals.  Nov.  26,  1654. 

t  It  is  remarkable  that  Clarendon  seems  to  ap- 


as  those  subservient  to  him  were  called, 
were  powerful  through  the  subjection  of 
the  electors  to  the  army.  But  they  were 
not  able  to  exclude  the  Presbyterian  and 
Republican  interests ;  the  latter,  headed  by 
Bradshaw,  Hazlerig,  and  Scott,  eager  to 
thwart  the  power  which  they  were  com- 
pelled to  obey.*  Hence  they  began  by 
taking  into  consideration  the  whole  Instru- 
ment of  Government,  and  even  resolved 
themselves  into  a  committee  to  debate  its 
leading  article,  the  Protector's  authority. 
Cromwell,  his  supporters  having  lost  this 
question  on  a  division  of  141  to  136,  thought 
it  time  to  interfere.  He  gave  them  to  un- 
derstand that  the  government  by  a  single 
person  and  a  Parliament  was  a  fundament- 
al principle,  not  subject  to  their  discussion, 
and  obliged  every  member  to  a  recognition 
of  it,  solemnly  promising  neither  to  attempt 
nor  to  concur  in  any  alteration  of  that  arti- 
cle, f     The  Commons  voted,  how-  Dissolved 

ever,  that  this  recognition  should 
not  extend  to  the  entire  Instrument,  con- 
sisting of  foity-two  articles :  and  went  on 
to  discuss  them  with  such  heat  and  prolix- 
ity, that  after  five  months,  the  limited  term 
of  theu'  session,  the  Protector,  having  ob- 
tained the  ratification  of  his  new  scheme 
neither  so  fully  nor  so  willingly  as  he  de- 
sired, particularly  having  been  disappointed 
by  the  great  majority  of  200  to  60,  which 
voted  the  Protectorate  to  be  elective,  not 
hereditaiy,  dissolved  the  Parliament  with 
no  small  marks  of  dissatisfaction.  J 

prove  this  model  of  a  Parliament,  sajing,  "  it  was 
then  generally  looked  upon  as  an  alteration  fit  to 
be  more  warrantably  made,  and  in  a  better  time." 

*  Bourdeaux,  the  French  ambassador,  says, 
"Some  were  for  Bradshaw  as  speaker,  but  the 
Protestant  party  carried  it  for  LenthaU.  By  this 
beginning  one  may  judge  what  the  authority  of  the 
Lord  Protector  will  be  in  this  Parliament.  How- 
ever, it  was  observed  that  as  often  as  he  spoke  in 
his  speech  of  liberty  or  religion,  the  members  did 
seem  to  rejoice  with  acclamations  of  joy." — Thnr- 
loe, v.,  588.  But  the  election  of  LenthaU  appears 
by  Guibbon  Goddard's  Journal,  lately  published  in 
the  Introduction  to  Burton's  Diary,  to  have  been 
unanimous. 

t  Journals,  14th  and  18th  of  Sept.  Pari.  Hist., 
1445,  1459.  Whitelock,  605,  &c.  Ludlow,  499. 
Goddard's  Journal,  32. 

i  This  di\"ision  is  not  recorded  in  the  Journals, 
in  consequence,  I  suppose,  of  its  having  been  re- 
solved in  a  committee  of  the  whole  House.  Bat  it 
is  impossible  to  doubt  the  fact,  which  is  referred  to 
Oct.  19,  by  a  letter  of  Bourdeaux,  the  French  am- 
bassador (Thurloe,  ii.,  681),  who  obser^•es,  "  Here- 


CoMMoswEALTH.]  FEOM  HENRY  VII.  TO  GEORGE  II. 


375 


The  banished  king,  meanwhile,  began  to 
,    .       ,  recover  a  little  of  that  political 

Intrigues  of  ' 

the  king  and  importance  which  the  battle  of 
his  party.  Worcester  had  seemed  almost 
to  extinguish.  So  ill  supported  by  his  Eng- 
lish adherents  on  that  occasion,  so  incapa- 
ble with  a  better  anny  than  he  had  any 
prospect  of  ever  raising  again,  to  make  a 
stand  against  the  genius  and  fortune  of  the 
usurper,  it  was  vain  to  expect  that  he  could 
be  restored  by  any  domestic  insuiTection 
until  the  disunion  of  the  prevailing  factions 
should  offer  some  more  favorable  opportu- 
nity. But  this  was  too  distant  a  prospect 
for  his  court  of  staiving  followers.  He  had, 
from  the  beginning,  looked  around  for  foi-- 
eign  assistance  ;  but  France  was  distracted 
by  her  own  U'oubles ;  Spain  deemed  it  bet- 
ter policy  to  cultivate  the  new  Common- 
wealth; and  even  Holland,  though  engaged 
in  a  dangerous  war  with  England,  did  not 
think  it  worth  while  to  accept  his  offer  of 
joining  her  fleet,  in  order  to  try  his  influ- 
ence with  the  English  seamen.*  Totally 
unscrupulous  as  to  the  means  by  which  he 
might  reign,  even  at  the  moment  that  he 
by  it  is  easily  discerned  that  the  nation  is  nowise 
affected  to  his  family,  nor  moch  to  himself.  With- 
out doabt  he  will  strengthen  his  army,  and  keep 
that  in  a  good  posture."  It  is  also  alluded  to  by 
Whitelock,  609.  They  resolved  to  keep  the  mili- 
tia in  the  power  of  the  Parliament,  and  that  the 
Protector's  negative  should  extend  only  to  such 
bills  as  might  alter  the  Instrument ;  and  in  other 
cases,  if  he  did  not  pass  bills  within  twenty  days, 
they  were  to  become  laws  without  his  consent. — 
Journals,  Nov.  10,  16.54.  Whitelock,  608.  This 
was  carried  against  the  court  by  109  to  85.  Lud- 
low insinuates  that  this  Parliament  did  not  sit  out 
its  legal  term  of  five  months,  Cromwell  having  in- 
terpreted the  months  to  be  lunar  instead  of  calen- 
dar. Hume  has  adopted  this  notion;  but  it  is 
groundless,  the  month  in  law  being  always  of 
twenty-eight  days,  unless  the  contrary  be  express- 
ed. Whitelock  says  that  Cromwell's  dissolution 
of  the  Parliament,  because  he  found  them  not  so 
pliable  to  his  pnrposes  as  he  expected,  caused 
much  discontent  iu  them  and  others  ;  but  that  he 
valued  it  not,  esteeming  himself  above  those  things, 
p.  618.  He  gave  out  that  the  Parliament  were 
concerned  in  the  conspiracy  to  bring  in  the  king. 

*  Exiles  are  seldom  scrupulous :  we  find  that 
Charles  was  willing  to  propos^(U)  the  States,  in  re- 
lam  for  their  acknowledging  his  title,  "  such  pres- 
ent and  lasting  advantages  to  them  by  this  aUiauce 
as  may  appear  most  considerable  to  that  narion 
and  to  their  posterity,  and  a  valuable  compensation 
for  whatever  present  advantages  the  king  can  re- 
ceive by  it." — Clarendon  State  Papers,  iii.,  90. 
These  intrigues  would  have  justly  made  him  odious 
in  England. 


was  ti'eating  to  become  the  covenanted  king 
of  Scotland,  with  every  solemn  renuncia- 
tion of  popery,  Chai-les  had  recourse  to  a 
very  delicate  negotiation,  which  deserves 
remark,  as  having  led,  after  a  long  course 
of  time,  but  by  gi-adual  steps,  to  the  final 
downfall  of  his  family.  With  the  advice 
of  Ormond,  and  with  the  concuirence  of 
Hyde,  he  attempted  to  interest  the  pope 
(Innocent  X.)  on  his  side,  as  the  most  pow- 
erful intercessor  Viith.  the  Catholic  princes 
of  Europe.*  For  this  purpose,  it  was  nec- 
essary to  promise  toleration,  at  least,  to  the 
Catholics.  The  king's  ambassadors  to  Spain 
in  1650,  Cottington  and  Hyde,  and  other 
agents  dispatched  to  Rome  at  the  same 
time,  were  empowered  to  offer  an  entire 
repeal  of  the  penal  laws.f  The  king  him- 
self, some  time  afterward,  wrote  a  letter  to 
the  pope,  wherein  he  repeated  this  assu- 
rance. That  court,  however,  well  aware 
of  the  hereditary  duplicity  of  the  Stuarts, 
received  his  overtures  with  haughty  con- 
tempt. The  pope  returned  no  answer  to 
the  king's  letter ;  but  one  was  received  af- 
ter many  months  fi-om  the  general  of  the 
Jesuits,  requiring  that  Charles  should  de- 
clare himself  a  Catholic,  since  the  goods  of ' 
the  Church  could  not  be  lavished  for  the 
support  of  an  heretical  prince. t  Even  af- 
ter this  insolent  refusal,  the  wretched  ex- 


*  Ormond  wrote  strongly  to  this  effect,  after  the 
battle  of  Worcester,  convinced  that  nothing  but 
foreign  assistance  could  restore  the  king.  "  Among 
Protestants  there  is  none  that  hath  the  power,  and 
among  the  Catholics  it  is  visible." — Carte's  Let- 
ters, i.,  461. 

t  Clarendon  State  Papers,  ii.,  481,  et  saspe  aK- 
bi.  The  Protestant  zeal  of  Hyde  had  surely  de- 
serted him  ;  and  his  veracity  in  one  letter  gave  way 
also,  see  vol.  iii.,  p.  158.  But  the  gi'eat  criminali- 
ty of  all  these  negotiations  lay  in  this,  that  Charles 
was  by  them  soliciting  such  a  measure  of  foreign 
aid  as  would  make  him  at  once  the  tjTant  of  Eng- 
land and  the  vassal  of  Spain  ;  since  no  free  Parlia- 
ment, however  Royalist,  was  likely  to  repeal  all 
the  laws  against  poperj'.  "  That  which  the  king 
will  be  ready  and  willing  to  do,  is  to  give  his  con- 
sent for  the  repeal  of  all  the  penal  laws  and  stat- 
utes wliich  have  been  made  in  the  prejudice  of 
Catholics,  and  to  put  them  into  the  same  condition 
as  his  other  subjects." — Cottington  to  Father  Bap- 
thorpe.  Id.,  541.  These  negotiations  with  Rome 
were  soon  known ;  and  a  tract  was  published  by 
the  Parliament's  authority,  containing  the  docu- 
ments. Notwithstanding  the  delirium  of  the  Res- 
toration, this  had  made  an  impression  which  was 
not  afterward  effaced. 

t  Clarendon  State  Papers,  iii ,  181. 


376 


CONSTITUTIONAL  HISTOKY  OF  ENGLAND 


[Chap.  X. 


iles  still  clung,  at  times,  to  the  vain  hope  of 
succor,  which  as  Protestants  and  English- 
men they  could  not  honorably  demand.* 
But  many  of  them  remarked  too  clearly  the 
conditions  on  which  assistance  might  be  ob- 
tained ;  the  court  of  Charles,  openly  or  in 
secret,  began  to  pass  over  to  the  Catholic 
Church ;  and  the  contagion  soon  spread  to 
the  highest  places. 

In  the  year  16.54,  the  Royalist  intrigues 
in  England  began  to  grow  more  active  and 
formidable  through  the  accession  of  many 
discontented  Republicans. f  Though  there 
could  be  no  coalition,  properly  speaking, 
between  such  irreconcilable  factions,  they 
came  into  a  sort  of  tacit  agi-eement,  as  is 
not  unusual,  to  act  in  concert  for  the  only 
purjjose  they  entertained  alike,  the  destruc- 
tion of  their  common  enemy.  Major  Wild- 
man,  a  name  not  veiy  familiar  to  the  gen- 
eral reader,  but  which  occurs  perpetually, 
for  almost  half  a  century,  when  we  look 
into  more  secret  history,  one  of  those  dark  , 
and  restless  spirits  who  delight  in  the  deep 
game  of  conspiracy  against  every  govern- 
ment, seems  to  have  been  the  first  mover  of 
this  unnatural  combination.  He  had  been  ■ 
early  engaged  in  the  schemes  of  the  Lev- 
elers,  and  was  exposed  to  the  jealous  ob-  | 
servation  of  the  ruling  powers.  It  appears 
most  probable  that  his  views  were  to  estab-  ' 
lish  a  Commonwealth,  and  to  make  the 
Royalists  his  dupes.  In  his  correspond- 
ence, however,  with  Brussels,  he  engaged 
to  restore  the  king.  Both  parties  were  to 
rise  in  anns  against  the  new  tyranny ;  and 
the  nation's  temper  was  tried  by  clandes- 
tine intrigues  in  almost  every  county. t 

*  "  The  pope  verj-  well  knows,  '  says  Hyde  to  ' 
Clement,  an  agent  at  the  court  of  Rome,  2d  April, 
1656,  "  how  far  the  king  is  from  thoughts  of  sever-  ' 
ity  against  his  Catholic  subjects  ;  nay,  that  he  doth 
desire  to  pat  them  into  the  same  condition  with  his 
other  subjects,  and  that  no  man  shaU  suffer  in  any 
consideration  for  being  a  Catholic."' — Id.,  291. 

t  Clarendon's  History  of  the  Rebellion,  b.  14. 
State  Papers,  iii.,  263,  300,  ic.    Whitelock  ob- 
serves at  this  time.  "  Many  sober  and  faithftl  pa- 
triots did  begin  to  incline  to  the  kind's  restoration :"  I 
and  hints,  that  this  was  his  opinion,  which  excited  j 
Cromwell's  jealousy  of  him,  p.  620.  j 

t  Clarendon's  History,  vii.,  129.  State  Papers.  I 
iii.,  265,  &c.  These  Levelers  were  verj- hostile  to  | 
the  interference  of  Hyde  and  Ormond,  judgine  j 
them  too  inflexibly  attached  to  the  ancient  Consti-  ' 
tution:  but  this  hostilitj- recommended  them  tooth-  i 
ers  of  the  banished  king's  court  who  showed  the  ! 
game  sentiments.  I 


Greater  reliance,  however,  was  placed  on 
the  project  of  assassinating  Cromwell.  Nei- 
ther party  were  by  any  means  scrupulous  oti 
this  score:  if  we  have  not  positive  evidence 
of  Charles's  concurrence  in  this  scheme,  it 
would  be  preposterous  to  suppose  that  he 
would  have  been  withheld  by  any  moral 
hesitation.  It  is  freqently  mentioned  with- 
out any  disapprobation  by  Clarendon  in  his 
private  letters  and,  as  the  RoyaUsts  cer- 
tainly justified  the  murders  of  Ascham  and 
Dorislaus,  they  could  not,  in  common  sense 
or  consistency,  have  scrupled  one  so  incom- 
parably more  capable  of  defense.!  A  Mr. 
Gerard  suffered  death  for  one  of  these  plots 
to  kill  Cromwell :  justly  sentenced,  though 
by  an  illegal  tribunal.^ 

In  the  year  16.5-5.  Penmddock,  a  Wilt- 
shire gentleman,  with  a  very  tri-  itsorrec- 
fling  force,  entered  Sali.«buiT  at  ZT^Jl.,... 

e  '  J  movements 

the  time  of  the  assizes,  and,  de-  'q 
daring  for  the  king,  seized  the  judge  and 
the  sheriff.  §  This  Uttle  rebellion,  meeting 
with  no  resistance  from  the  people,  but  a 
supineness  equally  fatal,  was  soon  quelled. 
It  roused  Cromwell  to  secure  himself  by 
an  unprecedented  exercise  of  power.  In 
possession  of  all  the  secrets  of  his  enemies, 

*  P.  315.  324,  343.  Thm-loe,  i.,  360,  510.  In  the 
same  volume,  p.  248,  we  find  even  a  declaratioQ 
from  the  king,  dated  at  Paris,  3d  of  May.  1654,  of- 
fering i500  per  annum  to  any  one  who  sbonld  kiH 
Cromwell,  and  pardon  to  any  one  who  should  leave 
that  party,  except  Bradshaw,  Lenthall.  and  Hazle- 
rig.  But  this  seems  unlikely  to  be  authentic : 
Charles  would  not  have  avowed  a  design  of  assas- 
sination so  openly ;  and  it  is  strange  that  Lenthall 
and  Hazlerig,  especially  the  former,  should  be  thus 
exempted  from  pardon,  rather  than  so  many  regi- 
cides. 

t  See  what  Clarendon  says  of  Ascham's  death. 
State  Papers,  ii.,  542.  In  another  place  he  observes, 
"  It  is  a  worse  and  a  baser  thing  that  any  man 
should  appear  in  any  part  beyond  sea  under  the 
character  of  an  agent  from  the  rebels,  and  not  have 
his  throat  cut." — Id.,  iii..  144. 

X  State  Trials,  518.  Thurkje,  ii,  416.  Some  of 
the  malcontent  Commonwealth's  men  were  also 
eager  to  get  rid  of  Cromwell  by  assassination ; 
Wildman,  Saxby,  Titus.  Syndercome's  story  is 
well  known :  he  was  connected  in  the  conspiracy 
with  those  already  mentioned.  The  famous  pam- 
phlet by  Titus,  Kiffing  no  Murder,  was  printed  in 
16.57.— Clarendon  State  Papers,  315,  324,  343. 

9  A  very  reprehensible  passage  occurs  in  Clar- 
endon's account  of  this  transaction,  vol  vii..  p.  140, 
where  he  blames  and  derides  the  insurgents  fat 
not  putting  Chief-justice  Rolle  and  others  to  death, 
which  would  have  been  a  detestable  and  useless 
murder. 


Commonwealth.] 


FROM  HENRY  VH.  TO  GEORGE  II. 


377 


he  knew  that  want  of  concert  or  courage 
had  alone  prevented  a  general  rising,  to- 
ward which,  indeed,  there  had  been  some 
movements  in  the  midland  counties.*  He 
was  aware  of  his  own  impopularity,  and  the 
national  bias  toward  the  exiled  king.  Juries 
did  not  willingly  convict  the  sharers  in  Pen- 
ruddock's  rebellion.!  To  govern  according 
to  law  may  sometimes  be  a  usurper's  wish, 
but  can  seldom  be  in  his  power.  The  Pro- 
„.  tector  abandoned  all  thought  of  it. 

Kigorous  ^  _  ^ 

measures  of  Dividing  the  kingdom  into  dis- 
Cromweii.  jj-j^jg^  jjg  placed  at  the  head  of 
each  a  major-general  as  a  sort  of  military 
magistrate,  responsible  for  the  subjection 
of  his  prefectui-e.  These  were  eleven  in 
number,  men  bitterly  hostile  to  the  Royal- 
ist party,  and  insolent  toward  all  civil  au- 
thority.J  They  were  employed  to  secure 
the  payment  of  a  tax  of  ten  per  cent.,  im- 
posed by  Cromwell's  arbitraiy  will  on  those 
who  had  ever  sided  with  the  king  during 
the  late  wars,  where  their  estates  exceed- 
ed c^lOO  per  annum.  The  major-gener- 
als, in  their  correspondence  printed  among 
Thurloe's  papers,  display  a  i-apacity  and 
oppression  beyond  their  master's.  They 

*  Whitelock,  6\8,  620.  Ludlow,  513.  Thurloe, 
iii.,  264,  and  through  more  than  half  the  volume,  pas- 
sim, lu  the  preceding  volume  we  have  abuadant 
proofs  how  completely  Master  Cromwell  was  of 
the  Royalist  schemes.  The  "sealed  knot"  of  the 
king's  friends  in  London  is  mentioned  as  frequently 
as  we  find  it  in  the  Clai'endon  Papers  at  the  same 
time. 

t  Thurloe,  iii.,  371,  &c.  "  Pem-uddock  and  Grove," 
Ludlow  says,  "could  not  have  been  justly  con- 
demned, if  they  had  as  sure  a  foundation  in  what 
tliey  declared  for  as  what  they  declared  against. 
But  certainly  it  can  never  be  esteemed  by  a  wise 
man  to  be  worth  the  scratch  of  a  finger  to  remove 
a  single  person  acting  by  an  arbitrary  power,  in 
order  to  set  up  another  with  the  same  unhmited 
authority." — P.  518.  This  is  a  just  and  manly  sen- 
timent. Woe  to  those  who  do  not  recognize  it ! 
But  is  it  fair  to  say  that  the  Royalists  were  con- 
tending to  set  up  an  unlimited  authority  ? 

i  They  were  originally  ten,  Lambert,  Desbor- 
oneh,  Whalley,  Goft'e,  Fleetwood,  Skippon,  Kelsey, 
Butler,  Worseley,  and  Berry. — Thurloe,  iii.,  701. 
Barkstead  was  afterward  added.  "  The  major- 
generals,"  says  Ludlow,  "carried  things  with  un- 
heard-of insolence  in  their  several  precincts,  deci- 
mating to  extremity  whom  they  pleased,  and  in- 
terrupting the  proceedings  at  law  upon  petitions 
of  those  who  pretended  themselves  aggrieved ; 
threatening  such  as  would  not  yield  a  ready  sub- 
mission to  their  orders  with  transportation  to  Ja- 
maica, or  some  other  plantation  in  the  West  In- 
dies," &c. — P.  559. 


complain  that  the  nimiber  of  those  exempt- 
ed is  too  great ;  they  press  for  harsher 
measures ;  they  incline  to  the  unfavorable 
construction  in  every  doubtful  case  ;  they 
dwell  on  the  growth  of  malignancy  and  the 
general  disaffection.*  It  was  not,  indeed, 
likely  to  be  mitigated  by  this  unparalleled 
tyranny.  All  illusion  was  now  gone  as  to 
the  pretended  benefits  of  the  civil  war.  It 
had  ended  in  a  despotism,  compared  to 
which  all  the  illegal  practices  of  former 
kings,  all  that  had  cost  Charles  his  life  and 
crown,  appeared  as  dust  in  the  balance. 
For  what  was  ship-money,  a  general  burd- 
en, by  the  side  of  the  present  decimation 
of  a  single  class,  whose  offense  had  long 
been  expiated  by  a  composition  and  effaced 
by  an  act  of  indemnity  ?  or  were  the  ex- 
cessive punishments  of  the  Star  Chamber 
so  odious  as  the  capital  executions  inflicted 
without  ti-ial  by  peers,  whenever  it  suited 
the  usurper  to  erect  his  high  court  of  jus- 
tice ?  A  sense  of  present  evils  not  only 
excited  a  burning  desire  to  live  again  under 
the  ancient  monarchy,  but  obliterated,  espe- 
cially in  the  new  generation,  that  had  no 
distinct  remembrance  of  them,  the  appre- 
hension of  its  former  abuses. f 

*  Thurloe,  vol.  iv.,  passim.  The  unpopularity  of 
Cromwell's  government  appears  strongly  in  the 
letters  of  this  collection.  Duckinfield,  a  Cheshire 
gentleman,  writes :  "  Charles  Stuart  hath  five  hun- 
dred friends  in  these  adjacent  counties  for  every 
one  friend  to  you  among  them." — Vol,  iii.,  29J. 

t  It  may  be  fair  toward  Cromwell  to  give  his 
own  apology  for  the  decimation  of  the  Rovalists,  in 
adeclaration  published  16G5.  "  It  is  a  trouble  to  us 
to  be  still  rubbing  upon  the  old  sore,  disobliging 
those  whom  we  hoped  time  and  patience  might 
make  friends  ;  but  we  can  with  comfort  appeal  to 
God,  and  dare  also  to  their  own  consciences,  wheth- 
er this  way  of  proceeding  with  them  hath  been  the 
matter  of  our  choice,  or  that  which  we  have  sought 
an  occasion  for ;  or  whether,  contrary  to  our  own 
inclinations  and  the  constant  course  of  our  carriage 
toward  them,  which  hath  been  to  oblis'e  thera  by 
kindness  to  forsake  their  former  principles,  which 
God  hath  so  often  and  so  eminently  bore  witness 
against,  we  have  not  been  constrained  and  neces- 
sitated hereunto,  and  without  the  doing  whereof 
we  should  have  been  wanting  to  our  duty  to  God 
and  these  nations. 

"  That  character  of  difference  between  them  and 
the  rest  of  the  people  which  is  now  put  uyou  them 
is  occasioned  by  themselves,  not  by  us.  There  is 
nothing  they  have  more  industriously  labored  in 
than  this — to  keep  themselves  distinguished  from 
the  weU-afi'ected  of  this  nation  ;  to  which  end  they 
have  kept  their  conversation  apart,  as  if  they  would 
avoid  the  very  beginnings  of  union  ;  have  bred  and 


37S 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


If  this  decimation  of  the  Royalists  could 
His  arbitrary  poss  for  an  act  of  Severity  toward 
government.  ^  proscribed  ftictiou,  in  which  the 
rest  of  the  nation  might  fancy  themselves 
not  interested,  Cromwell  did  not  fail  to  show 
that  he  designed  to  exert  an  equally  despot- 
ic command  over  eveiy  man's  property. 
"With  the  advice  of  his  council,  he  had  im- 
posed, or,  as  I  conceive  (for  it  is  not  clearly 
explained),  continued,  a  dutj-  on  merchan- 
dise beyond  the  time  limited  by  law.  A 
Mr.  George  Cony  having  refused  to  pay 
this  tax,  it  was  enforced  from  him,  on  which 
he  sued  the  collector.  Cromwell  sent  his 
counsel,  Maynard,  Twisden,  and  Wyndham, 
to  the  Tower,  who  soon  petitioned  for  liber- 
ty, and  abandoned  their  client.  Rolle,  the 
chief-justice,  when  the  cause  came  on, 
dared  not  give  judgment  against  the  Pro- 
tector; yet,  not  caring  to  decide  in  his  favor, 
postponed  the  case  till  the  next  term,  and 
meanwhile  retired  from  the  bench.  Glyn, 
who  succeeded  him  upon  it,  took  care  to 
have  this  business  accommodated  with  Co- 
ny, who,  at  some  loss  of  public  reputation, 
withdrew  his  suit.  Sir  Peter  Wentworth, 
having  brought  a  similar  action,  was  sum- 
moned before  the  council,  and  asked  if  he 
"would  give  it  up.  "  If  you  command  me," 
he  replied  to  Cromwell,  "  I  must  submit;" 
which  the  Protector  did,  and  the  action  was 
withdrawn.* 

Though  it  can  not  be  said  that  such  an  in- 
teiference  with  the  privileges  of  advocates 
or  the  integrity  of  judges  was  without  pre- 
cedents in  the  times  of  the  Stuarts,  yet  it 
had  never  been  done  in  so  public  or  shame- 
educated  their  children  by  the  sequestered  and 
•ejected  clergy,  and  very  much  confined  their  mar- 
riages and  alliances  within  their  own  party,  as  if 
they  meant  to  entail  their  quarrel,  and  prevent 
the  means  to  reconcile  posteritj' ;  which,  with  the 
great  pains  they  take  upon  all  occasions  to  lessen 
■and  suppress  the  esteem  and  honor  of  the  English 
nation  in  all  their  actions  and  undertakings  abroad, 
striving  withal  to  make  other  nations  distinguish 
their  interest  from  it,  gives  us  ground  to  judge  that 
they  have  separated  themselves  from  the  body  of 
the  nation;  and  therefore  we  leave  it  to  all  man- 
kind to  judge  whether  we  ought  not  to  be  timely 
jealous  of  that  separation,  and  to  proceed  so  against 
them  as  they  may  be  at  the  charge  of  those  reme- 
dies which  are  required  against  the  dangers  they 
bave  bred." 

*  Ludlow,  528,  Clarendon,  &c.  Clarendon  re- 
lates the  same  story,  with  additional  circumstances 
of  Cromwell's  audacious  contempt  for  the  courts  of 
Justice,  and  for  the  verj-  name  of  Magna  Cbarta. 


less  a  manner.  Several  other  instances 
wherein  the  usurper  diverted  justice  from 
its  com'se,  or  violated  the  known  securities 
of  E  uglishmen,  will  be  found  in  most  gener- 
al histories ;  not  to  dwell  on  that  most  fla- 
grant of  all,  the  erection  of  his  high  court 
of  justice,  by  which  Gerard  and  Vowel  in 
1654,  Slingsby  and  Hewit  in  16.58,  were 
brought  to  the  scaffold.*  I  can  not,  there- 
fore, agree  in  the  praises  which  have  been 
showered  upon  Cromwell  for  the  just  ad- 
ministration of  the  laws  under  his  dominion. 
That,  between  paity  and  party,  the  ordina- 
ry civil  rights  of  men  were  fairly  dealt  with, 
is  no  extraordinary  praise ;  and  it  may  be 
admitted  that  he  filled  the  benches  of  just- 
ice with  able  lawyers,  though  not  so  consid- 
erable as  those  of  the  reign  of  Charles  the 
Second  ;  but  it  is  manifest  that,  so  far  as  his 
authority  was  concerned,  no  hereditaiy  des- 
pot, proud  in  the  crimes  of  a  hundred  an- 
cestors, could  more  have  spumed  at  every 
limitation  than  this  soldier  of  a  Common- 
wealth, f 

Amid  so  general  a  hatred,  trusting  to  the 
effect  of  an  equally  general  ter-  „ 
ror,  the  Protecter  ventured  to  another  Par- 
summon  a  Pai'liament  in  1656. 
Besides  the  common  necessities  for  money, 
he  had  doubtless  in  his  head  that  remarka- 
ble scheme  which  was  developed  during  its 


*  State  Trials,  vi.  Whitelock  advised  the  Pro- 
tector to  proceed  according  to  law  against  Hewit 
and  Slingsby ;  "  but  his  highness  was  too  much  in 
love  with  the  new  way." — P.  673. 

t  The  late  editor  of  the  State  Trials,  v.,  93.5,  has 
introduced  a  sort  of  episodical  dissertation  on  the 
administration  of  justice  during  the  Conamonwealth, 
with  the  view,  as  far  as  appears,  of  setting  Crom- 
well in  a  favorable  light.  For  this  pnrjjose  he 
quotes  several  passages  of  vague  commendation 
from  different  authors,  and  among  others  one  from 
Burke,  written  in  haste,  to  serve  an  immediate 
purpose,  and  evidently  from  a  very  superficial  rec- 
ollection of  our  historj'.  It  has  been  said  that 
Cromwell  sought  out  men  of  character  from  the 
party  most  opposite  to  his  designs.  The  proof 
given  is  the  appointment  of  Hale  to  be  a  puisne 
judge.  But  Hale  had  not  been  a  Loyalist,  that  is, 
an  adherent  of  Charles,  and  had  taken  the  En- 
gagement as  well  as  the  Covenant.  It  was  no 
great  effort  of  virtue  to  place  an  eminent  lawyer 
and  worthy  man  on  the  bench  ;  and  it  is  to  be  re- 
membered that  Hale  fell  under  the  usurper's  dis- 
pleasure for  administering  justice  with  an  impar- 
tiality that  did  not  suit  his  govermnent,  and  ceased 
to  go  the  circuit  because  the  criminal  law  was  not 
allowed  to  have  its  course. 


Commonwealth.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


379 


session.*  Even  the  despotic  influence  of 
his  major-generals,  and  the  political  annihi- 
lation of  the  most  considerable  body  of  the 
gentry,  then  laboring  under  the  imputation 
of  delinquency  for  their  attachment  to  the 
late  king,  did  not  enable  him  to  obtain  a  se- 
cure majority  in  the  assembly;  and  he  was 
driven  to  the  audacious  measure  of  exclud- 
ing above  ninety  members,  duly  returned  by 
their  constituents,  from  taking  their  seats. 
Their  colleagues  wanted  courage  to  resist 
this  violation  of  all  privilege  ;  and  after  re- 
ferring them  to  the  council  for  approbation, 
resolved  to  proceed  with  public  business. 
The  excluded  members,  consisting  partly 
of  the  Republican,  partly  of  the  Presbyte- 
rian factions,  published  a  remonstrance  in  a 
very  high  strain,  but  obtained  no  redress,  f 

*  Thurloe  writes  to  Montague  (Carte's  Letters, 
ii.,  110)  that  he  can  not  give  him  the  reasons  for 
calling  this  Parliament,  except  in  cipher.  He  says 
in  the  same  place  of  the  committal  of  Ludlow, 
Vane,  and  others,  "  There  was  a  necessity,  not 
only  for  peace'  sake,  to  do  this,  but  to  let  tlie  na- 
tion see  those  that  govern  are  in  good  earnest,  and 
intend  not  to  quit  the  government  wholly  into  the 
bands  of  the  Parliament,  as  some  would  needs 
make  the  world  believe." — P.  112.  His  first  direct 
allusion  to  the  projected  change  is  in  writing  to 
Henry  Cromwell,  9th  of  Dec,  165e.— Thurl.  Papers, 
v.,  194.  The  influence  exerted  by  his  legates,  the 
major-generals,  appears  in  Thurloe,  v.,  299,  et  post. 
But  they  complained  of  the  elections. — Id.,  302, 
311,  371. 

t  Whitelock,  C50.  Pari.  Hist,  1486.  On  a  let- 
ter to  the  speaker  from  the  members  who  had 
been  refused  admittance  at  the  door  of  the  lobby, 
Sept.  18,  the  House  ordered  the  clerk  of  the  Com- 
monwealth to  attend  next  day  with  all  the  indent- 
ures. The  deputy  clerk  came  accordingl}-,  with 
an  excuse  for  his  principal,  and  brought  the  indent- 
ures ;  but  on  being  asked  why  the  names  of  cer- 
tain members  were  not  returned  to  the  House,  an- 
swered, that  he  had  no  certificate  of  approbation 
for  them.  The  House,  on  this,  sent  to  inquire  of 
tlie  council  why  these  members  had  not  been  ap- 
proved. They  returned  for  answer,  that  whereas 
it  is  ordained  by  a  clause  in  the  Instrument  of 
Government  that  the  persons  who  shall  be  elected 
to  serve  in  Parliament  shall  be  such  and  no  other 
than  such  as  are  persons  of  known  integrity,  fear- 
ing God,  and  of  good  conversation  ;  that  the  coun- 
cil, in  pursuance  of  their  duty,  and  according  to  the 
trust  reposed  in  them,  have  examined  the  said  re- 
turns, and  have  not  refused  to  approve  any  who 
appeared  to  them  to  be  persons  of  integiity,  fearing 
God,  and  of  good  conversation  ;  and  those  who  are 
not  approved,  his.highness  hath  given  order  to  some 
persons  to  take  care  that  they  do  not  come  into  the 
House.  Upon  this  answer,  an  adjounament  was  pro- 
posed, but  lost  by  115  to  80  ;  and  it  being  moved  that 
the  persons  whohave  been  returned  from  the  sever- 


Cromwell,  like  so  many  other  usurpers, 
felt  his  position  too  precarious,  or  . 

'  Designs  to 

his  vanity  ungratified,  without  the  take  the 
name  wliicli  mankind  have  agreed 
to  worship.    He  had,  as  evidently  appears 
from  the  conversations  i-ecorded  by  White- 
lock,  long  since  aspired  to  this  titular,  as 
well  as  to  the  real  pre-eminence ;  and  the 
banished  king's  friends  had  contemplated 
the  probabihty  of  his  obtaining  it  with  dis- 
may.*   Affectionate  toward  his  family,  he 
wished  to  assure  the  stability  of  his  son's 
succession,  and  perhaps  to  please  the  vanity 
of  his  daughters.    It  was,  indeed,  a  very 
reasonable  object  with  one  who  had  already 
advanced  so  far.     His  assumption  of  the 
crown  was  desirable  to  many  different  class- 
es ;  to  the  lawyers,  who,  besides  their  re- 
gard for  the  established  Constitution,  knew 
that  an  ancient  statute  would  protect  those 
who  served  a  de  facto  king  in  case  of  a  res- 
toration of  the  exiled  family  ;  to  the  nobility, 
who  perceived  that  their  legislative  right 
must  immediately  revive  ;  to  the  clergy, 
who  judged  the  regular  ministiy  more  like- 
ly to  be  secure  under  a  monarchy ;  to  the 
people,  who  hoped  for  any  settlement  that 
would  put  an  end  to  perpetual  changes ;  to 
all  of  every  rank  and  profession  who  dread- 
ed the  continuance  of  military  despotism, 
and  demanded  only  the  just  rights  and  priv- 
ileges of  their  country.    A  king  of  England 
could  succeed  only  to  a  boiuided  preroga- 
tive, and  must  govern  by  the  known  laws ; 
a  protector,  as  the  nation  had  well  felt,  with 
less  nominal  authority,  had  all  the  sword 
could  confer;  and,  though  there  might  be 
little  chance  that  Oliver  would  abate  one  jot 
of  a  despotism  for  which  not  the  times  of 
the  Tudors  could  furnish  a  precedent,  yet 
his  life  was  far  worn,  and  under  a  success- 
or it  was  to  be  expected  that  future  Par- 
liaments might  assert  again  all  those  liber- 
ties for  which  they  had  contended  against 
Charles,  f    A  few  of  the  Royalists  miglit 

al  counties,  cities,  and  boroughs  to  serve  in  this  Par- 
liament,  and  have  not  been  approved,  be  refeired  to 
the  council  for  approbation,  and  that  the  House  do 
proceed  with  the  great  affairs  of  the  nation ;  the  ques- 
tion was  carried  by  125  to  29. — Journals,  Sept.  23. 

t  Clar.  State  Papers,  iii.,  201,  &c. 

*  The  whole  conference  that  took  place  at  White- 
hall, between  Cromwell  and  the  committee  of  Par- 
liament on  this  subject,  was  publislied  by  authority, 
and  may  be  read  in  the  Somers  Tracts,  vi.,  349.  It 
is  very  interesting.    The  lawyers  did  not  hesitate 


380 


COXSTITUTIOXAL  HISTORY  OF  EXGLANTD 


[Chap.  X. 


perhaps  fancy  that  the  restoration  of  the  | 
royal  title  would  lead  to  that  of  the  lawful 
heir :  but  a  gi'eater  number  were  content 
to  abandon  a  nearly  desperate  cause,  if  they 
could  but  see  the  more  valuable  object  of 
their  concern,  the  form  itself  of  polity,  re- 
established.*   There  can  be,  as  it  appears 
to  me,  little  room  for  doubt  that,  if  Crom-  ' 
well  had  overcome  the  resistance  of  his  gen-  [ 
erals,  lie  would  have  transmitted  the  seep-  \ 
ter  to  his  descendants  with  the  acquiescence  j 
and  tacit  approbation  of  the  kingdom.  Had 
we  been  living  ever  since  under  the  rule  of 
his  dynasty,  what  tone  would  our  historians  i 
have  taken  as  to  his  character  and  that  of 
the  house  of  Stuart  ? 

The  scheme,  however,  of  founding  a  new 
royal  line  failed  of  accomplishment,  as  is 

to  snpport  the  proposirion,  on  the  ground  of  the 
more  definite  and  legal  character  of  a  king's  au-  j 
thority.      The  king's  prerogative,"  says  Glyn,  "  is  | 
known  by  law ;  he  (King  Charles^p  did  expatiate  | 
be5-ond  the  duty :  that's  the  evil  of  the  man  ;  but ' 
in  Westminster  Hall  the  king's  prerogative  was 
under  the  courts  of  justice,  and  is  bounded  as  well  1 
as  any  acre  of  land,  or  any  thing  a  man  hath,  as 
much  as  any  controversy  between  paity  and  partj" ;  , 
and  therefore  the  office  being  lawful  in  its  nature,  [ 
known  to  the  nation,  certain  in  itself,  and  confined 
and  regulated  by  the  law,  and  the  other  office  not  ' 
being  so,  that  was  a  great  ground  of  the  reason  j 
■why  the  Parliament  did  so  much  insist  upon  this  i 
office  and  title,  not  as  circumstantial,  but  as  essen- 
tial."—P.  359.    See,  also,  what  Lenthall  says,  p. 
356,  against  the  indefiuiteness  of  the  Protector's 
authority. 

Those  passages  were  evidently  implied  censures 
on  the  late  com-se  of  govenimeut.    Cromwell's  in- 
distinct and  evasive  style  in  his  share  of  this  de- 
bate betrajs  the  secret  inclinations  of  his  heart. 
He  kept  his  ultimate  intentions,  however,  very  se- 
cret ;  for  Thurloe  professes  his  ignorance  of  them, 
even  in  writing  to  Henry  Cromwell,  vol.  vi.,  p.  219,  ' 
et  post.    This  correspondence  shows  that  the  pru-  I 
dent  secretary  was  uneasy  at  the  posture  of  aflfairs, 
and  the  manifest  dissatisfaction  of  Fleetwood  and 
Desborongh,  which  had  a  dangerous  influence  on 
others  less  bound  to  the  present  familj- ;  yet  he  had  j 
set  his  heart  on  this  mode  of  settlement,  and  was  | 
much  disappointed  at  his  master's  ultimate  refusal. 

*  Clarendon's  Hist.,  vii.,  194.  It  appears  by 
Clarendon's  private  letters  that  he  had  expected 
to  see  Cromwell  assume  the  title  of  king  from  the 
year  1654.— Vol.  iii.,  p.  201,  223,  224.  If  we  may 
trust  what  is  here  called  an  intercepted  letter,  p. 
328,  Mazariu  had  told  Cromwell  that  France  would 
enter  into  a  strict  league  with  him,  if  he  could  set- 
tle himself  in  the  throne,  and  make  it  hereditarj- ; 
to  which  he  answered,  that  he  designed  shortly  to 
take  the  crown,  restore  the  two  Houses,  and  gov- 
ern by  the  ancient  laws.  But  this  may  be  apoc- 
ryphal. 


well  known,  through  his  own  can-  xh^  project 
tion,  which  deterred  him  fi-om  en- 
countering  the  decided  opposition  of  his 
army.  Some  of  his  cotemporaries  seem  to 
have  deemed  this  abandonment,  or,  more 
properly,  suspension  of  so  splendid  a  design, 
rather  derogatory  to  his  finnness.*  But 
few  men  were  better  judges  than  Cromwell 
of  what  might  be  achieved  by  daring.  It  is 
certainly  not  impossible  that,  by  arresting 
Lambert,  Whalley,  and  some  other  gener- 
als, he  might  have  crushed  for  the  moment 
any  tendency  to  open  resistance ;  but  the 
experiment  would  have  been  infinitely  haz- 
ardous. He  had  gone  too  far  in  the  path 
of  violence  to  recover  the  high-road  of  law 
by  any  short  cut.  King  or  protector,  he 
miist  have  intimidated  every  Parliament,  or 
sunk  under  its  encroachments.  A  new- 
modeled  army  might  have  served  his  turn ; 
but  there  would  have  been  great  difficulties 
in  its  formation.  It  had,  from  the  beginning, 
been  the  misfortune  of  his  government  that 
it  rested  on  a  basis  too  narrow  for  its  safety. 
For  two  yeai-s  he  had  reigned  with  no  sup- 
port but  the  Independent  sectaries  and  the 
army.  The  army  or  its  commanders  be- 
coming odious  to  the  people,  he  had  sacri- 
ficed them  to  the  hope  of  popularity,  by 
abolishing  the  civil  prefectures  of  the  major- 
generals,  f  and  permitting  a  bill  for  again 
decimating  the  Royalists  to  be  thrown  out 
of  the  House. t    Theu*  disgust  and  resent- 

*  Clar.,  vii.,  203. 

t  Ludlow,  p.  581.  The  major-generals,  or  at 
least  many  of  them,  joined  the  opposition  to  Crom- 
well's royalty. — Id.,  p.  586.  Clar.  State  Papers,  332. 

t  This  appeai-s  from  the  following  passage  in  a 
curious  letter  of  Mr.  "Vincent  Gookin  to  Henry 
Cromwell,  2Tth  Jan.,  1657.  "  To-mon-ow  the  bill 
for  decimating  the  Cavaliers  comes  again  into  de- 
bate. It  is  debated  with  much  heat  hy  the  major- 
generals,  and  as  hotly,  almost,  by  the  anti-decima- 
tors.  I  believe  the  bill  will  be  thrown  out  of  the 
House.  In  my  opinion,  those  that  speak  against 
the  bill  have  much  to  say  in  point  of  moral  justice 
and  prudence  ;  but  that  which  makes  me  fear  the 
passing  of  the  bill  is,  that  thereby  his  highness' 
government  will  be  more  founded  in  force,  and 
more  removed  from  that  natural  foimdation  which 
the  people  in  Parliament  are  desirous  to  give  him ; 
supposing  that  he  will  become  more  theirs  than 
now  he  is,  and  will  in  time  find  the  safety  and 
peace  of  the  nation  to  be  as  well  maintained  by  the 
laws  of  the  land  as  by  the  sword.  And  truly,  sir, 
if  any  others  have  pretensions  to  succeed  him  by 
their  interest  in  the  army,  the  more  of  force  up- 
holds his  highness  living,  the  greater  when  he  is 
dead  will  be  the  hopes  and  advantages  for  such  a 


Commonwealth.] 


FEOM  HENRY  VII.  TO  GEORGE  II. 


381 


mont,  excited  by  an  artful  intriguer,  Lam- 
bert, who  aspired  at  least  to  the  succession 
of  the  Protectorship,  found  scope  in  the 
new  project  of  nionarcliy,  naturally  obnox- 
ious to  the  prejudices  of  true  fanatics,  and 
who  still  fancied  themselves  to  have  con- 
tended for  a  republican  liberty.  Wo  find 
that  even  Fleetwood,  allied  by  marriage  to 
Cromwell,  and  not  involved  in  the  discon- 
tent of  the  major-generals,  in  all  the  sincer- 
ity of  his  clouded  understanding  revolted 
from  the  invidious  title,  and  would  have 
retired  from  service  had  it  been  assumed. 
There  seems,  therefore,  reason  to  think 
that  Cromwell's  refusal  of  the  crown  was  an 
inevitable  mortification.  But  he  undoubt- 
edly did  not  lose  sight  of  the  object  for  the 
short  remainder  of  his  life.* 

one  to  effect  his  aim,  who  desires  to  succeed  him. 
Lambert  is  much  for  decimations." — Thurloe,  vi., 
20.  He  writes  again,  "  I  am  coutideiit  it  is  judged 
by  some  that  the  interest  of  the  godly  can  not  be 
presei-ved  but  by  the  dis-sohitiou  of  tliis,  if  not  all 
Parliaments,  and  their  endeavors  in  it  have  been 
plainly  discovered  to  the  party  most  concerned  to 
know  them ;  which  will,  I  believe,  suddenly  occa- 
sion a  reducing  of  the  governraoiit  to  kingsliip,  to 
which  his  highness  is  not  averse.  I'ierpoint  and 
St.  John  have  been  often,  but  secretly,  at  Wliite- 
hall,  I  know,  to  advise  thereof." — P.  37.  Thurloe 
again  to  the  same  Henry  Cromwell,  on  February 
3,  that  the  decimation  bill  was  thrown  out  by  a 
majority  of  forty :  "  Some  gentlemen  do  think 
themselves  much  trampled  upon  by  this  vote,  and 
are  extremely  sensible  thereof;  and  the  trath  is,  it 
bath  wrought  such  a  heat  in  the  House,  that  I 
fear  little  will  be  done  for  the  future." — Id.,  p.  3S. 
No  such  bill  appears,  eo  nomine,  in  the  Journals. 
But  a  bill  for  regulating  the  militia  forces  was 
thrown  out  Jan.  29,  by  124  to  88,  Col.  Cromwell 
(Oliver's  cousin)  being  a  teller  for  the  majority. 
Probably  there  was  some  clause  in  this  renewing 
the  decimation  of  the  Royalists. 

*  Whitelock,  who  was  consulted  by  Cromwell 
on  this  business,  and  took  an  active  part  as  one  of 
the  committee  of  conference  appointed  by  the  House 
of  Commons,  intimates  that  the  project  was  not 
really  laid  aside.  "  He  was  satisfied  in  his  private 
judgment  that  it  was  fit  fur  him  to  take  upon  him 
the  title  of  king,  and  matters  were  ])rcpared  in  or- 
der thereunto  ;  but  afterward,  by  solicitation  of  the 
Commonwealth's  men,  and  fearing  a  mutiny  and  de- 
fection of  a  great  part  of  the  army,  in  case  he  should 
assume  that  title  and  office,  his  mind  changed,  and 
many  of  the  officers  of  the  army  gave  out  gi-eat 
tlireatcnings  against  him  in  case  he  should  do  it ; 
he  therefore  thought  it  best  to  attend  some  better 
season  and  opportunity  in  this  business,  and  refused 
it  at  this  time  with  great  seeming  earnestness." — 
P.  656.  The  chief  advisors  with  Cromwell  on  this 
occasion,  besides  Whitelock,  were  Lord  Brog- 
hill,  Pierpomt,  Thurloe,  and  Sir  Charles  Wolsele}-. 


The  fundamental  charter  of  the  Englisli 
Commonwealth  under  the  pro-  His  iiuthon- 
tectorship  of  Cromwell  had  been  t^ctoi.'j™' 
the  Instrument  of  Covei-nment,  augmented, 
drawn  up  by  the  council  of  officers  in  De- 
cember, 1G53,  and  approved  with  modifica- 
tions by  the  Parliament  of  the  next  year. 
It  was  now  changed  to  the  "  Petition  and 
Advice,"  tendered  to  him  by  the  present 
Parliament  in  May,  1657,  which  made  very 
essential  innovations  in  the  frame  of  polity. 
Though  he  bore,  as  formerly,  the  name  of 
Lord  Protector,  we  may  say,  speaking  ac- 
cording to  theoretical  classification,  and 
without  reference  to  his  actual  exercise  of 
power,  which  was  nearly  the  same,  that 
the  English  government  in  the  first  period 
should  be  ranged  in  the  order  of  republics, 
though  with  a  chief  magistrate  at  its  head  ; 
but  that  from  1G57  it  became  substantially 
a  monarchy,  and  ought  to  be  placed  in  that 
class,  notwithstanding  the  dilference  in  the 
style  of  its  sovereign.  The  Petition  and 
Advice  had  been  compiled  with  a  constant 
respect  to  that  article,  which  conferred  the 
roj'al  dignity  on  the  Protector;*  and  when 
this  was  withdrawn  at  his  request,  the  rest 
of  the  Instrument  was  preserved  with  all  its 
implied  attributions  of  sovereignty.  The 
style  is  that  of  subjects  addressing  a  mon- 
arch ;  the  powers  it  bestows,  the  privileges 
it  claims,  are  sup])osed,  according  to  the  ex- 
Many  passages  in  Thurloo,  vol.  vii.,  show  that 
Cromwell  preserved  to  the  last  his  views  on  roy- 
alty. 

*  Whitelock,  657.  It  had  been  agreed,  in  dis- 
cussing the  Petition  and  Advice  in  Parliament,  to 
postpone  the  first  article  requesting  the  Protector 
to  assume  the  title  of  king,  till  the  rest  of  the  char- 
ier (to  use  a  modern,  but  not  inap]jlicable  word) 
had  been  gone  through.  One  of  the  subsequent 
articles,  fixing  the  revenue  at  £1,300,000  per  an- 
num, provides  that  no  part  thereof  should  be  raised 
by  a  land  tax,  "and  this  not  to  he  altered  without 
the  consent  of  the  three  estates  in  Parliament."  A 
division  took  place,  in  consequence,  no  doubt,  of 
this  insidious  expression,  which  was  preserved  by 
97  to  50.— Journals,  13th  March.  The  first  article 
was  can-ied,  after  mudi  debate,  on  Marc^i  24,  by 
323  to  62.  It  stood  thus:  "Resolved,  That  your 
highness  will  be  pleased  to  assume  the  name,  style, 
dignity,  and  office  of  King  of  England,  Scotland, 
and  Ireland,  and  the  respective  dominions  and  ter- 
ritories thereunto  belonging ;  and  to  exercise  the 
same  according  to  the  laws  of  these  nations."  On 
Cromwell's  first  demurring  to  the  proposal,  it  was 
resolved  to  adhere  to  the  Petition  and  Advice  by 
the  small  majority  of  78  to  65.  This  was,  perhaps, 
a  sufficient  warning  that  he  should  not  proceed. 


382 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  i. 


pressions  employed,  the  one  to  be  already  j 
his  own,  the  other  to  emanate  from  his  i 
will.  The  necessity  of  his  consent  to  laws, 
though  nowhere  mentioned,  seems  to  have 
been  taken  for  granted.  An  unlimited  pow- 
er of  appointing  a  successor,  unknown  even 
to  constitutional  kingdoms,  was  vested  in 
the  Protector.  He  was  inaugurated  with 
solemnities  applicable  to  monarchs  ;  and 
what  of  itself  is  a  sufficient  test  of  the  mo- 
nai'chical  and  republican  species  of  govern- 
ment, an  oath  of  allegiance  was  taken  by 
every  member  of  Parliament  to  the  Pro- 
tector singly,  without  any  mention  of  the 
Commonwealth.*  It  is  surely,  therefore, 
no  paradox  to  assert  that  Oliver  Cromwell 
was  de  facto  sovereign  of  England  dm-ing 
the  intei-val  from  June,  1G57,  to  his  death 
in  September,  1658. 

The  zealous  opponents  of  royalty  could 
not  be  insensible  that  they  had  seen  it  re- 
vive in  every  thing  except  a  title,  which 
was  not  likely  to  remain  long  behind. f  It 
was  too  late,  however,  to  oppose  the  first 
magistrate's  personal  authority.  But  there 
remained  one  important  point  of  contention, 
which  the  new  Constitution  had  not  fully 
settled.  It  was  therein  provided  that  the 
Parliament  should  consist  of  two  Houses ; 
namely,  the  Commons,  and  what  they  al- 
ways termed,  with  an  awkward  generality, 
the  Other  House.  This  was  to  consist  of 
not  more  than  seventy,  nor  less  than  forty 
persons,  to  be  nominated  by  the  Protector, 
and,  as  it  stood  at  first,  to  be  approved  by 
the  Commons.  But  before  the  close  of  the 
session,  the  court  party  prevailed  so  far  as 
to  procure  the  repeal  of  this  last  condition  ;% 
and  Cromwell  accordingly  issued  wiits  of 
He  aims  at  summons  to  persous  of  various 
new  Hou*  e  pfn'tios,  a  few  of  the  ancient  peers, 
of  Lords,     a  few  of  his  adversaries,  whom  he 

*  Journals,  21st  of  June.  This  oath,  which  ef- 
fectually declared  the  Parliament  to  be  the  Pro- 
tector's subjects,  was  only  canned  by  63  to  55. 
Lambert  refused  it,  and  was  dismissed  the  army 
in  consequence,  with  a  pension  of  .£2000  per  an- 
num, instead  of  his  pay,  £10  a  day.  So  well  did 
they  cater  for  themselves. — Ludlow,  593.  Brode- 
rick  wrote  to  Hyde,  June  30,  1657,  that  there  was 
a  general  tranquillity  in  England,  all  parties  seem- 
ing satisfied  with  the  compromise;  Fleetwood  and 
Desborough  more  absolutely  Cromwell's  friends 
than  before,  and  Lambert  very  silent. — Clar.  State 
Papers,  349.  t  Thurloe,  vi.,  310. 

t  Compare  Journals,  lltli  of  March  with  2-lth  of 
June. 


hoped  to  gain  over,  or  at  least  to  exclude 
from  the  Commons,  and,  of  course,  a  ma- 
jority of  his  steady  adherents.  To  all 
these  he  gave  the  title  of  lords,  and  in  the 
next  session  their  assembly  denominated  it- 
self the  Lords'  House.*  This  measure  en- 
countered considerable  difficulty.  The  Re- 
publican pai-ty,  almost  as  much  attached  to 
that  vote  which  had  declared  the  House  of 
Lords  useless,  as  to  that  w^hich  had  abolish- 
ed the  monarchy,  and  well  aware  of  the  in- 
timate connection  between  the  two,  resist- 
ed the  assumption  of  this  aristocratic  title, 
instead  of  that  of  the  Other  House,  which 
the  Petition  and  Advice  had  sanctioned. 
The  real  peers  feared  to  compromise  their 
hereditaiy  right  by  sitting  in  an  assembly 
where  the  tenure  was  only  duiing  life,  and 
disdained  some  of  their  colleagues,  such 
as  Pride  and  Hewson,  lowborn  and  inso- 
lent men,  whom  Cromwell  had  rather  in- 
judiciously bribed  with  this  new  nobility; 
though,  with  these  exceptions,  his  House  of 
Lords  was  respectably  composed.  Hence, 
in  the  short  session  of  January,  1658, 
wherein  the  late  excluded  members  were 
permitted  to  take  their  seats,  so  many  dif- 
ficulties were  made  about  acknowledging 
the  Lords'  House  by  that  denomination, 
that  the  Protector  hastily  and  angrily  dis- 
solved the  Parliament.! 

It  is  a  singulai-  part  of  Cromwell's  sys- 
tem of  policy,  that  he  would  neither  reign 
with  Parliaments  nor  without  them ;  impa- 
tient of  an  opposition  which  he  was  sure  to 
experience,  he  still  never  seems  to  have 
meditated  the  attainment  of  a  naked  and 
avowed  despotism.  Tliis  was  probably  due 
to  his  observation  of  the  ruinous  conse- 
quences that  Charles  had  brought  on  him- 
self by  that  course,  and  his  knowledge  of 
the  temper  of  the  English,  never  content 
without  the  exterior  forms  of  iibertj",  as 

*  Whitelock,  665.  They  were  to  have  a  judi- 
cial power,  much  like  that  of  the  real  House  of 
Lords. — Journals,  March. 

t  Whitelock.  Pari  Hist.  The  former  says  this 
was  done  against  his  advice.  These  debates  about 
the  Other  House  are  to  be  traced  in  the  Journals, 
and  are  mentioned  by  Thurloe,  vi.,  107,  &c. ;  and 
Ludlow,  597.  Not  one  of  the  true  peers,  except 
Lord  Eure,  took  his  seat  in  this  House  ;  and  Hazle- 
rig,  who  had  been  nominated  merely  to  weaken 
his  influence,  chose  to  retain  his  place  in  the  Com- 
mons. The  list  of  these  pretended  lords  in  Thur- 
loe, vi.,  668,  is  not  quite  the  same  as  that  ia  White- 
lock. 


Commonwealth.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


383 


well  as  to  the  suggestions  of  counselors  who 
were  not  destitute  of  concern  for  the  laws. 
He  had  also  his  great  design  yet  to  accom- 
plish, which  could  only  be  safely  done  under 
the  sanction  of  a  Parliament.  A  veiy  short 
time,  accordingly,  before  his  death,  we  find 
that  he  had  not  only  resolved  to  meet  once 
more  the  representatives  of  the  nation,  but 
was  tampering  with  several  of  the  leading 
officers  to  obtain  their  consent  to  an  hered- 
itaiy  succession.  The  majority,  however, 
of  a  council  of  nine,  to  whom  he  referred 
this  suggestion,  would  only  consent  that  the 
Protector  for  the  time  being  should  have 
the  power  of  nominating  his  successor ;  a 
vain  attempt  to  escape  from  that  regal  form 
of  government  which  they  had  been  taught 
to  abhor.*  But  a  sudden  illness,  of  a  na- 
ture seldom  fatal  except  to  a  constitution  al- 
ready shattered  by  fatigue  and  anxiety,  ren- 
dered abortive  all  these  projects  of  Crom- 
well's ambition. 

He  left  a  fame  behind  him  proportioned 
„.  ,    ,     to  his  extraordinary  fortunes  and 

His  death,  *' 

andcharac-  to  the  great  qualities  which  sus- 
tained  them  ;  still  more,  perhaps, 
the  admiration  of  strangers  than  of  his  coun- 
try, because  that  sentiment  was  less  alloyed 
by  hatred,  which  seeks  to  extenuate  the 
glory  that  iiTitates  it.  The  nation  itself  for- 
gave much  to  one  who  had  brought  back  the 
renown  of  her  ancient  stoiy,  the  traditions 

*  This  jnnto  of  nine  debated  how  they  might  be 
secure  agaiii.st  the  Cavaliers.  One  scheme  was 
an  oath  of  abjuration  ;  but  this  it  was  tliought  they 
would  all  take  :  another  was  to  lay  a  heavy  tax  on 
them :  "  a  moiety  of  their  estates  was  spoken  of ; 
but  this,  I  suppose,  will  not  down  with  all  the  nine, 
and  least  of  all  will  it  be  swallowed  by  the  Par- 
liament, who  will  not  be  persuaded  to  punish  both 
nocent  and  innocent  without  distinction,"  22d  of 
June. — Thurloe,  vol.  vii.,  p.  198.  And  again,  p. 
269:  "I  believe  we  are  out  of  danger  of  oar  junto, 
and  I  think,  also,  of  ever  having  such  another.  As 
I  take  it,  the  report  was  made  to  his  highness  upon 
Thursday.  After  much  consideration,  the  major 
part  voted  that  succession  in  the  government  was 
indifferent  whether  it  were  by  election  or  hered- 
itary, but  afterward  some  would  needs  add  that  it 
was  desirable  to  have  it  continued  elective ;  that 
is,  that  the  chief  magistrate  should  always  name 
liis  successor;  and  that  of  hereditary  avoided;  and 
I  fear  the  word  '  desirable'  will  be  made  '  neces- 
sary,' if  ever  it  come  upon  the  ti-ial.  His  highness 
finding  he  caii  have  no  advice  from  those  he  most 
expected  it  from,  saith  he  will  take  his  own  reso- 
lutions, and  that  he  can  no  longer  satisfy  himself  to 
sit  still,  and  make  himself  guilty  of  the  loss  of  all 
the  honest  party  and  of  the  nation  itself." 


of  Elizabeth's  age,  after  the  ignominious 
reigns  of  her  successors.  This  contrast 
with  James  and  Charles  in  their  foreign 
policy  gave  additional  lusti'e  to  the  era  of 
the  Protectorate.  There  could  not  but  be 
a  sense  of  national  pride  to  see  an  English- 
man, but  yesterday  raised  above  the  many, 
without  one  drop  of  blood  in  his  veins  which 
the  princes  of  the  earth  could  challenge  as 
their  own,  receive  the  homage  of  those 
who  acknowledged  no  right  to  power,  and 
hardly  any  title  to  respect,  except  that  of 
prescription.  The  sluggish  pride  of  the 
court  of  Spain,  the  mean-spirited  cunning 
of  Mazarin,  the  in-egular  imagination  of 
Christina,  sought  with  emulous  ardor  the 
friendship  of  our  usurper.*  He  had  the 
advantage  of  reaping  the  harvest  which  he 
had  not  sown,  by  an  honorable  treaty  with 
Holland,  the  fruit  of  victories  achieved 
imder  the  Parliament.  But  he  still  em- 
ployed the  gi-eat  energies  of  Blake  in  the 
service  for  which  he  was  so  eminently  fit- 
ted ;  and  it  is  just  to  say  that  the  maritime 
glory  of  England  may  first  be  ti-aced  from 
the  era  of  the  Commonwealth  in  a  track  of 
continuous  light.  The  oppressed  Protes- 
tants in  Catholic  kingdoms,  disgusted  at  the 
lukewarmness  and  half-apostasy  of  the  Stu- 
arts, looked  up  to  him  as  their  patron  and 
mediator.!    Courted  by  the  two  rival  mon- 

*  Hairis,  p.  348,  has  collected  some  curious  in- 
stances of  the  servility  of  crowned  heads  to  Crom- 
well. 

t  See  Clarendon,  vii.,  997.  He  saved  Nismefl 
from  military  execution  on  account  of  a  riot, 
wherein  the  Huguenots  seem  to  have  been  much 
to  blame.  In  the  ti-eaty  between  England  and 
France,  1 6.54,  the  French,  in  agreeing  to  the  secret 
article  about  the  exclusion  of  the  Royalists,  en- 
deavored to  make  it  reciprocal,  that  the  commis- 
sioners of  rebels  in  France  should  not  be  admitted 
in  England.  This  did  not  seem  very  outrageous; 
but  Cromwell  objected  that  the  French  Protestants 
would  be  thus  excluded  from  imploring  the  assist- 
ance of  England  if  they  were  persecuted  ;  protest- 
ing, however,  that  he  was  very  far  from  having 
any  thought  to  draw  them  from  their  obedience, 
as  had  been  imputed  to  him,  and  that  he  would 
arm  against  them  if  they  should  offer  frivolously 
and  without  a  cause  to  disturb  the  peace  of  France. 
— Thurloe,  iii.,  6.  In  fact,  the  French  Protestants 
were  in  the  habit  of  writing  to  Thurloe,  as  this 
collection  testifies,  whenever  they  thought  them- 
selves injured,  which  happened  frequently  enough. 
Cromwell's  noble  zeal  in  behalf  of  the  Vaudois  is 
well  known.— See  this  volume  of  Thurloe,  p.  412, 
&c.  Mazarin  and  the  Catholic  powers  in  general 
endeavored  to  lie  down  that  massacre ;  but  the 


384 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


archies  of  Europe,  he  seemed  to  threaten 
both  with  his  hostility  ;  and  when  he  de- 
clared against  Spain,  and  attacked  her  West 
India  possessions,  with  little  pretense  cer- 
tainly of  justice,  but  not  by  any  means,  as 
I  conceive,  with  the  impolicy  sometimes 
charged  against  him,  so  auspicious  was  his 
6tar,  that  the  very  failure  and  disappoint- 
ment of  that  expedition  obtained  a  more  ad- 
vantageous possession  for  England  than  all 
the  triumphs  of  her  former  kings. 

Notwithstanding  this  external  splendor, 
which  has  deceived  some  of  our  own,  and 
most  foreign  writers,  it  is  evident  that  the 
submission  of  the  people  to  Cromwell  was 
far  from  peaceable  or  voluntaiy.  His  strong 
and  skillful  grasj)  kept  down  a  nation  of  en- 
emies that  must  naturally,  to  judge  from 
their  numbers  and  inveteracy,  have  over- 
whelmed him.  It  required  a  dextrous 
management  to  play  with  the  army,  and 
without  the  army  he  could  not  have  existed 
as  sovereign  for  a  day.  Yet  it  seems  im- 
probable that,  had  Cromwell  lived,  any  in- 
surrection or  cousphacy,  setting  aside  assas- 
sination, could  have  overthrown  a  possession 
so  fenced  by  systematic  vigilance,  by  expe- 
rienced caution,  by  the  respect  and  terror 
that  belonged  to  his  name.  The  Royalist 
and  Republican  intrigues  had  gone  on  for 
several  years  without  intermission ;  but  ev- 
ery part  of  their  designs  was  open  to  him ; 
and  it  appears  that  there  was  not  courage, 
or,  rather,  temerity  sufficient  to  make  any 
open  demonsti"ation  of  so  prevalent  a  disaf- 
fection.* 

The  most  superficial  observers  can  not 
have  overlooked  the  general  resemblances 
in  the  fortunes  and  character  of  Cromwell, 
and  of  him  who,  more  recently  and  upon 
an  ampler  theatre,  has  stnxck  nations  with 
wonder  and  awe.  But  the  parallel  may  be 
traced  more  closely  than,  perhaps,  has  hith- 
erto been  remarked.  Both  raised  to  power 
by  the  only  merit  which  a  revolution  leaves 
tmcontroverted  and  untarnished,  that  of  mU- 
itaiy  achievements,  in  that  reflux  of  public 
sentiment,  when  the  fervid  enthusiasm  of 
democracy  gives  place  to  disgust  at  its  ex- 
cesses and  a  desire  of  firm  government. 
The  means  of  gi-eatness  the  same  to  both ; 
the  extinction  of  a  representative  assembly, 

usurper  had  too  mach  Protestant  spirit  to  believe 
them.— Id.,  536. 

*  Ludlovr,  607.    Tharloe,  i.  and  ii.,  passim. 


ouce  national,  but  already  mutilated  by  vio- 
lence, and  sunk  by  its  submission  to  that  il- 
legal force  into  general  contempt.  In  mili- 
tary science  or  the  renown  of  their  exploits, 
we  can  not  certainly  rank  Cromwell  by  the 
side  of  him  for  whose  genius  and  ambition 
aU  Europe  seemed  tlie  appointed  quaiTy ; 
but  it  may  be  said  that  the  former's  exploits 
were  as  much  above  the  level  of  his  co- 
temporaries,  and  more  the  fruits  of  an  orig- 
inal uneducated  capacity.  In  civil  govern- 
ment, there  can  be  no  adequate  parallel  be- 
tween one  who  had  sucked  only  the  dregs 
of  a  besotted  fanaticism,  and  one  to  whom 
the  stores  of  reason  and  philosophy  were 
open.  But  it  must  here  be  added  that 
'  Cromwell,  fcir  unlike  his  antitype,  never 
!  showed  any  signs  of  a  legislative  mind,  or 
I  any  desire  to  fix  his  renown  on  that  noblest 
I  basis,  the  amelioration  of  social  institutions. 
I  Both  were  eminent  masters  of  human  na- 
ture, and  played  with  inferior  capacities  in 
all  the  security  of  powerful  minds.  Though 
both,  coming  at  the  conclusion  of  a  struggle 
for  liberty,  trampled  upon  her  claims,  and 
sometimes  spoke  disdainfully  of  her  name, 
each  knew  how  to  associate  the  interests 
of  those  who  had  contended  for  her  with 
his  own  ascendency,  and  made  himself  the 
J  representative  of  a  victorious  revolution. 
Those  who  had  too  much  philosophy  or 
'  zeal  for  freedom  to  give  way  to  popular  ad- 
'  miration  for  these  illusti'ious  usurper,  were 
yet  amused  with  the  adulation  that  lawful 
princes  showered  on  them,  more  gratui- 
tously in  one  instance,  with  servile  terror 
in  the  other.  Both,  too,  repaid  in  some 
measm-e  this  homage  of  the  pretended  great 
by  turning  their  ambition  toward  those  hon- 
ors and  titles  which  they  knew  to  be  so  lit- 
tle connected  with  high  desert.  A  fallen 
race  of  monarchs,  which  had  made  way  for 
the  gi-eatuess  of  each,  cherished  hopes  of 
restoration  by  theu-  power  till  each,  by  an  in- 
expiable act  of  blood,  manifested  his  determ- 
ination to  make  no  compromise  with  that 
line.  Both  possessed  a  certain  coarse  good- 
nature and  affability  that  covered  the  want 
of  conscience,  honor,  and  hi) inanity  ;  quick 
in  passion,  but  not  vindictive,  and  averse  to 
unnecessaiy  crimes.  Their  fortunes  in  the 
conclusion  of  life  were  indeed  very  differ- 
ent :  one  forfeited  the  affections  of  his  peo- 
ple, which  the  other,  in  the  character  at 
least  of  their  master,  had  never  possessed ; 


Commonwealth.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


385 


one  furnished  a  moral  to  Eui-ope  by  the 
continuance  of  his  success,  the  other  by  the 
pi'odigiousness  of  his  fall.  A  fresh  resem- 
blance arose  afterward,  when  the  restora- 
tion of  those  royal  families,  whom  their  as- 
cendant had  kept  under,  revived  ancient  an- 
imosities, and  excited  new  ones  ;  those  who 
from  love  of  democratical  liberty  had  borne 
the  most  deadly  hati'ed  to  the  apostates 
who  had  betrayed  it,  recovering  some  af- 
fection to  their  memory  out  of  aversion  to 
a  common  enemy.  Our  English  Repub- 
licans have,  with  some  exceptions,  display- 
ed a  sympathy  for  the  name  of  Cromwell ; 
and  I  need  not  observe  how  remarkably 
this  holds  good  in  the  case  of  his  mighty 
parallel.* 

The  death  of  a  great  man,  even  in  the 
,    , , .    most  regular  course  of  affairs, 

Richard  his  ^  ' 

son  succeeds  seems  alwaj^s  to  create  a  sort  of 
pause  in  the  movement  of  socie- 
ty;  it  is  always  a  problem  to  be  solved  only 

*  Mrs.  Macaulay,  who  had  uothing  of  compro- 
mise or  conciliatioD  in  her  temper,  and  breathed 
the  entire  spirit  of  Vane  and  Ludlow,  makes  some 
vigorous  and  just  animadversions  on  the  favor 
shown  to  Cromwell  by  some  professors  of  a  regard 
for  liberty.  The  dissenting  writers,  such  as  Neal, 
and  in  some  measure  Hams,  were  particularly 
open  to  this  reproach.  He  long  continued  (perhaps 
the  present  tense  is  more  appropriate)  to  be  rever- 
ed by  the  Independents.  One  who  well  knew  the 
manners  he  paints,  has  described  the  secret  idola- 
try of  that  sect  to  their  hero-saint. — See  Crabbe's 
Tale  of  the  Frank  Courtship. 

Slingsby  Bethel,  an  exception,  perhaps,  to  the 
general  politics  of  this  sect,  published  in  1667  a 
tract,  entitled  The  World's  Mistake  in  Oliver 
Cromwell,  with  the  purpose  of  decrying  his  policy 
and  depreciating  his  genius. — Harleian  Miscellany, 
i.,  280.  But  he  who  goes  about  to  prove  the  world 
mistaken  in  its  estimate  of  a  public  character  has 
always  a  difficult  cause  to  maintain.  Betliel,  like 
Mrs.  Macaulay  and  others,  labors  to  set  up  the 
Rump  Parliament  against  the  soldier  who  dispers- 
ed them  ;  and  asserts  that  Cromwell,  having  found 
£500,000  in  ready  money,  with  the  value  of 
£700,000  in  stores,  and  the  ai-my  in  advance  of 
their  pay  (subject,  however,  to  a  debt  of  near 
JE500,000),  the  customs  and  excise  bringing  in 
nearly  a  million  annually,  left  a  debt  which,  in 
Richard's  Parliament,  was  given  in  at  £  1,900,000, 
though  he  believes  this  to  have  been  purposely 
exaggerated  in  order  to  procure  supplies.  I  can 
not  say  how  far  these  sums  are  correct;  but  it  is 
to  be  kept  in  mind,  that  one  great  resource  of  the 
Parliament,  confiscation,  sequestration,  composi- 
tion, could  not  be  repeated  forever.  Neither  of 
these  governments,  it  will  be  found  on  inquirj', 
were  economical,  especially  in  respect  to  the  emol- 
uments of  those  coucenied  in  them. 

6b 


by  experiment,  whetlier  the  mechanism  of 
government  may  not  be  disordered  by  the 
shock,  or  have  been  deprived  of  some  of  its 
moving  powers.  But  what  change  could  be 
so  great  as  that  from  Oliver  Cromwell  to 
his  son !  from  one  beneath  the  teiTor  of 
whose  name  a  nation  had  cowered  and  for- 
eign princes  grown  pale,  one  trained  in 
twenty  eventful  years  of  revolution,  the 
first  of  his  age  in  the  field  or  in  council,  to  a 
young  man  fresh  from  a  country  life,  uned- 
ucated, unused  to  business,  as  little  a  states- 
man as  a  soldier,  and  endowed  by  nature 
Avith  capacities  by  no  means  above  the  com- 
mon. It  seems  to  have  been  a  mistake  in 
Oliver  that  with  the  projects  he  had  long 
formed  in  his  eldest  son's  favor,  he  should 
have  taken  so  little  pains  to  fashion  his  mind 
and  manners  for  the  exercise  of  sovereign 
power,  while  he  had  placed  the  second  in 
a  very  eminent  and  arduous  station ;  or 
that,  if  he  despaired  of  Richard's  capacity, 
he  should  have  trusted  him  to  encounter 
those  perils  of  disaffection  and  conspiracy 
which  it  had  required  all  his  own  vigilance 
to  avert.  But,  whatever  might  be  his  plans, 
the  sudden  illness  which  carried  him  from 
the  world  left  no  time  for  completing  them. 
The  Petition  and  Advice  had  simply  em- 
powered him  to  appoint  a  successor,  with- 
out prescribing  the  mode.  It  appeared  con- 
sonant to  law  and  reason  that  so  important 
a  trust  should  be  executed  in  a  notorious 
manner,  and  by  a  written  instrument ;  or, 
if  a  verbal  nomination  might  seem  sufficient, 
it  was  at  least  to  be  expected  that  this  should 
be  authenticated  by  solemn  and  indisputable 
testimony.  No  proof,  however,  was  ever 
given  of  Richard's  appointment  by  his  fa- 
ther except  a  I'ecital  in  the  proclamation 
of  the  privy  council,  which,  whether  well 
founded  or  otherwise,  did  not  cany  convic- 
tion to  the  minds  of  the  people ;  and  this, 
even  if  we  call  it  but  an  informality,  aggi'a- 
vated  the  numerous  legal  and  natural  defi- 
ciencies of  his  title  to  the  government.* 

"  Whitelock,  674.  Ludlow,  611,  624,  Lord  Fau- 
conberg  writes  in  cipher  to  Henry  Cromwell,  on 
August  30,  that  "  Thurloe  has  seemed  resolved  to 
press  him  in  his  intervals  to  such  a  nomination  (of 
a  successor) ;  but  whether  oat  of  apprehensions  to 
displease  him  if  recovering,  or  others  hereafter,  if 
it  should  not  succeed,  he  has  not  yet  done  it,  nor 
do  I  believe  will."  Thurloe,  however,  announces 
on  Sept.  4  that  "  his  highness  was  pleased  before 
his  death  to  declare  my  Lord  Richard  successor. 


386 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  X 


This  very  difference,  however,  in  the 
Is  supported  Personal  qualifications  of  the  fa- 
bjsoniepru-  ther  and  the  son,  procured  the 
deatmen,  jattgj.  gome  friends  whom  the 
former  had  never  been  able  to  gain.  Many 
of  the  Presbyterian  party  began  to  see  the 
finger  of  God,  as  they  called  it,  in  his  peace- 
able accession,  and  to  think  they  owed  sub- 
jection to  one  who  came  in  neither  by  reg- 
icide, nor  hypocrisy,  nor  violence.*  Some 
cool-headed  and  sincere  friends  of  liberty 
entertained  similar  opinions.  Pierpoint, 
one  of  the  wisest  men  in  England,  who  had 
stood  aloof  from  the  Protector's  government 
till  the  scheme  of  restoring  monarchy  came 
into  discussion,  had  great  hopes,  as  a  writer 
of  high  authority  informs  us,  of  settling  the 
nation  in  the  enjoyment  of  its  liberties  un- 
der the  young  man ;  who  was  "  so  flexible," 
says  that  writer,  "  to  good  counsels,  that 
there  was  nothing  desirable  in  a  prince 
which  might  not  have  been  hoped  in  him 
but  a  great  spirit  and  a  just  title  ;  the  first 
of  which  sometimes  doth  more  hurt  than 
good  in  a  sovereign  ;  the  latter  would  have 
been  supplied  by  the  people's  deserved  ap- 
probation." Pierpoint  believed  that  the 
restoration  of  the  ancient  family  could  not 
be  efl^ected  without  the  ruin  of  the  people's 
liberty,  and  of  all  who  had  been  its  cham- 
pions ;  so  that  no  Royalist,  he  thought,  who 
had  any  regard  to  his  country,  would  at- 
tempt it ;  while  this  establishment  of  mon- 
archy in  Richard's  person  might  reconcile 
that  party,  and  compose  all  differences 
among  men  of  weight  and  of  zeal  for  the 
public  good.f  He  acted,  accordingly,  on 
those  principles  ;  and  became,  as  well  as  his 
friend  St.  John,  who  had  been  discounte- 
nanced by  Oliver,  a  steady  supporter  of  the 
young  Protector's  administi-ation.  These 
two,  with  Thurloe,  Whitelock,  Lord  Brog- 
hill,  and  a  veiy  few  more,  formed  a  small 

He  did  it  on  Monday;  and  the  Lord  hath  so  order- 
ed it,  that  the  council  and  army  hath  received  him 
■with  all  manner  of  affection.  He  is  this  day  pro- 
claimed, and  hitherto  there  seems  great  face  of 
peace  ;  the  Lord  continoe  it."  —  Thurloe  State 
Papers,  vii.,  365,  372.  Lord  Faucouberg  afterward 
confirms  the  fact  of  Richard's  nomination. — P.  375  ; 
and  see  p.  415. 

*  "Many  sober  men,  that  caUed  his  father  no 
better  than  a  traitorous  hj'pocrite,  did  begin  to 
tliink  that  they  owed  him  [R.  C]  subjection,"  &c. 
—Baxter,  100. 

t  Hutchinson,  343.  She  does  not  name  Pierpoint, 
bat  I  have  little  doubt  that  he  is  meant. 


phalanx  of  experienced  counselors  around 
his  unstable  throne;  and  I  must  confess  that 
their  course  of  policy  in  sustaining  Richard's 
government  appears  to  me  the  most  judi- 
cious that,  in  the  actual  circumstances,  could 
have  been  adopted.  Pregnant  as  the  res- 
toration of  the  exiled  family  was  with  in- 
calculable dangers,  the  English  monarchy 
would  have  revived  with  less  lustre  in  the 
eyes  of  the  vulgar,  but  with  more  security 
for  peace  and  freedom,  in  the  line  of  Crom- 
well. Time  would  have  worn  away  the 
stains  of  ignoble  birth  and  criminal  usurpa- 
tion ;  and  the  young  man,  whose  misfor- 
tune has  subjected  him  to  rather  an  exag- 
gerated charge  of  gross  incapacity,  would 
probably  have  reigned  as  well  as  most  of 
those  who  are  bom  in  the  purple.* 

But  this  termination  was  defeated  by  the 
combination  of  some  who  knew  ,  .  , 

but  opposeu 

not  what  they  wished,  and  of  some  by  a  coaii- 
who  wished  what  they  could  nev- 
er  attain.  The  general  officers,  who  had 
been  well  content  to  make  Cromwell  the 
first  of  themselves,  or  greater  than  them- 
selves by  their  own  creation,  had  never  for- 
given his  manifest  design  to  reign  over  them 
as  one  of  a  superior  order,  and  owing  noth- 
ing to  their  pleasure.  They  had  begun  to 
cabal  during  liis  last  illness.  Though  they 
did  not  oppose  Richard's  succession,  they 
continued  to  hold  meetings,  not  quite  pub- 
lic, but  exciting  intense  alarm  in  his  council. 
As  if  disdaining  the  command  of  a  clownish 
boy,  they  proposed  that  the  station  of  Lord- 
general  should  be  separated  from  that  of 
Protector,  with  the  power  over  all  commis- 
sions in  the  army,  and  conferred  on  Fleet- 
wood ;  who,  though  his  brother-in-law,  was 
a  certain  instrument  in  their  hands.  The 
vain,  ambitious  Lambert,  aispiring,  on  the 
credit  of  some  militaiy  reputation,  to  wield 
the  scepter  of  Cromwell,  influenced  this 
junto ;  while  the  Commonwealth's  party, 
some  of  whom  were,  or  had  been,  in  the 
army,  drew  over  several  of  these  ignorant 
and  fanatical  soldiers.  Thurloe  describes 
the  posture  of  affairs  in  September  and 
October,  while  all  Europe  was  admiring 
the  peaceable  transmission  of  Oliver's  pow- 
er, as  most  alarming ;  and  it  may  almost  be 


*  Richard's  conduct  is  more  than  once  commend 
ed  in  the  correspondence  of  Thurloe,  p.  491,  497 
and,  in  fact,  he  did  nothing  amiss  daring  his  short 
administration. 


Commonwealth.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


387 


said  that  Richard  had  abeady  fallen  when 
he  was  proclainaed  the  Lord  Protector  of 
England.* 

It  was  necessary  to  summon  a  Paaliament 
Calls  a  Par-  On  the  Usual  score  of  obtaining 
liament.  money.  Lord  Broghill  had  ad- 
vised this  measure  immediately  on  Olivers 
death, f  and  perhaps  the  delay  might  be 
rather  prejudicial  to  the  new  establishment. 
But  some  of  the  council  feared  a  Pai-lia- 
ment  almost  as  nmch  as  they  did  the  army. 
They  called  one,  however,  to  meet  on  Jan- 
uaiy  27, 1659,  issuing  writs  in  the  ordinary 
manner  to  all  boroughs  which  had  been  ac- 
customed to  send  members,  and  consequent- 
ly abandoning  the  reformed  model  of  Crom- 
well. This  Ludlow  attributes  to  their  ex- 
pectation of  greater  influence  among  the 
small  boroughs ;  but  it  may  possibly  be  as- 
cribed still  more  to  a  desire  of  retin-ning  by 
little  and  little  to  the  ancient  Constitution, 
by  eradicating  the  revolutionaiy  innovations. 
The  new  Parliament  consisted  of  courtiers, 
as  the  Cromwell  party  were  always  denom- 
inated, of  Presbyterians,  among  whom  some 
of  Cavalier  principles  crept  in,  and  of  Re- 
publicans ;  the  two  latter  nearly  balancing, 
with  their  united  weight,  the  ministerial 
majority. t    They  began  with  an  oath  of 

*  Thurloe,  vii.,  320,  et  post,  passim,  in  letters 
both  from  himself  and  Lord  Fauconberg.  Thu.s, 
immediately  on  Richard's  accession,  tlie  former 
writes  to  Henrj-  Cromwell,  "  It  has  pleased  God 
hitherto  to  give  his  highness  your  brother  a  very 
easy  and  peaceable  entrance  upon  his  government. 
There  is  not  a  dog  that  wags  his  tongue,  so  great 
a  calm  we  are  in.  .  .  But  I  must  needs  acquaint 
your  excellency  that  there  are  some  secret  mur- 
murings  in  the  army,  as  if  his  highness  were  not 
general  of  the  army  as  his  father  was,"  &c. — P. 
374.  Here  was  the  secret:  the  oiBcei-s  did  not 
like  to  fall  back  under  the  civil  power,  by  obeying 
one  who  was  not  a  soldier.  This  soon  displayed 
itself  openly ;  and  Lord  Fauconberg  thought  the 
game  was  over  as  early  as  Sept.  28. — P.  413.  It 
is  to  be  observed  that  Fauconberg  was  seci'etly  a 
Royalist,  and  might  hope  to  bring  over  his  brother- 
in-law.  t  Thurloe,  vii.,  573. 

t  Lord  Fauconberg  says,  "The  Commonwealth's 
men  in  the  Parliament  were  very  numerous,  and 
beyond  measure  bold,  but  more  than  doubly  over- 
balanced by  the  sober  party ;  so  that,  though  this 
make  their  results  slow,  we  see  no  great  cause  as 
yet  to  fear." — P.  612.  And  Dr.  Barwick,  a  corre- 
spondent of  Lord  Clarendon,  tells  him  the  Repub- 
licans were  the  minority,  but  all  speakers,  zealous 
and  diligent :  it  was  likely  to  end  in  a  titular  Pro- 
tector without  militia  or  negative  voice. — P.  615. 

According  to  a  letter  from  Allen  Broderick  to 
Hyde  (Clar.  St.  Pap.,  iii.,  443),  there  were  47  Re- 


allegiance  to  the  Protector,  as  presented 
by  the  late  Pai-liament,  which,  as  usual  ia 
such  cases,  his  enemies  generally  took  with- 
out scruple.*  But  upon  a  bill  being  offered 
for  the  recognition  of  Richard  as  the  un- 
doubted Lord  Protector  and  chief  magis- 
trate of  the  Commonwealth,  they  made  a 
stand  against  the  word  recognize,  which 
was  carried  with  difficulty,  and  caused  him 
the  mortification  of  throwing  out  the  epithet 
undoubted. f  They  subsequently  discuss- 
ed his  negative  voice  in  passing  bills,  which 
had  been  purposely  slurred  over  in  the  Pe- 
tition and  Advice  ;  but  now  every  tiling  was 
disputed.  The  thorny  question  as  to  the 
powers  and  privileges  of  the  Other  House 
came  next  into  debate.  It  was  carried  by 
177  to  113,  to  ti'ansact  business  with  them. 
To  this  resolution  an  explanation  was  add- 
ed, that  it  was  not  thereby  intended  to  ex- 
clude such  peers  as  had  been  faithful  to  the 
Parliament  from  their  privilege  of  being  duly 
summoned  to  be  members  of  that  House. 
The  court  supporting  this  not  impolitic,  but 
logically  absurd  proviso,  which  confounded 
the  ancient  and  modern  systems  of  govei-n- 
ment,  carried  it  by  the  small  majority  of 
195  to  188.$  They  were  stronger  in  re- 
jecting an  important  motion,  to  make  the 
approbation  of  the  Commons  a  preliminaiy 
to  their  ti'ansacting  business  with  the  per- 
sons now  sitting  in  the  Other  House  as  a 
House  of  Parliament,  by  183  voices  to  146; 
but  the  opposition  succeeded  in  inserting 

publicans,  from  100  to  140  neuters  or  moderates 
(including  many  Royalists),  and  170  court  lawyers, 
or  officers. 

*  Ludlow  tells  us  that  he  contrived  to  sit  in  the 
House  without  taking  the  oath,  and  that  some 
others  did  the  same,  p.  619. 

t  Whitelock.    Pari.  Hist.,  1530, 1541. 

X  The  numbers  are  differently,  but,  I  suppose, 
erroneously  stated  in  Thurloe,  vii.,  640.  It  is  said, 
in  a  pamphlet  of  the  time,  that  this  clause  was  in- 
troduced to  please  the  Cavaliers,  who  acted  with 
the  court. — Somers  Tracts,  vi.,  482.  Ludlow  seems 
also  to  think  that  these  parties  were  united  in  this 
Parliament,  p.  629  ;  but  this  seems  not  very  prob- 
able, and  is  contrary  to  some  things  we  know. 
Clarendon  had  advised  that  the  Royalists  should 
try  to  get  into  Pai'liament,  and  there  to  oppose  all 
raising  of  money,  and  every  thing  else  that  might 
tend  to  settle  the  government. — Clar.  State  Papers, 
411.    This,  of  course,  was  their  true  game. 

It  is  said  that  Richard  pressing  the  Earl  of 
Northumberland  to  sit  in  the  Other  House,  he  de- 
clined, urging  that  when  the  government  was  such 
as  his  predecessors  had  sen'ed  under,  he  would 
serve  him  with  his  life  and  fortune. — Id.,  433. 


388 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


the  words  "during  the  present  Parliament," 
which  left  the  matter  still  unsettled.*  The 
sitting  of  the  Scots  and  Irish  members  was 
also  unsuccessfully  opposed.  Upon  the 
whole,  the  court  party,  notwithstanding  this 
coalition  of  very  heterogeneous  interests 
against  them,  were  sufficiently  powerful  to 
disappoint  the  hopes  which  the  Royalist  in- 
ti'iguers  had  entertained.  A  strong  body 
of  lawyers,  led  by  Maynard,  adhered  to  the 
government,  which  was  supported,  also,  on 
some  occasions,  by  a  part  of  the  Presbyte- 
rian interest,  or,  as  then  called,  the  moder- 
ate party ;  and  Richard  would  probably 
The  army  concluded  the  session  with  no 
overthrow  loss  of  power,  if  either  he  or  his 
Parliament  could  have  withstood 
the  more  formidable  cabal  of  Wallingford 
House.  This  knot  of  officers,  Fleetwood, 
Desborough,  Berry,  Sydenham,  being  the 
names  most  known  among  them,  formed  a 
coalition  with  the  Republican  faction,  who 
despaired  of  any  success  in  Parliament. 
The  dissolution  of  that  assembly  was  the 
main  article  of  this  league.  Alariiied  at  the 
notorious  caballing  of  the  officers,  the  Com- 
mons voted  that,  during  the  sitting  of  the 
Parliament,  there  should  be  no  general  coun- 
cil, or  meeting  of  the  officers  of  the  army, 
without  leave  of  the  Protector  and  of  both 
Houses. f    Such  a  vote  could  only  acceler- 

*  Pari.  Hist.  Journals,  27th  of  Jan. ;  14tli  and 
18th  of  Feb. ;  1st,  8th,  21st,  23d,  and  28th  of  March. 
The  names  of  the  tellers  in  these  divisions  show 
the  connections  of  leading  individuals  :  we  find  in- 
differently Presbj-terian  and  Republican  names  for 
the  miuoritj',  as  Fairfax,  Lambert,  Nevil,  Hazlerig-, 
Townshend,  Booth. 

t  There  seems  reason  to  believe  that  Richard 
would  have  met  with  more  support  both  in  the 
House  and  among  the  nation,  if  he  had  not  been 
oppressed  by  the  odium  of  some  of  his  father's 
counselors.  A  general  indignation  was  felt  at  those 
who  had  condemned  men  to  death  in  illegal  tribu- 
nals, whom  the  Republicans  and  Cavaliers  were 
impatient  to  bring  to  justice.  He  was  forced,  also, 
to  employ  and  to  screen  from  vengeance  his  wise 
and  experienced  secretary  Thurloe,  master  of  all 
the  secret  springs  that  bad  moved  his  father's  gov- 
ernment, but  obnoxious  from  the  share  he  had 
taken  in  illegal  and  arbiti-ary  measures.  Petitions 
were  presented  to  the  House  from  several  who  had 
been  committed  to  the  Tower  upon  short  written 
orders,  without  any  formal  waiTant,  or  expressed 
cause  of  commitment.  In  the  case  of  one  of  these, 
Mr.  Portman,  the  House  resolved  that  his  appre- 
hension, imprisonment,  and  detention  in  the  Tower 
was  illegal  and  unjust. — Journals,  26th  of  Feb.  A 
still  more  flagi-ant  tjTauny  was  that  frequently 
practiced  by  Cromwell,  of  sending  persons  disaf- 


ate  their  own  downfall.  Three  days  after- 
ward, the  junto  of  "Wallingford  House  in- 
sisted with  Richard  that  he  should  dissolve 
Parliament ;  to  which,  according  to  the  ad- 
vice of  most  of  his  council,  and  perhaps  by 
an  overruling  necessity,  he  gave  his  con- 
sent.*   This  was  immediately  followed  by 

fected  to  him  as  slaves  to  the  West  Indies.  One 
Mr.  Thomas  petitioned  the  House  of  Conmions,  com- 
plaining that  he  had  been  thus  sold  as  a  slave.  A 
member  of  the  court  side  justified  it  on  the  score 
of  his  being  a  Malignant.  Major-general  Browne, 
a  secret  Royalist,  replied  that  he  was  nevertheless 
an  Englishman  and  free  bom.  Thnrloe  had  the  pre- 
sumption to  say  that  he  had  not  thought  to  ]ive  to 
see  the  day  when  such  a  thing  as  this,  so  justly 
and  legally  done  by  lawful  authority,  should  be 
brought  before  Parliament.  Vane  replied  that  he 
did  not  think  to  have  seen  the  day  when  free-bom 
Englishmen  should  be  sold  for  slaves  by  snch  an 
arbitrary  government.  There  were,  it  seems,  not 
less  than  fifty  gentlemen  sold  for  slaves  at  Barba- 
does. — Clarendon  State  Papers,  p.  447.  The  Royal- 
ists had  planned  to  attack  Thurloe  for  some  of  these 
unjustifiable  proceedings,  which  would  have  great- 
ly embarrassed  the  government. — Ibid.,  423,  428. 
They  hoped  that  Richard  would  be  better  dis- 
posed toward  the  king  if  his  three  advisers,  St. 
John,  Thurloe,  and  Pierpoint,  all  implacable  to  their 
cause,  could  be  removed.  But  they  were  not  strong 
enough  in  the  House.  If  Richard,  however,  had 
continued  in  power,  he  must  probably  have  sacri- 
ficed Thurloe  to  public  opinion  ;  and  the  conscious- 
ness of  this  may  have  led  this  minister  to  advise 
the  dissolution  of  the  Parliament,  and  perhaps  to 
betray  his  master,  from  the  suspicion  of  which  he 
is  not  free. 

It  ought  to  be  remarked  what  an  oatrageous 
proof  of  Cromwell's  tyranny  is  exhibited  in  this 
note.  Many  writers  glide  favorably  over  his  ad- 
ministration, or  content  themselves  with  treating 
it  as  a  usurpation,  which  can  furnish  no  precedent, 
and  consequently  does  not  merit  particular  notice ; 
but  the  effect  of  this  generality  is,  that  the  world 
forms  an  imperfect  notion  of  the  degree  of  arbitrary 
power  which  he  exerted  ;  and  I  believe  there  are 
many  who  take  Charles  the  Fii-st,  and  even  Charles 
the  Second,  for  greater  violators  of  the  laws  than 
the  Protector.  Neal  and  Harris  are  full  of  this  dis- 
honest bigotrj'.  Since  this  note  was  first  printed, 
the  publication  of  Burton's  Diary  has  confirmed  its 
truth,  which  had  rashly  been  called  iu  question  by 
apassionate  and  prejudiced  reviewer. — See  vol.  iv., 
p.  253,  &c. 

*  Richard  advised  with  Broghill,  Fiennes,  Thur- 
loe, and  others  of  his  council,  all  of  whom,  except 
Whitelock,  who  infoims  us  of  this,  were  in  favor 
of  the  dissolution.  This  caused,  he  says,  much 
trouble  to  lionest  men;  the  Cavaliers  and  Repub 
licans  rejoiced  at  it ;  many  of  Richard's  council 
were  his  enemies.— P.  177.  The  army  at  first  in- 
tended to  raise  money  by  their  own  authority;  but 
this  was  deemed  impossible,  and  it  was  resolved 
to  recall  the  Lona- Parliament.  Lambert  andHazle- 


Commonwealth.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


389 


a  declaration  of  the  council  of  officers,  call- 
ing back  the  Long  Parliament,  such  as  it 
had  been  expelled  in  1C53,  to  those  seats 
which  had  been  filled  meanwhile  by  so 
many  ti'ansient  successors.* 

It  is  not,  in  general,  difficult  for  an  armed 
force  to  destroy  a  government ;  bat  some- 
thing else  than  the  sword  is  required  to  cre- 
ate one.  The  military  conspirators  were 
destitute  of  any  leader  whom  they  would 
acknowledge,  or  wdio  had  capacity  to  go 
through  the  civil  labors  of  sovereignty ; 
Lambert  alone  excepted,  who  was  lying  in 
wait  for  another  occasion.  They  might 
have  gone  on  with  Richard,  as  a  pageant 
of  nominal  authority  ;  but  their  new  allies, 
the  Commonwealth's  men,  insisted  upon 
restoring  the  Long  Parliament. f  It  seem- 
ed now  the  policy,  as  much  as  dutj'^,  of  the 
officei-s  to  obey  that  civil  power  they  had 
set  up ;  for  to  rule  ostensibly  was,  as  I  have 
just  observed,  an  impracticable  scheme. 
But  the  contempt  they  felt  for  their  pre- 
tended masters,  and  even  a  sort  of  necessi- 
ty ai'ising  out  of  the  blindness  and  passion 
of  that  little  oligarchy,  drove  them  to  a  step 
still  more  ruinous  to  their  cause  than  that 

rig  accordingly  ruet  Lenthal,  vcho  was  persuaded  to 
act  again  as  speaker;  though,  if  Ludlow  is  right, 
against  his  will,  being  now  connected  with  the 
court,  and  in  the  pretended  House  of  Lords.  The 
Parliament  now  consisted  of  91  members. — Pari. 
Hist,  1547.  Hams  quotes  a  manuscript  journal 
of  Montague,  afterward  Earl  of  Sandwich,  wherein 
it  is  said  that  Richard's  great  error  was  to  dissolve 
the  Parliament,  and  that  he  might  have  overruled 
the  army  if  he  would  have  employed  himself,  In- 
goldsby.  Lord  Fauconberg,  and  others,  who  were 
suspected  to  be  for  the  king. — Life  of  Charles  II., 
194.  He  afterward,  p.  203,  quotes  Calamy's  Life 
of  Howe  for  the  assertion  that  Richard  stood  out 
against  his  council,  with  Thurloe  alone,  that  the 
Parliament  should  not  be  dissolved.  This  is  very 
unlikely. 

*  This  was  carried  against  the  previous  question 
by  163  to  87. — Journals,  Abr.,  111.  Some  of  the 
Protector's  friends  were  alarmed  at  so  high  a  vote 
against  the  army,  which  did,  in  fact,  bring  the  mat- 
ter to  a  crisis. — Thurloe,  vii.,  659,  et  post. 

t  The  army,  according  to  Ludlow,  had  not  made 
up  their  minds  how  to  act  after  the  dissolution  of 
the  Parliament,  and  some  were  inclined  to  go  on 
with  Richard  ;  but  the  Republican  party,  who  had 
coalesced  with  that  faction  of  officers  who  took  their 
denomination  from  Wallingford  House,  their  place 
of  meeting,  insisted  on  the  restoration  of  the  old 
Parliament,  though  they  agi'eed  to  make  some  pro- 
vision for  Richard. — Memoirs,  p.  635-646.  Accord- 
ingly, it  was  voted  to  give  him  an  income  of  £10,000 
per  annum. — Journals,  July  16. 


of  deposing  Richard,  the  expulsion  Expelled 
once  more  of  that  assembly,  now  "^^'O' 
worn  out  and  ridiculous  in  all  men's  eyes, 
yet  seeming  a  sort  of  frail  protection  against 
mere  anarchy  and  the  terror  of  the  sword. 
Lambert,  the  chief  actor  in  this  last  act  of 
violence,  and,  indeed,  many  of  the  rest, 
might  plead  the  right  of  self-defense.  The 
prevailing  faction  in  the  Parliament,  led  by 
Hazlerig,  a  bold  and  headstrong  man,  per- 
ceived that,  with  very  inferior  pretensions, 
Lambert  was  aiming  to  tread  in  the  steps 
of  Cromwell ;  and,  remembering  their  neg- 
lect of  opportunities,  as  they  thought,  in 
permitting  the  one  to  overthrow  them,  fan- 
cied that  they  would  anticipate  the  other. 
Their  intemperate  votes  cashiering  Lam- 
bert, Desborough,  and  other  officers,  brought 
on,  as  every  man  of  more  prudence  than 
Hazlerig  must  have  foreseen,  an  immediate 
revolution,  that  crushed  once  more  their 
boasted  Commonwealth.*  They  and  again 
revived  again  a  few  months  after,  restored, 
not  by  any  exertion  of  the  people,  who  hat- 
ed alike  both  parties,  in  their  behalf,  but 
through  the  disunion  of  their  real  masters, 
the  army,  and  vented  the  impotent  and  in- 
judicious rage  of  a  desperate  faction  on  all 
who  had  not  gone  every  length  on  their 
side,  till  scarce  any  man  of  eminence  was 
left  to  muster  under  the  standard  of  Hazle- 
rig and  his  little  knot  of  associates. f 

I  can  by  no  means  agree  with  those  who 

*  Journals,  Sept.  23,  et  post.  Whitelock,  683. 
Pari.  Hist,  1562.  Thurioe,  vii.,  703,  et  post.  Lud- 
low's account  of  this  period  is  the  most  interesting 
part  of  his  Memoirs.  The  chief  officers,  it  appears 
from  his  narrative,  were  soon  disgusted  with  their 
Republican  allies,  and  "  behaved  with  all  imagin- 
able perverseness  and  insolence"  in  the  Council 
of  State  whenever  they  came  there,  which  was  but 
seldom,  scrupling  the  oath  to  be  true  to  the  Com- 
monwealth against  Charles  Stuart  or  any  other  per- 
son.— P.  657.  He  censures,  however,  the  violence 
of  Hazlerig,  "  a  man  of  a  disobliging  temper,  sour 
and  morose  of  temper,  liable  to  be  transported  with 
passion,  and  in  whom  liberality  seemed  to  be  a 
vice.  Yet  to  do  him  justice,  I  must  acknowledge 
that  I  am  under  no  manner  of  doubt  concerning  the 
rectitude  and  sincerity  of  his  intentions.'' — P.  718. 
Ludlow  gave  some  offense  to  the  hot  headed  Re- 
publicans by  his  half  compliance  with  the  army, 
and  much  disapproved  the  proceedings  they  adopted 
after  their  second  restoration  in  December,  1659, 
against  Vane  and  others.— P.  800.  Yet,  though 
nominated  on  the  committee  of  safety,  on  the  ex- 
pulsion of  the  Parliament  in  October,  he  never  sat 
on  it,  as  Vane  and  Whitelock  did. 

t  Jouraals,  and  other  authorities  above  cited. 


390 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


Impossibility  find  in  the  character  of  the  E  ng- 

of  establish-  jj^jj  nation  some  absolute  incom- 
ing a  repub- 
lic, patibilitj'  with  a  republican  con- 
stitution of  government.    Under  favoring 
circumstances,  it  seems  to  me  not  at  all  in- 
credible that  such  a  polity  might  have  ex- 
isted for  many  ages  in  gi-eat  prosperity,  and 
Avithout  violent  convulsion  ;  for  the  English 
are,  as  a  people,  little  subject  to  those  bursts 
of  passion  which  inflame  the  more  imagina- 
tive multitude  of  southern  climates,  and 
render  them  both  apt  for  revolutions,  and 
incapable  of  conducting  them ;  nor  are  they, 
again,  of  that  sluggish  and  stationary  tem- 
per, which  chokes  all  desire  of  improve- 
ment, and  even  all  zeal  for  freedom  and  jus- 
tice, through  which  some  free  governments 
have  degenerated  into  corrupt  oligarchies. 
The  most  conspicuously  successful  experi- 
ment of  republican  institutions  (and  those 
far  more  democratical  than,  according  to 
the  general  theory  of  politics,  could  be  rec- 
onciled with  perfect  ti-anquillity)  has  taken 
place  in  a  people  of  English  original;  and 
though  much  must  here  be  ascribed  to  the 
peculiarly  fortunate  situation  of  the  nation 
to  which  I  allude,  we  can  hardly  avoid  giv- 
ing some  weight  to  the  good  sense  and  well- 
balanced  temperament  which  have  come  in 
their  inheritance  with  om-  laws  and  our  lan- 
guage.   But  the  establishment  of  free  com- 
monwealths depends  much  rather  on  tem- 
porary causes,  the  influence  of  persons  and 
particular  events,  and  all  those  intricacies  in 
the  course  of  Providence  which  we  term 
accident,  than  on  any  general  maxims  that 
can  become  the  basis  of  prior  calculation. 
In  the  year  1659,  it  is  manifest  that  no  idea 
could  be  more  chimerical  than  that  of  a  re- 
publican settlement  in  E  ngland.   The  name, 
never  familiar  or  venerable  in  English  ears, 
was  grown  infinitely  odious  :  it  was  associ- 
ated with  the  tyranny  of  ten  years,  the  self- 
ish rapacity  of  the  Rump,  the  hypocritical 
despotism  of  Cromwell,  the  arbiti'aiy  se- 
questrations of  committee-men,  the  iniqui- 
tous decimations  of  militaiy  prefects,  the 
sale  of  British  citizens  for  slavery  in  the 
West  Indies,  the  blood  of  some  shed  on  the 
scaff'old  without  legal  trial,  the  tedious  im- 
prisonment of  many  with  denial  of  the  ha- 
beas corpus,  the  exclusion  of  the  ancient 
gently,  the  persecution  of  the  Anglican 
Church,  the  bacchanalian  rant  of  sectaries, 
the  morose  preciseness  of  Puritans,  the  ex- 


tinction of  the  frank  and  cordial  joj^ousness 
of  the  national  character.  Were  the  peo- 
ple again  to  endure  the  mockery  of  the  good 
old  cause,  as  the  Commonwealth's  men  af- 
fected to  style  the  interests  of  their  little 
faction,  and  be  subject  to  Lambert's  noto- 
rious want  of  principle,  or  to  Vane's  con- 
tempt of  ordinances  (a  godly  mode  of  ex- 
pressing the  same  thing),  or  to  Hazlerig's 
fury,  or  to  Harrison's  fanaticism,  or  to  the 
fancies  of  those  lesser  schemers,  who  in 
this  utter  confusion  and  abject  state  of  their 
party  were  amusing  themselves  with  plans 
of  perfect  commonwealths,  and  debating 
whether  there  should  be  a  senate  as  well 
as  a  representation  ;  whether  a  fixed  num- 
ber should  go  out  or  not  by  rotation ;  and 
all  those  details  of  political  mechanism  so 
important  in  the  eyes  of  theorists  ?*  Ev- 
eiy  project  of  this  description  must  have 
wanted  what  alone  could  give  it  either  the 
pretext  of  legitimate  existence,  or  the  chance 
of  pennanency,  popular  consent;  the  Re- 
publican party,  if  we  exclude  those  who 
would  have  had  a  protector,  and  those  fa- 
natics who  expected  the  appearance  of  Je- 
sus Christ,  was  incalculably  small ;  not,  per- 
haps, amounting  in  the  whole  nation  to  more 
than  a  few  hundred  persons. 

The  little  court  of  Charles  at  Bmssels 
watched  with  trembling  hope  intrigues  of 
these  convulsive  struggles  of  Royalists, 
their  enemies.  During  the  protectorship 
of  Oliver  their  best  chance  appeared  to  be, 
that  some  of  the  numerous  schemes  for  his 
assassination  might  take  effect.  Their  cor- 
respondence, indeed,  especially  among  the 
Presbyterian  or  neutral  pai'tj-,  became  more 
extensive;!  but  these  men  were  habitually 
cautious ;  and  the  Marquis  of  Ormond,  who 
went  over  to  England  in  the  beginning  of 
1658,  though  he  reported  the  disaffection 
to  be  still  more  universal  than  he  had  ex- 
pected, was  forced  to  add,  that  there  was 
little  prospect  of  a  rising  until  foreign  troops 
should  be  landed  in  some  part  of  the  coun- 
tiy  ;  an  aid  which  Spain  had  frequently 
promised,  but,  with  an  English  fleet  at  sea, 
could  not  veiy  easily  furnish. t  The  death 
*  The  Rota  Club,  as  it  was  called,  was  composed, 
chiefly  at  least,  of  these  dealers  in  new  Constitn- 
tions,  which  were  debated  in  due  form.  Harring- 
ton was  one  of  the  most  conspicaous. 

t  Thurloe,  vi.,  579.  Clarendon  State  Papers,  391, 
395. 

t  Carte's  Letters,  ii.,  118.    In  a  letter  of  Ormond 


Commonwealth.] 


FEOM  HEiniY  VII.  TO  GEORGE  11. 


391 


of  their  puissant  enemy  brightened  the  vi-  : 
sions  of  the  Roj-alists.  Though  the  appa- 
rent peaceableness  of  Richard's  government 
gave  them  some  mortification,  they  contin- 
ued to  spread  their  toils  through  zealous 
emissaries,  and  found  a  veiy  general  will- 
ingness to  restore  the  ancient  Constitution 
under  its  hereditaiy  sovereign.  Besides 
They  unite  the  Cavaliers,  who,  though  nu- 
Presbyteri-  "^erous  and  ardent,  wore  impov- 
ans.  erished  and  suspected,  the  chief 
Presbyterians,  Lords  Fairfax  and  Willough- 
by,  the  Earls  of  Manchester  and  Denbigh, 
Sir  William  Waller,  Sir  George  Booth,  Sir 
Ashley  Cooper,  Mr.  Popham  of  Somerset, 
Mr.  Howe  of  Gloucester,  Sir  Horatio  Town- 
shend  of  Norfolk,  with  more  or  less  of  zeal 
and  activity,  pledged  themselves  to  the  roy- 
al cause.*  Lord  Fauconberg,  a  Royalist 
by  family,  who  had  married  a  daughter  of 
Cromwell,  undertook  the  important  office 
of  working  on  his  brothers-in-law,  Richard 
and  Heniy,  whose  position,  in  respect  to 
the  army  and  Republican  party,  was  so 
Lazai-dous.  It  seems,  in  fact,  that  Richard, 
even  during  his  continuance  in  power,  had 
not  refused  to  hear  the  king's  agents,  f  and 

to  Hyde  about  this  time,  he  seems  to  have  seen 
into  the  king's  character,  and  speaks  of  him  severe- 
ly: "I  fear  his  immoderate  delight  in  empty,  ef- 
feminate, and  vulgar  conversations  is  become  an 
iiTesistible  part  of  his  nature,"  Slc — Clarendon  State 
Papers,  iii.,  387. 

*  Clarendon  Papers,  391,  418, 4C0,  et  post.  Town- 
sbend,  a  young  man  who  seems  to  have  been  much 
looked  up  to,  was  not,  in  fact,  a  Presbyterian,  but 
is  reckoned  among  them,  as  not  being  a  Cavalier, 
having  come  of  age  since  the  war,  and  his  family 
neutral. 

t  This  curious  fact  appears  for  the  first  time,  I 
believe,  in  the  Clarendon  State  Papers,  unless  it  is 
any  where  intimated  in  Carte's  collection  of  the 
Ormond  letters.  In  the  fonner  collection  we  find 
several  allusions  to  it ;  the  first  is  in  a  letter  from 
Rumbold,  a  Hoyalist  emissary,  to  Hyde,  dated 
Dec.  2, 1658,  p.  421,  from  which  I  collect  Lord  Fau- 
conberg's  share  in  this  intrigue,  which  is  also  con- 
finned  by  a  letter  of  Mordauut  to  the  king,  in  p.  423. 
"  The  Lord  Falconbridge  protests  that  Cromwell  is 
BO  remiss  a  person  that  be  can  not  play  his  own 
game,  much  less  another  man's,  and  is  thereby  dis- 
couraged from  acting  in  business,  having  also  many 
enemies  wl»o  oppose  his  gaining  either  power  or 
interest  in  the  army  or  civil  government,  because 
they  conceive  his  principles  contrary  to  theirs.  He 
Bays,  Thurloe  governs  CromweU,  and  St.  John  and 
Pierpoint  govern  Thurloe ;  and  therefore  is  not 
likely  he  will  think  himself  in  danger  till  these  tell 
him  so,  nor  seek  a  diversion  of  it  but  by  their  coun- 
cils,"— Feb,  10, 1659.    These  ill-grounded  hopes  of 


hopes  were  entertained  of  him,  yet  at  that 
time  even  he  could  not  reasonably  be  ex- 
pected to  abandon  his  apparent  interests; 
but  soon  after  his  fall,  while  his  influence, 
or,  rather,  that  of  his  father's  memory,  was 
still  supposed  considerable  with  Montagu, 
iNIonk,  and  Lockhart,  they  negotiated  with 
him  to  pi-ocure  the  accession  of  those  per- 
sons, and  of  his  brother  Henry,  for  a  pen- 
sion of  c£20,000  a  year,  and  a  title.*  It 
soon  appeared,  however,  that  those  pru- 
dent veterans  of  revolution  would  not  em- 
bark under  such  a  pilot,  and  that  Richard 
was  not  worth  purchasing  on  the  lowest 
terms.  Even  Hemy  Cromwell,  with  whom 
a  separate  treaty  had  been  carried  on,  and 
who  is  said  to  have  determined  at  one  time 
to  proclaim  the  king  at  Dubhn,  from  want 
of  courage,  or,  as  is  more  probable,  of  seri- 
ousness in  what  must  have  seemed  so  un- 
natui'al  an  undertaking,  submitted  quietly 
to  the  vote  of  Parliament  that  deprived  him 
of  the  command  of  Ireland. f 

The  conspiracy,  if,  indeed,  so  general  a 
concert  for  the  restoration  of  an-  conspiracy 
cient  laws  and  liberties  ought  to  °^ 
have  so  equivocal  an  appellation,  became 
ripe  in  the  summer  of  1659.  The  Royal- 
ists were  to  appear  in  arms  in  different 
quarters ;  several  principal  towns  to  be  seiz- 
ed :  but  as  the  moment  grew  nigh,  the  cour- 
age of  most  began  to  fail.  Twenty  years 
of  depression  and  continual  failure  mated 
the  spirits  of  the  Cavaliers.  The  shade  of 
Cromwell  seemed  to  hover  over  and  pro- 
tect the  wreck  of  his  greatness.  Sir  George 
Booth,  almost  alone,  rose  in  Cheshire ;  ev- 
ery other  scheme,  intended  to  be  executed 
simultaneously,  failing  througii  the  increas- 
ed prudence  of  those  concei-ned,  or  the  pre- 
cautions taken  by  the  government  on  secret 

Richard's  accession  to  their  cause  appear  in  sev- 
eral other  letters,  and  even  Hyde  seems  to  have 
given  in  to  them,  434,  454,  &.c.  Broderick,  another 
active  emissai-y  of  the  Royalists,  fancied  that  the 
three  above  mentioned  would  restore  the  king  if 
they  dared,  477  ;  but  this  is  quite  unlikely. 

*  P.  469.    This  was  earned  on  through  Colonel 
Henry  Cromwell,  his  cousin.    It  is  said  that  Rich- 
ard had  not  courage  to  sign  the  letters  to  Monk  and 
his  other  friends,  which  he  afterward  repented,  491. 
The  intrigues  still  went  on  with  him  for  a  little 
longer.    This  was  in  May,  1659. 
;      t  Clarendon  State  Papers,  434, 500,  et  post.  Thur- 
I  loe,  vi.,  686.    See,  also,  an  enigmatical  letter  to 
•   Henry  Cromwell,  629,  which  certainly  hints  at  his 
union  with  the  king ;  and  Carte's  Letters,  ii.,  293. 


392 


CONSTITUTIONAL  HISTORY  OF  ENGLAXD 


[Chap.  X. 


intelligence  of  the  plots;  and  Booth,  thus 
deserted,  made  less  resistance  to  Lambei^t 
than  perhaps  was  in  his  power.*  This  dis- 
comfiture, of  course,  damped  the  expecta- 
tions of  the  king's  party.  The  Presbyte- 
rians thought  themselves  ill  used  by  their 
new  allies,  though  their  own  friends  had 
been  almost  equally  cautious. f  Sir  Rich- 
ard Willis,  an  old  Cavalier,  and  in  all  the 
secrets  of  their  conspii-acy,  was  detected  in 
being  a  spy  both  of  Cromwell  and  of  the 
new  government;  a  discovery  which  struck 
consternation  into  the  party,  who  could 
hardly  trust  any  one  else  with  greater  se- 
curity.f  In  a  less  favorable  posture  of  af- 
fairs, these  untoward  circumstances  might 
have  ruined  Charles's  hopes ;  they  sei-ved, 
as  it  was,  to  make  it  evident  that  he  must 
look  to  some  more  efficacious  aid  than  a 
people's  good  wishes  for  his  restoration. 

The  Royalists  in  England,  who  played  so 
deep  a  stake  on  the  king's  account,  were 
not  unnaturally  desirous  that  he  should 
risk  something  in  the  game,  and  continually 
pressed  that  either  he  or  one  of  his  broth- 
ers would  land  on  the  coast.  His  standard 
would  become  a  rallying-point  for  the  well- 
affected,  and  create  such  a  demonstration 
of  public  sentiment  as  would  overthrow  the 
present  unstable  government.  But  Charles, 
not  by  nature  of  a  chivalrous  tempei',  shi-unk 
fi-om  an  enterpinse  which  was  certainly  veiy 
hazardous,  unless  he  could  have  obtained  a 
greater  assistance  of  troops  from  the  Low 
Couuti-ies  than  was  to  be  hoped.§  He  was 
as  little  inclined  to  permit  the  Duke  of  York's 
engaging  in  it,  on  account  of  the  differences 
that  had  existed  bet%veen  them,  and  his 
knowledge  of  an  intrigue  that  was  going 
forward  in  England  principally  among  the 
Catholics,  but  with  the  mischievous  talents 


*  Clarendon  State  Papers,  552,  556,  &c. 

t  Clarendon  confesses,  Life,  p.  20,  that  the  Cav- 
aliers disliked  this  whole  iutrigne  virith  the  Presby- 
terians, which  was  planned  by  Mordauut,  the  most 
active  and  intelligent  agent  that  the  king  possessed 
iu  England.  The  former,  doubtless,  perceived  that 
by  extending  the  basis  of  the  coalition,  they  should 
lose  all  chance  of  indemnity  for  their  own  safTer- 
inss  ;  besides  which,  their  timidity  and  irresolution 
are  manifest  in  all  the  Clarendon  correspondence 
at  this  period.— See  particularly  491,  520. 

J  Willis  had  done  aU  in  his  power  to  obstruct  the 
rising.  Clarendon  was  very  slow  iu  behe\-ing  this 
treachery,  of  which  he  had  at  length  conclusive 
proofs,  552,  562. 

§  Clar.  Papers,  514,  530,  536,  543. 


of  the  Duke  of  Buckingham  at  its  head,  to 
set  up  the  duke  instead  of  himself.*  He 
gave,  however,  fair  words  to  his  party,  and 
continued  for  some  time  on  the  French 
coast,  as  if  waiting  for  his  opportunity.  It 
w£is  in  great  measure,  as  I  suspect,  to  rid 
himself  of  this  importunity,  that  he  set  out 
on  his  long  and  very  needless  journey  to 
the  foot  of  the  Pyrenees.  Thither  the  two 
monarchs  of  France  and  Spain,  wearied 
with  twenty  years  of  hostility  without  a 
cause  and  without  a  purpose,  had  sent  their 
ministers  to  conclude  the  celebrated  treaty 
which  bears  the  name  of  those  mountains. 
Charles  had  long  cherished  hopes  that  the 
first  fruits  of  their  reconciliation  would  be  a 
joint  armament  to  place  him  on  the  English 
throne  :  many  of  his  adherents  almost  de- 
spaired of  any  other  means  of  restoration. 
But  Lewis  de  Haro  was  a  timid  statesman, 
and  Mazarin  a  cunning  one  :  there  was  lit- 
tle to  expect  from  their  generosity ;  and  the 
price  of  assistance  might  probably  be  such 
as  none  but  desperate  and  unscrupulous 
exiles  would  offer,  and  the  English  nation 
would  with  unanimous  indignation  reject. 

*  Clarendon  Papers,  425,  427,  458,  462,  475,  526, 
579.  It  is  evident  that  the  Catholics  had  greater 
hopes  from  the  duke  than  from  the  king,  and  con- 
sidered the  former  as  already  their  own.  A  re- 
markable letter  of  Morley  to  Hyde,  April  24,  1659, 
p.  458,  shows  the  suspicions  already  entertained  of 
him  by  the  writer  in  point  of  religion ;  and  Hj'de  is 
plainly  not  free  from  apprehension  that  he  might 
favor  the  scheme  of  supplanting  his  brother.  The 
intrigue  might  have  gone  a  great  way,  though  wo 
may  now  think  it  probable  that  their  alarm  magni- 
fied the  danger.  "  Let  me  tell  you,"  says  Sir  An- 
tony Ashley  Cooper  in  a  letter  to  Hyde,  "  that 
Wildman  is  as  much  an  enemy  now  to  the  king  as 
he  was  before  a  seeming  friend ;  yet  not  upon  the 
account  of  a  commonwealth,  for  his  ambition  meets 
with  every  day  repulses  and  affronts  from  that 
party ;  but  upon  a  finer  spun  design  of  setting  up 
the  interest  of  the  Duke  of  York  against  the  king; 
in  which  design  I  fear  you  will  find  confederated 
the  Duke  of  Bucks,  who  perhaps  may  draw  away 
with  him  Lord  Fairfax,  the  Presbyterians,  Level- 
ers,  and  many  Catholics.  I  am  apt  to  think  these 
things  are  not  transacted  without  the  privity  of  the 
queen ;  and  I  pray  God  that  they  have  not  an  ill 
influence  upon  your  affairs  in  France,"  475.  Buck- 
ingham was  surmised  to  have  been  formally  recon- 
ciled to  the  Church  of  Rome,  427.  Some  supposed 
that  he,  with  his  friend  Wildman,  were  for  a  re- 
pubUc  ;  but  such  men  are  for  nothing  but  the  in- 
trigue of  the  moment.  These  projects  of  Bucking- 
ham to  set  up  the  Duke  of  York  are  hinted  at  in  a 
pamphlet  by  Shaftesburj-  or  one  of  his  party,  writ- 
ten about  1630. — Somers  Tracts,  viii.,  342. 


COKMONWEALTH.] 


FROM  HENRY         TO  GEORGE  11. 


393 


It  was  well  for  Charles  that  he  conti-acted 
no  public  engagement  with  these  foreign 
powei-s,  whose  co-operation  must  either 
have  failed  of  success,  or  have  placed  on  his 
head  a  degraded  and  unstable  crown.  The 
full  toleration  of  popery  in  England,  its  es- 
tablishment in  Ireland,  its  profession  by  the 
sovereign  and  his  family,  the  suiTender  of 
Jamaica,  Dunkirk,  and,  perhaps,  the  Nor- 
man islands,  were  conditions  on  which  the 
people  might  have  thought  the  restoration 
of  the  Stuart  line  too  dearly  obtained. 

It  was  a  more  desirable  object  for  the 
king  to  bring  over,  if  possible,  some  of  the 
leaders  of  the  Commonwealth.  Except 
Vane,  accordingly,  and  the  decided  Repub- 
licans, there  was  hardly  any  man  of  conse- 
quence whom  his  agents  did  not  attempt, 
or,  at  least,  from  whom  they  did  not  enter- 
tain hopes.  Three  stood  at  this  time  con- 
spicuous above  the  rest,  not  all  of  them  in 
ability,  but  in  apparent  power  of  seiTing  the 
royal  cause  by  their  defection,  Fleetwood, 
Lambert,  and  Monk.  The  first  had  discov- 
ered, as  far  as  his  vmderstanding  was  capa- 
ble of  perceiving  any  thing,  that  he  had  been 
the  dupe  of  more  crafty  men  in  the  cabals 
against  Richard  Cromwell,  whose  complete 
fall  from  power  he  had  neither  designed  nor 
foreseen.  In  pique  and  vexation,  he  listen- 
ed to  the  overtures  of  the  Royalist  agents, 
and  sometimes,  if  we  believe  their  assertions, 
even  promised  to  declare  for  the  king.*  But 
his  resolutions  were  not  to  be  relied  upon, 
nor  was  his  influence  likely  to  prove  consid- 
erable ;  though  from  his  post  of  lieutenant- 
general  of  the  anny,  and  long  accustomed 
precedence,  he  obtained  a  sort  of  outward 
credit  far  beyond  his  capacity.  Lambert 
was  of  a  very  different  stamp ;  eager,  en- 
terprising, ambitious,  but  destitute  of  the 
qualities  that  inspire  respect  or  confidence. 
Far  from  the  weak  enthusiasm  of  Fleet- 
wood, he  gave  offense  by  displaying  less 

•  Hyde  writes  to  the  Duke  of  Ormond :  "  I  pray 
inform  the  king  that  Fleetwood  makes  great  pro- 
fessions of  being  converted,  and  of  a  resolution  to 
serve  the  king  upon  the  first  opportunity." — Oct. 
11,1659.  Carte's  Letters,  ii.,  231.  See  Clarendon 
State  Papers,  551  (Sept.  2)  and  577.  But  it  is  said 
afterward  that  he  had  "  not  courage  enough  to  fol- 
low the  honest  thoughts  which  sometimes  possess 
him,"  592  (Oct.  31),  and  that  Manchester,  Popham, 
and  others  tried  what  they  could  do  with  Fleet- 
wood ;  but,  "  though  they  left  him  with  good  resolu- 
tions, they  were  so  weak  as  not  to  continue  longer 
than  the  next  temptation,"  635  (Dec.  27). 


show  of  religion  than  the  temper  of  his 
party  required,  and  still  more  by  a  current 
suspicion  that  his  secret  faith  was  that  of 
the  Church  of  Rome,  to  which  the  partiali- 
ty of  the  Catholics  toward  him  gave  sup- 
port.* The  crafty,  unfettered  ambition  of 
Lambert  i-endered  it  not  unlikely  that,  find- 
ing his  own  schemes  of  sovereignty  imprac- 
ticable, he  would  make  terms  with  the  king ; 
and  there  was  not  wanting  those  who  rec- 
ommended the  latter  to  secure  his  services 
by  the  offer  of  marrying  his  daughter  ;f  but 
it  does  not  appear  that  any  actual  overtures 
were  made  on  either  side. 

There  remained  one  man  of  eminent  mil- 
itaiy  reputation,  in  the  command  interference 
of  a  considerable  insulated  army,  °^  Monk, 
to  whom  the  Royalists  anxiously  looked  with 
alternate  hope  and  despondency.  Monk's 
early  connections  were  with  the  king's  par- 
ty, among  whom  he  had  been  defeated  and 
taken  prisoner  by  Fairfax  at  Namptwich. 
Yet  even  in  this  period  of  his  life  he  had 
not  escaped  suspicions  of  disaffection,  which 
he  effaced  by  continuing  in  prison  till  the 
termination  of  the  war  in  England.  He 
then  accepted  a  commission  from  the  Par- 
liament to  serve  against  the  Irish ;  and  now 
falling  entirely  into  his  new  line  of  politics, 
became  strongly  attached  to  Cromwell,  by 
whom  he  was  left  in  the  military  govern- 
ment, or,  rather,  vice-royalty  of  Scotland, 
which  he  had  reduced  to  subjection,  and 
kept  under  with  a  vigorous  hand.  Charles 
had  once,  it  is  said,  attempted  to  seduce  him 
by  a  letter  from  Cologne,  which  he  instantly 
transmitted  to  the  Protector.^    Upon  Oli- 

*  Id.,  588.    Carte's  Letters,  ii.,  225. 

t  Lord  Hatton,  an  old  Royalist,  suggested  this 
humiliating  proposition  in  terms  scarcely  less  so  to 
the  heir  of  Cerdic  and  Fergus.  "  The  race  is  a 
vcri/  good  gentleman's  faintly,  and  kings  have  con- 
descended to  marry  subjects.  The  lady  is  pretty, 
of  an  extraordinary  sweetness  of  disposition,  and 
very  virtuously  and  ingenuously  disposed ;  the  fa- 
ther is  a  person,  set  aside  his  unhappy  engagement, 
of  very  great  parts  and  noble  inclinations." — Claren- 
don State  Papers,  592.  Yet,  after  all.  Miss  L  ambert 
was  hardly  more  a  mes-alliance  than  Horteuse  Man- 
ciui,  whom  Charles  had  asked  for  in  vain. 

t  Biogi-.  Brit.,  art.  Monk.  The  Royalists  con- 
tinued to  entertain  hopes  of  him,  especially  after 
Oliver's  death.  — Clarendon  Papers,  iii.,  393,  395, 
396.  In  a  sensible  letter  of  Colepepper  to  Hyde, 
Sept.  20,  1658,  he  points  out  Monk  as  able  alone  to 
restore  the  king,  and  not  absolutely  averse  to  it 
either  in  his  principles  or  affections  ;  kept  hitherto 
by  the  vanity  of  adhering  to  his  professions,  and  by 


394 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


ver's  death  he  wrote  a  very  sensible  letter 
to  Richard  Cromwell,  contaiaing  his  advice 
for  the  government.    He  recommends  him 
to  obtain  the  affections  of  the  moderate  Pres- 
byterian ministers,  who  have  much  influ- 
ence over  the  people,  to  summon  to  his 
House  of  Lords  the  wisest  and  most  faith- 
ful of  the  old  nobiiitj-  and  some  of  the  lead- 
ing gently,  to  diminish  the  number  of  supe- 
rior officers  in  the  army  by  throwing  eveiy 
two  regiments  into  one,  and  to  take  into  his  \ 
council  as  chief  advisers,  Whitelock,  St.  ^ 
John,  Lord  Broghill,  Sir  Richard  Onslow,  j 
Pierpoint,  and  Thurloe.*    The  judicious-  j 
ness  of  this  advice  is  the  surest  evidence  of  j 
its  sincerity,  and  must  leave  no  doubt  on  our  , 
minds  that  Monk  was  at  that  time  vezy  far 
fi-om  harboring  any  thoughts  of  the  king's 
restoration. 

But  when,  thi-ough  the  force  of  circum- 
ffis  dissim-  stances  and  the  deficiencies  in  the  j 
Illation.  young  Protector's  capacitj-,  he 
saw  the  house  of  Cromwell  forever  fallen, 
it  was  for  Monk  to  consider  what  course  he  [ 
should  follow,  and  by  what  means  the  nation 
was  to  be  rescued  from  the  state  of  anarchy 
that  seemed  to  menace  it.  That  very  dif- 
ferent plans  must  have  passed  through  his 
mind  before  he  commenced  his  march  from 
Scotland,  it  is  easy  to  conjecture ;  but  at 
what  time  his  determination  was  finally  tak- 
en, we  can  not  certainly  pronounce. f  It 

bis  affection  to  Cromwell,  tlie  latter  whereof  is  dis- 
solved both  by  the  jealousies  he  entertained  of  him  , 
and  by  his  death,  &c. — Id.,  412.  j 

*  Thorloe,  vii.,  3?7.   Monk  wrote  about  the  same  j 
time  against  the  Earl  of  Argjle  as  not  a  friend  to 
the  government,  584.  Two  years  afterward  he  took 
away  his  hfe  as  being  too  much  so. 

t  If  the  account  of  his  chaplain.  Dr.  Price,  repub- 
lished in  Maseres's  Tracts,  vol.  ii.,  be  worthy  of 
trust.  Monk  gave  so  much  encouragement  to  his  | 
brother,  a  clergjTiian,  secretly  dispatched  to  Scot- 
land by  Sir  John  Grenvil.his  relation,  in  June,  1659,  ' 
as  to  have  approved  Sir  George  Booth's  insurrec- 
tion, and  to  have  been  on  the  point  of  publishing  a 
declaration  in  favor  of  it. — P.  718.   But  this  is  flatly 
in  contradiction  of  what  Clarendon  asserts,  that  the 
general  not  only  sent  away  his  brother  vrith  no 
hopes,  but  threatened  to  hang  him  if  he  came  again 
on  such  an  errand :  and,  in  fact,  if  any  thing  so 
favorable  as  what  Price  tells  us  had  occurred,  the  j 
king  could  not  fail  to  have  known  it. — See  Claren-  i 
don  State  Papers,  iii.,  343.    This  throws  some  sus-  ' 
picion  on  Price's  subsequent  narrative  (so  far  as  it ; 
professes  to  relate  the  general's  intentions; ;  so  that 
I  rely  far  less  on  it  than  on  Monk's  ovsti  behavior,  j 
which  seems  irreconcilable  with  his  professions  of  i 
Kepuhlican  principles.    It  is,  however,  an  obscure  I 


would  be  the  most  honorable  supposition  to 
believe  that  he  was  sincere  in  those  solemn 
protestations  of  adherence  to  the  Common- 
wealth which  he  poured  forth,  as  well  dur- 
ing his  mai'ch  as  after  his  aiTival  in  London ; 
till  discovering,  at  length,  the  popular  zeal 
for  the  king's  restoration,  he  concuiTed  in  a 
change  which  it  would  have  been  unwise, 
and  perhaps  impracticable,  to  resist.  This, 
however,  seems  not  easily  reconcilable  to 
Monk's  proceedings  in  new-modeling  his 
army,  and  confiding  power,  both  in  Scotland 
and  England,  to  men  of  known  intentions 
toward  royalty ;  nor  did  his  assurances  of 
support  to  the  Republican  party  become 
less  frequent  or  explicit  at  a  time  when  ev- 
ery one  must  believe  that  he  had  taken  bis 


point  of  history,  which  will  easily  admit  of  differ- 
ent opinions. 

The  story  told  by  Locke,  on  Lord  .Shaftesbury's 
authority,  that  Monk  had  agreed  with  the  French 
ambassador  to  take  on  himself  the  government, 
wherein  he  was  to  have  the  support  of  Mazarin, 
and  that  his  wife,  having  overheard  what  was  go- 
ing forward,  sent  notice  to  Shafteshory,  who  was 
thus  enabled  to  fhastrate  the  intrigue  (Locke's 
Works,  iii.,  436/,  seems  to  have  been  confirmed 
lately  by  Mr.  D'Israeli,  in  an  extract  from  the  manu- 
script memoirs  of  Sir  Thomas  Browne  (Curiosities 
of  Literature,  N.  S.,  vol.  ii.),  but  in  terms  so  nearly 
resembling  those  of  Locke,  that  it  may  be  suspected 
of  being  merely  an  echo.  It  is  certain,  as  we  find 
by  PhiUips's  continuation  of  Baker's  Chronicles 
(said  to  be  assisted  in  this  part  by  Sir  Thomas 
Clarges,  Monk's  brother-in-law),  that  Bourdeanx, 
the  French  ambassador,  did  make  such  overtures 
to  the  general,  who  absolutely  refused  to  enter 
npon  them ;  but,  as  the  writer  admits,  received  a 
visit  from  the  ambassador  on  condition  that  he 
should  propose  nothing  in  relation  to  public  mat- 
ters. I  quote  from  Kennet's  Register,  85.  But, 
according  to  my  present  impression,  this  is  more 
Mkely  to  have  been  the  foundation  of  Shaftesbury's 
story,  who  might  have  heard  from  Mrs.  Monk  the 
circumstance  of  the  visit,  and  conceived  suspicions 
upon  it,  which  he  afterward  turned  into  proofs.  It 
was  evidently  not  in  Monk's  power  to  have  n.surped 
the  government,  after  he  had  let  the  Royalist  in- 
cUnarions  of  the  people  show  themselves  ;  and  he 
was  by  no  means  of  a  rash  character.  He  must 
have  taken  his  resolution  when  the  secluded  mem- 
bers were  restored  to  the  House,  Feb.  21 ;  and  this 
alleged  intrigue  with  Mazarin  could  hardly  have 
been  so  early. 

It  may  be  added,  that  in  one  of  the  pamphlets 
about  the  time  of  the  Exclusion  Bill,  written  by 
Shaftesburj'  himself,  or  one  of  his  party  (Somers 
Tracts,  viii.,  338),  he  is  hinted  to  have  principally 
brought  about  the  Restcration  ;  "  without  whose 
courage  and  dexterity  some  men,  the  most  highly 
rewarded,  had  done  otherwise  than  they  did." 
But  this  still  depends  on  his  veracity. 


COMMOSWEALTH.] 


FROM  HENRY  VII.  TO  GEORGE  n. 


395 


resolution,  and  even  after  he  had  communi- 
cated -with  the  king.  I  incline,  therefore, 
upon  the  whole,  to  believe  that  Monk,  not 
accustomed  to  respect  the  Parliament,  and 
incapable,  both  by  his  temperament  and  by 
tlie  course  of  his  life,  of  any  enthusiasm  for 
the  name  of  liberty,  had  satisfied  himself  as 
to  the  expediency  of  the  king's  restoration 
from  the  time  that  the  Cromwells  had  sunk 
below  his  power  to  assist  them  ;  though  his 
projects  were  still  subservient  to  his  own 
security,  which  he  was  resolved  not  to  for- 
feit by  any  premature  declaration  or  unsuc- 
cessful enterprise.  If  the  coalition  of  Cav- 
aliers and  Presbyterians,  and  the  strong 
bent  of  the  entire  nation,  had  not  convinced 
this  wary  dissembler  that  he  could  not  fail 
of  success,  he  woiJd  have  continued  ti-ue  to 
his  professions  as  the  general  of  a  Common- 
wealth, content  with  crushing  his  rival  Lam- 
bert, and  breaking  that  fanatical  interest 
which  he  most  disliked.  That  he  aimed  at 
such  a  sovereignty  as  Cromwell  had  usui-p- 
ed  has  been  the  natural  conjecture  of  many, 
but  does  not  appeal-  to  me  either  warranted 
by  any  presumptive  evidence,  or  consonant 
to  the  good  sense  and  phlegmatic  temper  of 
Monk. 

At  the  moment  when,  with  a  small  but 
veteran  army  of  7000  men,  he  took  up  his 
quaitei-s  in  London,  it  seemed  to  be  within 
his  arbitrament  which  way  the  scale  should 
preponderate.  On  one  side  were  the  wish- 
es of  the  nation,  but  restrained  by  fear ;  on 
the  other,  established  possession,  maintain- 
ed by  the  sword,  but  rendered  precarious 
by  disunion  and  treachery.  It  is  certainly 
veiy  possible  that,  by  keeping  close  to  tlie 
Parliament,  Monk  might  have  retarded,  at 
least  for  a  considerable  time,  the  gi'eat  event 
which  has  immortalized  him ;  but  it  can 
hardly  be  said  that  the  king's  restoration 
was  rather  owing  to  him  than  to  the  general 
sentiments  of  the  nation  and  almost  the  ne- 
cessity of  circumstances,  which  had  already 
made  every  judicious  person  anticipate  the 
sole  teiTnination  of  our  civil  discord  which 
they  had  prepared.  Whitelock,  who,  incapa- 
ble of  refusing  compliance  with  the  ruling 
power,  had  sat  in  the  committee  of  safety 
established  in  October,  1659,  by  tlie  officers 
who  had  ejjpelled  the  Parliament,  has  re- 
corded a  curious  anecdote,  whence  we  may 
collect  how  Uttle  was  wanting  to  prevent 
Monk  from  being  the  great  mover  in  the 


Restoration.  He  had  for  some  time,  as  ap- 
pears by  his  journal,  entertained  a  persua- 
sion that  the  general  meditated  nothing  but 
the  king's  return,  to  which  he  was,  doubt- 
less, himself  well  inclined,  except  fi-om 
some  api)rehensiou  for  the  public  interest, 
and  some  also  for  his  own.  This  induced 
him  to  have  a  private  conference  with  Fleet- 
wood, which  he  enters  as  of  the  22d  De- 
cember, 1G59,  wherein,  after  pointing  out 
the  probable  designs  of  Monk,  he  urged  him 
either  to  take  possession  of  the  Tower  and 
declare  for  a  free  Parliament,  in  which  he 
would  have  the  assistance  of  the  city,  or  to 
send  some  trusty  person  to  Breda,  who 
might  offer  to  bring  in  the  king  upon  such 
temis  as  should  be  settled.  Both  these 
propositions  were  intended  as  different 
methods  of  bringing  about  a  revolution, 
which  he  judged  to  be  inevitable.  "  By 
this  means,"  he  contended,  "  Fleetwood 
might  make  terms  with  the  king  for  preser- 
vation of  himself  and  his  friends,  and  of  that 
cause,  in  a  good  measure,  in  which  they 
had  been  engaged ;  but  if  it  were  left  to 
Monk,  they  and  all  that  had  been  done 
would  be  left  to  the  danger  of  desti'uction. 
Fleetwood  then  asked  me  '  if  I  would  be 
willing  to  go  myself  upon  this  employment.' 
I  answered  '  that  I  would  go,  if  Fleetwood 
thought  fit  to  send  me ;'  and  after  much 
other  discourse  to  this  effect,  Fleetwood 
seemed  fully  satisfied  to  send  me  to  the 
king,  and  desired  me  to  go  and  prepare  my- 
self forthwith  for  the  journey  ;  and  that  in 
the  mean  time  Fleetwood  and  his  friends 
would  prepare  the  instructions  for  me,  so 
that  I  might  begin  my  journey  this  evening 
or  to-moiTOW  morning  early. 

"  In  going  away  from  Fleetwood,  met 
Vane,  Desborough,  and  Beny  in  the  next 
room,  coming  to  speak  with  Fleetwood, 
who  thereupon  desired  me  to  stay  a  httle ; 
and  I  suspected  what  would  be  the  issue  of 
their  consultation,  and  within  a  quarter  of  an 
hour  Fleetwood  came  to  me,  and  in  much 
passion  said  to  me,  '  I  can  not  do  it,  I  can 
not  do  it.'  I  desired  his  reason  w^hy  he 
could  not  do  it.  He  answered,  '  Those 
gentlemen  have  remembered  me,  and  it  is 
true  that  I  am  engaged  not  to  do  any  such 
thing  without  my  Lord  Lambert's  con- 
sent.' I  replied  '  that  Lambert  was  at  too 
great  a  distance  to  have  his  consent  to  this 
business,  which  must  ' be  instantly  acted.' 


396 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


Fleetwood  again  said,  'I  can  not  do  it  with- 
out him.'  Then  I  said,  'You  will  ruin 
yourself  and  your  friends.'  He  said,  '  I  can 
not  help  it.'  Then  I  told  him  I  must  take 
my  leave,  and  so  we  parted."* 

Whatever  might  have  been  in  the  power 
Secluded  of  ]Monk,  by  adhering  to  his  dec- 
m"rn  [o  larations  of  obedience  to  the  Par- 
their  seals,  liament,  it  would  have  been  too 
late  for  him,  after  consenting  to  the  restora- 
tion of  the  secluded  members  to  their  seats 
on  Febi-uary  21,  1660,  to  withstand  the  set- 
tlement which  it  seems  incredible  that  he 
should  not  at  that  time  have  desired.  That 
he  continued  for  at  least  six  weeks  after- 
ward in  a  course  of  astonishing  dissimula- 
tion, so  as  to  deceive,  in  a  gi-eat  measure, 
almost  all  the  Royalists,  who  were  distiust- 
iiig  his  intentions  at  the  veiy  moment  when 
he  made  his  first  and  most  private  tender 
of  service  to  the  king  through  Sir  John 
Grenvil  about  the  beginning  of  April,  might 
at  first  seem  rather  to  have  proceeded  from 
a  sort  of  inability  to  shake  off  his  inveterate 
reservedness,  than  from  consummate  pru- 
dence and  discretion ;  for  any  sudden  ris- 
ings in  the  king's  favor,  or  an  intrigue  in  the 
council  of  state,  might  easily  have  brought 
about  the  restoration  without  his  concur- 
rence ;  and,  even  as  it  was,  the  language 
held  in  the  House  of  Commons  before  their 
dissolution,  the  votes  expunging  all  that  ap- 
peared on  their  journals  against  the  regal 
government  and  the  House  of  Lords,f  and, 
*  Whitelock,  690. 

t  The  Engagement  was  repealed  March  13. 
This  was  of  itself  tantamount  to  a  declaration  in 
favor  of  the  king,  though  perhaps  the  previous  or- 
der of  March  5,  that  the  solemn  League  and  Cov- 
enant should  be  read  in  churches,  was  still  more 
so.  Prj-nne  was  the  first  wlio  Iiad  the  boldness  to 
speak  for  the  king,  declaring  his  opinion  that  the 
Parliament  was  dissolved  by  the  death  of  Charles 
the  First :  he  was  supported  by  one  or  two  more. 
— Clar.  Papers,  696.  Tharloe,  vii.,  854.  Carte's 
Letters,  ii.,  312.  Prynne  wrote  a  pamphlet  advis- 
ing the  peers  to  meet  and  issue  writs  for  a  new 
Pailiament,  according  to  the  provisions  of  the  Tri- 
ennial Act ;  which,  in  fact,  was  no  bad  expedient. 
— Somers  Tracts,  \-i.,  534. 

A  speech  of  Sir  Harbottle  Grimston  before  the 
close  of  the  Pariiament,  March,  1660,  is  more  ex- 
plicit for  the  king's  restoration  than  any  thing  which 
I  have  seen  elsewhere  ;  and  as  I  do  not  know  that 
it  has  been  printed,  I  will  give  an  extract  from  the 
Harleian  MS.,  1576. 

He  urges  it  as  necessary  to  be  done  by  them,  and 
not  left  for  the  next  Parliament,  who  all  men  be- 
lieved would  restore  him.    '•  This  is  so  true  and  so 


above  all,  the  course  of  the  elections  for  the 
new  Parliament,  made  it  sufficiently  evident 
that  the  general  had  delayed  his  assurances 
of  loyalty  till  they  had  lost  a  part  of  their 
value.  It  is,  however,  a  full  explanation  of 
Monk's  public  conduct,  that  he  was  not  se- 
cure of  the  army,  chiefly  imbued  with  fa- 
natical principles,  and  bearing  an  inveterate 
hati-ed  toward  the  name  of  Charles  Stuart. 
A  correspondent  of  the  king  writes  to  him 

well  understood,  that  we  all  believe  that  whatso- 
ever our  thoughts  are,  this  will  be  the  opinion  of 
the  succeeding  Parliament,  whose  concerns  as  well 
as  affections  will  make  them  active  for  his  intro- 
duction. And  I  appeal,  then,  to  your  own  judg- 
ments whether  it  is  likely  that  those  persons,  as  to 
their  particular  interest  more  unconcerned,  and 
probably  less  knowing  in  the  affairs  of  the  nation, 
can  or  would  obtain  for  any  those  terms  or  articles 
as  we  are  yet  in  a  capacity  to  procure  both  for  them 
and  us.  I  must  confess  sincerely  that  it  would  be 
as  strange  to  me  as  a  miracle,  did  I  not  know  that 
God  infatuates  whom  he  designs  to  destroy,  that 
we  can  see  the  king's  return  so  unavoidable,  and 
yet  be  no  more  studious  of  serving  him,  or  at  least 
ourselves,  in  the  managing  of  his  recall. 

"  The  general,  that  noble  personage  to  whom  un- 
der God  we  do  and  must  owe  all  the  advantages 
of  our  past  and  future  changes,  will  be  as  far  from 
opposing  us  in  the  design,  as  the  design  is  removed 
from  the  disadvantage  of  the  nation.  He  himself 
is,  I  am  confident,  of  the  same  opinion  ;  and  if  he 
has  not  yet  given  notice  of  it  to  the  House,  it  is  not 
that  he  does  not  look  upon  it  as  the  best  expedient : 
but  he  only  forbears  to  oppose  it,  that  he  might  not 
seem  to  necessitate  us,  and  by  an  over  early  dis- 
covery of  his  own  judgment  be  thought  to  take  from 
j  us  the  freedom  of  ours." 

In  another  place  he  says,  "  That  the  recalling  of 
our  king  is  this  only  way  (for  composure  of  affairs), 
is  already  grown  almost  as  visible  as  true ;  and, 
I  were  it  but  confessed  of  all  of  whom  it  is  believed, 
I  I  should  quickly  hear  from  the  greatest  part  of  this 
j  House  what  now  it  hears  alone  from  me.    Had  we 
as  little  reason  to  fear  as  we  have  too  much,  that, 
if  we  bring  not  in  the  king,  he  either  already  is,  or 
'  shortly  may  be,  in  a  capacity  of  coming  in  unsent 
for ;  methinks  the  very  knowledge  of  his  right  were 
enough  to  keep  just  persons,  such  as  we  would  be 
conceived  to  be,  from  being  accessary  to  his  longer 
absence.    We  are  already,  and  but  justly,  report- 
ed to  have  been  the  occasion  of  our  prince's  ban- 
ishment; we  may,  then,  with  reason  and  equal 
truth,  for  aught  I  know,  be  thought  to  have  been 
the  contrivers  of  it,  unless  we  endeavor  the  con- 
trary, by  not  suffering  the  mischief  to  continue 
longer  wliich  is  in  our  power  to  remove." 

Such  passages  as  these,  and  the  general  tenor 
of  public  speeches,  sermons,  and  pamphlets,  in  the 
spring  of  1660,  show  how  little  Monk  can  be  justly 
said  to  have  restored  Charles  II.,  except  so  far  as 
he  did  not  persist  in  preventing  it  so  long  as  he 
misht  have  done. 


Commonwealth.]  FROM  HENRY  VII.  TO  GEORGE  II. 


397 


on  the  28th  of  March,  "  The  army  is  not 
yet  in  q  state  to  hear  your  name  publicly."* 
In  the  beginning  of  that  month,  many  of 
the  officers,  instigated  by  Hazlerig  and  his 
friends,  had  protested  to  Monk  against  the 
proceedings  of  the  House,  insisting  that 
they  should  abjure  the  king  and  House  of 
Lords.  He  repressed  their  mutinous  spir- 
it, and  bade  them  obey  the  Parliament,  as 
he  should  do.f  Hence  he  redoubled  his 
protestations  of  abhorrence  of  monarchj', 
and  seemed  for  several  weeks,  in  exterior 
demonsti'ations,  ratlier  the  gi-aud  impedi- 
ment to  the  king's  restoration,  than  the  one 
person  who  was  to  have  the  credit  of  it.t 
Meanwhile  he  silently  proceeded  in  displac- 
ing the  officers  whom  he  could  least  trust, 
and  disposing  the  regiments  near  to  the  me- 
tropolis, or  at  a  distance,  according  to  his 
knowledge  of  their  tempers,  the  Parliament 
having  given  him  a  commission  as  lord-gen- 
eral of  all  the  forces  in  the  three  kingdoms. § 
The  commissioners  appointed  by  Parlia- 
ment for  raising  the  militia  in  each  county 
were  chiefly  gentlemen  of  the  Presbyterian 
party;  and  there  seemed  likely  to  be  such 

*  Clarendon  State  Papers,  711.  f  Id.,  696. 

X  Id.,  678,  et  post.  He  wrote  a  letter  (Jan.  21) 
to  the  gentry  of  Devon,  who  had  petitioned  tlie 
speaker  for  the  readmission  of  the  secluded  mem- 
bers, objecting  to  that  measure  as  Ukely  to  bring 
in  monarchy,  very  judicious,  and  with  an  air  of 
sincerity  that  might  deceive  any  one ;  and  after 
the  restoration  of  these  sechided  members,  he  made 
a  speech  to  them  (Feb.  21)  strongly  against  mon- 
archy ;  and  that  so  ingeniously,  upon  such  good 
reasons,  so  much  without  invective  or  fanaticism, 
that  the  professional  hypocrites,  who  were  used 
to  their  own  tone  of  imposture,  were  deceived  by 
his.  Cromwell  was  a  mere  bungler  to  him. — See 
these  in  Harris's  Charles  II.,  296,  or  Somers  Tracts, 
vi.,  551.  It  can  not  be  wondered  at  that  the  Roy- 
ahsts  were  exasperated  at  Monk's  behavior.  They 
published  abusive  pamphlets  against  him  iu  Felj- 
ruarj-,  from  which  Kcnnet,  in  his  Register,  p.  53, 
gives  quotations:  "Whereas  he  was  the  common 
hopes  of  all  men,  he  is  now  tlie  common  hatred  of 
all  men,  as  a  traitor  more  detestable  than  Oliver 
himself,  who,  though  he  manacled  the  citizens' 
hands,  yet  never  took  away  the  doors  of  the  city,'' 
and  so  forth.  It  appears  by  the  letters  of  Mor- 
daunt  and  Brodorick  to  Hyde,  and  by  those  of 
Hyde  himself  in  the  Clai-endon  Papers,  that  they 
had  no  sort  of  confidence  in  Monk  till  near  the  end 
of  March ;  though  Barwick,  another  of  his  con'e- 
spondents,  seems  to  have  had  more  insight  into  the 
general's  designs  (Tburloe,  852,  860,  870),  who  had 
expressed  himself  to  a  friend  of  the  writer,  prob- 
ably Clobery,  fully  in  favor  of  the  king,  before 
Mar.  19.     §  Clar.,  699, 705.   Thui-loe,  vii.,  860,  870. 


a  considerable  force  under  then*  orders  as 
might  rescue  the  nation  from  its  ignomini- 
ous servitude  to  the  army.  It  fact,  some 
of  the  Royalists  expected  that  the  great 
question  would  not  bo  carried  without  an 
appeal  to  the  sword.*  The  delay  of  Monk 
in  privately  assuring  the  king  of  his  fidelity 
is  still  not  easy  to  be  explained,  but  may 
have  proceeded  from  a  want  of  confidence 
in  Charles's  secrecy,  or  that  of  his  counsel- 
ors. It  must  be  admitted  that  Lord  Clar- 
endon, who  has  written  with  some  minute- 
ness and  accuracy  this  important  part  of  his 
historjs  has  more  than  insinuated  (especial- 
ly as  we  now  read  liis  genuine  language, 
which  the  ill  faith  of  his  original  editors  had 
shamefully  garbled)  that  Monk  entertained 
no  purposes  in  the  king's  favor  till  the  last 
moment;  but  a  manifest  prejudice  that 
shows  itself  in  all  his  writings  against  the 
general,  derived  partly  from  offense  at  his 
extreme  reseiTe  and  caution  during  this 
period,  partly  from  personal  resentment  of 
Monk's  behavior  at  the  time  of  his  own 
impeachment,  greatly  takes  off  from  the 
weight  of  the  noble  historian's  judgment.f 
The  months  of  March  and  April,  1660, 
were  a  period  of  extreme  inqui-  pij^guitigs 
etude,  during  which  every  one  about  the 
spoke  of  the  king's  restoration  as  l^^^'"""™- 
imminent,  yet  none  could  distinctly  perceive 
by  what  means  it  would  be  effected,  and 
much  less  how  the  difficulties  of  such  a  set- 
tlement could  be  overcome. t    As  the  mo- 

*  A  correspondent  of  Ormond  writes,  March  16  : 
"  This  night  the  fatal  Long  Parliament  hath  dis- 
solved itself.  All  this  appears  well ;  but  I  believe 
we  shall  not  be  settled  upon  our  ancient  foimdations 
without  a  war,  for  which  all  prepare  vigorously 
and  openly." — Carte's  Letters,  ii.,  513.  It  appears, 
also,  from  a  letter  of  Massey  to  Hj'de,  that  a  rising 
iu  different  counties  was  intended. — Thurloe,  854. 

+  After  giving  the  substance  of  Monk's  speech 
to  the  House,  recommending  a  new  Parliament,  but 
insisting  on  Conunonwealth  principles,  Clarendon 
goes  on:  "There  was  no  dissimulation  in  this,  in 
order  to  cover  and  conceal  his  good  intentions  to  the 
king ;  for  without  doubt  he  had  not  to  this  hour  en- 
tertained any  purpose  or  thought  to  serve  him,  but 
was  really  of  the  opinion  he  expressed  in  his  paper, 
that  it  was  a  work  impossible  ;  and  desired  nothing 
but  that  he  might  see  a  commonwealth  established 
en  such  a  model  as  Holland  was,  where  he  had 
been  bred,  and  that  himself  might  enjoy  the  author- 
ity and  place  which  the  Prince  of  Orange  possessed 
in  that  government." 

t  The  Clarendon  and  Thurloe  Papers  are  full  of 
more  proof  of  this  tlian  can  be  quoted,  and  are  very 
amusing  to  read,  as  a  perpetually  shifting  picture 


398 


COXSTITUTIO^'AL  HISTOEY  OF  EXGLA^S'D 


[Chap.  X. 


inent  approached,  men  turned  their  atten- 
tion more  to  the  obstacles  and  dangers  that 

of  hopes  and  fears,  and  conjectures  right  or  wrong. 
Pep3's's  Diary  also,  in  these  two  months,  strik- 
ingly shows  the  prevailing  uncertainty  as  to 
plonk's  intentions,  as  well  as  the  general  desire 
of  having  the  king  brought  in.  It  seems  plain 
that,  if  he  had  delayed  a  very  little  longer,  he 
would  have  lost  the  whole  credit  of  the  Restora- 
tion. All  parties  began  to  crowd  in  with  address- 
es to  the  king  in  the  first  part  of  April,  before  Monk 
was  known  to  have  declared  himself  Thurloe, 
among  others,  was  full  of  his  offers,  though  evi- 
dently anxious  to  find  out  whether  the  king  had 
an  interest  with  Monk,  p.  898.  The  Royalists  had 
long  entertained  hopes,  from  time  to  time,  of  this 
deep  politician ;  but  it  is  certain  he  never  wished 
well  to  their  cause,  and  with  St.  John  and  Pier- 
point,  had  been  most  zealous,  to  the  last  moment 
that  it  seemed  practicable,  against  the  Restora- 
tion. There  had  been,  so  late  as  February,  1660,  or 
even  afterward,  a  strange  plan  of  setting  up  again 
Richard  Cromwell,  wherein  not  only  these  three, 
but  Montague,  Jones,  and  others,  were  thought  to  be 
concerned,  erroneously,  no  doubt,  as  to  Montague. 
— Clarendon  State  Papers,  693.  Carte's  Letters, 
ii.,  310,  330.  "  One  of  the  greatest  reasons  they 
alleged  was,  that  the  king's  party,  consisting  al- 
together of  indigent  men,  will  become  powerful  by 
little  and  little  to  force  the  king,  whatever  be  his 
own  disposition,  to  break  any  engagement  he  can 
now  make ;  and,  since  the  nation  is  bent  on  a  sin- 
gle person,  none  will  combine  all  interests  so  well 
as  Richard."  This  made  Monk,  it  is  said,  jealous 
of  St.  John,  so  that  he  was  chosen  at  Cambridge  to 
exclude  him.  In  a  letter  of  Thurloe  to  Downing 
at  the  Hague,  April  6,  he  says,  "that  many  of  the 
Presbyterians  are  alarmed  at  the  prospect,  and 
thinking  how  to  keep  the  king  out  without  joining 
the  sectaries,"  vii.,  867.  This  could  hardly  be 
achieved  but  by  setting  up  Richard ;  yet  that,  as 
is  truly  said  in  one  of  the  letters  quoted,  was  ri- 
diculous. None  were  so  conspicuous  and  intrepid 
on  the  king's  side  as  the  Presbyterian  ministers. 
Reynolds  preached  before  the  lord-mayor,  Feb. 
28,  with  manifest  allusion  to  the  Restoration:  Gau- 
den  (who  may  be  reckoned  on  that  side,  as  con- 
fonning  to  it),  on  the  same  day,  much  more  explic- 
iti3". — Kennet's  Register,  69.  Sharp  says,  in  a  let- 
ter to  a  correspondent  in  Scotland,  that  he.  Ash, 
and  Calamy  had  a  long  conversation  with  Monk, 
March  11,  "  and  convinced  him  a  commonwealth 
was  impracticable,  and  to  oui-  sense  sent  him  off 
that  sense  he  had  hitherto  maintained,  and  came 
from  him  as  being  satisfied  of  the  necessity  of  dis- 
solving this  Hoase,  and  calling  a  new  Parliament." 
— Id.,  p.  81.  Baxter  thinks  the  Presbyterian  min- 
isters, together  with  Clarges  and  Morrice,  turned 
Monk's  resolution,  and  induced  him  to  declare  fbr 
the  king. — Life,  p.  2.  This  is  a  vei-y  plausible  con- 
jecture, though  I  incline  to  think  Monk  more  dis- 
posed that  way  by  his  own  judgment  or  his  wife's. 
But  she  was  influenced  by  the  Presbyterian  cler- 
gy. They  evidently  deserved  of  Charles  what 
they  did  not  meet  with. 


lay  in  their  way.  The  restoration  of  a  ban- 
ished family,  concerning  whom  they  knew 
little,  and  what  they  knew  not  entirely  to 
their  satisfaction,  with  rained,  perhaps  re- 
vengeful followers ;  the  returning  ascenden- 
cy of  a  distressed  paity,  who  had  sustained 
losses  that  could  not  be  repau'ed  without 
fresh  changes  of  propert}',  injuries  that 
could  not  be  atoned  without  fresh  severi- 
,  ties ;  the  conflicting  pretensions  of  two 
1  churches,  one  loth  to  release  its  claim,  the 
j  other  to  yield  its  possession  ;  the  unsettled 
j  dissensions  between  the  crown  and  Par- 
I  liament,  suspended  only  by  civil  war  and 
usm-pation ;  all  seemed  pregnant  with  such 
difficulties,  that  prudent  men  could  hard- 
ly look  forward  to  the  impending  revolu- 
tion without  some  hesitation  and  anxiety.* 
Hence  Pierpoint,  one  of  the  wisest  states- 
men in  England,  though  not  so  far  implica- 
ted in  past  transactions  as  to  have  much  to 
fear,  seems  never  to  have  overcome  his  re- 
pugnance to  the  recall  of  the  king;  and  I 
am  by  no  means  convinced  that  the  slow- 
ness of  Monk  himself  was  not  in  some  meas- 
ure owing  to  his  sense  of  the  embarrass- 
ments that  might  attend  that  event.  The 
Presbyterians,  generally  speaking,  had  al- 
ways been  on  their  guard  against  an  uncon- 
ditional restoration.  They  felt  much  more 
of  hati'ed  to  the  prevailing  power  than  of  at- 
tachment to  the  house  of  Stuart,  and  had 
no  disposition  to  relinquish,  either  as  to 
church  or  state  goverament,  those  principles 

*  The  Royalists  began  too  soon  with  threaten* 
ing  speeches,  which  well-nigh  frustrated  their  ob- 
ject.—Id.,  721,  722,  727.  Carte's  Letters,  318. 
Thurloe,  887.  One  Dr.  Griffith  published  a  little 
book  vindicating  the  late  king  in  his  war  against 
the  Parliament,  for  which  the  ruling  party  were 
by  no  means  ripe ;  and  having  justified  it  before 
the  council,  was  committed  to  the  Gatehouse  early 
in  April — Id.  ibid.  These  imprudences  occasion- 
ed the  king's  declaration  from  Breda. — Somers 
Tracts,  vi.,  562.  Another,  also,  was  published, 
April  25,  1660,  signed  by  several  peers,  knights, 
divines,  &c.,  of  the  Royalist  party,  disclaiming  all 
private  passions  and  resentments. — Kennet's  Reg- 
ister, 120.  Clar.,  vii.,  471.  But  these  public  pro- 
fessions were  weak  disguises  when  belied  by  their 
current  language. — See  Baxter,  217.  Marchmont 
Needham,  in  a  tract  entitled  "Interest  will  not 
lye  '  (written  in  answer  to  an  artful  pamphlet  as- 
cribed to  Fell,  afterward  Bishop  of  Oxford,  and  re- 
piinted  in  Maseres's  Tracts,  "  The  Interest  of  Eng- 
I  land  stated  "),  endeavored  to  alarm  all  other  par- 
I  ties,  especially  the  Presbyterians,  with  represent- 
I  ations  of  the  violence  they  had  to  expect  {torn  that 
of  the  king.— See  Harris's  Charles  H.,  268. 


Commonwealth.] 


FEOM  HENRY  VII.  TO  GEORGE  II. 


399 


for  which  they  had  fought  against  Charles 
the  First.  Hence  they  began,  from  the 
very  time  that  they  entered  into  the  coali- 
tion, that  is,  the  spring  and  summer  of  lGo9, 
to  talk  of  the  treaty  of  Newport,  as  if  all 
that  had  passed  since  their  vote  of  the  5th 
of  December,  1646,  that  the  king's  conces- 
sions were  a  sufficient  ground  Avhereou  to 
proceed  to  the  settlement  of  the  kingdom, 
had  been  like  a  hideous  dream,  from  which 
they  had  awakened  to  proceed  exactly  in 
their  former  course.*  The  Council  of 
State,  appointed  on  the  23d  of  February, 
two  days  after  the  return  of  the  secluded 
members,  consisted  principally  of  this  par- 
ty ;  and  there  can,  I  conceive,  be  no  ques- 
tion that,  if  Monk  had  continued  his  neu- 
trality to  the  last,  they  would,  in  conjunc- 
tion with  the  new  Parliament,  have  sent 
over  propositions  for  the  king's  acceptance. 
Meetings  were  held  of  the  chief  Presbyte- 
rian lords,  Manchester,  Northumberland, 
Bedford,  Say,  with  Pierpoiut  (who,  finding 
it  too  late  to  prevent  the  king's  return,  en- 
deavored to  render  it  as  little  dangerous  as 
possible),  HoUis,  Annesley,  Sii'  William 
Waller,  Lewis,  and  other  leaders  of  that 
party.  Monk  sometimes  attended  on  these 
occasions,  and  always  urged  the  most  rigid 
hmitations.f  His  sincerity  in  this  was  the 
less  suspected,  that  his  wife,  to  whom  he 
was  notoriously  submissive,  was  entirely 

*  Proofs  of  the  disposition  among  this  party  to 
revive  the  treaty  of  the  Isle  of  Wight  occur  per- 
petually in  the  Thurloe  and  Clarendon  Papers,  and 
in  those  published  by  Carte.  The  king's  agents 
in  England  ev-idently  expected  nothing  better,  and 
were,  generally  speaking,  much  for  his  accepting 
the  propositions.  "  The  Presbyterian  Lords,"  says 
Sir  Allen  Broderick  to  Hyde,  "  with  many  of  whom 
I  have  spoken,  pretend  that,  should  the  king  come 
in  upon  any  such  insurrection,  abetted  by  those  of 
his  own  party,  he  would  be  more  absolute  than  his 
father  was  in  the  height  of  his  prerogative.  Stay 
therefore,  say  they,  till  we  are  ready ;  our  numbers 
80  added  will  abundantly  recompense  the  delay, 
rendering  what  is  now  extremely  doubtful  moral- 
ly certain,  and  establisliing  his  throne  npon  the 
true  basis,  hberty  and  property." — July  16,  1659. 
Clar.  State  Papers,  527. 

t  Clarendon,  Hist,  of  Rebellion,  vii.,  440.  State 
Papers,  705,  729.  "There  is  so  insolent  a  spirit 
among  the  nobilitj-,"  says  Clarendon,  about  the 
middle  of  February,  '•  that  I  really  fear  it  will  tnm 
to  an  aristocracy ;  Monk  inclining  that  way  too. 
My  opinion  is  clear,  that  the  king  ought  not  to  part 
with  the  Church,  crown,  or  friends'  lands,  lest  he 
make  my  Lord  of  Northumberland  his  equal,  nay, 
perhaps  his  superior." — P.  6S0. 


Presbyterian,  though  a  friend  to  the  king; 
and  his  own  preference  of  that  sect  had  al- 
ways been  declared  in  a  more  consistent 
and  unequivocal  manner  than  was  usual  to 
his  dark  temper. 

These  projected  limitations,  which  but 
a  few  weeks  before  Chai-les  would  have 
thankfully  accepted,  seemed  now  intolera- 
ble ;  so  rapidly  do  men  learn,  in  the  course 
of  prosperous  fortune,  to  scorn  what  they 
just  before  hardly  presumed  to  expect. 
Those  seemed  his  friends,  not  who  desu-ed 
to  restore  him,  but  who  would  do  so  at  the 
least  sacrifice  of  his  power  and  pride.  Sev- 
eral of  the  council,  and  others  in  high  posts, 
sent  word  that  they  would  resist  the  impo- 
sition of  unreasonable  terms.*  Monk  him- 
self redeemed  his  ambiguous  and  dilatory 
behavior  by  taking  the  restoration,  as  it 
were,  out  of  the  hands  of  the  council,  and 
suggesting  the  judicious  scheme  of  anticipa- 
ting their  proposals  by  the  king's  letter  to 
the  two  houses  of  Parliament.  For  this 
purpose  he  had  managed,  with  all  his  dis- 
sembling pretenses  of  Commonwealth  prin- 
ciples, or,  when  he  was  (as  it  were)  com- 
pelled to  lay  them  aside,  of  insisting  on  rig- 
orous limitations,  to  prevent  any  overtm'es 
from  the  council,  who  were  almost  entirely 
Presbyterian,  before  the  meeting  of  Parlia- 
ment, whicli  would  have  considerably  em- 
barrassed the  king's  affairs,  f   The  elections, 

*  Downing,  the  minister  at  the  Hague,  was  one 
of  these.  His  overtures  to  the  king  were  as  early 
as  Monk's,  at  the  beginning  of  April ;  he  declared 
his  wish  to  see  his  majesty  restored  on  good  terms, 
though  many  were  desirous  to  make  him  a  doge 
of  Venice. — Carte's  Letters,  ii.,  320.  See,  also,  a 
remarkable  letter  of  the  king  to  Monk  (dated  May 
21  ;  but  I  suspect  he  used  the  new  style,  therefore 
read  May  11),  intimating  what  a  sei-vice  it  would 
be  to  prevent  the  imposition  of  any  terms. — Clar., 
745.  And  another  from  him  to  Morrice  of  the  same 
tenor.  May  20  (N.  S.),  1660,  and  hinting  that  his  maj- 
estj-'s  friends  in  the  House  had  complied  with  the 
general  in  all  things,  according  to  the  king's  direc- 
tions, departing  from  their  own  sense,  and  restrain- 
ing themselves  from  pursuing  what  they  thought 
most  for  his  service. — Thurloe,  vii.,  912.  This  per- 
haps referred  to  the  indemnity  and  other  provi- 
sions then  pending  in  the  Commons,  or,  rather,  to 
the  delay  of  a  few  days  before  the  delivery  of  Sir 
John  Grenvil's  message. 

t  "  Monk  came  this  day  (about  the  first  week 
of  April)  to  the  council,  and  assured  them  that,  not- 
withstanding all  the  appearance  of  a  general  de- 
sii-e  of  kingly  government,  yet  it  was  in  no  wise 
his  sense,  and  that  he  would  spend  the  last  drop  of 
his  blood  to  maintain  the  coutrarj-."— Extract  of  a 


400 


COXSTITUTIOJfAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


meantime,  bad  taken  a  course  which  the 
faction  now  in  power  by  no  means  regarded 
with  satisfaction.  Though  the  late  House 
of  Commons  had  passed  a  resolution  that  no  j 
person  who  had  assisted  in  any  war  against  j 
the  Parliament  since  1642,  unless  he  should  < 
since  have  manifested  his  good  affection  to- 
ward it,  should  be  capable  of  being  elected, 
yet  this,  even  if  it  had  been  regarded,  as  it 
was  not,  by  the  people,  would  have  been  a 
feeble  barrier  against  the  Royalist  party, 
composed  in  a  gi'eat  measure  of  young  men 
who  had  grown  up  under  the  Common- 
wealth, and  those  who,  living  in  the  Parlia- 
mentary counties  during  the  civil  war,  had 
paid  a  reluctant  obedience  to  its  power.* 
The  tide  ran  so  strongly  for  the  king's 
friends,  that  it  was  as  much  as  the  Presby- 
terians could  effect,  with  the  weight  of  gov- 
ernment in  theu-  hands,  f  to  obtain  about  an 


letter  from  Thurloe  to  Dowuine.  Carte's  Letters, 
ii.,  322.  "  The  Council  of  State  are  utterly  igno- 
rant of  Monk's  treating  with  the  king- ;  and  surely, 
as  the  present  temper  of  the  Council  of  State  is 
now,  and  may  possibly  be  also  of  the  Parliament, 
by  reason  of  the  Presbyterian  influence  upon  both, 
I  should  think  the  first  chapman  will  not  be  the 
worst,  who  perhaps  will  not  offer  so  good  a  rate  in 
conjunction  with  the  company  as  he  may  give  to 
engross  the  commodity."  —  Clar.,  722,  April  6. 
This  sentence  is  a  clew  to  all  the  intrigue.  It  is 
said  soon  afterward  (p.  726,  April  11)  that  the  Pres- 
byterians were  much  ti'oubled  at  the  course  of  the 
elections,  which  made  some  of  the  Council  of  State 
again  address  themselves  to  Monk  for  his  consent 
to  propositions  they  would  send  to  the  king ;  but 
he  absolutely  refused,  and  said  he  would  leave  all 
to  a  free  Parliament,  as  he  had  promised  the  na- 
tion. Yet,  tliough  the  elections  went  as  weU  as 
the  Royalists  could  reasonably  expect,  Hyde  was 
dissatisfied  that  the  king  was  not  restored  without  I 
the  intervention  of  the  new  Pailiament ;  and  this  , 
may  have  been  one  reason  of  his  spleen  against 
Monk.— P.  726,  731. 

*  A  proposed  resolution,  that  those  who  had  been  , 
on  the  king's  side,  or  their  sons,  should  be  disabled 
from  voting  at  elections,  was  lost  by  93  to  56,  the 
last  effort  of  the  expiring  Long  Parliament. — Joum-  , 
als,  13th  of  !March.    The  electors  did  not  think 
themselves  bound  by  this  arbitrai-y  exclusion  of  j 
the  Cavaliers  from  Parliament;  several  of  whom 
(though  not,  perhaps,  a  great  number  within  the 
terms  of  the  resolution)  were  returned.    Massey,  I 
however,  having  gone  down  to  stand  for  Glouces-  ' 
ter,  was  put  under  arrest  by  order  of  the  Council 
of  State.  —  Thurloe,  887.    Clarendon,  who  was 
himself  not  insensible  to  that  kind  of  superstition,  I 
had  fancied  that  any  thing  done  at  Gloucester  by 
Massey  for  the  king's  sen'ice  would  make  a  pow-  ! 
erful  impression  on  the  people.  1 

t  It  is  a  curious  proof  of  the  state  of  public  sen-  , 


equality  of  strength  with  the  Cavaliers  in 
the  Convention  Parliament. 

It  has  been  a  frequent  reproach  to  the 
conductors  of  this  great  revolution,  that  the 
king  was  restored  without  those  terms  and 
limitations  which  might  secure  the  nation 
against  his  abuse  of  their  confidence :  and 
this  not  only  by  cotemporaries  who  had  suf- 
fered by  the  jralitical  and  religious  changes 
consequent  on  the  restoration,  or  those  who, 
in  after  limes,  have  written  with  some  pre- 
possession against  the  English  Church  and 
constitutional  monarchy,  but  by  the  most 
temperate  and  reasonable  men ;  so  that  it 
has  become  almost  regular  to  cast  on  the 
Convention  Parliament,  and  more  especially 
on  Monk,  the  imputation  of  having  abandon- 
ed public  liberty,  and  brought  on,  by  their  in- 
considerate loyalty  or  self-interested  treach- 
eiy,  the  mis-government  of  the  last  two 
Stuarts,  and  the  necessity  of  their  ultimate 
expulsion.  But,  as  this  is  a  veiy  material 
part  of  our  history,  and  those  who  pro- 
nounce upon  it  have  not  always  a  veiy  dis- 
tinct notion  either  of  what  was  or  what 
could  have  been  done,  it  may  be  worth  while 
to  consider  the  matter  somewhat  more  an- 
alytically ;  confining  myself,  it  is  to  be  ob- 
sei'ved,  in  the  present  chapter,  to  what  took 
place  before  the  king's  personal  assumption 
of  the  government  on  the  29th  of  Maj^,  1660. 
The  subsequent  proceedings  of  the  Conven- 
tion Parliament  fall  within  another  period. 

We  may  remark,  in  the  first  place,  that 
the  unconditional  restoration  of  Charles  the 
Second  is  sometimes  spoken  of  in  too  hy- 
perbolical language,  as  if  he  had  come  in  as 
a  sort  of  conqueror,  with  the  laws  and  liber- 
ties of  the  people  at  his  discretion  ;  yet  he 
was  restored  to  nothing  but  the  bounded 
prerogatives  of  a  King  of  England ;  bounded 
by  every  ancient  and  modern  statute,  includ- 
ing those  of  the  Long  Parliament,  which 
had  been  enacted  for  the  subjects'  security. 
If  it  be  ti'ue,  as  I  have  elsewhere  obsei-ved, 
that  the  Long  Parliament,  in  the  year  1641, 
had  established,  in  its  most  essential  parts, 
our  existing  Constitution,  it  can  hardly  be 
maintained  that  fi-esh  limitations  and  addi- 
tional securities  were  absolutely  indispensa- 

timent,  that,  though  Monk  himself  wrote  a  letter 
to  the  electors  of  Bridgenorth,  recommending  Thur- 
loe, the  Cavalier  party  was  so  powerful  that  his 
friends  did  not  even  produce  the  letter,  lest  it  should 
be  treated  with  neglect. — Thurloe,  vii.,  695. 


Commonwealth.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


401 


ble,  before  the  most  fundamental  of  all  its 
principles,  the  government  by  king,  Lords, 
and  Commons,  could  be  permitted  to  take 
its  regular  course.  Those  who  so  vehe- 
mently reprobate  the  want  of  conditions  at 
the  Restoration  would  do  well  to  point  out 
what  conditions  should  have  been  imposed, 
and  wliat  mischiefs  they  can  probably  ti'ace 
from  their  omission.*  They  should  be  able 
also  to  prove  that,  in  the  circumstances  of 
the  time,  it  was  quite  as  feasible  and  conven- 
ient to  make  certain  secure  and  obligatory 
provisions  the  terms  of  the  king's  restora- 
tion, as  seems  to  be  taken  for  granted. 

The  chief  Presbj'terians  appear  to  have 
Planofreviv-  considered  the  treaty  of  New- 
o^Newpm  ^  port,  if  not  as  fit  to  be  renewed 
inexpedient,  in  every  article,  j'et  at  least  as 
the  basis  of  the  compact  into  which  they 
were  to  enter  with  Charles  the  Second. f 
But  were  the  concessions  wrested  in  this 
ti'eaty  from  his  father,  in  the  hour  of  peril 
and  necessity,  fit  to  become  the  permanent 
rules  of  the  English  Constitution?  Turn 
to  the  articles  prescribed  by  the  Long  Par- 
liament in  that  negotiation.  Not  to  men- 
tion the  establishment  of  a  I'igorous  Pres- 
byteiy  in  the  Church,  they  had  insisted  on 
the  exclusive  command  of  all  forces  by  land 
and  sea  for  twenty  years,  with  the  sole 
power  of  levying  and  expending  the  moneys 
necessaiy  for  their  support ;  on  the  nomi- 
nation of  the  principal  officers  of  state  and 
of  the  judges  during  the  same  pei-iod ;  and 
on  the  exclusion  of  the  king's  adherents 
from  all  trust  or  political  power.  Admit 
even  that  the  insincerity  and  arbitraiy  jjrin- 
ciples  of  Charles  the  First  had  rendered 
necessary  such  exti-aordinary  precautions, 
was  it  to  bn  supposed  that  the  executive 
power  should  not  revert  to  his  successor  ? 
Better  it  were,  beyond  comparison,  to  main- 
tain the  perpetual  exclusion  of  his  family 
tlian  to  mock  them  with  such  a  titular  crown, 

*  "  To  the  kiug's  coming  iu  without  conditions 
may  be  well  imputed  all  the  erroi's  of  his  reign." 
Thus  .says  Burnet.  The  great  political  error,  if  so 
it  should  be  termed,  of  his  reign,  was  a  conspiracy 
with  the  King  of  France  and  some  wicked  advis- 
ers at  home  to  subvert  the  religion  and  liberty  of 
Lis  subjects  ;  and  it  is  difficult  to  perceive  by  what 
conditions  this  secret  intrigue  could  have  been 
prevented. 

t  Clar.  Papers,  p.  729.  They  resolved  to  send 
the  articles  of  that  treaty  to  the  king,  leaving  out 
the  preface.    This  was  about  the  middle  of  April. 

C  c 


the  certain  cause  of  discontent  and  intrigue, 
and  to  mingle  premature  distrust  with  their 
professions  of  aflection.  There  was  un- 
doubtedly much  to  apprehend  from  the 
king's  restoration ;  but  it  might  be  expect- 
ed that  a  steady  regard  for  public  liberty  in 
the  Parlianu;iit  and  the  nation  would  obvi- 
ate that  danger  without  any  momentous 
change  of  the  Constitution  ;  or  that,  if  such 
a  sentiment  sliould  prove  unhappily  too 
weak,  no  guarantees  of  ti-eaties  or  statutes 
would  afford  a  genuine  security. 

If,  however,  we  were  to  be  convinced 
that  the  restoration  was  effected  „  „.  , 

Difficulty 

Without  a  sufficient  safeguard  of  framing 
against  the  future  abuses  of  royal 
power,  wo  must  still  allow,  on  looking  at- 
tentively at  the  circumstances,  that  there 
wore  very  great  difficulties  in  the  way  of 
any  stipulations  for  that  purpose.  It  must 
be  evident  that  any  formal  treaty  between 
Charles  and  the  English  government,  as  it 
stood  in  April,  16G0,  was  inconsistent  with 
their  common  principle.  That  government 
was,  by  its  own  declarations,  only  de  facto, 
only  temporary ;  the  return  of  the  secluded 
members  to  their  seats,  and  the  votes  tliey 
subsequently  passed,  held  forth  to  the  peo- 
ple that  eveiy  thing  done  since  the  force 
put  on  the  House  in  December,  1648,  was 
by  a  usurpation ;  the  restoration  of  the  an- 
cient monarchy  was  implied  in  all  recent 
measures,  and  was  considered  as  out  of  all 
doubt  by  the  whole  kingdom  ;  but  between 
a  King  of  England  and  his  subjects,  no 
ti-eaty,  as  such,  could  be  binding;  there  was 
no  possibility  of  entering  into  stipulations 
with  Chai'les,  though  in  exile,  to  which  a 
court  of  justice  would  pay  the  slightest  at- 
tention, except  by  means  of  acts  of  Parlia- 
ment. It  was  doubtless  possible  that  the 
Council  of  State  might  have  entered  into  a 
secret  agreement  with  him  on  certain  terms, 
to  be  incorporated  afterward  into  bills,  as  at 
the  treaty  of  Newport ;  but  at  that  treaty 
his  father,  though  in  prison,  was  the  ac- 
knowledged sovereign  of  England;  and  it 
is  manifest  that  the  king's  recognition  must 
precede  the  enactment  of  any  law.  It  is 
equally  obvious  that  the  contracting  parties 
would  no  longer  be  the  same,  and  that  the 
conditions  that  seemed  indispensable  to  the 
Council  of  State  might  not  meet  with  the 
approbation  of  Parliament.  It  might  occur 
to  an  impatient  people  that  the  former  were 


402 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  X. 


not  invested  with  such  legal  or  permanent  i 
anthonty  as  could  give  them  any  pretext 
for  bargaining  with  the  king,  even  in  behalf 
of  public  liberty. 

But  if  the  Council  of  State,  or  even  the 
Parliament  on  its  first  meeting,  had  resolv- 
ed to  tender  any  hard  propositions  to  the 
king,  as  the  terms,  if  not  of  his  recognition, 
yet  of  his  being  permitted  to  exercise  the 
royal  functions,  was  there  not  a  possibility 
that  he  might  demur  about  their  accept- 
ance ?  that  a  negotiation  might  ensue  to 
procure  some  abatement  ?  that,  in  the  in- 
terchange of  couriers  between  London  and 
Brussels,  some  weeks,  at  least,  might  be 
whiled  away  ?  Clarendon,  we  are  sure, 
inflexible  and  uncompromising  as  to  his 
master's  honor,  would  have  dissuaded  such 
enormous  sacrifices  as  had  been  exacted 
from  the  late  king.  And  during  this  delay, 
while  no  legal  authority  would  have  sub- 
sisted, so  that  no  oflficer  could  have  collect- 
ed the  taxes  or  executed  process  without 
liability  to  punishment,  in  what  a  precarious 
state  would  the  Parliament  have  stood  ! 
On  the  one  hand,  the  nation,  almost  mad- 
dened with  the  intoxication  of  reviving  loy- 
alty, and  rather  prone  to  cast  at  the  king's 
feet  the  pnvileges  and  liberties  it  possessed 
than  to  demand  fresh  security  for  them, 
might  insist  upon  his  immediate  return,  and 
impair  the  authority  of  Parliament.  On 
the  other  hand,  the  army,  desperately  ir- 
reconcilable to  the  name  of  Stuart,  and  sul- 
lenly resenting  the  hj'pocrisy  that  had  de- 
luded them,  though  they  knew  no  longer 
where  to  seek  a  leader,  were  accessible  to 
the  furious  Commonwealth's  men,  who, 
rushing  as  it  were  with  lighted  torches 
along  their  ranks,  endeavored  to  rekindle  a 
fanaticism  that  had  not  quite  consumed  its 
fuel.*  The  escape  of  Lambert  from  the 
Tower  had  stnick  a  panic  into  all  the  king- 
dom ;  some  such  accident  might  again  fur- 
nish a  rallying  point  for  the  disaffected,  and 
plmige  the  countiy  into  an  unfathomable 
abyss  of  confusion.  Hence  the  motion  of 
Sir  IMatthew  Hale,  in  the  Convention  Par- 
liament, to  appoint  a  committee  who  should 
draw  up  propositions  to  be  sent  over  for  the 
king's  acceptance,  does  not  appear  to  me 
well  timed  and  expedient ;  nor  can  I  cen- 
.8ui"e  Monk  for  having  objected  to  it.f  The 

*  Life  of  Clarendon,  p.  10. 

t  "This,"  says  Burnet,  somewhat  invidionsly, 


business  in  hand  required  greater  dispatch. 
If  the  king's  restoration  was  an  essential 
blessing,  it  was  not  to  be  thrown  away  in 
the  debates  of  a  committee.  A  waiy,  scru- 
pulous, conscientious  English  lawyer,  like 
Hale,  is  always  wanting  in  the  rapidity  and 
decision  necessary  for  revolutions,  though 
he  may  be  highly  useful  in  preventing  them 
from  going  too  far. 

It  is,  I  confess,  more  probable  that  the 
king  would  have  accepted  almost  conduct  of 
any  conditions  tendered  to  him :  Conven- 

11  111  1  about 

such,  at  least,  would  have  been  the  this  not 
advice  of  most  of  his  counselors ;  blamabie, 
and  his  own  conduct  in  Scotland  was  suffi- 
cient to  show  how  little  any  sense  of  honor 
or  dignity  would  have  stood  in  his  way. 
But  on  what  grounds  did  his  English  friends 
— nay,  some  of  the  Pre.sbyterians  them- 
selves, advise  his  submission  to  the  dictates 
of  that  party  ?  It  was  in  the  expectation 
that  the  next  free  Parliament,  summoned 
by  his  own  writ,  would  undo  all  this  work 
of  stipulation,  and  restore  him  to  an  mifet- 
tered  prerogative ;  and  this  expectation 
there  was  eveiy  ground,  from  the  temper 
of  the  nation,  to  entertain.  Unless  the 
Convention  Parliament  had  bargained  for 
its  own  perpetuity,  or  the  privy  council 
had  been  made  immovable,  or  a  military 
force,  independent  of  the  crown,  had  been 
kept  up  to  overawe  the  people  (aU  of  them 
most  unconstitutional  and  abominable  usur- 
pations), there  was  no  possibility  of  main- 
taining the  conditions,  whatever  they  might 
have  been,  from  the  want  of  which  so  much 
mischief  is  fancied  to  have  sprung.  Evils 
did  take  place,  dangers  did  arise,  the  liber- 
ties of  England  were  once  more  impaired; 
but  these  are  far  less  to  be  ascribed  to  the 
actors  in  the  Restoi-ation  than  to  the  next 
Pai-liament,  and  to  the  nation  who  chose  it. 

I  must  once  more  request  the  reader  to 
take  notice  that  I  am  not  here  concerned 
with  the  proceedings  of  the  Convention 
Parliament  after  the  king's  return  to  Eng- 
land, which,  in  some  respects,  appear  to 
me  censurable,  but  discussing  the  question 
whether  they  were  guilty  of  any  fault  in 
not  tendering  bills  of  limitation  on  the  pre- 
rogative, as  preliminaiy  conditions  of  his 

"  was  the  great  service  that  Monk  did ;  for  as  to 
the  Restoration  itself,  the  tide  ran  so  strong-,  that 
he  only  went  into  it  destroiisly  enongh  to  get 
much  praise  and  great  rewards." — P.  123. 


COMMONWKALTH.]  FROM  HENRY  Vn.  TO  GEORGE  II. 


403 


restoration  to  the  exercise  of  his  lawful  au- 
thority. And  it  will  be  found,  upon  a  re- 
view of  what  took  place  in  that  inten-egnum 
from  their  meeting  together  on  the  25th  of 
April,  16G0,  to  Charles's  aiTivol  in  London 
on  the  29th  of  May,  that  they  were  less 
unmindful  than  has  been  sometimes  sup- 
posed, of  provisions  to  secure  the  kingdom 
against  the  perils  which  had  seemed  to 
threaten  it  in  the  Restoration. 

On  the  25th  of  April,  the  Commons  met 
and  elected  Grimston,  a  moderate  Presby- 
terian, as  their  speaker,  somewhat  against 
the  secret  wish  of  the  Cavaliers,  who,  elat- 
ed by  their  success  in  the  elections,  were 
beginning  to  aim  at  superiority,  and  to  show 
a  jealousy  of  their  late  allies.*  On  the 
same  day,  the  doors  of  the  House  of  Lords 
were  found  open ;  and  ten  peei-s,  all  of  whom 
had  sat  in  1648,  took  their  places  as  if  noth- 
ing more  than  a  common  adjournment  had 
passed  in  the  inter^'al.f  There  was,  how- 
ever, a  veiy  delicate  and  embarrassing  ques- 
tion, that  had  been  much  discussed  in  their 
private  meetings.  The  object  of  these,  as 
I  have  mentioned,  was  to  impose  terms  on 
the  king,  and  maintain  the  Presbyterian  as- 
cendency. But  the  peers  of  this  party  were 
far  from  numerous,  and  must  be  out-voted, 
if  all  the  other  lawful  members  of  the  House 
should  be  admitted  to  their  privileges.  Of 
these  there  were  three  classes :  the  first 
was  of  the  peers  who  had  come  to  their  ti- 
tles since  the  commencement  of  the  civil 
war,  and  whom  there  was  no  color  of  jus- 
tice, nor  any  vote  of  the  Hoiise,  to  exclude. 
To  some  of  these,  accordingly,  they  caused 
letters  to  be  directed ;  and  the  others  took 
their  seats  without  objection  on  the  2Gth 
and  27th  of  April,  on  the  latter  of  which 
days  thirty-eight  peers  were  present. t 
The  second  class  was  of  those  who  had 
joined  Charles  the  First,  and  had  been  ex- 
cluded from  sitting  in  the  House  by  votes 
of  the  Long  Parliament.    These  it  had  been 

*  Grimston  was  proposed  by  Pierpoint,  and  con- 
ducted to  the  chair  by  him,  Mouk,  and  Holhs. — 
Jounials,  Pari.  Hist.  The  Cavaliers  complained 
that  this  was  done  before  they  came  into  the 
House,  and  that  he  was  partial. — Mordannt  to 
Hyde.  April  27.    Clarendon  State  Papers,  734. 

t  These  were  the  Eai'ls  of  Manchester,  Northum- 
berland, Lincoln,  Denbigh,  and  Sufiblk;  Lords  Say, 
Wharton,  Hunsdon,  Grey,  Maynard. — Lords'  Jour- 
nals, April  23. 

{  Clarendon  State  Papers,  734.  Lords'  Journals. 


in  contemplation  among  the  Presbyterian 
junto  to  keep  out;  but  the  glaring  incon- 
sistency of  such  a  measure  with  the  popu- 
lar sentiment,  and  the  strength  that  the  first 
class  had  given  to  the  Royalist  interest 
among  the  aristocracy,  prevented  them  from 
insisting  on  it.  A  third  class  consisted  of 
those  who  had  been  created  since  the  great 
seal  was  taken  to  York  in  1642 ;  some  by 
the  late  king,  others  by  the  present  in  exile; 
and  these,  according  to  the  fundamental 
principle  of  the  Parliamentary  side,  were 
incapable  of  sitting  in  the  House.  It  was 
probably  one  of  the  conditions  on  which 
some  meant  to  insist,  conformably  to  the 
articles  of  the  treaty  of  Ne^vpolt,  that  the 
new  peers  should  be  perpetually  incapable; 
or  even  that  none  should  in  future  have  the 
right  of  voting,  without  the  concun'ence  of 
both  houses  of  Parliament.  An  order  was 
made,  therefore,  on  May  4,  that  no  lords 
created  since  1642  should  sit.  This  was 
vacated  by  a  subsequent  resolution  of  May 
31st. 

A  message  was  sent  down  to  the  Com- 
mons on  April  27,  desiring  a  conference  on 
the  great  affairs  of  the  kingdom.  This  was 
the  first  time  that  word  had  been  used  for 
more  than  eleven  years.  But  the  Com- 
mons, in  returning  an  answer  to  this  mes- 
sage, still  employed  the  word  nation.  It 
was  determined  that  the  conference  should 
take  placce  on  the  ensuing  Tuesday,  the 
first  of  May.*    In  this  conference,  there 

*  "  It  was  this  day  (April  27)  moved  in  the 
Honse  of  Commons  to  call  in  the  king ;  but  it  was 
deferred  till  Tuesday  next  by  the  king's  friends' 
consent,  and  then  it  is  generally  believed  something 
will  be  done  in  it.  The  calling  in  of  the  king  is 
now  not  doubted ;  but  there  is  a  party  among  the 
old  secluded  members  that  would  have  the  treaty 
grounded  upon  the  Isle  of  Wight  propositions  ;  and 
the  old  lords  are  thought  generally  of  that  design. 
But  it  is  believed  the  House  of  Commons  will  use 
the  king  more  gently.  The  general  hath  been 
highly  complimented  by  both  Houses,  and,  without 
doubt,  the  giving  the  king  easy  or  hard  conditions 
dependeth  totally  upon  him ;  for  if  he  ajipear  for 
the  king,  the  affections  of  the  people  are  so  high 
for  him  that  no  other  authority  can  oppose  him." — 
H.  Coventrj'  to  Jlarquis  of  Onnoiid.  Carte's  Let- 
ters, ii.,  328.  Mordaunt  confirms  this.  Those  who 
moved  for  the  king  were  Colonel  King  and  Mr. 
Finch,  both  decided  Cavaliers.  It  must  have  been 
postponed  by  the  policy  of  Monk.  What  could 
Clarendon  mean  by  saying  (History  of  Kebellion, 
vii.,  478)  "  that  none  had  the  courage,  how  loyal 
soever  their  wishes  were,  to  mention  his  ma  jestj- !" 
This  strange  way  of  speaking  has  misled  Hume, 


404 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  X. 


can  be  no  doubt  that  the  question  of  further 
secui'ities  against  the  power  of  the  crown 
would  have  been  discussed ;  but  Monk, 
■whether  from  conviction  of  their  inexpedi- 
ence  or  to  atone  for  his  ambiguous  delay, 
had  determined  to  prevent  any  encroach- 
ment on  the  prerogative.  He  caused  the 
king's  letter  to  the  Council  of  State,  and  to 
the  two  houses  of  Parliament,  to  be  deliv- 
ered on  that  veiy  day.  A  burst  of  enthusi- 
astic joy  testified  their  long-repressed  wish- 
es ;  and,  when  the  conference  took  place, 
the  Earl  of  Manchester  was  instructed  to 
let  the  Commons  know,  that  the  Lords  "do 
own  and  declai-e  that,  according  to  the  an- 
cient and  fundamental  laws  of  this  kingdom, 
the  government  is  and  ought  to  be  by  king. 
Lords,  and  Commons."  On  the  same  day 
the  Commons  resolved  to  agi'ee  in  this  vote, 
and  appointed  a  committee  to  report  what 
pretended  acts  and  ordinances  were  incon- 
sistent with  it* 

It  is,  however,  so  far  fi'om  being  ti'ue  that 
this  convention  gave  itself  up  to  a  blind  con- 
fidence in  the  king,  that  their  journals  dur- 
ing the  month  of  May  bear  witness  to  a 
considerable  activity  in  furthering  provisions 
which  the  circumstances  appeared  to  re- 
quire. They  appointed  a  committee,  on 
May  3d,  to  consider  of  the  king's  letter  and 
declaration,  both  holding  forth,  it  will  be  re- 
membered, all  promises  of  indeiunity,  and 
every  thing  that  could  tranquilize  appre- 
hension, and  to  propose  bills  accordingly, 
especially  for  taking  away  military  tenures. 
One  bill  was  brought  into  the  House,  to  se- 
cure lands  purchased  from  the  trustees  of 
the  late  Pai-liament ;  another,  to  establish 
ministers  already  settled  in  benefices ;  a 
third,  for  a  general  indemnity  ;  a  fourth,  to 
take  away  tenures  in  chivaliy  and  ward- 
ship ;  a  fifth,  to  make  void  all  grants  of  honor 
or  estate,  made  by  the  late  or  present  king 
since  May,  1642.  Finally,  on  the  very 
29th  of  May,  we  find  a  bill  read  twice  and 
committed,  for  the  confirmation  of  privOege 
of  Parliament,  Magna  Charta,  the  Petition 
of  Right,  and  other  great  constitutional  stat- 
utes, f  These  measures,  though  some  of 
them  were  never  completed,  proved  that 
the  restoration  was  not  carried  foi-ward  with 

who  copies  it.  The  king  was  as  generally  talked 
of  as  if  he  were  on  the  throne. 

*  Lords'  and  Commons'  Journals,  Pari.  Hist.,  iv., 
24.  t  Commons'  Jounials. 


so  thoughtless  a  precipitancy  and  neglect 
of  liberty  as  has  been  asserted. 

There  was  undoubtedly  one  very  import- 
ant matter  of  past  controversy, 

'  except  in  re- 

which  they  may  seem  to  have  spectofthe 
avoided,  the  power  over  the  mi- 
litia.  They  silently  gave  up  that  moment- 
ous question.  Yet  it  was  become,  in  a 
practical  sense,  incomparably  more  import- 
ant that  the  representatives  of  the  Com- 
mons should  retain  a  control  over  the  land 
forces  of  the  nation  than  it  had  been  at  the 
commencement  of  the  controversy.  War 
and  usurpation  had  sown  the  dragon's  teeth 
in  our  fields ;  and,  instead  of  the  peaceable 
trained  bands  of  former  ages,  the  citizen 
soldiers  who  could  not  be  marched  beyond 
their  counties,  we  had  a  veteran  army  ac- 
customed to  ti'ead  upon  the  civil  authority 
at  the  bidding  of  their  superiors,  and  used 
alike  to  govern  and  obey.  It  seemed  pro- 
digiously dangerous  to  give  up  this  weapon 
into  the  hands  of  our  new  sovereign.  The 
experience  of  other  countries  as  well  as  our 
own  demonstrated  that  the  public  fiberty 
could  never  be  secure  if  a  large  standing 
army  should  be  kept  on  foot,  or  any  stand- 
ing army  without  consent  of  Parfiament. 
But  this  salutary  restriction  the  Convention 
Parliament  did  not  think  fit  to  propose;  and 
in  this  respect  I  ceitainly  consider  them  as 
having  stopped  short  of  adequate  security. 
It  is  probable  that  the  necessity  of  humor- 
ing Monk,  whom  it  was  their  first  vote  to 
constitute  general  of  all  the  forces  in  the 
three  kingdoms,*  with  the  hope,  which 
proved  not  vain,  that  the  king  himself  would 
disband  the  present  army,  whereon  he  could 
so  Httle  rely,  prevented  any  endeavor  to  es- 
tablish the  control  of  Parfiament  over  the 
mifitary  power  till  it  was  too  late  to  wnth- 
stand  the  violence  of  the  Cavafiers,  who 
considered  the  absolute  prerogative  of  the 
crown  in  that  point  the  most  fundamental 
article  of  their  creed. 

Of  Monk  himself  it  may,  I  think,  be  said 
that,  if  his  conduct  in  this  revolu-  conduct  of 
tion  WEis  not  that  of  a  high-mind- 
ed  patriot,  it  did  not  desen  e  all  the  reproach 


*  Lords'  Journals,  May  2.  Upon  the  same  day, 
the  House  went  into  consideration  how  to  settle 
the  militia  of  this  kingdom.  A  committee  of  twelve 
lords  was  appointed  for  this  purpose,  and  the  Com- 
mons were  requested  to  appoint  a  proportionate 
number  to  join  therein  ;  but  no  bill  was  brought  in 
till  after  the  kins^s  return. 


Cha.  II.— 1660-73.]  rilOM  HENRY  VII. 


TO  GEORGE  II. 


405 


that  has  been  so  frequently  thrown  on  it. 
No  one  can,  without  forfeiting  all  preten- 
sions to  have  his  own  word  believed,  excuse 
his  incomparable  deceit  and  perjury;  a  mas- 
ter-piece, no  doubt,  as  it  ought  to  be  I'cck- 
oned  by  those  who  set  at  naught  the  obliga- 
tions of  veracity  in  public  transactions,  of 
that  wisdom  which  is  not  from  above  ;  but, 
in  seconding  the  public  wish  for  the  king's 
restoration,  a  step  which  few,  perhaps,  can 
be  so  much  in  love  with  fanatical  and  tyran- 
nous usurpation  as  to  condemn,  lio  seems 
to  have  used  what  influence  he  possessed, 
an  influence  by  no  means  commanding,  to 
render  the  new  settlement  as  little  injuri- 
ous as  possible  to  public  and  private  inter- 
ests. If  he  frustrated  the  scheme  of  throw- 
ing the  executive  authority  into  the  hands 
of  a  Presbyterian  oligarchy,  I,  for  one,  can 
see  no  great  cause  for  censure ;  nor  is  it 
quite  reasonable  to  expect  that  a  soldier  of 
fortune,  inured  to  the  exercise  of  arbitrary 
power,  and  exemj)t  from  the  prevailing  re- 
ligious fanaticism  ^vhich  must  be  felt  or  de- 
spised, .should  have  partaken  a  fervent  zeal 


I  for  liberty,  as  little  congenial  to  his  temper- 
ament as  it  was  to  his  profession.  He  cer- 
tainly did  not  satisfy  the  king  even  in  his 
first  promises  of  support,  when  he  advised 
an  absolute  indemnity,  and  the  preservation 
of  actual  interests  in  the  lands  of  the  crown 
and  Church.  In  the  first  debates  on  the 
Bill  of  Indemnity,  when  the  case  of  the 
regicides  came  into  discussion,  he  pressed 
for  the  smallest  number  of  exceptions  from 
pardon ;  and  though  his  conduct  after  the 
king's  return  displayed  his  accustomed  pru- 
dence, it  is  evident  that,  if  he  had  retained 
great  influence  in  the  council,  which  he  as- 
suredly did  not,  he  would  have  maintained 
as  much  as  possible  of  the  existing  settle- 
ment in  the  Church.  The  deepest  stain 
on  his  memoiy  is  the  production  of  Argyle's 
private  letters  on  his  trial  in  Scotland ;  nor, 
indeed,  can  Monk  be  regarded,  upon  the 
whole,  as  an  estimable  man,  though  his  pru- 
dence and  success  may  entitle  him,  in  the 
common  acceptation  of  the  word,  to  be  reck- 
oned a  great  one. 


CHAPTER  XI. 


FROM  THE  RESTORATION  OP  CHARLES  THE  SECOND 

CABAL  ADMINISTRATION. 

Popular  Joy  at  the  Restoration. — Proceedings  of  alitiou 
the  Convention  Parliament. — Act  of  Indemnity. 
—  Exclusion  of  the  Regicides  and  Others. — 
Discussions  hetween  the  Houses  on  it. — Exe- 
cution of  Regicides. — Restitution  of  Crown  and 
Church  Lands. — Discontent  of  the  Royalists. — 
Settlement  of  the  Revenue. — Aholition  of  Mili- 
tary Tenures. — Excise  granted  instead. — Army 
disbanded. — Clergy  restored  to  their  Benefices. 
— Hopes  of  the  Presbyterians  from  the  King. — 
Projects  for  a  Compromise. — King's  Declaration 
in  Favor  of  it. — Convention  Parliament  dissolv- 
ed.—  Different  Complexion  of  the  next.  —  Con- 
demnation of  Vane.  —  Its  Injustice.  —  Acts  re- 
placing the  Crown  in  its  Prerogatives. — Coi"po- 
ration  Act.  —  Repeal  of  Triennial  Act.  —  Star 
Chamher  not  restored. — Presbyterians  deceived 
by  the  King. — Savoy  Conference. — Act  of  Uui- 
formit}-. — Ejection  of  Non-confonnist  Clergy. — 
Hopes  of  the  Catholics. — Bias  of  the  King  to- 
ward them.  —  Resisted  by  Clarendon  and  the 
parliament. — Declaration  for  Indulgence. — Ob- 
jected to  by  the  Commons. — Act  against  Con- 
venticles.—  Another  of  the  same  Kind. — ^  Re- 
marks on  them.  —  Dissatisfaction  increases. — 
Private  Life  of  the  King. — Opposition  in  Par- 
liament.— Appropriation  of  Supplies. — Commis- 
sion of  Public  Accounts.  —  Decline  of  Claren- 
don's Power. — Loss  of  the  King's  Favor. — Co- 


TO  THE  FALL  OP  THE 


ainst  him. — His  Impeachment — Some 
Articles  of  it  not  unfounded. — Illegal  Imprison- 
ments.— Sale  of  Dunkirk. — Solicitation  of  French 
Money. — His  Faults  as  a  Minister. — His  pusil- 
lanimous Fhght,  and  conseijuent  Banishment. — 
Cabal  Ministiy. — Scheme  of  Com]n-ehension  and 
Indulgence.  —  Triple  Alliance.  —  Intrigue  with 
France. — King's  Desire  to  be  absolute. — Secret 
Treaty  of  1670. — Its  Objects. — Differences  be- 
tween Charles  and  Louis  as  to  the  Mode  of  its 
Execution. — Fresh  Severities  against  Dissent- 
ers.— Dutch  War. — Declaration  of  Indulgence. 
—  Opposed  by  Parliament,  and  withdrawn. — 
Test  Act.  —  Fall  of  Shaftesbury  and  his  Col- 
leagues. 

It  is  universally  acknowledged  that  no 
measure  was  ever  more  national,  „  , 

_  ^  Popular  joy 

or  has  ever  produced  more  testi-  at  the  Res- 
monies  of  public  approbation,  than 
the  restoration  of  Charles  II.  Nor  can 
this  be  attributed  to  the  usual  fickleness  of 
the  multitude ;  for  the  late  government, 
whether  under  the  Parliament  or  the  Pro- 
tector, had  never  obtained  the  sanction  of 
popular  consent,  nor  could  have  subsisted 
for  a  day  without  the  support  of  the  army. 


406 


CONSTITUTIONAL  HISTOBY  OF  ENGLAND 


[Chap.  XI, 


The  king's  return  seemed  to  the  people  the 
harbinger  of  a  real  liberty,  instead  of  that 
bastard  Commonwealth  which  had  insulted 
them  with  its  name;  a  liberty  secure  from 
enormous  assessments,  which,  even  when 
lawfully  imposed,  the  English  had  always 
paid  with  reluctance,  and  from  the  insolent 
despotism  of  the  soldiery.  The  young  and 
lively  looked  forward  to  a  release  from  the 
rigors  of  fanaticism,  and  were  too  ready  to 
exchange  that  hypocritical  austerity  of  the 
late  times  for  a  licentiousness  and  impiety 
that  became  characteristic  of  the  present. 
In  this  tumult  of  exulting  hope  and  joy, 
there  was  much  to  excite  anxious  forebod- 
ings in  calmer  men ;  and  it  was  by  no  means 
safe  to  pronounce  that  a  change  so  general- 
ly demanded,  and  in  most  respects  so  expe- 
dient, could  be  effected  without  veiy  seri- 
ous sacrifices  of  public  and  particular  inter- 
ests. 

Four  subjects  of  great  importance,  and 
Proceedings  Some  of  them  very  difficult,  occu- 
"entionPar-  P'*"^  ^^^^  Convention  Parliament 
liament.  from  the  time  of  the  king's  return 
till  their  dissolution  in  the  following  Decem- 
ber :  a  general  indemnity  and  legal  oblivion 
of  all  that  had  been  done  amiss  in  the  late 
interruption  of  government ;  an  adjustment 
of  the  claims  for  reparation  which  the 
crown,  the  church,  and  private  Royalists 
had  to  prefer;  a  provision  for  the  king's 
revenue,  consistent  with  the  abolition  of 
military  tenures  ;  and  the  settlement  of  the 
Church.  These  were,  in  effect,  the  arti- 
cles of  a  sort  of  treaty  between  the  king  and 
the  nation,  without  some  legislative  provi- 
sions as  to  which,  no  stable  or  tranquil  course 
of  law  could  be  expected. 

The  king,  in  his  well-known  declaration 
Act  of  la-  from  Breda,  dated  the  14th  of  April, 
demity.  had  laid  down,  as  it  were,  certain 
bases  of  his  restoration,  as  to  some  points 
which  he  knew  to  excite  much  apprehen- 
sion in  England.  One  of  these  was  a  free 
and  general  pardon  to  all  his  subjects,  sav- 
ing only  such  as  should  be  excepted  by  Par- 
liament. It  had  always  been  the  king's  ex- 
pectation, or  at  least  that  of  his  chancellor, 
that  all  who  had  been  immediately  concern- 
ed in  his  father's  death  should  be  delivered  up 
_  ,   .     ,  to  punishment  ;*  and,  in  the  most 

Exclusion  of  /.  ,.,. 

the  regicides  unpropitious  State  01  his  fortune, 
and  others,    ^jjjjg  making  all  professions  of 


*  Life  of  Clarendon,  p.  69. 


pardon  and  favor  to  different  parties,  he  had 
constantly  excepted  the  regicides.*  Monk, 
however,  had  advised,  in  his  first  messages 
to  the  king,  that  none,  or,  at  most,  not 
above  four,  should  be  excepted  on  this  ac- 
count ;f  and  the  Commons  voted  that  not 
more  than  seven  persons  should  lose  the 
benefit  of  the  Indemnity,  both  as  to  life  and 
estate  ;t  yet,  after  having  named  seven  of 
the  late  king's  judges,  they  proceeded  in  a 
few  days  to  add  several  more,  who  had  been 
conceraed  in  managing  his  trial,  or  other- 
wise forward  in  promoting  his  death. § 
They  went  on  to  pitch  upon  twenty  per- 
sons, whom,  on  account  of  their  deep  con- 
cern in  the  transactions  of  the  last  tvvelve 
years,  they  determined  to  affect  with  pen- 
alties, not  extending  to  death,  and  to  be  de- 
termined by  some  future  act  of  Parlia- 
ment. ||    As  their  passions  gi'ew  warmer, 

*  Clar.  State  Papers,  iii.,  427,  529.  In  fact,  very 
few  of  them  were  likely  to  be  of  use  ;  and  the  ex- 
ception made  his  general  offers  appear  more  sincere. 

t  Clar.,  Hist,  of  Rebellion,  \-ii.,  447.  Ludlow 
says  that  Fairfax  and  Northumherland  were  posi- 
tively ag:ainst  the  punishment  of  the  regicides,  voL 
iii.,  p.  10;  and  that  Monk  vehemently  declared  at 
first  against  any  exceptions,  and  afterward  pre- 
vailed on  the  House  to  limit  them  to  seven,  p.  16. 
Though  Ludlow  was  not  in  England,  this  seems 
very  probahle.  and  is  confirmed  by  other  authorities 
i  as  to  Monk.  Fairfax,  who  had  sat  one  day  himself 
on  the  king's  trial,  could  hardly,  with  decency,  cou- 
cur  in  the  punishment  of  those  who  went  on. 

{  Journals,  May  14. 

5  June  5,  6,  7.  The  first  seven  were  Scott, 
Holland,  Lisle,  Barkstead,  Harrison,  Say,  Jones. 
They  went  on  to  add  Coke,  Broughton,  Dendy. 

II  These  were  Lenthall,  Vane,  Burton,  Kehle, 
St.  John,  Ireton,  Hazlerig,  Sydenham,  Desborough, 
Axtell,  Lambert,  Pack,  Blackwell,  Fleetwood, 
Pyne,  Dean,  Creed,  Nj  e,  Goodwin,  and  Cobbet; 
some  of  them  rather  insignificant  names.  Upon 
the  words  that  "  twenty  and  no  more  "  he  so  except- 
ed, two  divisions  took  place,  160  to  131,  and  153  to 
135  ;  the  Presbyterians  being  the  majority,  June  8- 
Two  other  divisions  took  place  on  the  names  of 
Lenthall,  carried  by  215  to  126,  and  of  Whitelock, 
lost  by  175  to  134.  Another  motion  was  made  af- 
terward against  Whitelock  by  PrjTme.  Milton  was 
ordered  to  be  prosecuted  separately  from  the  twen- 
ty ;  so  that  they  already  broke  their  resolution. 
He  was  put  in  custody  of  the  sergeant-at-arms, 
and  released,  December  17.  Andrew  Mani-ell,  his 
friend,  soon  afterward  complained  that  fees  to  the 
amount  of  £50  had  been  extorted  from  him;  but 
Finch  answered  that  Milton  had  been  Cromwell's 
secretarj-,  and  deser\-ed  hanging. — Pari.  Hist.,  p. 
162.  Lenthall  had  taken  some  share  in  the  Res- 
toration, and  entered  into  correspondence  with  the 
king's  advisers  a  httle  before.— Clar.  State  Papers, 
iii.,  711,  720.    Kennet's  Register,  762.    But  the 


Cha.  n.— 1660-73.] 


FROM  HENRY  VII.  TO  GEORGE  11 


407 


aud  the  wishes  of  the  court  became  better 
kuown,  they  came  to  except  from  all  bene- 
fit of  the  Indemnity  such  of  the  king's 
judges  as  had  not  rendered  themselves  to 
justice  according  to  the  late  proclamation.* 
In  this  state  the  Bill  of  Indemnity  and  Obliv- 
ion was  sent  up  to  the  Lords. f  But  in  that 
House  the  old  Royalists  liad  a  more  deci- 
sive preponderance  than  among  the  Com- 
mons. They  voted  to  except  all  who  had 
signed  the  death-waiTant  against  Charles 
the  First,  or  sat  when  sentence  was  pro- 
nounced, and  five  others  by  name,  Hack- 
er, Vane,  Lambert,  Hazlerig,  and  Axtell. 
They  sti'uck  out,  on  the  other  hand,  the 
clause  reserving  Lenthall  and  the  rest  of 
the  same  class  for  future  penalties.  They 
made  other  alterations  in  the  bill  to  render 
it  more  severe  ;t  and  with  these,  after  a 
pretty  long  delay,  and  a  positive  message 
from  the  king,  requesting  them  to  hasten 
their  proceedings  (an  irregularitj'  to  which 
they  took  no  exception,  and  which  in  the 
eyes  of  the  nation  was  justified  by  the  cir- 
cumstances), they  returned  the  bill  to  the 
Commons. 

The  vindictive  spirit  displayed  by  the 
Upper  House  was  not  agreeable  to  the  bet- 
ter temper  of  the  Commons,  where  the 
Presbyterian  or  moderate  party  retained 
great  influence.  Though  the  king's  judges 
(such,  at  least,  as  had  signed  the  death-war- 
rant) were  equally  guilty,  it  was  consonant 
to  the  practice  of  all  humane  governments 
to  make  a  selection  for  capital  penalties ; 
and  to  put  forty  or  fiftj^  persons  to  death  for 
that  offense  seemed  a  veiy  sanguinary 
course  of  proceeding,  and  not  likely  to  pro- 
mote the  conciliation  and  oblivion  so  much 
cried  up.    But  there  was  a  yet  sti'onger 

Royalists  never  could  forgive  his  having  put  the 
question  to  the  vote  on  the  ordiuauce  for  trying  the 
late  king. 

*  June  .30.  This  was  carried  without  a  division. 
Eleven  were  afterward  excepted  by  name,  as  not 
having  rendered  themselves,  July  9.       t  July  11. 

t  The  worst  and  most  odious  of  their  proceed- 
ings, quite  unworthy  of  a  Christian  and  civilized 
assembly,  was  to  give  the  next  relations  of  the 
four  peers  who  had  been  executed  under  the  Com- 
monwealth, Hamilton,  Holland,  Capel,  and  Derby, 
the  privilege  of  naming  each  one  person  (among 
the  regicides)  to  be  executed.  This  was  done  in 
the  last  three  instances ;  but  Lord  Denbigh,  as 
Hamilton's  kinsman,  nominated  one  who  was  dead ; 
and,  on  this  being  pointed  out  to  him.  refused  to  fix 
on  another. — Journal,  Aug.  7.    Ludlow,  iii.,  34. 


objection  to  this  severity.  The  king  had 
published  a  proclamation,  in  a  few  days  af- 
ter his  landing,  commanding  his  father's 
judges  to  render  themselves  up  within 
fourteen  days,  on  pain  of  being  excepted 
from  any  pardon  or  indemnity,  either  as  to 
their  hves  or  estates.  Many  had  volun- 
tarily come  in,  having  put  an  obvious  con- 
struction on  this  proclamation.  It  seems  to 
admit  of  little  question,  that  the  king's  faith 
was  pledged  to  those  persons,  and  that  no 
advantage  could  be  taken  of  any  ambigui- 
ty in  the  proclamation,  without  as  real  per- 
fidiousness  as  if  the  words  had  been  more 
express.  They  were  at  least  entitled  to 
be  set  at  liberty,  and  to  have  a  i-easonable 
time  allowed  for  making  their  escape,  if  it 
were  determined  to  exclude  them  from  the 
Indemnity.*  The  Commons  were  more 
mindful  of  the  king's  honor  and  t,. 

^  °  Discussions 

their  own  than  his  nearest  advis-  between  the 
ers.f  But  the  violent  RoyaUsts  "<"^=«°">'- 
were  gaining  ground  among  them,  and  it 
ended  in  a  compromise.  They  left  Hacker 
and  Axtell,  who  had  been  prominently  con- 
cerned iu  the  king's  death,  to  their  fate. 
They  even  admitted  the  exceptions  of  Vane 
and  Lambert;  contenting  themselves  with 
a  joint  address  of  both  Houses  to  the  king, 
that,  if  they  should  be  attainted,  execution 

*  Lord  Southampton,  according  to  Ludlow,  ac- 
tually moved  this  iu  the  House  of  Lords,  but  was 
opposed  by  Finch,  iii.,  43. 

t  Clarendon  uses  some  shameful  chicanery  about 
this — Life,  p.  69  ;  and  with  that  inaccuracy,  to  say 
the  least,  so  habitual  to  him,  says,  "  the  Parliament 
had  published  a  proclamation,  that  all  who  did  not 
render  themselves  by  a  day  named,  should  be 
judged  as  guilty,  and  attainted  of  treason."  The 
proclamation  was  published  by  the  king,  on  the 
suggestion,  indeed,  of  the  Lords  and  Commons, 
and  the  expressions  were  what  I  have  stated  in 
the  text. — State  Trials,  v.,  959.  Somers  Tracts, 
vii.,  437.  It  is  obvious  that  by  this  misrepresenta- 
tion he  not  only  throws  the  blame  of  ill  faith  off  the 
king's  shoulders,  but  puts  the  case  of  those  who 
obeyed  the  proclamation  on  a  very  different  footing. 
The  king,  it  seems,  had  always  expected  that  none 
of  the  regicides  should  be  spared.  But  why  did  he 
publish  such  a  pi'oclamatiou  ?  Clarendon,  howev- 
er, seems  to  have  been  against  the  other  exceptions 
from  the  Bill  of  Indemnity,  as  contraiy  to  some  ex- 
pressions in  the  declaration  from  Breda,  which  had 
been  inserted  by  Monk's  advice  ;  and  thus  wisely 
and  honorably  got  rid  of  the  twenty  exceptions, 
which  had  been  sent  up  from  the  Commons,  p.  133. 
The  Lower  House  resolved  to  agree  with  the  Lords 
as  to  those  twenty  persons,  or,  rather,  sixteen  of 
them,  by  197  to  102,  Hollis  aud  Morrice  telling  the 
ayes. 


408 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


as  to  their  lives  might  be  remitted.  Ha- 
zlerig  was  saved  on  a  division  of  141  to  116, 
partly  through  the  intercession  of  Monk, 
who  had  pledged  his  word  to  him.  Most 
of  the  king's  judges  were  entirely  excepted; 
but  with  a  proviso  in  favor  of  such  as  had 
surrendered  according  to  the  proclamation, 
that  the  sentence  should  not  be  executed 
without  a  special  act  of  Parliament.*  Oth- 
ers were  reserved  for  penalties  not  extend- 
ing to  life,  to  be  inflicted  by  a  future  act. 
About  twenty  enumerated  persons,  as  well 
as  those  who  had  pronounced  sentence  of 
death  in  any  of  the  late  illegal  high  courts 
of  justice,  were  rendered  incapable  of  any 
civil  or  military  office.  Thus,  after  three 
months'  delay,  which  had  given  room  to 
disti'ust  the  boasted  clemency  and  forgive- 
ness of  the  victorious  Royalists,  the  Act  of 
Indemnity  was  finally  passed. 

Ten  persons  suffered  death  soon  after- 
Execution  of  ward  for  the  murder  of  Charles 
regicides.  the  First,  and  three  more  who 
had  been  seized  in  Holland,  after  a  consid- 
erable lapse  of  time.f  There  can  be  no 
reasonable  gi'ound  for  censuring  either  the 
king  or  the  Parliament  for  their  punish- 
ment, except  that  Hugh  Peters,  though  a 
very  odious  fanatic,  was  not  so  directly  im- 
plicated in  the  king's  death  as  many  who 
escaped  ;  and  the  execution  of  Scrope,  who 
had  surrendered  under  the  proclamation, 
was  an  inexcusable  breach  of  faith. t  But 

*  Stat.  12  Car.  IL,  c.  11. 

t  These  were,  in  the  first  instance,  Harrison, 
Scott,  Scrope,  Jones,  Clement,  Carew,  all  of  whom 
had  signed  the  warrant,  Cook,  the  solicitor  at  the 
High  Court  of  Justice,  Hacker  and  Axtell,  who 
commanded  the  guard  on  that  occasion,  and  Peters. 
Two  years  afterward,  Downing,  ambassador  in 
Holland,  prevailed  on  the  States  to  give  up  Bark- 
stead,  Corbet,  and  Okey.  They  all  died  with 
great  constancy,  and  an  enthusiastic  persuasion  of 
the  righteousness  of  their  cause. — State  Trials. 

Pepys  says  in  his  Diarj-,  Oct.  13th,  1660,  of  Harri- 
son, whose  execution  he  witnessed,  "  that  he  looked 
as  cheerful  as  any  man  could  do  in  that  condition." 

X  It  is  remarkable  that  Scrope  had  been  so  par- 
ticularly favored  by  the  Convention  Parliament  as 
to  be  exempted,  together  with  Hutchinson  and 
Lascelles,  from  any  penalty  or  forfeiture  by  special 
resolution,  June  9.  But  the  Lords  put  in  bis  name 
again,  though  they  pointedly  excepted  Hutchinson  ; 
and  the  Commons,  after  first  resolving  that  he 
should  only  pay  a  fine  of  one  year's  value  of  bis 
estate,  came  at  last  to  agree  in  excepting  him  from 
the  Indemnit)'  as  to  life.  It  appears  that  some 
private  convei-sation  of  Scrope  had  been  betrayed, 
wherein  he  spoke  of  the  king's  death  as  he  thought. 


nothing  can  be  more  sophistical  than  to  pre- 
tend that  such  men  as  Hollis  and  Annesley, 
who  had  been  expelled  from  Parliament  by 
the  violence  of  the  same  faction  who  put 
the  king  to  death,  were  not  to  vote  for  their 
punishment  or  to  sit  in  judgment  on  them, 
because  they  had  sided  with  the  Commons 
in  the  civil  war.*  It  is  mentioned  by  many 
writei  s,  and  in  the  Jounials,  that  when  Mr. 
Lenthall,  son  of  the  late  speaker,  in  the 
very  first  days  of  the  Convention  Parlia- 
ment, Avas  led  to  say  that  those  who  had 
levied  war  against  the  king  were  as  blama- 
ble  as  those  who  had  cut  ofl^  his  head,  he 
received  a  reprimand  from  the  chair,  which 
the  folly  and  dangerous  consequence  of  his 
position  well  deserved  ;  for  such  language, 
though  it  seems  to  have  been  used  by  him 
in  extenuation  of  the  regicides,  was  quite  in 
the  tone  of  the  violent  Royalists,  f 

A  question,  apparently  far  more  diflScuIt, 
was  that  of  restitution  and  re-  „    .  . 

Restitution 

dress.  The  crown  lands,  those  of  crown  and 
of  the  Church,  the  estates  in  Chu'chianOs. 
certain  instances  of  eminent  Royalists,  had 


As  to  Hutchinson,  he  had  certainly  concurred  in 
the  Restoration,  having  an  extreme  dislike  to  the 
party  who  had  tamed  out  the  Parliament  in  Oct., 
1659,  especially  Lambert.  This  may  be  inferred 
from  Ms  conduct,  as  weU  as  by  what  Ludlow  says, 
and  Kennet  iu  his  Register,  p.  169.  His  wife  puts 
a  speech  into  his  month  as  to  his  share  in  the  king's 
death,  not  absolutely  justifjnng  it,  bat,  I  snspect, 
stronger  than  he  ventured  to  use.  At  least,  the 
Commons  voted  that  he  should  not  be  excepted 
from  the  Indemnity  "  on  account  of  his  signal  re- 
pentance," which  could  hardly  be  predicated  of  the 
language  she  ascribes  to  him.  —  Compare  Mrs. 
Hutchinson's  Memoirs,  p.  367,  with  Commons' 
Journals,  June  9. 

*  Horace  Walpole,  in  his  Catalogue  of  Noble  Au- 
thors, has  thought  fit  to  censure  both  these  persons 
for  their  pretended  inconsistency.  The  case  is, 
however,  different  as  to  Monk  and  Cooper;  and 
perhaps  it  may  be  thought  that  men  of  more  deli- 
cate sentiments  than  either  of  these  possessed 
would  not  have  sat  upon  the  trial  of  those  with 
whom  they  had  long  professed  to  act  in  concert^ 
though  innocent  of  their  crime. 

t  Commons'  Journals,  May  12,  1660.  [Yet  the 
balance  of  parties  in  the  Convention  Pailiament 
was  so  equal,  that  on  a  resolution  that  receivers 
and  collectors  of  public  money  should  be  accounta- 
ble to  the  king  for  all  moneys  received  bj-  them 
since  Jan.  30,  1648-9,  an  amendment  to  substitute 
the  year  1642-3  was  carried  against  the  Presbyte- 
rians by  16.5  to  150.  It  was  not  designed  that  those 
who  had  accounted  to  the  Parliament  should  actu- 
ally refund  what  they  bad  received,  but  to  declare, 
indirectly,  the  illegality  of  the  Parliamentarj'  au- 
thority.— Commons'  Journals,  June  2. — 1845.] 


Cha.  11—1600-73.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


409 


been  sold  by  the  authority  of  the  late  usurp- 
ers ;  and  that  not  at  very  low  rates,  consid- 
ering the  precariousness  of  the  title.  This 
naturally  seemed  a  material  obstacle  to  the 
restoration  of  ancient  rights,  especially  in 
the  case  of  ecclesiastical  corporations,  whom 
men  are  commonly  less  disposed  to  favor 
than  private  persons.  The  clergy  them- 
selves had  never  expected  that  their  estates 
would  revert  to  them  in  full  propriety,  and 
would  probably  have  been  contented,  at  the 
moment  of  the  king's  return,  to  have  granted 
easy  leases  to  the  pui'cliasei's.  Nor  were 
the  House  of  Commons,  many  of  whom 
were  interested  in  these  sales,  inclined  to 
let  in  the  former  owners  without  conditions. 
A  biU  was  accordingly  brought  into  the  House 
at  the  beginning  of  the  session  to  confirm 
sales,  or  to  give  indemnity  to  the  purchas- 
ei"s.  I  do  not  find  its  provisions  more  par- 
ticularly stated.  The  zeal  of  the  Royalists 
soon  caused  the  crown  lands  to  be  except- 
ed.* But  the  House  adhered  to  the  princi- 
ple of  composition  as  to  ecclesiastical  prop- 
erty, and  kept  the  bill  a  long  time  in  debate. 
At  the  adjournment  in  September,  the  chan- 
cellor told  them,  his  majesty  had  thought 
much  upon  the  business,  and  done  much  for 
the  accommodation  of  many  particular  per- 
sons, and  doubted  not  but  that,  before  they 
met  again,  a  good  progress  would  be  made, 
so  that  the  persons  concerned  would  be 
much  to  blame  if  they  received  not  full  sat- 
isfaction ;  promising,  also,  to  advise  with 
some  of  the  commons  as  to  that  settlement,  f 
These  expressions  indicate  a  design  to  take 
the  matter  out  of  the  hands  of  Parliament; 
for  it  was  Hyde's  firm  resolution  to  replace 
the  Church  in  tlie  whole  of  its  property, 
without  any  other  regard  to  the  actual  pos- 
sessors than  the  right  owners  should  sever- 
ally think  it  equitable  to  display  :  and  this, 
as  may  be  supposed,  proved  very  small. 
No  further  steps  were  taken  on  the  meet- 
ing of  Parliament  after  the  adjournment ; 
and  by  the  dissolution  the  parties  were  left  to 
the  common  course  of  law.  The  Church, 
the  crown,  the  dispossessed  Royalists,  re- 
entered triumphantly  on  their  lands  ;  there 
were  no  means  of  repelling  the  owners' 
claim,  nor  any  satisfaction  to  be  looked  for 
by  the  purchasers  under  so  defective  a  title. 
It  must  be  owned  that  the  facility  with  which 
tliis  was  accomplished  is  a  striking  testimo- 
*  Pari.  Hist.,  iv.,  80.  t  Ibid.,  iv.,  129. 


ny  to  the  strength  of  the  new  government, 
and  the  concurrence  of  the  nation.  This  is 
the  more  remarkable,  if  it  be  true,  as  Lud- 
low informs  us,  that  the  chapter  lands  had 
been  sold  by  the  trustees  appointed  by  Par- 
liament at  the  clear  income  of  fifteen  or  sev- 
enteen years'  purchase.* 

The  great  body,  however,  of  the  suflTer- 
ing  Cavaliers,  who  had  compound- 

^  ,  *  Discontent 

ed  for  their  delinquency  luider  the  of  ihe  Roy- 
ordinances  of  the  Long  Parlia- 
ment,  or  whose  estates  had  been  for  a  time 
in  sequestration,  found  no  remedy  for  these 
losses  by  any  process  of  law.  The  Act  of 
Indemnity  put  a  stop  to  any  suits  they  might 
have  instituted  against  persons  concerned  in 
cariying  these  illegal  ordinances  into  execu- 
tion. They  were  compelled  to  put  up  with 
their  poverty,  having  the  additional  mortifi- 
cation of  seeing  one  class,  namely,  the  cler- 
gy, who  had  been  engaged  in  the  same 
cause,  not  alike  in  their  fortune,  and  many 
even  of  the  vanquished  Republicans  undis- 
turbed in  wealth  which,  directly  or  indirect- 
ly, they  deemed  acquired  at  their  own  ex- 
pense.f  They  called  the  statute  an  act  of 
indemnity  for  the  king's  enemies,  and  of  ob- 
livion for  his  friends.  They  murmured  at 
the  ingratitude  of  Charles,  as  if  he  were 
bound  to  forfeit  his  honor  and  risk  his  throne 
for  their  sakes.  They  conceived  a  deep 
hatred  of  Clarendon,  whose  steady  adhe- 
I'ence  to  the  great  principles  of  the  Act  of 

*  Memoirs,  p.  229  It  appears  by  some  passa- 
ges in  the  Clarendon  Papers  that  the  Church  had 
not  expected  to  come  off  so  brilliantly  ;  and,  while 
the  Restoration  was  yet  unsettled,  would  have 
been  content  to  give  leases  of  their  lands. — P.  620, 
723.  Hyde,  however,  was  convinced  that  the 
Church  would  be  either  totally  ruined,  or  restored 
to  a  great  lustre  ;  and  herein  he  was  right,  as  it 
turned  out— P.  GU. 

t  Life  of  Clarendon,  99.  L'Estrans-e,  in  a  pam- 
phlet printed  before  the  end  of  IGUO,  complains  tiiat 
the  Cavaliers  were  neglected,  the  king  betrayed, 
the  creatures  of  Cromwell,  Bradshaw,  and  St.  John 
laden  with  offices  and  honors.  Of  the  Indemnity 
he  says,  "  That  act  made  the  enemies  to  the  Con- 
stitution masters  in  effect  of  the  booty  of  three  na- 
tions, bating  the  crown  and  church  lands,  all  which 
they  might  now  call  their  own,  while  those  w'ho 
stood  up  for  the  laws  wei'e  abandoned  to  the  com- 
fort of  an  irreparable  but  honorable  inin."  He  re- 
viles the  Presbyterian  ministers  still  in  possession, 
and  tells  the  king  that  misplaced  lenity  was  his 
father's  ruin. — Kennet's  Register,  p.  233.  See,  too, 
in  Somers  Tracts,  vii.,  517,  "  The  Humble  Repre- 
sentation of  the  Sad  Condition  of  the  King's  Par 
ty."    Also,  p.  557. 


410 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chxt.  XL 


Indemnity  is  the  most  honorable  act  of  his 
public  life.  And  the  discontent  engendered 
by  their  disappointed  hopes  led  to  some 
part  of  the  opposition  jifterward  experienc- 
ed by  the  king,  and  still  more  certainly  to 
the  coalition  against  the  ministei". 

No  one  cause  had  so  eminently  contribu- 
o  ..1      .  ted  to  the  dissensions  between  the 

settlement 

of  the  rev-  ci'own  and  Parliament  in  the  two 
last  reigns,  as  the  disproportion  be- 
tween the  public  revenues  under  a  rapidly 
increasing  depreciation  in  the  value  of  mon- 
ey, and  the  exigencies,  at  least  on  some  oc- 
casions, of  the  administration.  Thei'e  could 
be  no  apology  for  the  parsimonious  reluct- 
ance of  the  Commons  to  gi'ant  supplies, 
except  the  constitutional  necessity  of  ren- 
dering them  the  condition  of  redress  of 
gi-ievances  ;  and  in  the  present  circumstan- 
ces, satisfied,  as  they  seemed  at  least  to  be, 
with  the  securities  they  had  obtained,  and 
enamored  of  their  new  sovereign,  it  was 
reasonable  to  make  some  further  provision 
for  the  current  expenditure.  Yet  this  was 
to  be  meted  out  with  such  prudence  as  not 
to  place  him  beyond  the  necessity  of  fre- 
quent recurrence  to  their  aid.  A  commit- 
tee was  accordingly  appointed  "to  consider 
of  settling  such  a  revenue  on  his  majesty  as 
may  maintain  the  splendor  and  grandeur 
of  his  kingly  office,  and  preserve  the  crown 
from  want,  and  from  being  undervalued  by 
his  neighboi's."  By  their  repoi-t  it  appear- 
ed that  the  revenue  of  Charles  I.  from  1637 
to  1641  had  amounted  on  an  average  to 
about  6e90(),000,  of  which  full  ^£200,000 
arose  from  sources  either  not  warranted  by 
law  or  no  longer  available.*  The  House  re- 
solved to  raise  the  present  king's  income  to 
c€l,200,000  per  annum;  a  sum  perhaps  suf- 
ficient in  those  times  for  the  ordinary  charg- 
es of  government.  But  the  funds  assigned 
to  produce  his  revenue  soon  fell  short  of 
the  Parliament's  calculation. f 

"  [Commons'  Journals,  Sept.  4,  1660 ;  which  I 
quote  from  "Letter  to  the  Rev.  T.  Carte"  (in 
1749),  p.  44.  This  seems  to  have  been  exclusive 
of  ship-money.] — 1845. 

t  Commons'  Journals,  September  4,  1660.  Sir 
Philip  Warwick,  cliaucellor  of  the  Exchequer,  as- 
sured Pepys  that  the  revenue  fell  short  by  a  fourth 
of  the  £1,200,000  voted  by  Parliament.— See  his  Di- 
ary, March  1,  1664.  Ralph,  however,  says,  the  in- 
come in  1662  was  £1,120,593,  though  the  expend- 
iture was  £1,439,000.— P.  88.  It  appears  probable 
that  the  hereditary  excise  did  not  yet  produce 
much  beyond  its  estimate. — Id.,  p.  20. 


One  ancient  fountain  that  had  poured  its 
stream  into  the  royal  treasury  it  ^^^y^^-^^ 
was  now  determined  to  close  up  military  ten- 
forever.  The  feudal  tenures  had  dse'^anted 
brought  with  ihem  at  the  Con-  '"^''-a'^- 
quest,  or  not  long  after,  those  incidents,  as 
they  were  usually  called,  or  emoluments  of 
seigniory,  which  remained  after  the  militaiy 
character  of  fiefs  had  been  nearly  effaced, 
es|)ecially  the  right  of  detaining  the  estates 
of  minors  holding  in  chivalry,  without  ac- 
counting for  the  profits.  This  galling  bur- 
den, incomparably  more  ruinous  to  the  ten- 
ant than  beneficial  to  the  lord,  it  had  long 
been  determined  to  remove.  Charles,  at 
the  treaty  of  Newport,  had  consented  to 
give  it  up  for  a  fixed  revenue  of  .£100,000 ; 
and  this  was  almost  the  only  part  of  that  in- 
effectual compact  which  the  present  Parlia- 
ment were  anxious  to  complete.  The  king, 
though  likely  to  lose  much  pati-onage  and  in- 
fluence, and  what  passed  w  ith  lawyers  for  a 
high  attribute  of  his  prerogative,  could  not 
decently  refuse  a  commutation  so  evidently 
advantageous  to  the  aristocracy.  No  great 
difference  of  opinion  subsisting  as  to  the  ex- 
pediency of  taking  away  military  tenures, 
it  remained  only  to  decide  from  what  re- 
sources the  commutation  revenue  should 
spring.  Two  schemes  were  suggested  : 
the  one,  a  permanent  tax  on  lands  held  in 
chivalry  (which,  as  distinguished  from  those 
in  socage,  were  alone  liable  to  the  feudal 
burdens) ;  the  other,  an  excise  on  beer  and 
some  other  liquors.  It  is  evident  that  the 
former  was  founded  on  a  just  principle,  while 
the  latter  transferred  a  particular  burden  to 
the  community.  But  the  self-interest  which 
so  unhappily  predominates  even  in  repre- 
sentative assemblies,  with  the  aid  of  the 
courtiers,  who  knew  that  an  excise  increas- 
ing with  the  riches  of  the  country  was  far 
more  desirable  for  the  crown  than  a  fixed 
land-tax,  caused  the  former  to  be  carried, 
though  by  the  very  small  majority  of  two 
voices.*  Yet  even  thus,  if  the  impoverish- 
ment of  the  gently,  and  dilapidation  of  their 
estates  through  the  detestable  abuses  of 
wai'dship,  was,  as  can  not  be  doubted,  very- 
mischievous  to  the  inferior  classes,  the  whole 

*  Nov.  21,  1660,  151  to  149.  Pari.  Hist.  [It  is 
to  be  observed,  as  some  excuse  of  the  Commons, 
that  the  hereditary  excise  thus  granted  was  one 
moiety  of  what  already  was  paid,  by  virtue  of  or- 
dinances imder  the  Commonwealth.] — 1845. 


Cha.  II.— ]660-73.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


411 


community  must  be  reckoned  gainers  by  the 
arrangement,  though  it  might  have  been 
conducted  in  a  more  equitable  manner.  The 
statute  12  Car.  II.,  c.  24,  takes  away  the 
Court  of  Wards,  with  all  wardships  and 
foi'feitures  for  marriage  by  reason  of  tenure, 
all  primer  seisins,  and  fines  for  alienation, 
aids,  escuages,  homages,  and  tenures  by 
chivalry  without  exception,  save  the  honor- 
ary services  of  grand  sergeantry  ;  convert- 
ing all  such  tenures  into  common  socage. 
The  same  statute  abolishes  tliose  famous 
rights  of  purveyance  and  pre-emption,  the 
fruitful  theme  of  so  many  complaining  Par- 
liaments ;  and  this  relief  of  the  people  from 
a  general  burden  may  seiTe  in  some  meas- 
ure as  an  apology  for  the  imposition  of  the 
excise.  This  act  may  be  said  to  have 
wrought  an  important  change  in  the  spirit 
of  our  Constitution,  by  reducing  what  is 
emphatically  called  the  prerogative  of  the 
crown,  and  which,  by  its  practical  exhibition 
in  these  two  vexatious  exercises  of  power, 
wardship  and  purveyance,  kept  up  in  the 
minds  of  the  people  a  more  distinct  percep- 
tion, as  well  as  more  awe,  of  the  monarchy 
than  could  be  felt  in  later  periods,  when  it 
has  become,  as  it  were,  merged  in  the  com- 
mon course  of  law,  and  blended  with  the 
very  complex  mechanism  of  our  institutions. 
This  great  innovation,  however,  is  properly 
to  be  refeired  to  the  revolution  of  1G41, 
which  put  an  end  to  the  Court  of  Star 
Chamber,  and  suspended  the  feudal  superi- 
orities. Hence,  with  all  the  misconduct  of 
the  last  two  Stuarts,  and  all  the  tendency 
toward  arbitrary  power  that  their  govern- 
ment often  displayed,  we  must  perceive 
that  the  Constitution  had  put  on,  in  a  very 
great  degree,  its  modern  character  during 
that  period ;  the  boundaries  of  prerogative 
were  better  understood;  its  pretensions,  at 
least  in  public,  were  less  enormous;  and 
not  so  many  violent  and  oppressive,  cer- 
tainly not  so  many  illegal,  acts  were  com- 
mitted toward  individuals  as  under  the  first 
two  of  their  family. 

In  fixing  upon  661,200,000  as  a  competent 
Army  dis-  revenue  for  the  crown,  the  Com- 
banded.  mons  tacitly  gave  it  to  be  under- 
stood that  a  regular  militaiy  force  was  not 
among  the  necessities  for  which  they  meant 
to  provide.  They  looked  upon  the  army, 
notwithstanding  its  j-ecent  services,  with 
that  apprehension  and  jealousy  which  be- 


came an  English  House  of  Commons. 
They  were  still  suppoiting  it  by  monthly 
assessments  of  d£70,000,  and  could  gain  no  re- 
lief by  the  king's  restoration  till  that  charge 
came  to  an  end.  A  bill,  therefore,  was  sent 
up  to  the  Lords  before  their  adjournment 
in  September,  providing  money  for  disband- 
ing the  land  forces.  This  was  done  during 
the  recess ;  the  soldiers  received  their  ar- 
rears with  many  fair  words  of  praise,  and 
the  nation  saw  itself,  with  delight  and  thank- 
fulness to  the  king,  released  from  its  heavy 
burdens  and  the  dread  of  servitude.*  Yet 
Charles  had  too  much  knowledge  of  foreign 
countries,  where  monarchy  flourished  in  all 
its  plenitude  of  sovereign  power  under  the 
guardian  sword  of  a  standing  amiy,  to  part 
readily  with  so  favorite  an  instriunent  of 
kings.  Some  of  his  counselors,  and  espec- 
ially the  Duke  of  York,  dissuaded  him  from 
disbanding  the  army,  or  at  least  advised  his 
supplying  its  place  by  another.  The  un- 
settled state  of  the  kingdom  after  so  mo- 
mentous a  revolution,  the  dangerous  audac- 
ity of  the  fanatical  party,  whose  enterprises 
were  the  more  to  be  guai'ded  against,  be- 
cause they  were  founded  on  no  such  calcu- 
lation as  reasonable  men  would  form,  and 
of  which  the  insurrection  of  Venner  in  No- 
vember, 1G60,  furnished  an  example,  did 
undoubtedly  appear  a  very  plausible  excuse 
for  something  more  of  a  military  protection 
to  the  government  than  yeomen  of  the  guard 
and  gentlemen  pensioners.  General  Monk's 
regiment,  called  the  Coldstream,  and  one 
other  of  horse,  were  accordingly  retained 
by  the  king  in  his  service  ;  anotlier  was 
formed  out  of  the  troops  brought  from  Dun- 
kirk ;  and  thus  began,  under  the  name  of 
guards,  the  present  regular  army  of  Great 
Britain. f  In  1662  these  amounted  to  about 
5000  men ;  a  petty  force  according  to  our 
present  notions,  or  to  the  practice  of  other 
European  monarchies  in  that  age,  yet  suffi- 
cient to  establish  an  alarming  precedent, 
and  to  open  a  new  source  of  contention  be- 
tween the  supporters  of  power  and  those  of 
freedom. 

So  little  essential  innovation  had  been  ef- 


*  The  troops  disbanded  were  fourteen  regiments 
of  horse  and  eighteen  of  foot  in  England:  one  of 
horse  and  four  of  foot  in  Scotland,  besides  garri- 
sons.— Jounials,  Nov.  7. 

t  Ralph,  35.  Life  of  James,  447.  Grose's  Mil- 
itary Antiquities,  i.,  61. 


412 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XI. 


fected  by  twenty  years'  inteiTuption  of  the 
regular  government  in  the  common  law  or 
course  of  judicial  proceedings,  that,  when 
the  king  and  House  of  Lords  were  restored 
to  their  places,  little  more  seemed  to  be  req- 
uisite than  a  change  of  names.  But  what 
was  true  of  the  state  could  not  be  applied 
to  the  Churcli.  The  revolution  there  had 
gone  much  further,  and  the  questions  of  res- 
toration and  compromise  were  far  more  dif- 
ficult. 

It  will  be  remembered  that  such  of  the 
Clergy  re-  clergy  as  Steadily  adhered  to  the 
the'ir'^blne-  Episcopal  constitution  had  been 
ficcs.  expelled  from  tlieir  benefices  by 
the  Long  Pai'liament  under  various  pre- 
texts, and  chiefly  for  refusing  to  take  the 
Covenant.  The  new  establishment  was 
nominally  Presbyterian.  But  the  Presby- 
terian discipline  and  synodical  government 
were  veiy  paitially  introduced  ;  and,  upon 
the  whole,  the  Church,  during  the  suspen- 
sion of  the  ancient  laws,  was  rather  an  as- 
semblage of  congregations  than  a  compact 
body,  having  little  more  unity  than  resulted 
from  their  common  dependency  on  the  tem- 
poral raagisti-ate.  In  the  time  of  Cromwell, 
who  favored  the  Independent  sectaries, 
some  of  that  denomination  obtained  livings; 
but  very  few,  I  believe,  com])aratively,  who 
had  not  received  either  Episcopal  or  Pres- 
byterian ordination.  The  right  of  private 
patronage  to  benefices,  and  that  of  tithes, 
though  continuaUy  menaced  by  the  more 
violent  party,  subsisted  without  alteration. 
Meanwhile,  the  Episcopal  ministers,  though 
excluded  from  legal  toleration  along  with 
papists,  by  the  Insti'ument  of  Government 
under  which  Cromwell  professed  to  hold 
his  power,  obtained,  in  general,  a  sufificient 
indulgence  for  the  exercise  of  their  func- 
tion.* Once,  indeed,  on  discovery  of  the 
Royalist  conspiracy  in  1C55,  he  published 
a  severe  ordinance,  forbidding  every  ejected 
minister  or  fellow  of  a  college  to  act  as  do- 
mestic chaplain  or  schoolmaster.  But  this 
was  coupled  with  a  promise  to  show  as 
much  tenderness  as  might  consist  with  the 
safety  of  the  nation  toward  such  of  the  said 
persons  as  should  give  testimony  of  tlieir 
good  affection  to  the  government ;  and,  in 
point  of  fact,  this  ordinance  was  so  far  from 
being  rigorously  observed,  that  Episcopali- 
an conventicles  were  openly  kept  in  Lon- 
"  ^Neal,  429,  444. 


don.*  Cromwell  was  of  a  really  tolerant 
disposition,  and  there  had,  perhaps,  on  the 
whole,  been  no  period  of  equal  duration 
wherein  the  Catholics  themselves  suffered 
so  little  molestation  as  under  the  Protector- 
ate.! It  is  well  known  that  he  permitted 
the  settlement  of  Jews  in  England,  after 
an  exclusion  of  nearly  three  centuries,  in 
spite  of  the  denunciations  of  some  bigoted 
churchmen  and  lawyers. 

The  Presbyterian  clergy,  though  co-op- 
erating in  the  king's  restoration, 

?         .  .  Hopes  of  the 

experienced  veiy just  apprehen-  Presbyterians 
sions  of  the  church  they  had  sup-  f™"' 
planted ;  and  this  was,  in  fact,  one  great  mo- 
tive of  the  resti-ictions  that  party  was  so 
anxious  to  impose  on  him.  His  character 
and  sentiments  were  yet  veiy  imperfectly 
known  in  E  ngland ;  and  much  pains  were 
taken  on  both  sides,  by  shoit  pamphlets, 
panegj'rical  or  defamatory,  to  represent  him 
as  the  best  Englishman  and  best  Protestant 
of  the  age,  or  as  one  given  up  to  profligacy 
and  popery  .J    The  caricature  likeness  was, 

■*  Keal,  471.  Pepy's  Diary,  ad  init.  Even  in 
Oxford,  about  300  Episcopalians  used  to  meet  ev- 
ery Sauday -n-ith  the  connivance  of  Dr.  Owen,  dean 
of  Christ  Chmch.— Omie's  Life  of  Owen,  188.  It 
is  somewhat  bold  in  Anglican  writers  to  complain, 
as  they  now  and  then  do,  of  the  persecution  they 
suffered  at  this  period,  when  we  consider  what 
had  been  the  conduct  of  the  bishops  before,  and 
what  it  was  afterward.  I  do  not  know  that  any 
member  of  the  Church  of  England  was  imprisoned 
under  the  Commonwealth,  except  for  some  politi- 
cal reason ;  certain  it  is  that  the  jails  were  not 
filled  with  them. 

t  The  penal  laws  were  comparatively  dormant, 
though  two  priests  suffered  death,  one  of  them  be- 
fore the  Protectorate. — Butler's  Mem.  of  Catholics, 
ii.,  13.  But  in  1655  Cromwell  issued  a  proclama- 
tion for  the  execution  of  these  statutes,  which  seems 
to  have  been  provoked  by  the  prosecution  of  the 
Vaudois.  Whitelock  tells  us  he  opposed  it,  625. 
It  was  not  acted  upon. 

t  Several  of  these  appear  in  Somers  Tracts,  vol. 
vii.  The  king's  nearest  friends  were  of  course  not 
backward  in  praising  him,  though  a  little  at  the 
expense  of  their  consciences.  "In  a  word,"  says 
Hyde  to  a  con'espondent  in  1659,  "  if  being  the  best 
Protestant  and  the  best  Englishman  of  the  nation 
can  do  the  king  good  at  home,  he  must  prosper 
with  and  by  his  own  subjects." — Clar.  State  Papers, 
541.  Morley  says  he  had  been  to  see  Judge  Hale, 
who  asked  him  questions  about  the  king's  charac- 
ter and  finnness  in  the  Protestant  religion. — Id., 
736.  Morley's  exertions  to  dispossess  men  of  tlie 
notion  that  the  king  and  his  brother  were  inclined 
to  popery,  are  also  mentioned  by  Keunet  in  bis 
Register,  818  ;  a  book  containing  very  copious  in- 
fonnation  as  to  this  particular  period.   Yet  Morley 


Cha.  II.— lCCO-73.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


413 


we  must  now  acknowledge,  moi'c  true  than 
the  other;  but  at  that  time  it  was  fair  and 
natural  to  dwell  on  the  more  pleasing  pic- 
ture. The  Presbyterians  remembered  that 
he  was  what  they  called  a  covenanted  king; 
that  is,  that,  for  the  sake  of  the  assistance 
of  the  Scots,  he  had  submitted  to  all  the 
obligations,  and  taken  all  the  oaths,  they 
thought  fit  to  impose.*  But  it  was  well 
known  that,  on  the  failure  of  those  pros- 
pects, he  had  returned  to  the  Church  of 
England,  and  that  he  was  suiTOunded  by 
its  zealous  adherents.  Charles,  in  his  dec- 
laration from  Breda,  promised  to  gi-ant  lib- 
erty of  conscience,  so  that  no  man  should 
be  disquieted  or  called  in  question  for  dif- 
ferences of  opinion  in  matters  of  religion 
which  do  not  disturb  the  peace  of  the  king- 
dom, and  to  consent  to  such  acts  of  Parlia- 
ment as  should  be  ofiered  for  him  for  con- 
firming that  indulgence.  But  he  was  silent 
as  to  the  Church  establishment ;  and  the 
Presbyterian  ministers,  who  went  over  to 
present  the  congi-atulations  of  their  body, 
met  with  civil  language,  but  no  sort  of  en- 
couragement to  expect  any  personal  com- 
pliance on  the  king's  part  with  their  mode 
of  worship,  t 

The  moderate  party  in  the  Convention 
Projects  for  a  Parliament,  though  not  absolute- 
compromise.  ]y  of  tiie  Presbyterian  interest, 
saw  the  danger  of  permitting  an  oppressed 
body  of  churchmen  to  regain  their  superi- 
ority without  some  restraint.    The  actual 

could  hardly  have  been  without  strong  suspicions  as 
to  both  of  them. 

*  He  had  viritten  in  cipher  to  Secretary  Nicholas, 
from  St.  Johnston's,  Sept.  3,  IC.jO,  the  day  of  the  bat- 
tle of  Dunbar,  "  Nothing  could  have  confiimed  me 
more  to  the  Church  of  England  than  heiug  here, 
seeing  their  hyi)Ocrisy." — Supplement  to  Evelyn's 
Diarj-,  133.  The  whole  letter  shows  that  he  was  on 
t)ie  point  of  giving  his  new  friends  the  slip  ;  as,  in- 
deed, he  attempted  soon  after,  in  what  was  called 
the  start. — Laing,  iii.,  463. 

t  [Several  letters  of  Sharp,  then  in  London,  are 
published  inWodrow's  "  Histoiy  of  the  Church  of 
Scotland,"  whicli  I  quote  from  Kcnnct's  Register. 
"  I  see  clearly,"  he  writes  on  June  10,  "  the  gen- 
eral will  not  stand  by  the  Presbyterians  ;  they  talk 
of  closing  with  moderate  Episcopacy  for  fear  of 
v^orse."  And  on  June  23,  '  All  is  wrong  here  as  to 
Church  affairs.  Episcopacy  will  be  settled  here  to 
the  height ;  their  lands  will  be  all  restored.  None 
of  the  Presbyterian  way  here  oppose  this,  but 
mourn  in  secret."  '•  The  generality  of  the  people 
are  doting  after  prelacy  and  the  service-booU."  He 
found  to  his  cost  that  it  was  much  otherwise  in 
Bcotlaud.]— 1845. 


incumbents  of  benefices  were,  on  the  whole, 
a  respectable  and  even  exemplary  class, 
most  of  whom  could  not  be  reckoned  an- 
swerable for  the  legal  defects  of  their  title. 
But  the  ejected  ministers  of  the  Anglican 
Church,  who  had  endured  for  their  attach- 
ment to  its  discipline  and  to  the  crown  so 
many  years  of  poverty  and  privation,  stood 
in  a  still  more  favorable  light,  and  had  an 
evident  claim  to  restoration.  The  Com- 
mons accordingly,  before  the  king's  return, 
prepared  a  bill  for  confirming  and  restoring 
ministers ;  with  the  twofold  object  of  re- 
placing in  their  benefices,  but  without  their 
legal  right  to  the  intermediate  profits,  the 
Episcopal  clergy  who  by  ejection  or  forced 
surrender  had  made  way  for  intruders,  and 
at  the  same  time  of  establishing  the  posses- 
sion, though  originally  usurped,  of  those 
against  whom  there  was  no  claimant  living 
to  dispute  it,  as  well  as  of  those  who  had 
been  presented  on  legal  vacancies.*  This 
act  did  not  pass  without  opposition  of  the 
Cavaliers,  who  panted  to  retaliate  the  per- 
secution that  had  afiflicted  their  Church. f 

This  legal  security,  however,  for  the  en- 
joyment of  their  livings  gave  no  satisfaction 
to  the  scruples  of  conscientious  men.  The 
Episcopal  discipline,  the  Anglican  Liturgy 
and  ceremonies,  having  never  been  abroga- 


*  12  Car.  II.,  c.  17.  It  is  quite  clear  that  a  usurped 
possession  was  confirmed  by  this  act,  where  the 
lawful  incumbent  was  dead;  though  Burnet  inti- 
mates [that  this  statute  not  having  been  confirmed 
by  the  next  Parliament,  those  who  had  originally 
come  in  by  an  unlawful  title  were  expelled  by 
course  of  law.  This  I  am  inclined  to  doubt,  as  such 
a  proceeding  would  have  assumed  the  invalidity 
of  the  laws  enacted  in  the  Convention  Parliament. 
But  we  find  by  a  case  reported  in  1  Veutris,  tliat 
the  judges  would  not  suffer  these  acts  to  be  dis- 
puted.]—1845. 

t  Pari.  Hist.,  94.  The  chancellor,  in  his  speech 
to  the  Houses  at  their  adjournment  in  September, 
gave  them  to  understand  that  this  bill  was  not 
quite  satisfactory  to  the  court,  who  preferred  the 
confinnation  of  ministers  by  particular  letters  patent 
under  the  great  seal;  that  the  king's  prerogative 
of  dispensing  with  acts  of  Parliament  might  not 
grow  into  disuse.  Many  got  the  additional  security 
of  such  patents,  which  proved  of  service  to  them 
when  the  next  Parliament  did  not  think  fit  to  con- 
firm this  important  statute.  Baxter  says,  p.  241, 
some  got  letters  patent  to  turn  out  the  possessors, 
where  the  former  incumbents  were  dead.  These 
must  have  been  to  benefices  in  the  gift  of  the 
crown;  in  other  cases,  letters  patent  could  have 
been  of  no  effect.  I  have  found  this  confiiiued  by 
the  Journals,  Aug.  27,  1660. 


414 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


ted  by  law,  revived,  of  course,  with  the 
constitutional  monarchy,  and  brought  with 
them  all  the  penalties  that  the  Act  of  Uni- 
formity and  other  statutes  had  inflicted. 
The  non-conforming  clergy  threw  them- 
selves on  the  king's  compassion,  or  gi-ati- 
tiide,  or  policy,  for  relief.  The  Independ- 
ents, too  irreconcilable  to  the  Established 
Church  for  any  scheme  of  comprehension, 
looked  only  to  that  liberty  of  conscience 
which  the  king's  declaration  from  Breda 
had  held  forth.*  But  the  Presbyterians 
soothed  themselves  with  hopes  of  retaining 
their  benefices  by  some  compromise  with 
their  adversaries.  They  had  never,  gener- 
ally spealdng,  embraced  the  rigid  principles 
of  the  Scottish  clergy,  and  were  willing  to 
admit  what  they  called  a  moderate  Episco- 
pacy. They  offered,  accordingly,  on  the 
king's  request  to  know  their  terms,  a  mid- 
dle scheme,  usually  denominated  Bishop 
Usher's  Model;  not  as  altogether  approv- 
ing it,  but  because  they  could  not  hope  for 
any  thing  nearer  to  their  own  views.  This 
consisted,  first,  in  the  appointment  of  a  suf- 
fragan bishop  for  each  rural  deaneiy,  hold- 
ing a  monthly  synod  of  the  presbyters  with- 
in his  distiict ;  and,  secondly,  in  an  annual 
diocesan  synod  of  suffragans  and  represent- 
atives of  the  pi-esbyters,  under  the  presi- 
dency of  the  bishop,  and  deciding  upon  all 
matters  before  them  by  plurality  of  suffra- 
ges, f  This  is,  I  believe,  considered  by 
most  competent  judges  as  approaching  more 
neai-ly  than  om-  own  system  to  the  usage 
of  the  primitive  Church,  which  gave  con- 
siderable influence  and  superiority  of  rank 
to  the  bishop,  without  desti'oying  the  aris- 

*  Upon  Venner's  insurrection,  though  the  secta- 
ries, and  especially  the  Independents,  published  a 
declaration  of  their  abhorrence  of  it,  a  pretest  was 
found  for  issuing  a  proclamation  to  shut  up  the  con- 
venticles of  the  Anabaptists  and  Quakers,  and  so 
■worded  as  to  reach  all  others. — Kennet's  Register, 
357. 

t  Collier,  869,  871.  Baxter,  232,  238.  The  bish- 
ops said,  in  their  answer  to  the  Presbyterians' 
proposals,  that  the  objections  against  a  single  per- 
son's administration  in  the  Church  were  equally  ap- 
phcable  to  the  state. — Collier,  872.  But  this  was 
false,  as  they  well  knew,  and  designed  only  to  pro- 
duce an  effect  at  court ;  for  the  objections  were  not 
grounded  on  reasoning,  but  on  a  presumed  positive 
institution.  Besides  which,  the  argument  cat 
against  themselves  ;  for  if  the  English  Constitution, 
or  something  analogous  to  it,  had  been  established 
in  the  Church,  their  adversaries  would  have  had  all 
they  now  asked. 


tocratical  charactbr  and  co-ordinate  jurisdic- 
tion of  the  ecclesiastical  senate.*  It  less- 
ened, also,  the  inconveniences  supposed  to 
result  from  the  great  extent  of  some  Eng- 
lish dioceses.  But,  though  such  a  system 
was  inconsistent  with  that  parity  which  the 
rigid  Presbyterians  maintained  to  be  indis- 
pensable, and  those  who  espoused  it  are 
reckoned,  in  a  theological  division,  among 
Episcopalians,  it  was,  in  the  eyes  of  equal- 
ly rigid  churchmen,  little  better  than  a  dis- 
guised Presbytery,  and  a  real  subversion  of 
the  Anglican  hierarchy. f 

The  Presbyterian  ministers,  or,  rather,  a 
few  eminent  persons  of  that  class,  proceed- 

*  Stillingfleet's  Irenicum.  King's  Inquiry  into 
the  Constitution  of  the  Primitive  Church.  The 
former  work  was  published  at  this  time,  with  a 
view  to  moderate  the  pretensions  of  the  Angbcan 
party,  to  which  the  author  belonged,  by  showing, 
1.  That  there  are  no  sufficient  data  for  determining 
with  certainty  the  form  of  Church-government  in 
the  apostolical  age,  or  that  which  immediately  fol- 
lowed it.  2,  That,  as  far  as  we  may  probably  c<Bi- 
jecture,  the  primitive  Church  was  framed  on  the 
model  of  the  synagogue  ;  that  is,  a  synod  of  priests 
in  every  congregation,  having  one  of  their  own  num- 
ber for  a  chief  or  president.  3.  That  there  is  no 
reason  to  consider  any  part  of  the  apostolical  dis- 
cipline as  an  invariable  model  for  future  ages,  and 
that  much  of  our  own  ecclesiastical  polity  can  not 
any  way  pretend  to  primitive  authority.  4.  That 
this  has  been  the  opinion  of  all  the  most  eminent 
theologians  at  home  and  abroad.  5.  That  it  would 
be  expedient  to  introduce  various  modifications, 
not,  on  the  whole,  much  different  from  the  scheme 
of  Usher.  Stillingfleet,  whose  work  is  a  remark- 
able instance  of  extensive  learning  and  mature 
judgment  at  the  age  of  about  twenty  three,  thought 
fit  afterward  to  retract  it  in  a  certain  degree  ;  and 
toward  the  latter  part  of  his  life  gave  into  more 
High-Church  politics.  It  is  true  that  the  Irenicum 
must  have  been  composed  with  almost  unparalleled 
rapidity  for  such  a  work ;  but  it  shows,  as  far  as  I 
can  judge,  no  marks  of  precipitancy.  The  bio- 
graphical writers  put  its  publication  in  1659 ;  but 
this  must  be  a  mistake  ;  it  could  not  have  passed 
the  press  on  the  24th  of  March,  1660,  the  latest  day 
which  could,  according  to  the  old  style,  have  ad- 
mitted the  date  of  1659,  as  it  contains  allusions  to 
the  king's  restoration. 

t  Baxter's  Life.  Neal.  [The  Episcopalians,  ac- 
cording to  Baxter,  were  of  two  kinds,  "the  old 
common  moderate  sort,''  who  took  Episcopacy  to 
be  good,  but  not  necessary-,  and  owned  the  other 
Reformed  to  be  true  churches  ;  and  those  who  fol- 
lowed Dr.  Hammond,  and  were  very  few :  their 
notion  was  that  presbyters  in  Scripture  meant 
bishops  exclusively,  and  they  set  aside  the  Re- 
formed churches.  But  those  few,  "by  their  parts 
and  interest  in  the  nobility  and  gentry,  did  carry  it 
at  last  against  the  other  party." — Baxter's  Life, 
part  ii.,  p.  149.]— 1845. 


Cha.  II.— 1660-T3  ] 


FROM  HENRY  VII.  TO  GEORGE  U. 


415 


ed  to  solicit  a  revision  of  the  Liturgy,  and 
a  consideration  of  the  niunerous  objections 
which  they  made  to  certain  passages,  while 
they  admitted  the  la'W'fulness  of  a  prescrib- 1 
ed  form.  They  implored  the  king  also  to 
abolish,  or  at  least  not  to  enjoin  as  necessa- 
17,  some  of  those  ceremonies  which  they 
scrupled  to  use,  and  ■which,  in  fact,  had  been  ' 
the  original  cause  of  their  schism ;  the  sur- 
plice, the  cross  in  baptism,  the  practice  of 
kneeling  at  the  communion,  and  one  or  two 
more.  A  tone  of  humble  supplication  per- 
vades all  their  language,  which  some  might 
invidiously  contrast  with  their  iinbending 
haughtiness  in  prosperity.  The  bishops 
and  other  Anglican  divines,  to  whom  their 
propositions  were  referred,  met  the  offer 
of  capitulation  with  a  scornful  and  vindic- 
tive smile.  They  held  out  not  the  least 
overture  toward  a  compromise. 

The  king,  however,  deemed  it  expedient, 
during  the  continuance  of  a  Parliament,  the 
majority  of  whom  were  desirous  of  xmion  iu 
the  Church,  and  had  given  some  indications 
of  their  disposition,*  to  keep  up  the  delu- 
sion a  little  longer,  and  prevent  the  possible 
consequences  of  despair.  He  had  already 
appointed  several  Presbyterian  ministei-s 
his  chaplains,  and  given  them  frequent  au- 
diences ;  but,  during  the  recess  of  Pju-lia- 
ment,  he  published  a  declaration,  wherein, 
after  some  compliments  to  the  ministei's  of 
the  Presbyterian  opinion,  and  an  artful  ex- 
pression of  satisfaction  that  he  had  found 
them  no  enemies  to  Episcopacy  or  a  litur- 
gy, as  they  had  been  reported  to  be,  he  an- 
Kin^'sdecia-  ""^nces  his  intention  to  appoint 
ration  in  fa-  a  Sufficient  number  of  suffragan 
vorofit.  bishops  in  the  larger  dioceses; 
he  promises  that  no  bishop  should  ordain  or 
exercise  any  part  of  his  spii'itual  jurisdiction 
without  advice  and  assistance  of  his  pres- 
byters ;  that  no  chancellors  or  officials  of 
the  bishops  should  use  any  jurisdiction  over 
the  ministry,  nor  any  archdeacon  without 
the  advice  of  a  council  of  his  clergj' ;  that 
the  dean  and  ch.ipter  of  the  diocese,  togeth- 
er with  an  equal  number  of  presbyters,  an- 
nually chosen  by  the  clergy,  should  be  al- 
ways advising  and  assisting  at  all  ordina- 
tions, Church  censures,  and  other  import- 

*  They  addressed  the  king  to  call  such  divines 
as  he  should  think  fit,  to  advise  with  coucemin? 
matters  of  religion,  July  20,  1660. — Journals  and 
Pari.  Hist. 


ant  acts  of  spiritual  jurisdiction.  He  de- 
claimed, also,  that  he  would  appoint  an  equal 
number  of  divines  of  both  persuasions  to  re- 
vise the  Liturgy  ;  desiring  that  in  the  mean 
time  none  would  wholly  lay  it  aside,  yet 
promising  that  no  one  should  be  molested 
for  not  using  it  till  it  should  be  reviewed 
and  reformed.  With  regard  to  ceremonies, 
he  declared  that  none  should  be  compelled 
to  receive  the  sacrament  kneeling,  nor  to 
use  the  cross  in  baptism,  nor  to  bow  at  the 
name  of  Jesus,  nor  to  wear  the  surplice,  ex- 
cept in  the  royal  chapel  and  in  cathedrals, 
nor  should  subscription  to  articles  not  doc- 
dinal  be  required.  He  renewed,  also,  his 
declaration  from  Breda,  that  no  man  should 
be  called  in  question  for  differences  of  re- 
ligious opinion,  not  disturbing  the  peace  of 
the  kingdom.* 

Though  many  of  the  Presbyterian  party 
deemed  this  modification  of  Anglican  Epis- 
copacy a  departure  from  their  notions  of  an 
apostolic  Church,  and  inconsistent  with  their 
covenant,  the  majority  would  doubtless  have 
acquiesced  in  so  extensive  a  concession  from 
the  ruling  power.  If  faithfully  executed, 
according  to  its  apparent  meaning,  it  does 
not  seem  tliat  the  declaration  falls  veiy  short 
of  their  own  proposal,  the  scheme  of  Ush- 
er.f    The  high  churchmen,  indeed,  would 


"Pari.  Hist.  Neal,  Baxter,  Collier,  &c.  Burnet 
says  that  Clarendon  had  made  the  king  publish 
this  declaration ;  "  but  the  bishops  did  not  approve 
of  this  ;  and,  afler  the  service  they  did  tliat  lord  in 
the  Duke  of  York's  marriage,  he  would  not  put  any 
hardship  on  those  wlio  had  so  signally  obliged 
him."  This  is  very  invidious.  I  know  no  evidence 
that  the  declaration  was  published  at  Clarendon's 
suggestion,  except,  indeed,  that  he  was  the  great 
adviserof  the  crown  ;  yet  in  some  things,  especially 
of  this  nature,  the  king  seems  to  have  acted  with- 
out his  concuiTence.  He  certainly  speaks  of  the 
declaration  as  if  he  did  not  wholly  relish  it  (Life, 
75),  and  does  not  state  it  fairly.  In  State  Trials, 
vi.,  11,  it  is  said  to  have  been  drawn  np  by  Morley 
and  Henchman  for  the  Church,  RejTiolds  and  Cal- 
amy  for  the  Dissenters  ;  if  they  disagreed.  Lords 
Anglesea  and  Mollis  to  decide. 

t  The  chief  objection  made  by  the  Presbyterians, 
as  far  as  we  learn  from  Baxter,  was,  that  the  consent 
of  presbyters  to  the  bishops'  acts  was  not  promised 
by  the  declaration,  but  only  their  advice ;  a  distinc- 
tion apparently  not  veiy  material  in  practice,  but 
bearing,  perhaps,  on  the  great  point  of  controversy, 
whether  the  difference  between  the  tivo  were  in 
order  or  in  degree.  Tlie  king  would  not  come  into 
tlie  scheme  of  consent,  though  they  pressed  him 
with  a  passage  out  of  the  Icon  Basilike,  where  his 
father  aUowed  of  it.— Life  of  Baxter,  276.  Some 


416 


COffSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XI. 


have  mui  mured  had  it  been  made  effectual. 
But  such  as  were  nearest  the  king's  coun- 
cils woll  know  that  nothing  else  was  intend- 
ed by  it  than  to  scatter  dust  in  men's  eye.s, 
and  to  jjrcvent  the  interference  of  Parlia- 
ment. This  was  soon  rendered  manifest, 
when  a  bill  to  render  the  king's  declaration 
effectual  was  vigorously  opposed  by  the 
courtiers,  and  rejected  on  a  second  reading 
by  183  to  157.*'  Nothing  could  more  for- 
cibly demonstrate  an  intention  of  breaking 
faith  with  the  Presbyterians  than  this  vote  ; 
for  the  king's  declaration  was  repugnant  to 
the  Act  of  Uniformity  and  many  other  stat- 
utes, so  that  it  could  not  be  caiTied  into  ef- 
fect without  the  authority  of  Pai'liament, 
unless  by  means  of  such  a  general  dispens- 
ing power  as  no  Parliament  would  endure. f 
And  it  is  impossible  to  question  that  a  bill 
for  confirming  it  would  have  easily  passed 
through  this  House  of  Commons,  had  it  not 
been  for  the  resistance  of  the  government. 

Charles  now  dissolved  the  Convention 
Convention  Pii"hament,  having  obtained  from 
Parliament  it  what  was  immediately  necessa- 

dissolved.  ^^^jj  j^^j^j.^  jjjjjj.  |jg  could 

better  accomplish  his  objects  with  another. t 

alterations,  however,  were  made  ia  conseqaeuce 
of  tlieir  suggestions. 

*Parl.  Hist.,  141, 152.  Clarendon,  76,  most  strange- 
ly observes  on  this,  "  Some  of  the  leaders  brought 
a  bill  into  the  House  for  the  making  that  declara- 
tion a  law,  which  was  suitable  to  their  other  acts 
of  ingenuity  to  keep  the  Church  forever  under  the 
same  indulgence  and  without  any  settlement ; 
which  being  quickly  perceived,  there  was  no  far- 
ther progress  in  it."  The  bill  was  brought  in  by 
Sir  Matthew  Hale. 

t  Collier,  who  of  course  thinks  tliis  declaration 
an  encroachment  on  tlie  Church,  as  well  as  on  the 
legislative  power,  says,  "  For  this  reason  it  was 
overlooked  at  the  assizes  and  sessions  in  several 
places  in  the  country,  where  the  dissenting  minis- 
ters were  indicted  for  not  conforming  pursuant  to 
the  laws  in  force." — P.  S'ti.  Neal  coulii-ras  thiSj  58G, 
and  Keunct's  Register,  374. 

t  [After  the  king  had  concluded  his  own  speech 
by  giving  the  royal  assent  to  many  bills  at  the  pro- 
rogation of  the  Convention  Parliament,  the  Loi-d- 
chancellor  Hyde  (not  then  a  peer)  requested  his 
majesty's  pemiission  to  address  the  two  Houses. 
His  speech  is  long  and  eloquent,  expressive  of 
nothing  but  satisfaction,  and  recommending  har- 
mony to  all  classes.  One  passage  is  eloquent 
enough  to  be  extracted:  "They  are  too  much  in 
love  with  England,  too  partial  to  it.  who  believe  it 
the  best  country  in  the  world ;  there  is  a  better 
earth,  and  a  better  air,  and  better,  that  is,  a  warmer 
sun  in  other  countries ;  but  we  are  no  more  than 
just  when  we  say  that  England  is  an  iuclosure 


It  was  studiously  joculcated  by  the  Royal- 
ist lawyers,  that  as  this  assembly  had  not 
been  summoned  by  the  king's  writ,  none  of 
its  acts  could  have  any  real  validity,  except 
by  the  confirmation  of  a  true  Parliament.* 
This  doctrine  being  applicaijle  to  the  Act 
of  Indemnity,  left  the  kingdom  in  a  preca- 
rious condition  tiU  an  undeniable  security 
could  be  obtained,  and  rendered  the  dissolu- 
tion almost  necessaiy.  Another  Parliament 
was  called  of  veiy  different  composition 
from  the  last.  Possession  and  the  stiinding 
ordinances  against  Royalists  had  enabled 
the  secluded  members  of  1648,  that  is,  the 
adherents  of  the  Long  Parliament,  to  stem 
with  some  degree  of  success  the  impetuous 
tide  of  loyalty  in  the  last  elections,  and  put 
them  almost  upon  an  equality  with  the  court. 
But  in  the  new  assemljly,  Cavaliers,  and  the 
sons  of  Cavaliers,  entirely  predominated ; 
the  great  families,  the  ancient  gentry,  the 

of  the  best  people  in  the  world,  when  they  are  well 
informed  and  instructed ;  a  people,  in  sobriety  of 
conscience,  the  most  devoted  to  God  Almighty ;  in 
the  integrity  of  their  affections,  the  most  dutiful  to 
the  king  ;  in  their  good  manners  and  inclinations, 
most  regardful  and  loving  to  the  nobility  ;  no  nobil- 
ity in  Europe  so  entirely  beloved  by  the  people; 
there  may  be  more  awe  and  fear  of  them,  but  no 
such  respect  toward  them  as  in  England.  I  be- 
seech your  lordships  do  not  undervalue  this  love," 
&c.— Pari.  Hist.,  iv.,  170.]— 1845. 

*  Life  of  Clarendon,  74.  A  plausible  and  some- 
what dangerous  attack  had  been  made  on  the  au- 
thoritj'  of  tliis  Parliament  from  an  opposite  quarter, 
in  a  pamphlet  written  by  one  Drake,  under  the 
name  of  Thomas  Phihps,  entitled  "  The  Long  Par- 
liament Revived,"  and  intended  to  prove  that  by 
the  act  of  the  late  king,  providing  that  they  should 
not  be  dissolved  but  by  the  concurrence  of  the 
whole  Legislature,  they  were  still  in  existence; 
and  that  the  king's  demise,  which  legally  puts  an 
end  to  a  Parliament,  could  not  affect  one  that  was 
declared  permanent  by  so  direct  an  enactment. 
This  ai'gument  seems  by  no  means  inconsiderable; 
but  the  times  were  not  such  as  to  admit  of  techni- 
cal reasoning.  The  Convention  Parliament,  after 
questioning  Drake,  finally  sent  up  articles  of  im- 
peachment against  him ;  but  the  Lords,  after  hear- 
ing him  in  his  defense,  when  he  confessed  his  fault, 
left  him  to  be  prosecuted  by  the  attorney-general. 
Nothing  more,  probably,  took  place. — Pari.  Hist., 
14.5,  157.  This  was  in  November  and  December, 
1660 ;  but  Drake's  book  seems  still  to  have  been 
in  considerable  circulation  ;  at  least  I  have  two 
editions  of  it,  both  bearing  the  date  of  1661.  The 
argument  it  contains  is  purely  legal ;  but  the  aim 
must  have  been  to  serve  the  Presbyterian  or  Par- 
liamentarian cause.  [The  next  Parliament  never 
give  their  predecessors  any  other  name  in  the 
Journals  than  "  the  last  Assembly.''] 


Cha.  11— 1660-73.]  FROM  HENRY  VII.  TO  GEORGE  II. 


417 


Episcopal  clergy,  resumed  their  influence  ; 
the  Presbyterians  and  sectarians  feared  to 
have  their  offenses  remembered  ;  so  that 
we  may  rather  be  surprised  that  about  fifty 
or  sixty  who  had  belonged  to  the  opposite 
side  found  places  in  such  a  Parliament,  than 
that  its  general  complexion  should  be  decid- 
edly Royalist.  The  Presbyterian  faction 
seemed  to  lie  prostiate  at  the  feet  of  those 
on  whom  they  had  so  long  triumphed,  with- 
out any  force  of  arms  or  civil  convulsion,  as 
if  the  king  had  been  brought  iu  against  their  ; 
will.  Nor  did  the  Cavaliers  fail  to  ti-eat  j 
them  as  enemies  to  monarchy,  though  it 
was  notorious  that  the  Restoration  was 
chiefly  owing  to  their  endeavors.* 

The  new  Parliament  gave  the  first  proofs 
Different  of  their  disposition  by  voting  that 
ofTife'new  ^leir  members  should  receive 
rarhanient.  the  sacrament  on  a  certain  day 
according  to  the  rites  of  the  Church  of 
England,  and  that  the  solenm  League  and 
Covenant  should  be  burned  by  the  common 
hangman. f  They  excited  still  more  seri- 
ous alarm  by  an  evident  reluctance  to  con- 
firm the  late  Act  of  Indemnity,  which  the 
king  at  the  opening  of  the  session  had  press- 
ed upon  their  attention.  Those  who  had 
suffered  the  sequestrations  and  other  losses 
of  a  vanquished  party,  could  not  endure  to  i 
abandon  what  they  reckoned  a  just  repara- 
tion. But  Clarendon  adhered  with  equal 
integrity  and  prudence  to  this  fundamental  i 
principle  of  the  Restoration ;  and,  after  a ' 
sti'ong  message  from  the  king  on  the  sub- 
ject, the  Commons  were  content  to  let  the 
bill  pass  with  no  new  exceptions.t  They 

*  Complaints  of  insults  on  the  Presbyterian  cler- 
gywere  made  to  the  late  Parliament.— Pari.  Hist., 
160.  The  Anglicans  inveighed  grossly  against 
them  on  the  score  of  their  past  conduct,  notwith- 
standing the  Act  of  Indemnity. — Kenuet's  Regis- 
ter, 156.  See,  as  a  specimen,  South's  Sermons, 
passim. 

t  Journals,  17th  of  May,  1661.  The  previous 
question  was  moved  on  this  vote,  but  lost  by  228 
to  103  ;  Morice,  the  secretary  of  state,  being  one 
of  the  tellers  for  the  minority.  Monk,  I  believe,  to 
whom  Morice  owed  his  elevation,  did  what  he 
could  to  prevent  violent  measures  against  the  Pres- 
byterians. Alderman  Love  was  suspended  from 
sitting  in  the  House  July  3,  for  not  having  taken 
the  sacrament.  I  suppose  that  he  afteiTvard  con- 
formed, for  he  became  an  active  member  of  the  op- 
position. 

t  .Journals,  Joue  14,  &c.    Pari.  Hist,  209.  Life 
of  Clarendon,  71.    Burnet,  230.    A  bill  discharging 
the  Loyalists  from  all  interest  exceeding  three  per 
D  D 


gave,  indeed,  some  relief  to  the  ruined  Cav- 
aliers, by  voting  c£GO,000  to  be  distributed 
among  that  class  ;  but  so  inadequate  a  com- 
pensation did  not  assuage  their  discontents. 

It  has  been  mentioned  above  that  the  late 
House  of  Commons  liad  consent-  Condemna- 
ed  to  the  exception  of  Vane  and 
Lambert  from  indemnity  on  the  king's  prom- 
ise that  they  should  not  suffer  death.  They 
had  lain  in  the  Tower  accordingly,  without 
being  brought  to  trial.  The  regicides  who 
had  come  in  under  the  proclamation  were 
saved  from  capital  punishment  by  the  for- 
mer Act  of  ludeumity.  But  the  present 
Parliament  abhorred  this  lukewarm  lenity. 
A  bill  was  brought  in  for  the  execution  of 
the  king's  judges  in  the  Tower;  and  the 
attorney-general  was  requested  to  proceed 
against  Vane  and  Lambert.*    The  former 

cent,  on  debts  contracted  before  the  wars  passed 
the  Commons,  but  was  dropped  in  the  other  House. 
The  great  discontent  of  this  party  at  the  Indemnity 
continued  to  show  itself  iu  subsequent  sessions. 
Clarendon  mentions,  with  much  censure,  that  many 
private  bills  passed  about  1662,  annulling  convey- 
ances of  lands  made  during  the  ti'oubles,  p.  162, 
163.  One  remarkable  instance  ought  to  be  no- 
ticed, as  having  been  greatly  misrepresented.  At 
the  Earl  of  Derby's  seat  of  Knowsley,  in  Lanca- 
shire, a  tablet  is  placed,  to  commemorate  the  in- 
gratitude of  Charles  II.  in  having  refused  the  royal 
assent  to  a  bill  which  had  passed  both  Houses  for 
restoring  the  son  of  the  Earl  of  Derby,  who  had 
lost  his  life  in  the  royal  cause,  to  his  family  estate. 
This  has  been  so  often  reprinted  by  tourists  and 
novelists,  that  it  passes  cun-ently  for  a  just  re- 
proach on  the  king's  memory.  It  was,  however,  in 
fact,  one  of  his  most  honorable  actions.  The  truth 
is,  that  the  Cavalier  faction  carried  through  Parlia- 
ment a  bill  to  make  void  the  conveyances  of  some 
manors  which  Lord  Derby  had  voluntarily  sold  be- 
fore the  Restoration,  in  the  very  face  of  the  Act 
of  Indemnity,  and  against  all  law  and  justice. 
Clarendon,  who,  together  with  some  very  respect- 
able peers,  had  protested  against  this  measure  in 
the  Upper  House,  thought  it  his  duty  to  recom- 
mend the  king  to  refuse  his  assent. — Lords'  Jour- 
nals, Feb.  6  and  May  H,  1662.  There  is  so  much 
to  blame  in  both  the  minister  and  his  master,  that 
it  is  but  fair  to  give  them  credit  for  that  which  the 
pardonable  prejudices  of  the  family  interested  have 
led  it  to  misstate. 

*  Commons'  Journals,  1st  of  July,  1661.  A  divi- 
sion took  place,  November  26,  on  a  motion  to  lay 
this  bill  aside,  in  consideration  of  the  king's  procla- 
mation, which  was  lost  by  124  to  109,  Lord  Com- 
bui-y  (Clarendon's  son)  being  a  teller  for  the  nays. 
The  bill  was  sent  up  to  the  Lords  Jan.  27,  1662. 
See,  also.  Pari.  Hist,  217,  225.  Some  of  their  pro- 
ceedings trespassed  upon  the  executive  power,  and 
infringed  the  prerogative  they  labored  to  exalt. 
But  long  interruption  of  the  due  course  of  the  Con- 


418 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  XI. 


Its  injustice. 


was  dropped  in  the  House  of  Lords  ;  but 
those  formidable  chiefs  of  the  Common- 
wealth were  brought  to  trial.  Their  in- 
dictments alleged  as  overt  acts  of  high  trea- 
son against  Charles  II.  their  exercise  of 
civil  and  military  functions  under  the  usurp- 
ing government ;  though  not,  as  far  as  ap- 
pears, expressly  directed  against  the  king's 
authority,  and  certainly  not  against  his  per- 
son. Under  such  an  accusation,  many  who 
had  been  the  most  earnest  in  the  king's 
restoration  might  have  stood  at  the  bar. 
Thousands  might  apply  to  themselves,  in 
the  case  of  Vane,  the  beautiful  expression 
of  Mre.  Hutchinson,  as  to  her  husband's 
feelings  at  the  death  of  the  regicides,  that 
"  he  looked  on  himself  as  judged  in  their 
judgment  and  executed  in  their  execution." 
The  stroke  fell  upon  one,  the  reproach  upon 
many. 

The  condemnation  of  Sir  Heniy  Vane 
was  very  questionable  even  ac- 
cording to  the  letter  of  the  law. 
It  was  plainly  repugnant  to  its  spirit.  An 
excellent  statute  enacted  under  Henry  VII., 
and  deemed  by  some  great  writers  to  be 
only  declaratory  of  the  common  law,  but 
occasioned,  no  doubt,  by  some  harsh  judg- 
ments of  treason  which  had  been  pronounc- 
ed during  the  late  competition  of  the  houses 
flf  Yoi-k  and  Lancaster,  assured  a  perfect 
indemnity  to  all  persons  obeying  a  king  for 
the  time  being,  however  defective  his  title 
might  come  to  be  considered  when  another 
claimant  should  gain  possession  of  the  throne. 
It  established  the  duty  of  allegiance  to  the 
existing  government  upon  a  general  princi- 
ple ;  but  in  its  terms  it  certainly  presumed 
that  government  to  be  a  monarchy.  This 
furnished  the  judges  upon  the  ti-ial  of  Vane 
with  a  distinction,  of  which  they  willingly 
availed  themselves.    They  proceeded,  how- 

BtitQtiou  had  made  its  boundaries  indistinct.  Thus, 
in  the  Convention  Parhament,  the  bodies  of  Crom- 
well, Bradshaw,  Ireton,  and  others,  were  ordered, 
Dec.  4,  on  the  motion  of  Colonel  Titus,  to  be  disin- 
terred, and  hanged  on  a  gibbet.  The  Lords  con- 
curred in  this  order ;  but  the  mode  of  address  to 
tlie  king  would  have  been  more  regular. — Pari. 
Hist.,  151.  [These  bodies  had  been  previously  re- 
moved from  Westminster  Abbey,  and  "  cast  to- 
gether into  a  pit  at  the  back  door  of  the  preben- 
daries' lodgings."  The  body  of  Blake  was  the 
«ame  day,  Sept.  12,  1660,  taken  up  and  "  buried  in 
St.  Margaret's  church  yard."  It  appears  to  have 
been  done  by  an  order  of  the  king  to  the  Dean  of 
Westminster. — Kenuet's  Register,  p,  536.] 


ever,  beyond  all  bounds  of  constitutional 
precedents  and  of  common  sense,  when 
they  determined  that  Charles  the  Second 
had  been  king  de  facto  as  well  as  de  jure 
from  the  moment  of  his  father's  death, 
though,  in  the  words  of  their  senseless 
sophistry,  "  kept  out  of  the  exercise  of  his 
royal  authority  by  traitors  and  rebels,"  He 
had,  indeed,  assumed  the  title  during  his  ex- 
ile, and  had  granted  letters  patent  for  differ- 
ent purposes,  which  it  was  thought  proper 
to  hold  good  after  his  restoration ;  thus  pre- 
senting the  strange  anomaly,  and,  as  it  were, 
conti-adiction  in  terms,  of  a  king  who  began 
to  govern  in  the  twelfth  year  of  his  reign. 
But  this  had  not  been  the  usage  of  former 
times.  Edward  IV.,  Richard  III.,  Henry 
VII.,  had  dated  their  insti'uments  either 
from  their  proclamation,  or  at  least  from 
some  act  of  possession.  The  question  was 
not  whether  a  right  to  the  crown  descend- 
ed according  to  the  laws  of  inheritance,  but 
whether  such  a  right,  divested  of  posses- 
sion, could  challenge  allegiance  as  a  bound- 
en  duty  by  the  law  of  England.  This  is 
expressly  determined  in  the  negative  by 
Lord  Coke  in  his  third  Institute,  who  main- 
tains a  king  "  that  hath  right,  and  is  out  of 
possession,"  not  to  be  within  the  statute  of 
treasons.  He  asserts,  also,  that  a  pardon 
granted  by  him  would  be  void ;  which  by 
parity  of  reasoning  must  extend  to  all  his 
patents.*  We  may  consider,  therefore, 
the  execution  of  Vane  as  one  of  the  most 
reprehensible  actions  of  this  bad  reign.  It 
not  only  violated  the  assurance  of  indemni- 
ty, but  introduced  a  principle  of  sanguinaiy 
proscription,  which  would  render  the  re- 
turn of  what  is  called  legitimate  govern- 
ment, under  any  circumstances,  an  intoler- 
able curse  to  a  nation. f 

The  king  violated  his  promise  by  the 
execution  of  '\''ane,  as  much  as  the  judges 
sti-ained  the  law  by  his  conviction.  He 
had  assured  the  last  Parliament,  in  answer 
to  their  address,  that  if  Vane  and  Lambert 
should  be  attainted  by  law,  he  would  not  suf- 
fer the  sentence  to  be  executed.  Though 
the  present  Parliament  had  urged  the  at- 
torney-general to  bring  these  delinquents  to 


*  3  Inst.,  7.  This  appears  to  have  been  held  in 
Bagot's  case.  9  Edw.  IV.  See,  also,  Higden's  View 
of  the  English  Constitution,  1709. 

t  Foster,  in  his  Discourse  on  High  Treason,  evi- 
dently intimates  that  he  thought  the  conWction  of 
Vane  tmjustifiable. 


Cha.  II.— 1660-73.] 


FROM  HEXEY  VII.  TO  GEOUGE  II. 


419 


trial,  they  had  never,  by  an  address  to  the 
king,  given  him  a  color  for  reti-acting  his 
promise  of  niercy.  It  is  worthy  of  notice 
that  Clarendon  does  not  say  a  syllable  about 
Vane's  trial,  which  affords  a  strong  pre- 
suin])tion  that  he  thought  it  a  breach  of 
the  Act  of  Indemnity.  But  we  have  on 
record  a  remarkable  letter  of  the  king  to  his 
minister,  wherein  he  expresses  his  resent- 
ment at  Vane's  bold  demeanor  during  his 
ti'ial,  and  intimates  a  wish  for  his  death, 
though  with  some  doubts  whether  it  could 
be  honorably  done.*  Doubts  of  such  a  na- 
ture never  lasted  long  with  this  prince  ;  and 
Vane  suffered  the  week  after.  Lambert, 
whose  submissive  behavior  had  furnished  a 
contrast  with  that  of  Vane,  was  sent  to 
Guernsey,  and  remained  a  prisoner  for  thii-- 
ty  years.  The  Rojulists  have  spoken  of 
Vane  with  extreme  dislike  ;  yet  it  should 
bo  remembered  that  he  was  not  only  incor- 
rupt, but  disinterested,  inflexible  iu  con- 
forming his  public  conduct  to  his  principles, 
and  adverse  to  every  sanguinaiy  or  oppress- 
ive measure  :  qualities  not  verj^  common  in 
revolutionary  chiefs,  and  which  honorably 
distinguished  him  from  the  Lamberts  and 
Uazlerigs  of  his  party. f 

No  time  was  lost,  as  might  be  expected 
Actsrepia-  from  the  temper  of  the  Com- 
crown'in  its  mons,  in  replacing  the  throne  on 
prerogatives,  its  constitutional  basis  after  the 
rude  encroachments  of  the  Long  Parlia- 
ment. They  declared  that  there  was  no 
legislative  power  in  either  or  both  Houses 
without  the  king;  that  the  League  and 
Covenant  was  unlawfully  imposed ;  that 
the  sole  supreme  command  of  the  militia, 
and  of  all  forces  by  sea  and  land,  had  ever 

*  "  The  relation  that  has  been  made  to  me  of  Sir 
H.  "Vane's  can-iage  yesterday  in  the  Hall  is  the  oc- 
casion of  this  letter,  which,  if  I  am  rightly  iufonn- 
ed,  was  so  insolent  as  to  justify  all  he  had  done ; 
acknowledging  no  supreme  power  iu  England  but 
a  Parliament,  and  many  things  to  that  pui-pose. 
You  have  had  a  true  account  of  all ;  and  if  be  has 
given  new  occasion  to  be  hanged,  certainly  he  is 
too  dangerous  a  man  to  let  Uve,  if  we  can  honest- 
ly put  him  out  of  the  way.  Think  of  this,  and  give 
nie  some  account  of  it  to-morrow  ;  till  when,  I  have 
no  more  to  say  to  you.— C."  Indorsed  in  Lord 
Clarendon's  hand,  "  The  king,  June  7,  1662."  Vane 
was  beheaded  Jmie  14. — Burnet  (note  in  Oxford 
edition),  p.  164.    Harris's  Lives,  v.,  32. 

t  Vane  gave  np  the  profits  of  his  place  as  treas- 
urer of  the  navy,  which,  according  to  his  patent, 
would  have  amounted  to  £30,000  per  annum,  if 
we  may  rely  on  Hanis's  Life  of  Cromwell,  p.  260. 


been  by  the  laws  of  England  the  undoubted 
right  of  the  crown ;  that  neither  house  of 
Parliament  could  pretend  to  it,  nor  could 
lawfully  levy  any  war,  offensive  or  defens- 
ive, against  his  majesty.*  These  last  words 
appeared  to  go  to  a  dangerous  length,  and 
to  sanction  the  suicidal  doctrine  of  absolute 
non-resistance.  They  made  the  law  of 
high  treason  more  strict  during  the  king's 
life,  in  pursuance  of  a  precedent  in  the  reign 
of  Elizabeth. f  They  restored  the  bishops 
to  their  seats  in  the  House  of  Lords;  a 
step  which  the  last  Parliament  would  never 
have  been  induced  to  take,  but  which  met 
with  little  opposition  from  the  present. t 
The  violence  that  had  attended  their  exclu- 
sion seemed  a  sufficient  motive  for  rescind- 
ing a  statute  so  improperly  obtained,  even 
if  the  policy  of  maintaining  the  spiritual 
peers  was  somewhat  doubtful.  The  re- 
membrance of  those  tumultuous  assembla- 
ges which  had  overawed  their  predeces- 
sors in  the  winter  of  1641,  and  at  other 
times,  produced  a  law  against  disorderly  pe- 
titions. This  statute  provides  that  no  peti- 
tion or  address  shall  be  presented  to  the 
king  or  either  house  of  Parliament  by  more 
than  ten  persons  ;  nor  shall  any  one  procure 
above  twenty  persons  to  consent  or  set  their 
hands  to  any  petition  for  alteration  of  mat- 
ters established  by  law  in  Church  or  State, 
unless  with  the  previous  order  of  three 
justices  of  the  county,  or  the  major  part  of 
the  grand  jury.§ 

Thus  far  the  new  Parliament  might  be 
said  to  have  acted  chiefly  on  a  prin-  corpora- 
ciple  of  repairing  the  breaches  re- 
cently  made  in  our  Constitution,  and  of  re- 
establi.shing  the  just  boundaries  of  the  ex- 
ecutive power  ;  nor  would  much  objection 
have  been  offered  to  their  measures,  had 
they  gone  no  further  in  the  same  course. 
The  act  for  regulating  corporations  is  much 
more  questionable,  and  displayed  a  determ- 
ination to  exclude  a  considerable  portion  of 
the  community  from  their  civil  rights.  It 

*  13  Car.  II.,  c.  1  and  6.  A  bill  for  settling  the  mi- 
litia had  been  much  opposed  in  the  Convention  Par- 
liament, as  tending  to  bring  iu  martial  law. — Pari. 
Hist.,  iv.,  143.    It  seems  to  have  dropped. 

t  C.  1. 

t  C.  2.  The  only  opposition  made  to  this  was  in 
the  House  of  Lords  by  the  Earl  of  Bristol  and  some 
of  the  Roman  Catholic  party,  who  thought  the 
bishops  would  not  be  brought  into  a  toleration  of 
their  religion. — Life  of  Clarendon,  p.  138.     {  C.  5. 


420 


CONSTITL'TIOXAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


enjoined  all  magistrates  and  persons  bearing 
offices  of  trust  in  corporations  to  swear  that 
they  believed  it  unlawful,  on  any  pretense 
whatever,  to  take  anns  against  the  king, 
and  that  they  abhoired  the  traitorous  posi- 
tion of  bearing  arms  by  his  authority  against 
his  person,  or  against  those  that  are  com- 
missioned by  him.  They  were  also  to  re-  ' 
nounce  all  obligation  arising  out  of  the  oath 
called  the  solemn  League  and  Covenant ; 
in  case  of  refusal,  to  be  immediately  remov- 
ed from  office.  Those  elected  in  futui-e 
were,  in  addition  to  the  same  oatlis,  to  have 
received  the  sacrament  within  one  year  be- 
fore their  election  according  to  the  rites  of 
the  English  Church.*  These  provisions 
stnick  at  the  heart  of  the  Presbyterian  pai- 
ty,  whose  strength  lay  in  the  little  oligar- 
chies of  corporate  towns,  which  directly  or 
indirectly  returned  to  Parliament  a  veiy 
large  proportion  of  its  members.  Yet  it 
rarely  happens  that  a  political  faction  is 
crushed  by  the  teiTors  of  an  oath.  3Iany 
of  the  more  rigid  Presbyterians  refused  the 
conditions  imposed  by  this  act ;  but  the  ma- 
jority found  pretexts  for  qualifying  them- 
selves. 

It  could  not  yet  be  said  that  this  loyal 
Repeal  of  the  assembly  had  meddled  with 
TnenniaiAct.  those  safeguards  of  public  liber- 
ty which  had  been  erected  by  their  great 
predecessors  in  1641.  The  laws  that  Falk- 
land and  Hampden  had  combined  to  pro- 
vide, those  bulwarks  against  the  ancient  ex- 
orbitance of  prerogative,  stood  unscathed  ; 
threatened  from  afar,  but  not  yet  beU-ayed 
by  the  gan-ison.  But  one  of  these,  the  Bill 
for  Triennial  Parliaments,  wounded  the 
pride  of  royalty,  and  gave  scandal  to  his 
worshipers ;  not  so  much  on  account  of  its 
object,  as  of  the  securities  provided  against 
its  violation.  If  the  king  did  not  summon  a 
fresh  Pai-liaraent  within  three  years  after  a 
dissolution,  the  peers  were  to  meet  and  is- 
sue writs  of  their  own  accord  ;  if  they  did 
not,  within  a  certain  time,  perform  this 

•  13  Car.  n.,  sess.  2,  c.  1.  This  bill  did  not  pass 
without  a  strong  opposition  in  the  Commons.  It 
■was  carried  at  last  by  le2  to  77,  Journals,  July  5 ; 
but  on  a  previous  division  for  its  commitment  the 
numbers  were  165  to  136,  June  20.  Prynne  was 
afterward  reprimanded  by  the  speaker  for  publish- 
ing a  pamphlet  against  this  act,  July  15 ;  but  his 
courage  had  now  forsaken  him ;  and  he  made  a 
submissive  apology,  though  the  censure  was  pro- 
noonced  in  a  verj-  harsh  manner. 


duty,  the  sheriffs  of  every  county  were  to 
take  it  on  themselves  ;  and,  in  default  of  all 
constituted  authorities,  the  electcws  might 
assemble  without  any  regular  summous  to 
choose  representatives.     It  was  manifest 
that  the  king  must  have  taken  a  fixed  reso- 
I  lution  to  trample  on  a  fundamental  law  be- 
'  fore  these  irreg:ular,  tumultuous  modes  of 
redress  could  be  called  into  action,  and  that 
the  existence  of  such  provisions  couid  not 
[  in  any  degi'ee  weaken  or  endanger  the  legal 
and  limited  monarchy.    But  the  doctrine  of 
1  passive  obedience  had  now  crept  from  the 
homilies  into  the  statute-book;  the  Parlia- 
'  ment  had  not  scrupled  to  declare  the  unlaw- 
fulness of  defensive  war  against  the  king's 
I  person ;  and  it  was  but  one  step  more  to 
take  away  all  direct  means  of  counteracting 
his  pleasure.    Bills  were  accordingly  more 
than  once  ordered  to  be  brought  in  for  re- 
I  pealing  the  Triennial  Act ;  but  no  further 
steps  were  taken  till  the  king  thought  it  at 
j  length  necessary,  in  the  year  1664,  to  give 
.  them  an  intimation  of  his  desires.*  A 
I  vague  notion  had  partially  gained  ground 
1  that  no  Parliament,  by  viitue  of  that  biD, 
I  could  sit  for  more  than  three  years.    In  al- 
I  lusion  to  this,  he  told  them,  on  opening  the 
I  session  of  1664,  that  he  "had  often  read 
i  over  that  bill ;  and,  though  there  was  no 
color  for  the  fancy  of  the  determination  of 
I  the  Parliament,  yet  he  would  not  deny  that 
he  had  always  expected  them  to  consider 
the  wonderful  clauses  in  that  bill,  which 
passed  in  a  time  very  uncareful  for  the 
'  dignity  of  the  crown  or  the  security  of  the 
j  people.    He  requested  them  to  look  again 
'  at  it.    For  himself,  he  loved  Parliaments ; 
j  he  was  much  beholden  to  them :  he  did  not 
think  the  crown  could  ever  be  happy  with- 
out frequent  Parliaments:  but  assure  your- 
selves," he  concluded,  '■  if  I  should  think 
otherwise,  I  would  never  suffer  a  Parlia- 
ment to  come  together  by  the  means  pre- 
scribed by  that  biU."f 

So  audacious  a  declaration,  equivalent  to 
an  avowed  design,  in  certain  circumstances, 
of  preventing  the  execution  of  the  laws  by 
force  of  arms,  was  never  before  heard  from 
'  the  lips  of  an  English  king,  and  would  in 
any  other  times  have  awakened  a  storm  of 

I     *  Journals,  3d  April,  1662;  10th  March,  1663. 

t  Pari.  Hist.,  2S9.  Clarendon  speaks  very  un- 
'  justly  of  the  Triennial  Act,  forgetting  that  he  had 
I  himself  concurred  in  it. — P.  221. 


Cha.  n.— 1660-73.] 


FROM  HEXRY  VIL  TO  GEORGE  II. 


421 


indignation  from  the  Commons.  They  were, 
however,  sufficiently  compliant  to  pass  a 
bill  for  the  repeal  of  that  which  had  been 
enacted  with  unanimous  consent  in  1641, 
and  had  been  hailed  as  the  great  palladium 
of  constitutional  monarchy.  The  preamble 
recites  the  said  act  to  have  been  "  in  dero- 
gation of  his  majesty's  just  rights  and  pre- 
rogative inherent  in  the  imperial  crown  of 
this  realm  for  the  calling  and  assembling  of 
Parliaments."  The  bill  then  repeals  and 
annuls  every  clause  and  article  in  the  fullest 
manner ;  yet,  with  an  inconsistency  not  un- 
usual in  our  statutes,  adds  a  provision  that 
Parliaments  shall  not  in  future  be  intermit- 
ted for  above  three  years  at  the  most.  This 
clause  is  evidently  framed  in  a  different  spir- 
it from  the  original  bill,  and  may  be  attribu- 
ted to  the  influence  of  that  party  in  the 
House  which  had  begun  to  opj)ose  the  court, 
and  already  showed  itself  in  considerable 
sti'ength.*  Thus  the  eflect  of  this  compro- 
mise was,  that  the  law  of  the  Long  Parlia- 
ment subsisted  as  to  its  principle,  without 
those  unusual  clauses  which  had  been  en- 
acted to  render  its  observance  secure.  The 
king  assured  them,  in  giving  his  assent  to 
the  repeal,  that  he  would  not  be  a  day  more 
without  a  Parliament  on  that  account.  But 
the  necessity  of  those  securities,  and  the 
mischiefs  of  that  false  and  senile  loyalty 
which  abrogated  them,  became  manifest  at 
the  close  of  the  present  reign  ;  nearly  four 
years  having  elapsed  between  the  dissolution 
of  Charles's  last  Parliament  and  his  death. 

Clarendon,  the  principal  adviser,  as  yet,  of 
the  kingsince  his  restoration  (for  Southamp- 
ton rather  gave  reputation  to  the  administra- 
tion than  took  that  superior  influence  whicli 
belonged  to  his  place  as  tieasurer),  has 
thought  fit  to  stigmatize  the  Triennial  Bill 
with  the  epithet  of  infamous.  So  wholly  had 
he  divested  himself  of  the  sentiments  he  en- 
tertained at  the  beginning  of  the  Long  Par- 
Jiament,  that  he  sought  nothing  more  ardent- 
ly than  to  place  the  crown  again  in  a  condition 
to  run  into  those  abuses  and  excesses,  against 
which  he  had  once  so  much  inveighed.  "He 
did  never  dissemble,"  he  says,  "  from  the 

'  16  Car.  U.,  c.  1.  We  find  by  the  Journals  that 
gome  divi.sions  took  place  during  the  passage  of 
thia  bill,  and  though,  as  far  as  appears,  on  subordi- 
nate points,  j'et  probably  springing  from  an  oppo- 
sition to  its  principles,  March  2S,  li664.  There  was 
by  this  time  a  regular  party  formed  against  the 
court. 


'  time  of  his  return  with  the  king,  that  the 
late  rebellion  could  never  be  extirpated  and 
pulled  up  by  the  roots  till  the  king's  regal  and 
inherent  power  and  prerogative  should  be 
fully  avowed  and  vindicated,  and  till  the  usur- 
pations in  both  houses  of  Parliament,  since 
the  year  1640,  were  disclaimed  and  made 
odious  ;  and  many  other  excesses,  which  had 
been  affected  by  both  before  that  time,  under 
the  name  of  privileges,  should  be  restrained 
or  explained  ;  for  all  which  refonnation  the 
kingdom  in  general  was  veiy  well  disposed, 
I  when  it  pleased  God  to  restore  the  king  to 
'  it.  The  present  Parliament  had  done  much, 
,  and  would  willingly  have  prosecuted  the 
^  same  method,  if  they  had  had  the  same  ad- 
vice and  encouragement."*    I  can  only  un- 
derstand these  words  to  mean  that  they 
might  have  been  led  to  repeal  other  statutes 
of  the  Long  Parliament  besides  the  Trien- 
nial Act,  and  that  excluding  the  bishops  from 
the  House  of  Peers  ;  but  more  especially  to 
have  restored  the  two  great  levers  of  pre- 
rogative, the  courts  of  Star  Chamber  and 
High  Commission.    This  would,  indeed, 
have  pulled  up  by  the  roots  the  work  of  the 
Long  Parliament,  which,  in  spite  of  such 
general  reproach,  still  continued  to  shackle 
,  the  revived  monarchy.    There  had  been 
some  serious  attempts  at  this  in  the  House 
of  Lords  during  the  session  of  1661-2.  We 
read  in  the  Journalsf  that  a  committee  was 
appointed  to  prepare  a  bill  for  repealing  all 
acts  made  in  the  Parliament  begun  the  3d 
day  of  November,  1640,  and  for  re-enacting 
such  of  them  as  should  be  thought  fit.  This 
committee  some  time  afterj  reported  their 
opinion,  "  that  it  was  fit  for  the  good  of  the 
nation  that  there  be  a  court  of  hke  nature 
I  to  the  late  court  called  the  Star  Chamber ; 
1  but  desired  the  advice  and  directions  of  the 
I  House  in  these  particulars  following  :  "Who 
should  be  judges  ?    What  matters  should 
j  they  be  judges  of?    By  what  manner  of 

I  proceedings  should  they  act  ?"  The  House, 
j  it  is  added,  thought  it  not  fit  to  gj^^.  c^^m- 
'  give   any   particular   directions  ter  not  re- 

II  1  •  Stored. 

therem,  but  leit  it  to  the  commit- 
j  tee  to  proceed  as  they  would.    It  does  not 
!  appear  that  any  thing  further  was  done  in 
I  this  session;  but  we  find  the  bill  of  repeal 
I  revived  next  year.§    It  is,  however,  only 

i     *  P.  383. 

j     t  Lords'  Journals,  23d  and  24th  of  Jan.,  1662. 
I     t  12th  of  Feb.  j  19th  of  March,  1663. 


422 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


once  nicDtioncd.  Perhaps  it  may  be  ques- 
tionable whetlier,  even  amid  the  fervid  loy- 
alty of  IGGl,  the  House  of  Commons  would 
have  concurred  iu  re-establishing  the  Star 
Chamber.  They  had  taken  marked  precau- 
tions in  passing  an  act  for  the  restoration  of 
ecclesiastical  juiisdiction,  that  it  should  not 
be  construed  to  restore  the  High  Commis- 
sion Court,  or  to  give  validity  to  the  canons 
of  1640,  or  to  enlarge  in  any  manner  the 
ancient  authority  of  the  Church.*  A  ti'i- 
bunal  still  more  formidable  and  obnoxious 
would  liardly  have  found  favor  with  a  body 
of  men,  who,  as  their  behavior  shortly  dem- 
onstrated, might  rather  be  taxed  with  pas- 
sion and  vindictiveness  toward  a  hostile  fac- 
tion, than  a  deliberate  willingness  to  abandon 
their  English  rights  and  privileges. 

The  sti-iking  characteristic  of  this  Parlia- 
ment was  a  zealous  and  intolerant  attach- 
ment to  the  Established  Church,  not  losing 
an  atom  of  their  aversion  to  popeiy  in  their 
abhorrence  of  Protestant  dissent.  In  every 
former  Parliament  since  the  Reformation, 
the  country  party  (if  I  may  use  such  a  word, 
by  anticipation,  for  those  gentlemen  of  land- 
ed estates  who  owed  their  seats  to  then- 
provincial  importance,  as  distinguished  from 
courtiers,  lawyers,  and  dependents  on  the 
nobility)  had  incurred  with  rigid  churchmen 
the  reproach  of  puritanical  affections.  They 
were  implacable  against  poperj-,  but  disposed 
to  far  more  indulgence  with  respect  to  non- 
conformity than  the  very  different  maxims 
of  Elizabeth  and  her  successors  would  per- 
mit. Yet  it  is  obvious  that  the  Puritan 
Commons  of  James  I.  and  the  High-Church 
Commons  of  Charles  II.  were  composed, 
in  a  great  measure,  of  the  same  families, 
and  entirely  of  the  same  classes.  But,  as 
the  aiTOgance  of  the  prelates  liad  excited 
indignation,  and  the  sufferings  of  the  scru- 
pulous clergy  begotten  sympathy  iu  one  age, 
so  the  reversed  scenes  of  the  last  twenty 
yeai'S  had  given  to  the  former,  or  their  ad- 
herents, the  advantage  of  enduring  oppres- 
sion with  humility  and  fortitude,  and  dis- 
played in  the  latter,  or  at  least  many  of 
their  number,  those  odious  and  malevolent 
qualities  which  adversity  had  either  con- 
cealed or  rendered  less  dangerous.  The 
gently,  connected,  for  the  most  part,  by  birth 
or  education  with  the  Episcopal  clergy, 
could  not  for  an  instant  hesitate  between 
"  13  Car.  11.,  c.  12. 


the  ancient  establishment  and  one  composed 
of  men  whose  eloquence  in  preaching  was 
chiefly  directed  toward  the  common  people, 
and  presupposed  a  degi'ee  of  enthusiasm  in 
the  hearer  which  the  higher  classes  rarely 
possessed.  They  dreaded  the  wilder  sec- 
taries, foes  to  property,  or  at  least  to  its  po- 
litical influence,  as  much  as  to  the  regal  Con- 
stitution ;  and  not  unnaturall}-,  though  with- 
I  out  perfect  faiiuess,  confounded  the  Pres- 
byterian or  moderate  Non-conformist  in  the 
motley  crowd  of  fanatics,  to  many  of  whose 
tenets  he  at  least  more  approximated  than 
the  Church  of  England  minister. 

There  is  every  reason  to  presume,  as  1 
have  already  remarked,  that  the  _  ^ 

•' .  .  Presbyten- 

king  had  no  intention  but  to  de-  ans  deceived 
ceivethe  Presbyterians  and  their 
friends  in  the  Convention  Parliament  by  his 
declaration  of  October,  1660.*  He  proceed- 
ed, after  the  dissolution  of  that  assembly,  to 
fill  up  the  number  of  bishops,  who  had  been 
reduced  to  nine,  but  with  no  further  men- 
tion of  suffragans,  or  of  the  council  of  pres- 
byters, which  had  been  announced  in  that 
declaration,  j   It  does,  indeed,  appear  highly 

*  Clarendon,  iu  his  Life,  p.  149,  says  that  the 
king  "had  received  the  Presbyterians  witli  grace, 
and  did  believe  he  should  vrork  npon  them  by  per- 
suasions, ha%'ing  been  well  acquainted  with  their 
common  arguments  by  the  conversation  he  had  had 
in  Scotland,  and  was  very  able  to  confute  them." 
This  is  one  of  the  strange  absurdities  into  which 
Clarendon's  prejudices  hurrj-  him  in  almost  everj- 
page  of  his  writings,  and  more  especially  in  this 
continuation  of  his  Life.  Charles,  as  his  minister 
well  knew,  could  not  read  a  common  Latin  book 
(Clarendon  State  Papers,  iii.,  567),  and  had  no  man- 
ner of  acquaintance  with  theological  learning,  un- 
less the  popular  argument  in  favor  of  popery  is  so 
to  be  called  ;  yet  he  was  very  able  to  confute  men 
who  had  passed  their  lives  in  study,  on  a  subject 
involving  a  considerable  knowledge  of  Scripture 
and  the  early  writers  in  their  original  languages. 

t  Clarendon  admits  that  this  could  not  have  been 
dobe  till  the  former  Parliament  was  dissolved,  97. 
This  means,  of  course,  on  the  supposition  that  the 
king's  word  was  to  be  broken.  "The  malignity 
toward  the  Church,''  he  says,  "seemed  increasing, 
and  to  be  greater  than  at  the  coming  iu  of  the 
king."  Pepys,  in  his  Diary,  has  several  sharp  re- 
marks on  the  misconduct  and  unpopularity  of  the 
bishops,  though  himself  an  Episcopalian,  even  be- 
fore the  Restoration.  The  clergy  are  so  high  that 
all  people  I  meet  with  do  protest  against  their 
practice,"  August  31,  1660.  "I  am  convinced  in 
my  judgment  that  the  present  clergy  will  never 
heartily  go  down  with  the  generality  of  the  com- 
mons of  England  ;  they  have  been  so  used  to  hber- 
ty  and  freedom,  *id  they  are  so  acquainted  with 
the  pride  and  debaucherj-  of  the  present  clergy. 


Cha.  11.-1660-73.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


423 


probable  that  the  sclieine  of  Usher  would 
have  been  found  iucouvenieut  and  even  im- 
practicable ;  and  reflecting  raen  would  per- 
haps be  apt  to  say  that  the  usage  of  primi- 
tive antiquity,  upon  which  all  parties  laid  so 
much  stress,  was  rather  a  presumptive  ar- 
gument against  the  adoption  of  any  system 
of  church  government,  in  circumstances  so 
widely  difl'erent,  than  in  favor  of  it.  But 
inconvenient  and  impracticable  provisions 
carry  with  them  their  own  remedy ;  and 
the  king  might  have  respected  his  own  word, 
and  the  wishes  of  a  large  part  of  the  Church, 
without  any  formidable  danger  to  episcopal 
authority.  It  would  have  been,  however, 
too  flagi'ant  a  breach  of  promise  (and  yet 
hardl}'  greater  than  tliat  just  mentioned)  if 
some  show  had  not  been  made  of  desiring  a 
reconciliation  on  the  subordinate  details  of 
Savoy  Con-  I'eligious  ceremonies  and  the  Lit- 
ference.  urgj'.  This  produced  a  confer- 
ence held  at  the  Savoy,  in  May,  1661,  be- 
tween twenty-one  Anglican  and  as  many 
Presbyterian  divines  :  the  latter  were  called 
upon  to  propose  their  objections,  it  being  the 
part  of  the  others  to  defend.  They  brought 
forward  so  long  a  list  as  seemed  to  raise  lit- 
tle hopes  of  agreement.  Some  of  these  ob- 
jections to  the  service,  as  may  be  imagined, 
were  rather  captious  and  hypercritical ;  yet 
in  many  cases  they  pointed  out  real  defects. 
As  to  ceremonies,  they  dwelt  on  the  same 
scruples  as  had,  from  the  beginning  of 
Elizabeth's  reign,  produced  so  unhappy  a 
discordance,  and  had  become  inveterate  by 
80  much  persecution.  The  Conference  was 
managed  with  great  mutual  bitterness  and 
recrimination ;  the  one  party  stimulated  by 
vindictive  hati'ed  and  the  natural  arrogance 
of  power,  the  other  irritated  by  the  mani- 
fest design  of  brealsing  the  king's  faith,  and 

He  [Mr.  Blackburu,  a  Nou-coufonuist]  did  give  me 
many  stories  of  the  aftVonts  which  the  clergy  re- 
ceive in  all  parts  of  England,  from  the  geutiy  and 
ordiuary  persons  of  the  parish,"  November  9, 1663. 
The  opposite  party  had  recourse  to  the  old  weapons 
of  pious  fraud.  I  have  a  tract  containing  twenty- 
seven  instances  of  i-emarkable  judgments,  all  be- 
tween June,  1660,  and  April.  1661,  which  befell  di- 
vers persons  for  reading  the  Common  Prayer  or  re- 
viling godly  ministers.  This  is  entitled  Annus 
Mirabilis ;  and,  besides  the  above  twenty-seven, 
attests  so  many  prodigies,  that  the  name  is  by  no 
means  misapplied.  The  bishops  made  large  for- 
tunes by  filling  np  leases. — Burnet,  200.  And 
Clarendon  admits  them  to  have  been  too  rapacious, 
though  he  tries  to  extenuate. — P.  48. 


probablj-  by  a  sense  of  their  own  improvi- 
dence in  ruining  themselves  by  his  restora- 
tion. The  chief  blame,  it  can  not  be  dissem- 
bled, ought  to  fall  on  the  churchmen.  An 
opportunity  was  afforded  of  healing,  in  a 
very  great  measure,  that  schism  and  separa- 
tion whicli,  if  they  are  to  be  believed,  is  one 
of  the  worst  evils  that  can  befaU  a  Christian 
community.  They  had  it  in  their  power  to 
retain,  or  to  expel,  a  vast  number  of  worthy 
and  lai)orious  ministers  of  the  Gospel,  with 
whom  they  had,  in  their  own  estimation, 
no  essential  ground  of  difi'erence.  They 
knew  the  king,  and  consequently  themselves, 
to  have  been  restored  with  (I  might  almost 
say  by)  the  strenuous  co-operation  of  those 
very  men  who  were  now  at  their  mercy. 
To  judge  by  the  rules  of  moral  wisdom,  or 
of  the  spirit  of  Christianity  (to  which,  not- 
withstanding what  might  be  satirically  said 
of  experience,  it  is  difficult  not  to  think  we 
have  a  right  to  expect  that  a  body  of  eccle- 
siastics should  pay  some  attention),  there 
can  be  no  justification  for  the  Anglican  party 
on  this  occasion.  They  have  certainly  one 
apology — the  best,  very  frequently,  that  can 
be  offered  for  human  infirmity — they  had 
sustained  a  long  and  unjust  exclusion  from 
the  emoluments  of  their  profession,  which 
begot  a  natural  dislike  toward  the  membei-s 
of  the  sect  that  had  profited  at  their  expense, 
though  not,  in  general,  personally  responsi- 
ble for  their  misfortunes.* 

*  The  fullest  account  of  this  Conference,  and  of 
all  that  passed  as  to  the  comprehension  of  the 
Presbyterians,  is  to  be  read  in  Baxter,  whoniNeal 
has  abridged.  Some  allowance  must,  of  course, 
be  made  for  the  resentment  of  Baxter;  but  his 
known  integrity  makes  it  impossible  to  discredit 
the  main  part  of  his  narration.  Nor  is  it  necessai-y 
to  rest  on  the  evidence  of  those  who  may  be  sup- 
posed to  have  the  prejudices  of  Dissenters ;  for 
Bishop  Burnet  admits  that  all  the  concern  which 
seemed  to  employ  the  prelates'  minds  was  not  only 
to  make  no  alteration  on  the  Presbyterians'  ac- 
count, but  to  straiten  the  terms  of  conformity  far 
more  than  before  the  war.  Those,  however,  who 
would  see  what  can  be  said  by  writers  of  High- 
Church  principles,  may  consult  Kennet's  History 
of  diaries  II.,  p.  252,  or  Collier,  p.  87S.  One  little 
anecdote  may  serve  to  display  the  spirit  with 
which  the  Anglicans  came  to  the  Conference. 
Upon  Baxter's  saying  that  their  proceedings  would 
alienate  a  great  part  of  the  nation,  Stearne,  bishop 
of  Carlisle,  observed  to  his  associates,  "  He  will  not 
say  kingdom,  lest  he  should  acknowledge  a  king." 
—Baxter,  p.  333.  This  was  a  very  malignant  re- 
flection on  a  man  who  was  well  known  nevei*  to 
have  been  of  the  Republican  party.   It  is  true  that 


424 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  XL 


The  Savoy  Conference  broke  up  in  anger, 
each  party  more  exasperated  and  more  ir- 
reconcilable than  before.  This,  indeed,  has 
been  the  usual  consequence  of  attempts  to 
bring  men  to  an  understanding  on  religious 
differences  by  explanation  or  compromise. 
The  public  was  apt  to  expect  too  much  from 
these  discussions ;  unwilling  to  believe  either 
that  those  who  have  a  reputation  for  piety 
can  be  wanting  in  desire  to  find  the  truth, 
or  that  those  who  are  esteemed  for  ability 
can  miss  it.  And  this  expectation  is  height- 
ened by  the  language  rather  too  sti'ongly 
held  by  moderate  and  peaceable  divines,  that 
little  more  is  required  than  an  understand- 
ing of  each  others'  meaning,  to  unite  con- 
flicting sects  in  a  common  faith.  But  as  it 
generally  happens  that  the  disputes  of  the- 
ologians, though  far  from  being  so  important 
as  they  appear  to  the  naiTOW  prejudices  and 
heated  passions  of  the  combatants,  are  not 
wholly  nominal,  or  capable  of  being  reduced 
to  a  common  form  of  words,  the  hopes  of 
union  and  settlement  vanish  upon  that  closer 
inquiry  which  conferences  and  schemes  of 
agreement  produce.  And  though  this  may 
seem  rather  applicable  to  speculative  con- 
troversies than  to  such  matters  as  were  de- 
bated between  the  Church  and  the  Presby- 
terians at  the  Savoy  Conference,  and  which 
are  in  their  nature  more  capable  of  com- 
promise than  articles  of  doctrine,  yet  the 
consequence  of  exhibiting  the  incompatibil- 
ity and  reciprocal  alienation  of  the  two  par- 
ties in  a  clearer  light  was  nearly  the  same. 

A  determination  having  been  taken  to  ad- 
mit of  no  extensive  comprehension,  it  was 
debated  by  the  government  whether  to  make 
a  few  alterations  in  the  Liturgj%  or  to  restore 
the  ancient  sei-vice  in  eveiy  particular.  The 
former  advice  prevailed,  though  -with  no  de- 
sire or  expectation  of  conciliating  any  scru- 
pulous persons  by  the  amendments  intro- 
duced.*   These  were  by  no  means  numer- 

Baxter  seems  to  have  thought,  iu  1659,  that  Rich- 
ard Cromwell  would  have  served  the  turn  better 
than  Charles  .Stuart ;  and,  as  a  Presbyterian,  he 
thouffht  very  rightly. — See  p.  207,  and  part  iii.,  p. 
71.  But,  preaching  before  the  Parliament,  April 
30,  1660,  he  said  it  was  none  of  our  differences 
whether  we  should  he  loyal  to  our  king ;  on  that 
all  were  agreed. — P.  217. 

*  Life  of  Clarendon,  147.  He  observes  that  the 
alterations  made  did  not  reduce  one  of  the  opposite 
party  to  the  obedience  of  the  Church.  Now,  in 
the  first  place,  he  could  not  know  this;  and,  in  the 
next,  he  conceals  from  the  reader  that,  on  the 


ous,  and  in  some  instances  rather  chosen  in 
order  to  irritate  and  mock  the  opposite  party 
than  from  any  compliance  with  their  preju- 
dices.   It  is,  indeed,  veiy  probable,  from  the 
temper  of  the  new  Parliament,  that  they 
would  not  have  come  into  more  tolerant  and 
healing  measures.     AVhen  the  xct  of  Uni- 
Act  of  Uniformity  was  brought  f>""niity. 
into  the  House  of  Lords,  it  was  found  not 
only  to  restore  all  the  ceremonies  and  other 
1  matters  to  which  objection  had  been  taken, 
:  but  to  contain  fresh  clauses  more  intolerable 
I  than  the  rest  to  the  Presbyterian  clergy. 
One  of  these  enacted  that  not  only  every 
!  beneficed  minister,  but  fellow  of  a  college, 
'  or  even  schoolmaster,  should  declare  his  un- 
I  feigned  assent  and  consent  to  all  and  every 
!  thing  contained  in  the  Book  of  Common 
;  Prayer.*    These  words,  however  capable 
'  of  being  eluded  and  explained  away,  as  such 
subscriptions  always  are,  seemed  to  amount, 
in  common  use  of  language,  to  a  complete 
approbation  of  an  entire  volume,  such  as  a 
'  man  of  sense  hardly  gives  to  any  book,  and 
which,  at  a  time  when  scrupulous  persons 
were  with  gi-eat  difliculty  endeavoring  to 
reconcile  themselves  to  submission,  placed  a 
new  stumbling-block  in  their  way,  which, 
!  without  abandoning  their  integrity,  they 
found  it  impossible  to  surmount. 

The  temper  of  those  who  cliiefly  managed 
Chui'ch  affairs  at  this  period  displayed  itself 
in  another  innovation  tending  to  the  same 
end.  It  had  been  not  unusual,  from  the 
very  beginnings  of  our  Reformation,  to  admit 
ministers  ordained  in  foreign  Protestant 
churches  to  benefices  in  England.  No  re- 
ordination  had  ever  been  practiced  with  re- 
spect to  those  who  had  received  the  imposi- 
tion of  hands  in  a  regular  church ;  and  hence 
whole  matter,  the  changes  made  in  the  Litm-gy 
were  more  likely  to  disgust  than  to  conciliate. 
Thus  the  Puritans  having  alwajs  objected  to  the 
number  of  saints'  days,  the  bishops  added  a  few 
more ;  and  the  fonner  having  given  verj-  plausible 
reasons  against  the  apocrv  phal  lessons  in  the  daily 
I  service,  the  others  inserted  the  legend  of  Bel  and 
'  the  Dragon,  for  no  other  purpose  than  to  show  con- 
tempt of  their  scruples.  The  alterations  may  be 
seen  in  Kennet's  Register,  585.  The  most  import- 
ant was  the  restoration  of  a  rubric  inserted  in  the 
communion  service  under  Edward  VI..  but  left  out 
by  Elizabeth,  declaring  against  any  corporeal  pres- 
ence in  the  Lord's  Supper.  This  gave  offense  to 
some  of  those  who  bad  adopted  that  opinion,  espe- 
I  cially  the  Duke  of  York,  and  perhaps  tended  to 
complete  his  alienation  from  the  Anglican  Church. — 
'  Burnet,  i.,  183.  *  13  &  14  Car.  II.,  c.  iv.,  6  3. 


Cha.  II.— 1660-73.] 


FROM  HENRY  V: 


II.  TO  GEORGE  11. 


425 


it  appears  that  the  Church  of  England,  what- 
ever tenets  might  latterly  have  been  broached 
in  controversy,  did  not  consider  the  ordina- 
tion of  presbytere  invalid.  Though  such  oi-- 
dinations  as  had  taken  place  during  the  late 
ti'oubles,  and  by  virtue  of  which  a  great  part 
of  the  actual  clergy  were  in  possession,  were 
evidently  in-egular,  on  the  supposition  that 
the  English  Episcopal  Church  was  then  in 
existence  ;  yet,  if  the  argument  from  such 
great  convenience  as  men  call  necessity  was 
to  prevail,  it  was  surely  worth  while  to  suf- 
fer them  to  pass  without  question  for  the 
present-,  enacting  provisions,  if  such  were 
required,  for  the  future.  But  this  did  not 
fall  in  with  the  passion  and  policy  of  the 
bishops,  who  found  a  pretext  for  their  worldly 
motives  of  action  in  the  supposed  divine  right 
and  necessity  of  episcopal  succession ;  a 
theory  naturally  more  agi-eeable  to  arrogant 
and  dogmatical  ecclesiastics  than  that  of 
Cranmer,  who  saw  no  intrinsic  difference 
between  bisho])s  and  priests  ;  or  of  Hooker, 
who  thought  ecclesiastical  superiorities,  like 
civil,  subject  to  variation  ;  or  of  Stillingfleet, 
who  had  lately  pointed  out  the  impossibility 
of  ascertaining  beyond  doubtful  conject- 
ure the  real  constitution  of  the  apostolical 
Church,  from  the  scanty,  inconclusive  testi- 
monies that  either  Scripture  or  antiquity 
furnish.  It  was  therefore  enacted  in  the 
Statute forUniformity,  that  no  jierson  should 
hold  any  preferment  in  England  without  hav- 
ing received  Episcopal  ordination.  There 
seems  to  be  little  or  no  objection  to  this  pro- 
vision, if  ordination  be  considered  as  a  cere- 
mony of  admission  into  a  particular  society ; 
but,  according  to  the  theories  which  both 
parties  had  embraced  in  that  age,  it  confer- 
red a  sort  of  mysterious  indelible  character, 
which  rendered  its  repetition  improper.* 

The  new  Act  of  Uniformity  succeeded  to 
the  utmost  wishes  of  its  promoters.    It  pro- 

*  Life  of  Clarendon,  152.  Buniet,  256.  Morley, 
afterward  Bishop  of  Winchester,  was  engaged  just 
before  the  Restoration  in  negotiating  with  the  Pres- 
byterians. They  stuck  out  for  the  negative  voice 
of  the  council  of  presbyters,  and  for  the  vaUdity  of 
their  ordinations. — Clar.  State  Papers,  727.  He  had 
two  schemes  to  get  over  the  difficultj-:  one  to  pass 
them  over  sub  silentio ;  the  other,  a  hypothetical 
reordination,  on  the  supposition  that  sometliing 
might  have  been  wanting  before,  as  the  Church  of 
Home  practices  about  rebaptization.  The  former 
is  a  curious  expedient  for  those  wlio  pretend  to 
think  Presbyterian  ordinations  really  null.  —  Id., 
738. 


vided  that  eveiy  minister  should.  Ejection  of 
before  the  feast  of  St.  Bartholo-  {^;';;;^,tder- 
mew,  166'2,  publicly  declare  his  gy- 
assent  and  consent  to  every  thing  contained 
in  the  Book  of  Common  Prayer,  on  pain  of 
being  ipso  facto  deprived  of  his  benefice.* 
Though  even  the  Long  Parliament  had  re- 
served a  fifth  of  the  profits  to  those  who 
were  ejected  for  refusing  the  Covenant,  no 
mercy  could  be  obtained  from  the  still  greater 
bigotry  of  the  present ;  and  a  motion  to  make 
that  allowance  to  non-conforming  ministers 
was  lost  by  94  to  87. f  The  Lords  had 
shown  a  more  temperate  spirit,  and  made 
several  alterations  of  a  conciliating  nature. 
They  objected  to  extending  the  subscrip- 
tion required  by  the  act  to  schoolmasters. 
But  the  Commons  urged  in  a  conference  the 
force  of  education,  which  made  it  necessary 
to  take  care  for  the  youth.  The  Upper 
House  even  inserted  a  proviso,  allowing  the 
king  to  dispense  with  the  surplice  and  the 
sign  of  the  cross;  but  the  Commons  reso- 
lutely withstanding  this  and  every  other  al- 
teration, they  were  all  given  up.J  Yet  next 
year,  when  it  was  found  necessary  to  pass 
an  act  for  the  relief  of  those  who  had  been 
prevented  involuntarily  from  subscribing  the 
declaration  in  due  time,  a  clause  was  intro- 

*  The  day  fixed  upon  suggested  a  comparison 
whicli,  though  severe,  was  obvious.  A  modem 
writer  has  observed  on  this,  "  They  were  careful 
not  to  remember  that  the  same  day,  and  for  the 
same  reason,  because  the  tithes  were  commonly 
due  at  Michaelmas,  had  been  appointed  for  the 
former  ejectment,  when  four  times  as  many  of  the 
loyal  clergy  were  deprived  for  fidelity  to  their  sov- 
ereign." —  Southey's  Hist,  of  the  Church,  ii.,  467. 
That  the  day  was  chosen  in  order  to  deprive  the 
incumbent  of  a  whole  year's  tithes,  Mr.  Southey  has 
learned  from  Buniet ;  and  it  aggravates  the  cnielty 
of  the  proceeding :  but  where  has  he  found  his 
precedent  ?  The  Anglican  clergy  were  ejected  for 
refusing  the  Covenant  at  no  one  definite  period,  as, 
on  recollection,  Mr. S.  would  be  aware;  nor  can  I 
find  any  one  Parliamentry  ordinance  in  Husband's 
Collection  that  mentions  St.  Bartholomew's  Day. 
There  was  a  precedent,  indeed,  in  that  case,  which 
the  govemment  of  Charles  did  not  choose  to  fol- 
low. One  fifth  of  the  income  had  been  reserved 
for  the  dispossessed  incumbents  ;  but  it  is  said  that 
they  often  did  not  get  them. — Kennet's  Register, 
392. 

t  Journals,  April  26.  This  ma)',  perhaps,  have 
given  rise  to  a  mistake  we  find  in  Neal,  624,  that 
the  Act  of  Unifoi-mity  only  passed  by  186  to  180. 
There  was  no  division  at  all  upon  the  bill  except 
that  I  have  mentioned. 

t  The  report  of  the  Conference,  Lords'  Journals, 
7th  of  May,  is  altogether  rather  curious. 


426 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XI. 


duced,  dpcjariiij;  that  tlie  assent  and  consent 
to  the  Book  of  Common  Prayei"  required  by 
the  said  act  should  be  understood  only  as  to 
practice  and  obedience,  and  not  otherwise. 
The  Dnive  of  York  and  twelve  lay  peers  pro- 
tested against  this  clause,  as  destructive  to 
the  Church  of  England  as  now  established ; 
and  the  Commons  vehemently  objecting  to 
it,  the  partisans  of  moderate  councils  gave 
way  as  before.*    When  the  day  of  St.  Bar- 1 
tholomew  came,  about  2000  persons  resigned  | 
their  preferments  ratherthan  stain  theircon- 
sciences  by  comjjliance  :  an  act  to  which  the 
more  liberal  Anglicans,  after  the  bitterness 
of  immediate  passions  had  passed  away,  have 
accorded  that  praise  which  is  due  to  heroic 
virtue  in  an  enemy.    It  may  justly  be  said 
that  the  Episcopal  clergy  had  set  an  exam-  j 
pie  of  similar  magnanimity  in  refusing  to  take  j 
the  Covenant ;  yet,  as  that  was  partly  of  a  j 
political  nature,  and  those  who  were  ejected 
for  not  taking  it  might  hope  to  be  restored  [ 
through  the  success  of  the  king's  arms,  I  do 
not  know  that  it  was  altogether  so  eminent  i 
an  act  of  self-devotion  as  the  Presbyterian 
clergy  displayed  on  St.  Bartholomew's  Day. 
Both  of  them  aftbrd  striking  contrasts  to  the 
pliancy  of  the  English  Church  in  the  greater 
question  of  the  preceding  century,  and  bear 
witness  to  a  remarkable  integrity  and  con- 
sistency of  principle. t 

*  Lords'  Journals,  25th  and  27th  of  July,  1663. 
Ralph,  58. 

t  Neal,  625-636.  Baxter  told  Bamet,  as  the  lat- 
ter says,  p.  185,  that  not  above  300  would  have  re- 
signed, had  the  terms  of  the  king's  declaration 
been  adhered  to.  The  blame,  he  goes  on,  fell 
chiefly  on  Sheldon.  But  Clarendon  was  charged 
with  entertaining  the  Presbyterians  with  good 
words,  while  he  was  giving  way  to  the  bishops. — 
See,  also,  p.  268.  Baxter  puts  the  number  of  tlie 
deprived  at  1800  or  2000.— Life,  384.  And  it  has 
generally  been  reckoned  about  2000,  though  Burnet  i 
says  it  has  been  much  controverted.  If  indeed,  we  1 
can  rely  on  Calam}''s  account  of  the  ejected  minis- 
ters, abridged  by  Palmer,  under  the  title  of  The 
Non-conformist's  Memorial,  the  number  must  have 
been  full  2400.  including  fellows  of  colleges,  though 
not  iu  orders.  Palmer  says  that  a  manuscript  cata- 
logue gives  2257  names. — Kennet,  however  (Regis- 
ter, 807),  notices  groat  mistakes  of  Calamy  in  re- 
spect only  to  one  diocese,  that  of  Peterborough. 
Probably  both  i?i  this  collection,  aud  in  that  of 
Walker  on  the  other  side,  as  in  all  niart_\Tologies, 
there  are  abundant  en'ors  ;  but  enough  will  veraain 
to  afford  memorable  examples  of  conscientious  suf- 
fering ;  and  we  can  not  read  without  indignation 
Kennet's  endeavors,  in  the  conclusion  of  this  vol- 
ume, to  extenuate  the  praise  of  the  deprived  Pres- 
byterians by  captious  and  unfair  arguments. 


No  one  who  has  any  sense  of  honesty  and 
plain  dealing  can  pretend  that  Charles  did 
not  violate  the  spirit  of  his  declarations,  both 
thatfrom  Breda,  and  that  which  he  published 
in  October,  1C60.  It  is  idle  to  say  that  those 
declarations  were  subject  to  the  decision  of 
Parliament,  as  if  the  crown  had  no  sort  of 
influence  in  that  assembly,  nor  even  any 
means  of  making  its  inclinations  known.  He 
had  urged  them  to  confirm  the  Act  of  In- 
demnity, wherein  he  thought  his  honor  and 
security  concerned  :  was  it  less  easy  to  ob- 
tain, or  at  least  to  ask  for,  their  concurrence 
iu  a  comprehension  or  toleration  of  the  Pres- 
byterian clergy  ?  Yet,  after  mocking  those 
persons  with  pretended  favor,  aud  even  of- 
fering bishoprics  to  some  of  their  number, 
by  way  of  purchasing  their  defection,  the 
king  made  no  effort  to  mitigate  the  provi- 
sions of  the  Act  of  Uniformity  ;  and  Claren- 
don strenuously  supported  them  through 
both  houses  of  Parliament.*  This  behavior 
in  the  minister  sprang  from  real  bigotiy  and 
dislike  of  the  Presbyterians ;  but  Chai'les 
was  influenced  by  a  veiy  different  motive, 
which  had  become  the  secret  spring  of  all  his 
policy.    This  requires  to  be  fully  explained. 

Charles,  during  his  misfortunes,  had  made 
repeated  promises  to  the  pope  Uopcsofthe 
and  the  great  Catholic  princes  of  tiathoUcs. 
relaxing  the  penal  laws  against  his  subjects 
of  that  religion  —  promises  which  he  well 
knew  to  be  the  necessary  condition  of  their 
assistance ;  and,  though  he  never  received 
any  succor  which  could  demand  the  per- 
formance of  these  assurances,  his  desire  to 
stand  well  with  France  and  Spain,  as  well 
as  a  sense  of  what  was  really  due  to  the 
English  Catholics,  would  have  disposed  him 
to  grant  every  indulgence  which  the  temper 
of  his  people  should  permit.  The  laws 
were  highly  severe,  iu  some  cases  sanguin- 
ary ;  they  were  enacted  in  very  different 
times,  from  plausible  motives  of  distrust, 
which  it  would  be  now  both  absurd  and  un- 
gi-ateful  to  retain.  The  Catholics  had  been 
the  most  strenuous  of  the  late  king's  adhe- 
rents, the  greatest  sufl^erers  for  their  loyalty. 
Out  of  about  500  gentlemen  who  lost  their 
lives  in  the  roj-al  cause,  one  third,  it  has 
been  said,  were  of  that  religion. f  Their 

*  See  Clarendon's  feeble  attempt  to  vindicate  the 
king  from  the  charge  of  breach  of  faith,  157. 

t  A  list  of  these,  published  in  1660,  contains  more 
than  170  names. — Neal,  590. 


Cha,  II.— 1660-73.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


427 


estates  had  been  selected  foi"  confiscation, 
when  others  had  been  admitted  to  com- 
pound. It  is,  however,  certain,  that  after 
the  conclusion  of  the  war,  and  especialty 
during  tlie  usurpation  of  Cromwell,  they 
declined,  in  general,  to  provoke  a  govern- 
ment which  showed  a  good  deal  of  con- 
nivance toward  their  religion,  by  keeping  up 
any  connection  with  the  exiled  family.* 
They  had,  as  was  surely  very  natural,  one 
paramount  object  in  their  political  conduct, 
the  enjoyment  of  religious  liberty;  what- 
ever debt  of  gratitude  they  might  have  owed 
to  Charles  I.  had  been  amply  paid ;  and  per- 
haps thej'  might  reflect  that  he  had  never 
scrupled,  in  his  various  negotiations  with  the 
Parliament,  to  acquiesce  in  any  prescriptive 
measures  suggested  against  popery.  This 
apparent  abandonment,  however,  of  the 
royal  interests  excited  the  displeasure  of 
Clarendon,  which  was  increased  by  a  tend- 
ency some  of  the  Catholics  showed  to  unite 
with  Lambert,  who  was  understood  to  be 
privately  of  their  religion,  and  by  an  intrigue 
earned  on  in  16.59,  by  the  machinations  of 
Buckingham  with  some  pi-iests,  to  set  up 
the  Duke  of  York  for  the  crown.  But  the 
king  retained  no  resentment  of  the  general 
conduct  of  this  party,  and  was  desirous  to 
give  them  a  testimony  of  his  confidence  by 
mitigating  the  penal  laws  against  their  re- 
ligion. Some  steps  were  taken  toward  this 
by  the  House  of  Lords  in  the  session  of 
1661;  and  there  seems  little  doubt  that  the 
statutes  at  least  inflicting  capital  punishment 
would  have  been  repealed  without  difficultj', 
if  the  Catholics  had  not  lost  the  favorable 
moment  by  some  disunion  among  them- 
selves, which  the  never-ceasing  intrigues 
of  the  Jesuits  contrived  to  produce. f 

*  Sir  Kenelm  Digby  was  (supposed  to  be  deep  in 
a  scheme  tliat  the  Catholics,  in  1649,  should  sup- 
port the  Commonwealth  with  all  their  power,  in 
return  for  liberty  of  religion. — Carte's  Letters,  i., 
216,  et  post.  We  find  a  letter  from  him  to  Crom- 
well in  16-56  (Thurloe,  iv.,  591),  with  great  protesta- 
tions of  duty. 

t  See  Lords'  Joonials,  June  and  July,  1661,  or  ex- 
tracts from  them  in  Kennet's  Register,  469,  &c., 
620,  Sec,  and  798,  where  are  several  other  partic- 
ulars worthy  of  notice.  Clarendon,  143,  explains 
the  failure  of  this  attempt  at  a  partial  toleration 
(for  it  was  only  meant  as  to  the  exercise  of  relig- 
ious rites  in  private  houses)  by  the  persevering  op- 
position of  the  Jesuits  to  the  Oath  of  Allegiance,  to 
which  the  lay  Catholics,  and  generally  the  secular 
priests,  had  long  ceased  to  make  objection.  The 
House  had  voted  that  the  Indulgence  should  not 


There  can  be  no  sort  of  doubt  that  the 
king's  natural  facility,  and  exemp-  ^.^^ 
tion  from  all  prejudice  in  favor  of  kmj  toward 
established  laws,  would  have  led  '''^™' 
him  to  afiord  every  indulgence  that  could 
be  demanded  to  his  Catholic  subjects,  many 
of  whom  were  his  companions  or  his  coun- 
selors, without  any  propensity  toward  their 
religion.  But  it  is  morally  certain  that,  dur- 
ing the  period  of  his  banishment,  he  had 
imbibed,  as  deeply  and  seriously  as  the 
character  of  his  mind  would  permit,  a  per- 
suasion that,  if  any  scheme  of  Christianity 
were  true,  it  could  only  be  found  in  the  bo- 
som of  an  infallible  church,  though  he  was 
never  reconciled,  according  to  the  formal 
profession  which  she  exacts,  till  the  last 
hours  of  his  life.  The  secret,  however,  of 
his  inclinations,  though  disguised  to  the 
world  by  the  appearance,  and  probably 
sometimes  more  than  the  appearance,  of 
carelessness  and  infidelity,  could  not  be 
wholly  concealed  from  his  court.  It  ap- 
pears the  most  natural  mode  of  accounting 
for  the  sudden  conversion  of  the  Earl  of 
Bristol  to  jmpeiy,  which  is  generally  agreed 
to  have  been  insincere.  An  ambitious  in- 
ti'iguer,  holding  the  post  of  secretary  of 
state,  would  not  have  ventured  such  a  step 
without  some  grounds  of  confidence  in  his 
master's  wishes,  though  his  charticteristic 
precipitancy  hurried  him  forward  to  desti'oy 
his  own  hopes.  Nor  are  there  wanting 
proofs  that  the  Protestantism  of  both  the 
brothers  was  greatly  suspected  in  England 
before  the  Restoration.*  These  suspicions 
extend  to  Jesuits,  and  that  they  would  not  alter  the 
oaths  of  allegiance  or  supremacy.  The  Jesuits  com- 
plained of  the  distinction  taken  against  them;  and 
asserted,  in  a  printed  tract  (Keunet,  ubi  supra),  that 
since  1616  they  had  been  inhibited  by  their  supe- 
riors from  maintaining  the  pope's  right  to  depose 
sovereigns.  See,  also,  Butler's  Mem.  of  Catholics, 
ii.,  27  ;  iv.,  142  ;  and  Burnet,  i.,  194. 

*  The  suspicions  against  Charles  were  yeiy 
strong  in  England  before  the  Restoration,  so  as  to 
alarm  his  emissaries:  "Your  master,"  Mordaunt 
writes  to  Onnond,  Nov.  10,  1659,  "  is  utterly  ruin- 
ed as  to  his  interest  here  in  whatever  party,  if  this 
be  true." — Carte's  Letters,  ii.,  264,  and  Clar.  State 
Papers,  iii.,  602.  But  an  anecdote  related  in  Carte's 
Life  of  Omiond,  ii.,  255,  and  Harris's  Lives,  v.,  54, 
which  has  obtained  some  credit,  proves,  if  true, 
that  he  had  embraced  the  Roman  Catholic  religion 
as  early  as  1639,  so  as  even  to  attend  mass.  This 
can  not  be  reckoned  out  of  question  ;  but  the  tend- 
ency of  the  king's  mind  before  his  return  to  Eng- 
land is  to  be  inferred  from  all  his  behavior.  Keu- 
net (Complete  Hist,  of  England,  iii.,  237)  plainly 


428 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


acquired  strength  after  the  king's  return, 
through  his  manifest  intention  not  to  marry 
a  Protestant;  and  still  more  through  the 
presumptuous  demeanor  of  the  opposite 
party,  which  seemed  to  indicate  some  surer 
gi-ounds  of  confidence  than  were  yet  mani- 
fest. The  new  Parliament,  in  its  first  ses- 
Bion,  had  made  it  penal  to  say  that  the  king 
was  a  papist  or  popishly  afl'ected,  whence 
the  prevalence  of  that  scandal  may  be  in- 
ferred.* 

Charles  had  no  assistance  to  expect,  in 
Resisted  by  his  scheme  of  gi-anting  a  full  tol- 
aildTKe'par-  oration  to  the  Roman  faith,  from 
liament.  hig  chief  adviser,  Clarendon.  A 
repeal  of  the  sanguinary  laws  ;  a  reasona- 
ble connivance  ;  perhaps,  in  some  cases,  a 
dispensation — to  these  favors  he  would  have 
acceded  ;  but,  in  his  creed  of  policy,  the  le- 
gal allowance  of  any  but  the  established  re- 
ligion was  inconsistent  with  public  order, 
and  with  the  king's  ecclesiastical  preroga- 
tive. This  was  also  a  fixed  principle  with 
the  Parliament,  whose  implacable  resent- 
ment toward  the  sectaries  had  not  inclined 
them  to  abate  in  the  least  of  their  abhor- 
rence and  apprehension  of  popery.  The 
Church  of  England,  distinctly  and  exclusive- 
ly, was  their  rallying-point ;  the  crown  it- 
self stood  only  second  in  their  aflTections. 
The  king,  therefore,  had  recourse  to  a  more 
subtle  and  indirect  policy.  If  the  terms  of 
conformity  had  been  so  far  relaxed  as  to 
suffer  the  continuance  of  the  Presbyterian 
clergy  in  their  benefices,  there  was  every 
reason  to  expect  from  their  known  dispo- 
sition a  determined  hostility  to  all  approach- 
es toward  popery,  and  even  to  its  tolera- 
tion. It  was,  therefore,  the  policy  of  those 
who  had  the  interests  of  that  cause  at  heart, 
to  permit  no  deviation  from  the  Act  of  Uni- 
formity, to  resist  all  endeavors  at  a  compre- 
hension of  Dissenters  within  the  pale  of  the 
Church,  and  to  make  them  look  up  to  the 
king  for  indulgence  in  their  separate  way 
of  worship.  They  were  to  be  taught  that, 
amenable  to  the  same  laws  as  the  Roman- 
ists, exposed  to  the  oppression  of  the  same 
enemies,  they  must  act  in  concert  foi-  a  com- 
mon benefit. f  The  Presbyterian  ministers, 
disheartened  at  the  violence  of  the  Parlia- 

insinuates  that  the  project  for  restoring  popery  be- 
gan at  the  treaty  of  the  PjTenees ;  and  see  his 
Register,  p.  852.  *  13  Car.  XL,  c.  1. 

t  Burnet,  i.,  179. 


ment,  had  recourse  to  Charles,  whose  affa- 
bility and  fair  promises  they  were  loth  to 
distrust ;  and  implored  his  dispensation  for 
their  non-conformity.  The  king,  naturally 
in-esolute,  and  doubtless  sensible  that  he 
had  made  a  bad  return  to  those  who  had 
contributed  so  much  toward  his  restoration, 
was  induced,  at  the  strong  solicitation  of 
Lord  Manchester,  to  promise  that  he  would 
issue  a  declaration  suspending  the  execu- 
tion of  the  statute  for  three  months.  Clar- 
endon, though  he  had  been  averse  to  some 
of  the  rigorous  clauses  inserted  in  the  Act 
of  Uniformity,  was  of  opinion  that,  once 
passed,  it  ought  to  be  enforced  without  any 
connivance ;  and  told  the  king,  likewise,  that 
it  was  not  in  his  power  to  preserve  those 
who  did  not  comply  with  it  from  depriva- 
tion ;  yet,  as  the  king's  word  had  been  given, 
he  advised  him  rather  to  issue  such  a  dec- 
laration than  to  break  his  promise  ;  but,  the 
bishops  vehemently  remonstrating  against 
it,  and  intimating  that  they  would  not  be 
parties  to  a  violation  of  the  law,  by  refusing 
to  institute  a  clerk  presented  by  the  patron 
on  an  avoidance  for  want  of  conformity  in 
the  incumbent,  the  king  gave  way,  and  re- 
solved to  make  no  kind  of  concession.  It  is 
remarkable  that  the  noble  historian  does  not 
seem  struck  at  the  enormous  and  unconsti- 
tutional prerogative  which  a  proclamation 
suspending  the  statute  would  have  assum- 
ed.* 

Instead  of  this  very  objectionable  meas- 
ure, the  kins  adopted  one  less  ar-  T^  ,  .• 
bitraiy,  and  more  consonant  to  his  for  indul- 
own  secret  policy.  He  publish-  s^""^*- 
ed  a  declaration  in  favor  of  liberty  of  con- 
science, for  which  no  provision  had  been 
made,  so  as  to  redeem  the  promises  he  had 
held  forth  at  his  accession.  Adverting  to 
these,  he  declared  that,  "as  in  the  first 
place  he  had  been  zealous  to  settle  the  uni- 
formity of  the  Church  of  England  in  dis- 
cipline, ceremony,  and  {government,  and 
should  ever  constantly  maintain  it ;  so  as 
for  what  concerns  the  penalties  upon  those 
who,  living  peaceably,  do  not  conform  them- 
selves thereto,  he  should  make  it  his  spe- 
cial care,  so  far  as  in  him  lay,  without  in- 

*  Life  of  Clarendon,  159.  He  intimates  that  this 
begot  a  coldness  in  the  bishops  toward  himself, 
which  was  never  fully  removed.  Yet  he  had  no 
reason  to  complain  of  them  on  his  trial. — See,  too, 
Pepy's  Diary,  Sept.  3,  1662. 


Cha.  II.— 1C60-73.] 


FROM  HENRY  VII.  TO  GEORGK  II. 


429 


vading  the  freedom  of  Parliament,  to  incline 
their  wisdom  next  approaching  sessions  to 
concur  with  him  in  making  some  such  act 
for  that  purpose  as  may  enable  him  to  ex- 
ercise with  a  more  universal  satisfaction 
that  power  of  dispensing,  which  he  conceiv- 
ed to  be  inherent  in  him."* 

The  aim  of  this  declaration  was  to  obtain 
from  Parliament  a  mitigation,  at  least,  of 
all  penal  statutes  in  matters  of  religion,  but 
more  to  serve  the  interests  of  Catholic  than 
of  Protestant  uon-conformity.f  Except, 
however,  the  allusion  to  the  dispensing 
power,  which  yet  is  very  moderately  alleg- 
ed, there  was  nothing  in  it,  according  to  our 
present  opinions,  that  should  have  created 
r,x.   .  1 .    offense.    But  the  Commons,  on 

Objected  to 

by  the  Com-  their  meeting  in  February,  1663, 
moos-  presented  an  address,  denying 
that  any  obligation  lay  on  the  king  by  virtue 
of  his  declaration  from  Breda,  which  must 
be  understood  to  depend  on  the  advice  of 
Parliament,  and  slightly  intimating  that  he 
possessed  no  such  dispensing  prerogative  as 
was  suggested.  They  sti-ongly  objected  to 
the  whole  scheme  of  indulgence,  as  the 
means  of  increasing  sectaries,  and  rather 
likely  to  occasion  disturbance  than  to  pro- 
mote peace. t  They  remonstrated,  in  an- 
other address,  against  the  release  of  Cala- 
my,  an  eminent  Dissenter,  who,  having 
been  imprisoned  for  transgressing  the  Act 
of  Uniformity,  was  irregularly  set  at  liberty 
by  the  king's  personal  oi'der.§  The  king, 
undeceived  as  to  the  disposition  of  this  loyal 
assembly  to  concur  in  liis  projects  of  relig- 
ious liberty,  was  driven  to  more  tedious  and 
indirect  courses  in  order  to  compass  his  end. 
He  had  the  mortification  of  finding  that  the 
House  of  Commons  had  imbibed,  partly, 

"•"ParrHist.,  25?: 

t  Baxter  intimates,  429,  that  some  disagi'eement 
arose  between  the  Presbyterians  and  Independents 
as  to  tlie  toleration  of  popery,  or  rather,  as  he  puts 
it,  as  to  the  active  concurrence  of  the  Protestant 
Dissenters  in  accepting  such  a  toleration  as  should 
include  popery.  The  latter,  conformably  to  their 
general  principles,  were  favorable  to  it ;  but  the 
former  would  not  make  themselves  parties  to  any 
relaxation  of  the  penal  laws  against  the  Church  of 
Rome,  leaving  the  king  to  act  as  he  thought  fit. 
By  this  stiffness  it  is  very  probable  that  they  pro- 
voked a  good  deal  of  persecution  from  the  court, 
which  they  might  have  avoided  by  falling  into  its 
views  of  a  general  indulgence. 

f  Pari.  Hist.,  2C0.  An  adjournment  bad  been 
moved,  and  lost  by  ICl  to  119. — Journals,  25th  of 
Feb.  §  19th  of  Feb.    Baxter,  p.  429. 


perhaps,  in  consequence  of  this  declaration, 
that  jealous  apprehension  of  popery,  which 
had  caused  so  much  of  his  father's  ill  for- 
tune. On  this  topic  the  watchfulness  of 
an  English  Parliament  could  never  be  long 
at  rest.  The  notorious  insolence  of  the 
Romish  priests,  who,  proud  of  the  court's 
favor,  disdained  to  respect  the  laws  enough 
to  disguise  themselves,  provoked  an  address 
to  the  king,  that  they  might  be  sent  out  of 
the  kingdom ;  and  bills  were  brought  in  to 
prevent  the  further  growth  of  popery.* 

Meanwhile,  the  same  remedy,  so  infalli- 
ble in  the  eyes  of  legislators,  was  not  for- 
gotten to  be  applied  to  the  opposite  disease 
of  Protestant  dissent.  Some  had  believed, 
of  whom  Clarendon  seems  to  have  been, 
that  all  scruples  of  tender  conscience  in  the 
Presbyterian  clergy  being  faction  and  hy- 
pocrisy, they  would  submit  very  quietly  to 
the  law  when  they  found  all  their  clamor 
unavailing  to  obtain  a  dispensation  from  it. 
The  resignation  of  2000  beneficed  ministers 
at  once,  instead  of  extorting  praise,  rather 
inflamed  the  resentment  of  their  bigoted 
enemies,  especially  Avhen  they  perceived 
that  a  public  and  perpetual  toleration  of  sep- 
arate worship  was  favored  by  part  of  the 
court.    Rumors  of  conspiracy  and  insurrec- 

*  Journals,  17tb  and  28th  of  March,  1663.  Pari. 
Hist.,  264.  Burnet,  274,  says  the  Declaration  of 
Indulgence  was  usually  ascribed  to  Bristol,  hut,  in 
fact,  proceeded  from  the  king,  and  that  the  opposi- 
ti<in  to  it  in  the  House  was  chiefly  made  by  the 
friends  of  Clarendon.  The  latter  tells  us  in  his 
Life,  189,  tliat  the  king  was  displeased  at  the  inso- 
lence of  tlie  Romish  party,  and  gave  the  judges 
general  orders  to  convict  recusants.  The  minister 
and  historian  either  was,  or  pretended  to  be,  his 
master's  dupe  ;  and,  if  he  bad  any  suspicions  of 
what  was  meant  as  to  religion  (as  he  must  surely 
have  had),  is  far  too  loyal  to  hint  them.  Yet  the 
one  circumstance  he  mentions  soon  after,  that  the 
Countess  of  Castlemaine  suddenly  declared  her- 
self a  Catholic,  was  enougli  to  open  his  eyes  and 
those  of  the  world. 

Tlie  Romish  partisans  assumed  the  tone  of 
high  loyalty,  as  exclusively  characteristic  of  their 
religion ;  but  afi'ected,  at  this  time,  to  use  great 
civility  toward  the  Church  of  England.  A  book, 
entitled  Philauax  Anglicus,  published  under  the 
name  of  Bellamy,  the  second  edition  of  which  is  in 
1G63,  after  a  most  flattering  dedication  to  Sheldon, 
lanches  into  virulent  abuse  of  the  Presbyterians 
and  of  the  Refonnatiou  in  general,  as  founded  on 
principles  adverse  to  monarchy.  This,  indeed,  was 
common  with  the  ultra  or  High-Church  pai-ty;  but 
the  work  in  question,  though  it  purports  to  be 
written  by  a  clergyman,  is  manifestly  a  shaft  from 
the  concealed  bow  of  the  Roman  Apollo. 


430 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


tion,  sometimes  false,  but  gaining  credit  from 
the  notorious  discontent  both  of  the  old  Com- 
monwealth's party,  and  of  many  who  had 
never  been  on  that  side,  were  sedulously 
propagated,  in  order  to  keep  up  the  animos- 
ity of  Parliament  against  the  ejected  cler- 
Act  against  !*  and  these  ai'e  recited  as  the 
convpiiticies.  pretext  of  an  act  passed  in  1664 
for  suppressing  seditious  conventicles  (the 
epithet  being  in  this  place  wantonly  and  un- 
justly insulting),  which  inflicted  on  all  per- 
sons above  the  age  of  sixteen,  present  at 
any  religious  meeting  in  other  manner  than 
is  allowed  by  the  practice  of  the  Church 
of  England,  where  five  or  more  persons  be- 
sides the  household  should  be  present,  a 
penalty  of  three  months'  imprisonment  for 
the  first  offense,  of  six  for  the  second,  and  of 
seven  years'  transportation  for  the  third,  on 
conviction  before  a  single  justice  of  peace. f 
This  act,  says  Clarendon,  if  it  had  been  vig- 
orously executed,  would  no  doubt  have  pro- 
duced a  thorough  reformation. t  Such  is 
ever  the  language  of  the  supporters  of  tyr- 
anny ;  when  oppi-ession  does  not  succeed, 
it  is  because  there  has  been  too  little  of  it. 
But  those  who  sufTered  under  this  statute 
report  very  differently  as  to  its  vigorous  ex- 
ecution. The  jails  were  filled,  not  only 
with  ministers  who  had  borne  the  brunt  of 
former  persecutions,  but  with  the  laity  who 

*  See  pi'oofs  of  this  in  Ralph,  53,  Rapiii,  p.  78. 
There  v^as  in  1663  a  tinfling  insnrrection  in  York- 
shire, which  tlie  goveniment  wished  to  have  been 
more  serious,  so  as  to  afford  a  better  pretext  for 
Bti'ong  measures  ;  as  may  be  collected  from  a  pas- 
sage in  a  letter  of  Bennet  to  the  Duke  of  Ormond, 
where  he  says,  "The  countiy  was  in  greater 
readiness  to  prevent  the  disorders  than  perhaps 
were  to  be  wished  ;  but  it  being  the  effect  of  their 
own  care  rather  than  his  majesty's  commands,  it 
is  the  less  to  be  censured."  Clarendon,  218,  speaks 
of  tliis  as  an  important  and  extensive  conspiracy ; 
and  the  king  dwelt  on  it  in  his  next  speech  to  the 
Parliament.— Pari.  Hist.,  28!). 

t  16  Car.  II.,  c.  4.  A  similar  bill  had  passed  the 
Commons  iu  July,  1663,  but  hung  some  time  in  the 
Upper  House,  and  was  much  debated  ;  the  Com- 
mons sent  up  a  message  (an  in-egular  practice  of 
those  times)  to  request  their  lordships  would  ex- 
pedite this  and  some  other  bills.  The  king  seems 
to  have  been  displeased  at  this  delay;  for  he  told 
them  at  their  prorogation  that  he  had  expected 
Bome  bills  against  conventicles  and  distempers  iu 
religion,  as  well  as  the  growth  of  popery,  and 
should  himself  present  some  at  their  next  meeting. 
— Pari.  Hist.,  288.  Burnet  observes,  that  to  em- 
power a  justice  of  peace  to  convict  without  ajuiy, 
was  thouTht  a  gi'cat  breach  ou  the  px-iuciples  of  the 
English  Constitution,  285.  t  P.  221. 


attended  them ;  and  the  hardship  was  the 
more  grievous,  that  the  act  being  ambigu- 
ously worded,  its  construction  ^yas  left  to  a 
single  magistrate,  generally  very  adverse  to 
the  accused. 

It  is  the  natural  consequence  of  restrict- 
ive laws  to  aggravate  the  disaffec-  , 

,  .  ,  ,  Another  of 

tion  which  has  served  as  their  pre-  the  same 
text,  and  thus  to  create  a  necessi- 
ty  for  a  Legislature  that  will  not  reti-ace  its 
steps,  to  pass  still  onward  in  the  course  of 
severity.  In  the  next  session,  accordingly, 
held  at  Oxford  in  1665,  on  account  of  the 
plague  that  ravaged  the  capital,  we  find  a 
new  and  more  inevitable  blow  aimed  at  the 
fallen  church  of  Calvin.  It  was  enacted 
that  all  persons  in  holy  orders,  who  had  not 
subscribed  the  Act  of  Uniformity,  should 
swear  that  it  is  not  lawful,  upon  any  pre- 
tense whatsoever,  to  take  arms  against  the 
king ;  and  that  they  did  abhor  that  traitor- 
ous position  of  taking  arms  by  his  authority 
against  his  person,  or  against  those  that  are 
commissioned  by  him,  and  would  not  at  any 
time  endeavor  any  alteration  of  government 
in  Church  or  State.  Those  who  refused 
this  oath  were  not  only  made  incapable  of 
teaching  in  schools,  but  prohibited  from 
coming  within  five  miles  of  any  city,  corpo- 
rate town,  or  borough  sending  members  to 
Parliament.* 

This  persecuting  statute  did  not  pass 
without  the  opposition  of  the  Earl  Remarks  on 
of  Southampton,  lord-ti'easurer, 
and  other  peers ;  but  Archbishop  Sheldon, 
and  several  bishops,  strongly  supported  the 
bill,  which  had  undoubtedly  the  sanction, 
also,  of  Clarendon's  authonty.f  In  the 
Commons  I  do  not  find  that  any  division 
took  place,  but  an  unsuccessful  attempt  was 
made  to  insert  the  word  "legally"  before 
commissioned  ;  the  lawyers,  however,  de- 
clared that  this  word  must  be  imderstood.f 
Some  of  the  non-conforming  clergy  took 
the  oath  upon  this  consti'uction ;  but  the 
far  gi-cater  number  refused.  Even  if  they 
could  have  borne  the  solemn  assertion  of 
the  principles  of  passive  obedience  in  all 
possible  cases,  their  scrupulous  consciences 
revolted  from  a  pledge  to  endeavor  no  kind 
of  alteration  in  Church  and  State ;  an  en- 
gagement, in  its  extended  sense,  irreconcil- 

*  17  Car.  II.,  c.  2. 

t  Burnet.  Baxter,  part  iii.,  p.  2.  Neal,  p.  652. 
t  Bui-uet.  Baxter. 


Cha.  11.— 16fi0-73.] 


FROM  HENRY  V: 


IT.  TO  GEORGE  II. 


431 


able  with  their  own  principles  in  religion, 
and  with  the  civil  duties  of  Englishmen. 
Yet  to  quit  the  towns  where  they  had  long 
been  connected,  and  where  alone  they  had 
friends  and  disciples,  for  a  residence  in  coun- 
try villages,  Avas  an  exclusion  from  the  ordi- 
nary means  of  subsistence.  The  Church 
of  England  had  doubtless  her  provocations  ; 
but  she  made  the  retaliation  much  more 
than  commensurate  to  the  injury.  No  se- 
verity, comparable  to  this  cold-l)looded  pei-- 
secution,  had  been  inflicted  by  the  late  pow- 
ers, even  in  the  ferment  and  fuiy  of  a  civil 
war.  Encouraged  by  this  easy  triumph, 
the  violent  party  in  the  House  of  Commons 
thought  it  a  good  opportunity  to  give  the 
same  test  a  more  sweeping  application.  A 
bill  was  brought  in  imposing  this  oath  upon 
the  whole  nation ;  that  is,  I  presume  (for  I 
do  not  know  that  its  precise  nature  is  any 
where  explained),  on  all  persons  in  any  pub- 
lic or  municipal  ti'ust.  Tliis,  however,  was 
lost  on  a  division  by  a  small  majority.* 

It  has  been  remarked  that  there  is  no 
other  instance  in  history  where  men  have 
suffered  persecution  on  account  of  differ- 
ences which  were  admitted  by  those  who 
inflicted  it  to  be  of  such  small  moment;  but, 
supposing  this  to  be  true,  it  only  proves, 
what  may,  perhaps,  be  alleged  as  a  sort  of 
extenuation  of  these  severe  laws  against 
Non-conformists,  that  they,  were  merely 
political,  and  did  not  spring  from  any  theo- 
logical bigotiy.  Sheldon,  indeed,  tlieir  great 
promoter,  was  so  free  from  an  intolerant 
zeal,  that  he  is  represented  as  a  man  who 
considered  religion  chiefly  as  an  engine  of 
policy.  The  principles  of  religious  tolera- 
tion had  already  gained  considerable  ground 
over  mere  bigotry,  but  were  still  obnoxious 
to  the  arbitrary  temper  of  some  politicians, 
and  wanted,  perhaps,  experimental  proof 
of  their  safety  to  recommend  them  to  the 
caution  of  others.  There  can  be  no  doubt 
that  all  laws  against  dissent  and  separation 
from  an  established  church,  those  even  of 
the  Inquisition,  have  proceeded  in  a  greater 

*  Mr.  Locke,  in  the  "Letter  from  a  Person  of 
Quality  to  his  Friend  in  the  Country,"  printed  in 
1675  (see  it  in  his  works,  or  in  Parliamentary  His- 
tory, vol.  iv.,  Appendix,  No.  5),  sajs  it  was  lost 
by  three  votes,  and  mentions  the  persons.  But 
the  numbers  in  the  Journals,  October  27,  166.5,  ap- 
pear to  be  .57  to  .51.  Probably  he  meant  that  those 
persons  might  have  been  expected  to  vote  the  oth- 
er way. 


or  less  degree  from  political  motives  ;  and 
these  appear  to  me  far  less  odious  than  the 
disinterested  rancor  of  superstition.  The 
latter  is  very  common  among  the  populace, 
and  sometimes  among  the  clergy.  Thus 
the  Presbyterians  exclaimed  against  the 
toleration  of  popery,  not  as  dangerous  to 
the  Protestant  establishment,  but  as  a  sin- 
ful compromise  with  idolatry  ;  language 
which,  after  the  first  heat  of  the  Reforma- 
tion had  abated,  was  never  so  cuirent  in  the 
Anglican  Church.*  In  the  case  of  these 
statutes  against  Non-conformists  under 
Charles  II.,  revenge  and  fear  seem  to  have 
been  the  unmixed  passions  that  excited  the 
Church  party  against  those  whose  former 
su])eriority  they  remembered,  and  whose 
disaflfection  and  hostility  it  was  impossible 
to  doubt.f 

A  joy  so  excessive  and  indiscriminating 
had  accompanied  the  king's  restoration,  that 


*  A  pamphlet,  with  Baxter's  name  subscribed, 
called  Fair  Warning,  or  XXV.  Reasons  against 
Toleration  and  Indulgence  of  Popery,  1C63,  is  a 
pleasant  specimen  of  this  argumenluni  ah  inferno. 
"  Being  there  is  but  one  safe  way  to  salvation,  do 
you  think  that  the  Protestant  waj'  is  that  way,  or 
is  it  not  ?  If  it  be  not,  why  do  you  live  in  it  ?  If 
it  be,  how  can  you  find  in  your  heart  to  give  your 
subjects  liberty  to  go  another  way  ?  Can  you,  in 
your  conscience,  give  them  leave  to  go  on  in  that 
course  in  which,  in  your  conscience,  you  think  you 
could  not  be  saved  ?"  Baxter,  however,  does  not 
mention  tins  little  book  in  his  life,  nor  does  he  there 
speak  violently  about  the  toleration  of  Romanists. 

t  The  clergy  had  petitioned  the  House  of  Com- 
mons in  1664,  inter  alia,  "That  for  the  better  ob- 
servation of  the  Lord's  day,  and  fur  the  promoting 
of  conformity,  you  would  be  pleased  to  advance 
the  pecuniary  mulct  of  twelve  pence  for  each  ab- 
sence from  divine  sei"vice,  in  proportion  to  the  de- 
gree, quality,  and  ability  of  the  delinquent ;  that 
so  the  penalty  may  be  of  force  sufficient  to  con- 
quer the  obstinacy  of  the  Non-conformists." — Wil- 
kin's Concilia,  iv.,  580.  Letters  from  Sheldon  to 
the  commissary  of  the  diocese  of  Cantei-bury,  in 
1669  and  1670,  occur  in  the  same  collection,  p.  588, 
589,  directing  him  to  inquire  abput  conventicles  j 
and  if  they  can  not  be  restrained  by  ecclesiastical 
authority,  to  apply  to  the  next  justice  of  the  peace 
in  order  to  put  them  down.  A  proclamation  ap- 
pears al.so  from  the  king,  enjoining  magistrates  to 
do  this.  In  1673,  the  archbishop  writes  a  circular 
to  his  suffragans,  directing  them  to  proceed  against 
such  as  keep  schools  without  license. — P.  593. 

See  in  the  .Somers  Tracts,  vii.,  586,  a  "  ti'ue  and 
faitliful  narrative"  of  the  severities  practiced  against 
Non  confoi-mists  about  this  time.  Baxter's  Life 
is  also  full  of  proofs  of  persecution ;  but  the  most 
complete  register  is  in  Calamy's  account  of  the 
ejected  clcrgj'. 


432 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


^.  .  ,  no  piTidence  or  virtue  iu  his  gov- 
tion  increas-  eminent  coulu  have  averted  that 
reaction  of  popular  sentiment, 
whicli  inevitably  follows  the  disappointment 
of  unreasonable  hope.  Those  who  lay  their 
account  upon  blessings,  which  no  course  of 
political  administi'ation  can  bestow,  live,  ac- 
coi'ding  to  the  poet's  comparison,  like  the 
sick  man,  perpetually  changing  posture  in 
search  of  the  rest  which  natm-e  denies  ;  the 
dupes  of  successive  revolutions,  sanguine  as 
children  in  all  the  novelties  of  politics,  a  new 
Constitution,  a  new  sovereign,  a  new  minis- 
ter, and  as  angiy  with  the  playthings  when 
they  fall  short  of  their  desires.  What,  then, 
was  the  discontent  that  must  have  ensued 
upon  the  restoration  of  Charles  II.  ?  The 
neglected  Cavalier,  the  persecuted  Presby- 
terian, the  disbanded  officer,  had  each  his 
grievance,  and  felt  that  he  was  either  in  a 
worse  situation  than  he  had  formerly  been, 
or,  at  least,  than  he  had  expected  to  be. 
Though  there  were  not  the  violent  acts  of 
militaiy  power,  which  had  strack  eveiy 
man's  ej*es  under  Cromwell,  it  can  not  be 
said  that  personal  liberty  was  secure,  or  that 
the  magistrates  had  not  considerable  power 
of  oppression,  and  that  pretty  unsparinglj' 
exercised  toward  those  suspected  of  disaf- 
fection. The  religious  persecution  was  not 
only  far  more  severe  than  it  was  ever  during 
the  Commonwealth,  but  perhaps  more  ex- 
tensively felt  than  under  Charles  I.  Though 
the  monthly  assessments  for  the  support  of 
the  arnij'  ceased  soon  after  the  Restoration, 
several  large  grants  were  made  by  Parlia- 
ment, especially  during  the  Dutch  war; 
and  it  appears  that  in  the  first  seven  years 
of  Charles  II.  the  nation  paid  a  far  gi-eater 
sum  in  taxes  than  in  any  preceding  period 
of  the  same  duration.*  If,  then,  the  peo- 
ple compared  the  national  fruits  of  their  ex- 
penditure, what  a  contrast  they  found,  how 
deplorable  a  falling  off  in  public  honor  and 

*  [Bishop  Paj'ker.  certainly  no  enemy  to  the  ad- 
ministration of  Charles  II.,  owns  that  nothing  did 
tlie  king  so  much  harm  as  the  immense  grant  of 
X-2,.'j00,000  in  1TC4,  to  be  levied  iu  three  years ; 
from  which  time  lie  thought  that  he  should  never 
want  money,  and  put  no  restraint  on  his  expenses. 
— Hist,  of  his  own  Time,  p.  2-1.5.  In  the  session  of 
166C,  great  difficulties  were  found,  as  Marvell  teUs 
us,  in  raising  monej-;  "the  nation's  extreme  ne- 
cessity makes  us  exceedingly  tender  whereupon 
to  fasten  our  resolutions." — Marvell's  Letters  (iu 
his  works),  Nov.  6.] — 1845. 


dignity  since  the  days  of  the  magnanimous 
usurper  I*  They  saw  with  indignation  that 
Dunkirk,  acquired  by  Cromwell,  had  been 
chaffered  away  by  Charles  (a  transaction 
justifiable,  perhaps,  on  the  mere  balance  of 
profit  and  loss,  but  certainly  derogatory  to 
the  pride  of  a  great  nation) ;  that  a  war, 
needlessly  commenced,  had  been  carried  on 
with  much  display  of  braveiy  in  our  sea- 
men and  their  commanders,  but  no  sort  of 
good  conduct  in  the  government ;  and  that 
a  petty  northern  potentate,  who  would  have 
trembled  at  the  name  of  the  Commonwealth, 
had  broken  his  faith  toward  us  out  of  mere 
contempt  of  our  inefficiency.! 

These  discontents  were  heightened  by 
the  private  conduct  of  Charles,  if  private  bfe 
the  life  of  a  king  can  in  any  sense  '*>^ 
be  private,  by  a  dissoluteness  and  contempt 
of  moral  opinion,  which  a  nation,  still,  in  the 
main,  grave  and  religious,  could  not  endure. 
The  austere  character  of  the  last  king  had 
repressed  to  a  considerable  degree  the  com- 
mon vices  of  a  court,  which  had  gone  to  a 
scandalous  excess  under  James.    But  the 
Cavaliers  in  general  affected  a  profligacy  of 
j  manners,  as  their  distinction  from  the  fa- 
I  natical  paitj',  which  gained  gi-ound  among 
I  those  who  followed  the  king's  fortunes  in 

!     *  Pepys  observes,  12th  of  July,  1667,  "how  ev- 
I  ery  body  nowadays  reflect  upon  Oliver  and  com- 
j  mend  him,  what  brave  things  he  did,  and  made  aU 
the  neighbor  princes  fear  him." 
I     t  [Clarendon,  while  he  admits  these  discontents, 
and  complaints  of  the  decay  of  trade,  asserts  them 
to  be  unfounded.    No  estate  could  be  put  up  to 
'  sale  any  where  but  a  purchaser  was  found  for  it, 
'  vol.  ii.,  p.  364.    The  main  question,  however,  is, 
at  what  rate  he  would  purchase.    Rents,  he  owns, 
had  suddenly  fallen  25  per  cent.,  which  caused  a 
clamor  against  taxes,  presumed  to  be  the  cause  of 
'  it.    But  the  truth  is,  that  wheat,  which  had  been 
at  a  verj-  hitrh  price  for  a  few  years  just  before 
and  after  the  Restoration,  fell  about  1663 ;  and 
there  is  no  doubt  that  the  reign  of  Charles  U.  was 
j  not  favorable  to  the  landed  interest.    Lady  Sun- 
derland tells  us,  in  a  letter  of  1681,  that  "  the  man- 
'  or  of  Worme-Leighton,  which,  when  I  was  mar- 
ried [1662],  was  let  for  £3200,  is  now  let  for 
I  £2300." — Sidney's  Diary,  edited  by  Blencowe, 
j  1843,  vol.  i..  Introduction,  p.  73.    On  the  other 
hand.  Sir  Josiah  Child  asserts  that  there  were 
'  more  men  on  change  worth  £10,000  in  1680,  than 
there  were  iu  1660  worth  £1000,  and  that  a  hun- 
dred coaches  were  kept  for  one  formerly.  Lands 
yielded  twenty  years'  purchase,  which,  when  he 
was  young,  were  not  worth  above  eight  or  ten. — 
See  Macpherson's  Annals  of  Commerce,  ad  A.D. 
1660.]— 1845. 


Cha.  II.— 1660-73.] 


FllOM  HENRY  VII.  TO  GEORGE  II. 


433 


exile,  and  became  more  flagi-ant  after  the 
Restoration.*  Anecdotes  of  comt  excess- 
es, which  i-equired  not  the  aid  of  exaggera- 
tion, were  in  daily  circulation  through  the 
coftee-houses  ;  those  who  cai-ed  least  about 
the  vice  not  failing  to  inveigh  against  the 
scandal.  It  is  in  the  nature  of  a  limited 
monarchy  that  men  should  censure  very 
freely  the  private  lives  of  their  princes,  as 
6eing  more  exempt  from  that  immoral  ser- 
vility which  blinds  itself  to  the  distinctions 
of  right  and  wrong  in  elevated  rank;  and  as 
a  voluptuous  court  will  always  appear  prod- 
igal, because  all  expense  in  vice  is  needless, 
they  had  the  mortification  of  believing  that 
the  public  revenues  were  wasted  on  the  vil- 
est associates  of  the  king's  debauchery.  We 
are,  however,  much  indebted  to  the  memo- 
ry of  Barbara,  duchess  of  Cleveland,  Louisa, 
duchess  of  Portsmouth,  and  Mrs.  Eleanor 
Gwyn.  We  owe  a  tribute  of  gi-atitude  to 
tlie  Mays,  the  Killigrews,  the  Chiffinches, 
and  the  Grammonts.  They  played  a  serv- 
iceable part  in  ridding  the  kingdom  of  its 
besotted  loyalty.  They  saved  our  forefa- 
thers from  the  Star  Chamber  and  the  High 
Commission  Court ;  they  labored  in  their 
vocation  against  standing  armies  and  corrup- 
tion ;  they  pressed  forward  the  great  ulti- 
mate security  of  English  freedom,  the  ex- 
pulsion of  the  house  of  Stuart. f 

*  [Life  of  Clarendon,  p.  34.  Perhaps  he  lays  too 
mach  the  blame  of  this  on  the  sectaries ;  yet  we 
may  suspect  that  tlie  enthusiastic  and  Antinoraian 
conceits  of  these  men  had  relaxed  the  old  bonds  of 
morality,  and  paved  the  vcay  for  the  more  glaring 
licentiousness  of  the  Restoration.  See,  too,  Pepy's 
Diary,  Aug.  31,  1660,  for  the  rapid  increase  of  dis- 
soluteness about  tlie  court.] — 184.5. 

1  The  Memoires  de  Grammont  are  known  to  ev- 
ery body,  and  are  almost  unique  in  their  kind,  not 
only  for  the  grace  of  their  style  and  the  vivacity  of 
their  pictures,  but  for  the  happy  ignorance  in  which 
the  author  seems  to  have  lived,  that  any  one  of  its 
readers  could  imagine  that  there  are  such  things 
as  virtue  and  principle  in  the  worid.  In  the  delir- 
ium of  thoughtless  voluptuousness  they  resemble 
some  of  the  memoirs  about  the  end  of  Louis  XV. 's 
reign,  and  somewhat  later;  though  I  think,  even 
in  these,  there  is  generally  some  elfort,  here  and 
there,  at  moral  censure,  or  some  affectation  of  sens- 
ibility. They,  indeed,  have  always  an  awful  mor- 
al ;  and  in  the  light  porti'aits  of  the  court  of  Ver- 
sailles (such,  sometimes,  as  we  might  otherwise 
almost  blush  to  peruse),  we  have  before  us  the 
hand  writing  on  the  wall,  the  winter  whiriwiud 
bushed  in  its  grim  repose,  and  expecting  its  prey, 
the  vengeance  of  an  oppressed  people,  and  long-for- 
bearins  Deity.  No  such  retribution  fell  on  the 
E  E 


Among  the  ardent  Loyalists  who  formed 
the  bulk  of  the  present  P.irlia-  _ 

Opposition 

ment,  a  certain  number  of  a  dif-  in  Parlia- 
ferent  class  had  been  returned, 
not  sufficient  of  themselves  to  constitute  a 
veiy  effective  minority,  but  of  considerable 
importance  as  a  nucleus,  round  which  the 
lesser  factions  that  circumstances  should 
produce  might  be  gathered.  Long  sessions, 
and  a  long  continuance  of  the  same  Parlia- 
ment, have  an  inevitable  tendency  to  gener- 
ate a  systematic  opposition  to  the  measures 
of  the  crown,  which  it  requires  all  vigilance 
and  management  to  hinder  from  becoming 
too  powerful.  The  sense  of  personal  im- 
portance, the  desire  of  occupation  in  busi- 
ness (a  very  characteristic  propensity  of  the 
English  gentry),  the  various  induceznents 
of  private  passion  and  interest,  bring  forward 
so  many  active  spirits,  that  it  was,  even  in 
that  age,  as  reasonable  to  expect  that  the 
ocean  should  always  be  tranquil,  as  that  a 
House  of  Commons  should  continue  long  to 
do  the  king's  bidding  with  any  kind  of  una- 
nimity or  submission.  Nothing  can  more 
demonstrate  the  incompatibility  of  the  Tory 
scheme,  which  would  place  the  virtual  and 
effective,  as  well  as  nominal,  administration 
of  the  executive  government  in  the  sole 
hands  of  the  crown,  with  the  existence  of  a 
representative  assembly,  than  the  history 
of  this  Long  Parliament  of  Charles  H.* 
None  has  ever  been  elected  in  circumstan- 
ces so  favorable  for  the  crown,  none  ever 
brought  with  it  such  high  notions  of  prerog- 
ative ;  yet  in  this  assembly  a  party  soon 
grew  up,  and  gained  strength  in  everj'  suc- 
cessive year,  which  the  king  could  neither 
direct  nor  subdue.  The  methods  of  briberjs 
to  which  the  court  had  largely  recourse, 
though  they  certainly  diverted  some  of  the 

courtiers  of  Charles  II.,  but  they  earned  in  their 
own  age,  what  has  descended  to  posteritj',  though 
possibly  very  indifferent  to  themselves,  the  disgust 
and  aversion  of  all  that  was  respectable  among 
mankind. 

*  [Aubrey  relates  a  saying  of  Harrington  just  be- 
fore the  Restoration,  which  shows  his  sagacity. 
"Well!  the  king  will  come  in.  Let  him  come  in 
and  call  a  Parliament  of  the  greatest  Cavaliers  in 
England,  so  they  be  men  of  estates,  and  let  them 
sit  but  seven  years,  and  they  will  all  turn  Com- 
monwealth's men." — Letters  of  Aubrey  and  others, 
from  the  Bodleian,  vol.  ii.,  p.  373.  By  Common- 
wealth's men  he  probably  meant  only  men  who 
would  stand  up  for  public  liberty  against  the  crovm.] 
—1845. 


434 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


measures,  and  destroyed  the  character  of 
this  opposition,  proved,  in  the  end,  Yike  those 
dangerous  medicines  which  palliate  the  in- 
stant symptoms  of  a  disease  that  they  aggra- 
vate. The  leaders  of  this  Parliament  were, 
in  general,  very  corrupt  men ;  but  they 
knew  better  than  to  quit  the  power  which 
made  them  worth  purchase.  Thus  the 
House  of  Commons  matured  and  extended 
those  rights  of  inquiring  into  and  controlling 
the  management  of  public  affairs,  which  had 
caused  so  much  dispute  in  former  times ; 
and,  as  the  exercise  of  these  functions  be- 
came more  habitual,  and  passed  with  little 
or  no  open  resistance  from  the  crown,  the 
people  learned  to  reckon  them  unquestion- 
able or  even  fundamental,  and  were  prepai-ed 
for  that  more  perfect  settlement  of  the  Con- 
stitution on  a  more  Republican  basis,  which 
took  place  after  the  Revolution.  The  reign 
of  Charles  II.,  though  displaying  some 
stretches  of  arbitraiy  power,  and  threaten- 
ing a  great  deal  more,  was,  in  fact,  the  ti-an- 
sitional  state  between  the  ancient  and  mod- 
ern schemes  of  the  English  Constitution  ; 
between  that  course  of  government  where 
the  executive  power,  so  far  as  executive, 
was  very  little  bounded  except  by  the  laws, 
and  that  where  it  can  only  be  earned  on, 
even  within  its  own  province,  by  the  consent 
and  co-operation,  in  a  gi'eat  measure,  of  the 
Parliament. 

The  Commons  took  advantage  of  the 
pressure  which  the  war  with  Hol- 

Appropna-  ' 

tion  of  sup-  land  broughton  the  administration, 
P''*^'  to  establish  two  veiy  important 
principles  on  the  basis  of  their  sole  right  of 
taxation.  The  first  of  these  was  the  appro- 
priation of  supplies  to  limited  purposes. 
This,  indeed,  was  so  far  from  an  absolute 
novelty,  that  it  foimd  precedents  in  the 
reigns  of  Richard  II.  and  Henry  IV. ;  a 
period  when  the  authority  of  the  House  of 
Commons  was  at  a  very  high  pitch.  No 
subsequent  instance,  I  believe,  was  on  record 
till  the  year  1G24,  when  the  last  Parliament 
of  James  I.,  at  the  king's  own  suggestion,  di- 
rected their  supply  for  the  relief  of  the  Pa- 
latinate to  be  paid  into  the  hands  of  commis- 
sioners named  by  themselves.  There  were 
cases  of  a  similar  nature  in  the  year  1641, 
which,  though  of  course  they  could  no  lon- 
ger be  upheld  as  precedents,  had  accustomed 
tlie  House  to  the  idea  that  they  had  some- 
thing more  to  do  than  simply  to  grant  money, 


without  any  security  or  provision  for  its  ap- 
plication. In  the  session  of  166.5,  accord- 
ingly, an  enormous  supply,  as  it  then  ap- 
peared, of  <:£l,'j50,000,  after  one  of  double 
that  amount  in  the  preceding  year,  having 
been  voted  for  the  Dutch  war.  Sir  George 
Downing,  one  of  the  tellers  of  the  Excheq- 
uer, introduced  into  the  Subsidy  Bill  a  pro- 
viso that  the  money  raised  by  virtue  of  that 
act  should  be  applicable  only  to  the  purpo- 
ses of  the  war.*  Clarendon  inveighed  with 
fuiy  against  this,  as  an  innovation  derogato- 
ry to  the  honor  of  the  crown  ;  but  the  king 
himself,  having  listened  to  some  who  per- 
suaded him  that  the  money  would  be  ad- 
vanced more  easily  by  the  bankers,  in  antic- 
ipation of  the  revenue,  upon  this  better  se- 
curity for  speedy  repayment,  insisted  that 
it  should  not  be  thrown  out.f  That  supplies 
gi'anted  by  Parliament  are  only  to  be  ex- 
pended for  particular  objects  specified  by  it- 
self, became,  from  this  time,  an  undisputed 
principle,  recognized  by  frequent  and  at 
length  constant  practice.  It  drew  with  it 
the  necessity  of  estimates  regularly  laid  be- 
fore the  House  of  Commons ;  and,  by  ex- 
posing the  management  of  the  public  reve- 
nues, has  given  to  Parliament  not  only  a  real 
and  effective  control  over  an  essential  branch 
of  the  executive  administration,  but,  in  some 
measure,  rendered  them  partakers  in  it.J 

It  was  a  consequence  of  this  right  of  ap- 
propriation that  the  House  of  Commons 

*  This  was  carried  on  a  division  by  172  to  102. 
— Jounials,  25th  of  November,  1665.  It  was  to  be 
raised  "  in  a  regulated  subsidiary  way,  reducing  the 
same  to  a  certainty  in  all  counties,  so  as  no  person, 
for  his  real  or  personal  estate,  be  exempted." 
Thej'  seem  to  have  had  some  difficulty  in  raising 
this  vast  subsidy. — Parliamentary  History,  305. 

t  17  Car.  II.,  c.  1.  The  same  clause  is  repeated 
next  yeai*,  and  has  become  regular.  ["  The  bank- 
ers did  not  consist  of  above  the  number  of  five  or 
six  men,  some  whereof  were  aldermen,  and  had 
been  lord-mayors  of  London,  and  all  the  rest  were 
aldermen,  or  had  fined  for  aldermen.  They  were 
a  tribe  that  had  risen  and  grown  up  in  Cromwell's 
time,  and  never  were  heard  of  before  the  late 
ti-oubles,  till  when  the  whole  trade  of  money  had 
passed  through  the  hands  of  the  scriveners.  They 
were,  for  the  most  part,  goldsmiths,  men  known  to 
be  so  rich,  and  of  so  good  reputation,  that  all  the 
money  of  the  kingdom  would  be  trusted  or  depos- 
ited in  their  hands." — Life  of  Clarendon,  vol.  iii.,  p. 
7.]— 1845. 

t  Life  of  Clarendon,  p.  315.  Hatsell's  Prece- 
dents, iii.,  80.  The  principle  of  appropriation  was 
not  can  ied  into  full  effect  till  after  the  Revolution. 
—Id.,  179,  484. 


Cha.  II.— 1660-73.]  FROM  HENRY  VII.  TO  GEORGE  II. 


435 


.  .     should  be  able  to  satisfy  itself  as 

Commission  . 

of  public  to  the  expenditure  oi  their  mon- 
accounts.  -^^  jj^^  seiTices  for  which  they 

were  voted.  But  they  might  claim  a  more 
extensive  function,  as  naturally  derived  from 
their  power  of  opening  and  closing  the  pub- 
lic purse,  that  of  investigating  the  wi.sdom, 
faithfulness,  and  economy  with  which  their 
grants  had  been  expended.  For  this,  too, 
there  was  some  show  of  precedents  in  the 
ancient  days  of  Henry  IV. ;  but  what  un- 
doubtedly had  most  influence  was  the  recol- 
lection that,  during  the  late  civil  war,  and 
in  the  times  of  the  Commonwealth,  the 
House  had  superintended,  through  its  com- 
mittees, the  whole  receipts  and  issues  of  the 
national  treasuiy.  This  had  not  been  much 
practiced  since  the  Restoration.  But  in  the 
year  1666,  the  large  cost  and  indifferent  suc- 
cess of  the  Dutch  war  begetting  vehement 
suspicions,  not  only  of  profuseness,  but  of 
diversion  of  the  public  money  from  its  prop- 
er purposes,  the  House  appointed  a  com- 
mittee to  inspect  the  accounts  of  the  officers 
of  the  navy,  ordnance,  and  stores,  which 
•were  laid  before  them,  as  it  appears,  by  the 
king's  direction.  This  committee,  after 
8ome  time,  having  been  probably  found  de- 
ficient in  poAvers,  and  particularly  being  in- 
competent to  administer  an  oath,  the  House 
determined  to  proceed  in  a  more  novel  and 
vigorous  manner;  and  sent  up  a  bill,  nomi- 
nating commissioners  to  inspect  the  public 
accounts,  who  were  to  possess  full  powers 
of  inquiry,  and  to  report  witli  respect  to 
such  persons  as  they  should  find  to  have 
broken  their  trust.  The  immediate  object 
of  this  inquiry,  so  far  as  appears  from  Loid 
Clarendon's  mention  of  it,  was  rather  to  dis- 
cover whether  the  treasurers  had  not  issued 
money  without  legal  warrant  than  to  enter 
upon  the  details  of  its  expenditure.  But 
that  minister,  bigoted  to  his  Tory  creed  of 
prerogative,  thought  it  the  highest  presumj)- 
tion  for  a  Parliament  to  intermeddle  with 
the  course  of  government.  He  spoke  of 
this  bill  as  an  encroachment  and  usurpation 
that  had  no  limits,  and  pressed  the  king  to 
be  firm  in  his  resolution  never  to  consent  to 
it.*  Nor  was  the  king  less  averse  to  a  Par- 
liamentary commission  of  this  natui-e,  as 
well  from  a  jealousy  of  its  interference  with 

*  Life  of  Clarendon,  p.  368.  Burnet  observes  it 
was  looked  upon  at  the  time  as  a  great  innovation, 
p.  335. 


his  prerogative,  as  from  a  consciousness 
which  Clarendon  himself  suggests,  that 
gieat  sums  had  been  issued  by  his  orders, 
which  could  not  be  put  in  any  public  ac- 
count ;  that  is  (for  we  can  give  no  other  in- 
terpretation), that  the  moneys  granted  for 
the  war,  and  appropriated  by  statute  to  that 
service,  had  been  diverted  to  supply  his 
wasteful  and  debauched  course  of  pleas- 
ures.* It  was  the  suspicion,  or,  rather, 
private  knowledge  of  this  criminal  breach 
of  trust,  which  had  led  to  the  bill  in  ques- 
tion. But  such  a  slave  was  Clarendon  to 
his  narrow  prepossessions,  that  he  would 
rather  see  the  dissolute  excesses  which  he 
abhorred  suck  nourishment  from  that  rev- 
enue which  had  been  allotted  to  maintain 
the  national  honor  and  interests,  and  which, 
by  its  deficiencies  thus  aggravated,  had 
caused  even  in  this  veiy  year  the  navy  to  be 
laid  up,  and  the  coasts  to  be  left  defense- 
less, than  suffer  them  to  be  restrained  by 
the  only  power  to  which  thoughtless  luxuiy 
would  submit.    He  opposed  the  bill,  there- 

*  Pepys's  Diary  has  lately  furnished  some  things 
worthy  to  be  extracted.  "  Mr.  W.  and  I  by  water 
to  Whitehall,  and  there  at  Sir  George  Carteret's 
lodgings  Sir  William  Coventry  met;  and  we  did 
debate  the  whole  business  of  our  accounts  to  the 
Parliament ;  where  it  appears  to  us  that  the  charge 
of  the  war  from  Sept.  1,  1664,  to  this  Michaelmas, 
will  have  been  but  £3,200,000,  and  we  have  paid 
in  that  time  somewhat  about  X2,200,000,  so  that 
we  owe  about  £900,000:  but  our  method  of  ac- 
counting, though  it  can  not,  I  believe,  be  far  wide 
from  the  mai-k,  yet  will  not  abide  a  strict  examina- 
tion, if  the  Parliament  should  be  troublesome.  Here 
happened  a  pretty  question  of  Sir  William  Coven- 
try, whether  this  account  of  ours  will  not  put  my 
lord-treasurer  to  a  difficulty  to  tell  what  is  become 
of  all  the  money  the  Parliament  have  given  in  this 
time  for  the  war,  which  hath  amounted  to  about 
£4,000,000,  which  nobody  there  could  answer;  but 
I  perceive  they  did  doubt  what  his  answer  could 
be,''  Sept.  23,  1666.  The  money  granted  the  king 
for  the  war  he  afterward  reckons  at  £5,590,000,  and 
the  debt  at  £900,000.  The  charge  stated  only  at 
£3,200,000.  "  So  what  is  become  of  all  this  sum, 
£2,390,000  !"  He  mentions  afterward,  Oct.  8,  the 
proviso  in  the  poll-tax  bill,  that  there  shall  be  a 
committee  of  nine  persons  to  have  the  inspection 
on  oath  of  all  the  accounts  of  the  money  given  and 
spent  for  the  war,  "which  makes  the  king  and 
conrt  mad  ;  the  king  having  given  order  to  my  lord- 
chamberlain  to  send  to  the  play-houses  and  broth- 
els, to  bid  all  the  Parliament  men  that  were  there 
to  go  to  the  Parliament  presently ;  but  it  was  car- 
ried against  the  court  by  thirty  or  forty  voices." 
It  was  thought,  he  says,  Dec.  12,  that  above 
£400  000  had  gone  into  the  privy  pm-se  since  the 
war. 


436 


CONSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chip,  XL 


fore,  in  the  House  of  Lords,  as  he  confess- 
es, with  much  of  that  intemperate  wai-mth 
which  distinguished  him,  and  with  a  con- 
tempt of  the  Lower  House  and  its  authori- 
ty, as  imprudent  in  respect  to  his  own  in- 
terests as  it  was  unbecoming  and  unconsti- 
tutional. The  king  prorogued  Parliament 
while  the  measure  was  depending ;  but  in 
hopes  to  pacify  the  House  of  Commons, 
promised  to  issue  a  commission  under  the 
great  seal  for  the  examination  of  public  ac- 
countants;* an  expedient  that  was  not  likely 
to  bring  more  to  light  than  suited  his  pur- 
pose. But  it  does  not  appear  that  this  roy- 
al commission,  though  actually  prepared  and 
sealed,  was  ever  carried  into  effect ;  for  in 
tlie  ensuing  session,  the  great  ministei-'s 
downfall  having  occurred  in  the  mean  time, 
the  House  of  Commons  bi'ought  forward 
again  their  bill,  which  passed  into  a  law.  It 
invested  the  commissioners  therein  nomina- 
ted with  very  extensive  and  extraordinary 
powers,  both  as  to  auditing  public  accounts, 
and  investigating  the  frauds  that  had  taken 
place  in  the  expenditure  of  money  and  em- 
ployment of  stores.  Thej'  were  to  exam- 
ine upon  oath,  to  summon  inquests  if  they 
thought  fit,  to  commit  persons  disobej-ing 
their  orders  to  prison  without  bail,  to  detenn- 
ine  finally  on  the  charge  and  discharge  of 
all  accountants ;  the  barons  of  the  Excheq- 
uer, upon  a  certificate  of  their  judgment, 
were  to  issue  process  for  recovering  money 
to  the  king's  use,  as  if  there  had  been  an 
immediate  judgment  of  their  own  court. 
Reports  were  to  be  made  of  the  commis- 
sioners' proceedings  from  time  to  time  to 
the  king  and  to  both  houses  of  Parliament. 
None  of  the  commissioners  were  members 
of  either  House.  The  king,  as  may  be  sup- 
posed, gave  way  veiy  reluctantly  to  this  in- 
terference with  his  expenses.  It  brought 
to  light  a  great  deal  of  abuse  and  misappli- 
cation of  the  public  revenues,  and  conU'ibu- 
ted,  doubtless,  in  no  small  degree,  to  destroy 
the  House's  confidence  in  the  integi'ity  of 
goverament,  and  to  pi'omote  a  more  jealous 
watchfulness  of  the  king's  designs.*    At  the 

*  Life  of  Clarendon,  p.  392. 

t  19  &  20  Car.  IT.,  c.  1.  Burnet,  p.  374.  They 
reported  nnaccounted  balances  of  Xl, 309,161,  be- 
sides mach  that  was  questionable  in  the  payments. 
But,  according  to  Ralph,  p.  177,  the  commissioners 
had  acted  with  more  technical  rigor  than  equitj', 
surcharging  the  accountants  for  all  sums  not  ex- 


next  meeting  of  Parliament,  in  October, 
1669,  Sir  George  Carteret,  treasurer  of  the 
navy,  was  expelled  the  House  for  issuing 
money  without  legal  warrant. 

Sir  Edward  Hyde,  whose  influence  had 
been  almost  annihilated  in  the  last  j^^^y^^^ 
years  of  Charles  I.,  through  the  Clarendon's 
inveterate  hati-ed  of  the  queen  and 
those  who  suiTounded  her,  acquired  by  de- 
grees the  entire  confidence  of  the  young 
king,  and  baflled  all  the  intrigues  of  his  ene- 
mies. Guided  by  him,  in  all  serious  mat- 
ters, during  the  later  years  of  his  exile, 
Charles  followed  his  counsels  almost  implic- 
itly in  the  difficult  crisis  of  the  Restoi-ation. 
The  office  of  chancellor  and  the  title  of 
Eai'l  of  Clarendon  were  the  proofs  of  the 
I  king's  favor ;  but  in  efiect,  through  the  indo- 
lence and  ill  health  of  Southampton,  as  well 
as  their  mutual  friendship,  he  was  the  real 
minister  of  the  crown.*  By  the  clandestine 
man-iage  of  his  daughter  with  the  Duke  of 
York,  he  changed  one  brother  from  an  en- 
emy to  a  sincere  and  zealous  friend,  without 
forfeiting  the  esteem  and  favor  of  the  other. 
And  though  he  was  wise  enough  to  dread 
the  invidiousness  of  such  an  elevation,  yet 
1  for  several  years  it  by  no  means  seemed  to 
[  render  his  influence  less  secure. f 

j  pended  since  the  war  began,  though  actually  ex- 
pended for  the  purposes  of  preparation. 

*  Buniet,  p.  130.  Southampton  left  all  the  busi- 
ness of  the  treasurj-,  according  to  Burnet,  p.  131, 
in  the  hands  of  Sir  Philip  Warwick,  "  a  weak  but 
incorrupt  man."  The  king,  he  says,  chose  to  put 
up  with  his  contradiction  rather  than  make  him 
popular  by  dismissing  him.  But,  in  fact,  as  we  see 
by  Clarendon's  instance,  the  king  retained  his  min- 
isters long  after  he  was  displeased  with  them. 
Southampton's  remissness  and  slowness,  notwith- 
standing his  integrity.  Pepys  says,  was  the  cause 
j  of  undoing  the  nation  as  much  as  any  thing ;  "  yet, 
1  if  I  knew  all  the  difficulties  he  has  lain  under,  and 
his  instrument.  Sir  Philip  Warwick,  I  might  be  of 
another  mind,"  May  16,  1667.  He  was  willing  to 
have  done  something.  Clarendon  tells  us,  p.  415,  to 
gi-atify  the  Presbyterians ;  on  which  account,  the 
bishops  thought  him  not  enough  affected  to  the 
Church.  His  friend  endeavors  to  extenuate  this 
heinous  sin  of  tolerant  principles. 

t  The  behavior  of  Lord  Clarendon  on  this  occa- 
sion was  so  extraordinarj",  that  no  credit  could  have 
been  given  to  any  other  account  than  his  own.  The 
Duke  of  York,  he  saj  s,  informed  the  king  of  the 
affection  and  friendship  that  had  long  been  between 
him  and  the  J'oung  lady ;  that  they  had  been  long 
contracted,  and  that  she  was  with  child ;  and, 
therefore,  requested  his  majesty's  leave  that  bs 
might  publicly  marry  her.  The  Marquis  of  Or- 
mond,  by  the  king's  order,  communicated  this  to 


Cha.  n.-lfi60-T3.] 


FROM  HEXRY  VII.  TO  GEORGE  11. 


437 


Both  in  their  characters,  however,  and 
turn  of  thinking,  there  was  so  little  in  con- 

Uie  cliancellor,  who  "  broke  out  iuto  an  immoderate 
passion  against  tlie  -n  ickeduess  of  his  daughter, 
and  said,  with  all  imaginable  earnestness,  that  as 
soon  as  he  came  home,  he  would  turn  her  out  of 
his  house  as  a  strumpet  to  shift  for  herself,  and 
would  never  see  her  again.  They  told  him  that 
his  passion  was  too  violent  to  administer  good 
counsel  to  him  -,  that  they  thought  that  the  duke 
was  mamed  to  his  daughter,  and  that  there  were 
other  measures  to  be  t^kcn  than  those  which  the 
disorder  he  was  in  had  suggested  to  him  ;  where- 
upon he  fell  iuto  new  commotions,  and  said.  If  that 
were  true,  he  was  well  prepared  to  advise  what 
was  to  be  done ;  that  he  had  much  rather  his 
daughter  should  be  the  duke's  whore  than  his  wife  ; 
in  the  former  case,  nobody  could  blame  him  for  the 
resolution  he  had  taken,  for  he  was  not  obliged  to 
keep  a  whore  for  the  greatest  prince  alive ;  and 
the  indignity  to  himself  he  would  submit  to  the 
good  pleasure  of  God.  But.  if  there  were  any 
reason  to  suspect  the  other,  he  was  ready  to  give 
a  positive  judgment,  in  which  he  hoped  their  lord- 
ships would  concur  with  him,  that  the  king  should 
immediately  cause  the  woman  to  be  sent  to  the 
Ton  er  and  cast  into  the  diingcon.ander  so  strict  a 
guard  that  no  person  living  should  be  admitted  to 
come  to  her,  and  then  that  an  act  of  Parliament 
thould  be  immediately/  passed  for  culling;  off'  her 
head,  to  which  he  would  not  only  give  his  consent, 
bat  would  very  willingly  be  the  first  man  that  should 
propose  it ;  and  whoever  knew  the  man,  will  be- 
lieve that  he  said  all  this  very  heartily."  Lord 
Southampton,  he  proceeds  to  inform  us,  on  the 
king's  entering  the  room  at  the  time,  said  very 
naturally,  that  the  chancellor  was  mad,  and  had 
proposed  such  extravagant  things  that  he  was  no 
more  to  be  consulted  with.  This,  however,  did  not 
bring  hira  to  his  senses  ;  for  he  repeated  his  strange 
proposal  of  "  sending  her  presently  to  the  Tower, 
and  the  rest,"  imploring  the  king  to  take  this 
course,  as  the  only  expedient  that  could  free  him 
from  the  evils  that  this  business  would  otherwise 
bring  upon  him. 

That  any  man  of  sane  intellect  should  fall  into 
Buch  an  extravagance  of  passion,  is  sufficiently 
wonderful ;  that  he  should  sit  down  in  cool  blood 
several  years  afterward  to  relate  it,  is  still  more 
so ;  and  perhaps  we  shall  can-y  our  candor  to  an 
excess  if  we  do  not  set  down  the  whole  of  this 
scene  to  overacted  hypocrisy.  Charles  II.,  we  may 
be  very  sure,  could  see  it  in  no  other  light.  And 
here  I  must  take  notice,  by-the-way,  of  the  singular 
observation  the  worthy  editor  of  Buniet  has  made  : 
'•  King  Charles's  conduct  in  this  business  was  ex- 
cellent throughout ;  that  of  Clarendon  worthy  an 
ancient  Roman."  We  have,  indeed,  a  Roman  prec- 
edent for  subduing  the  sentiments  of  nature  rath- 
er than  permitting  a  daughter  to  incur  disgrace 
through  the  passions  of  the  great;  but  I  think  Vir- 
ginius  would  not  quite  have  understood  the  feel- 
ings of  Clarendon.  Such  virtue  was  more  like 
what  Montesquieu  calls  "  rhei'oisme  de  I'esclavage," 
and  was  just  fit  for  the  court  of  Gondar.    But  with 


formity  between  Clarendon  and  his  master, 
that  the  continuance  of  his  ascendency  can 

all  this  violence  that  he  records  of  himself,  he  de- 
viates greatly  from  the  truth  :  "  The  king  (he  says) 
afterwai-d  spoke  everj-  day  about  it,  and  told  the 
chancellor  that  he  must  behave  himself  wisely,  for 
that  the  thing  was  remediless,  and  that  his  majes- 
ty knew  that  they  were  married ;  which  would 
quickly  appear  to  all  men  who  knew  that  nothing 
could  be  done  upon  it.  In  this  time  the  chancellor 
had  conferred  with  his  daughter,  without  any  thing 
of  indulgence,  and  not  only  discovered  that  they 
were  unquestionably  married,  but  by  whom,  and 
who  were  present  at  it,  who  would  be  ready  to  avow 
it ;  which  pleased  him  not,  though  it  diverted  him 
from  using  some  of  that  rigor  which  he  intended. 
And  he  saw  no  other  remedy  could  be  applied  but 
that  which  he  had  proposed  to  the  king,  who 
thought  of  nothing  like  it." — Life  of  Clarendon,  29, 
et  post. 

Every  one  would  conclude  from  this  that  a  mar- 
riage had  been  solemnized,  if  not  before  their  ar- 
rival in  England,  yet  before  the  chancellor  had  this 
conference  with  his  dauehter.  It  appears,  howev- 
er, from  the  Duke  of  York's  declaration  in  the 
books  of  the  privy  council,  quoted  by  Ralph,  p.  40, 
that  he  was  contracted  to  Ann  Hyde  on  the  S-lth 
of  November,  16.j9,  at  Breda;  and  after  that  time 
lived  with  her  as  his  wife,  though  veiy  secretly: 
he  married  her  on  the  3d  of  Sept.,  1660,  according 
to  the  English  ritual,  Lord  Ossory  giving  her  away. 
The  first  child  was  born  Oct.  22, 1660.  Now  wheth- 
er the  contract  were  sufficient  to  constitute  a  vahd 
marriage,  will  depend  on  two  things :  first,  upon 
the  law  existing  at  Breda  ;  secondly,  upon  the  ap- 
plicability of  what  is  commonly  called  the  rule  of 
the  lex  loci,  to  a  man-iage  between  such  persons 
according  to  the  received  notions  of  English  lawyers 
in  that  age.  But,  even  admitting  all  this,  it  is  still 
manifest  that  Clarendon's  expressions  point  to  an 
actual  celebration,  and  are  censequently  intended 
to  mislead  the  reader.  Certain  it  is,  that  at  the 
time  the  contract  seems  to  have  been  reckoned  only 
an  honorary  obligation.  .lames  tells  us  himself 
(Macpherson's  Extracts,  p.  17)  that  he  promised  to 
maiTy  her;  and  "though  when  he  asked  the  king 
for  his  leave,  he  refused  and  dissuaded  him  from 
it,  yet  at  last  he  opposed  it  no  more,  and  the  duke 
married  her  privately,  and  owned  it  some  time  af- 
ter." His  biographer,  writing  from  James's  own 
manuscript,  adds,  "  It  may  well  be  supposed  that 
my  lord-chancellor  did  his  part,  but  with  great  cau- 
tion and  circumspection,  to  soften  the  king  in  that 
matter  which  in  every  respect  seemed  so  much  for 
his  own  advantage."— Life  of  James,  387.  And 
Pepys  inserts  in  his  Diary,  Feb.  23,  1661,  "  Mr.  H. 
told  me  how  my  lord-chancellor  had  lately  got  the 
Duke  of  York  and  duchess,  and  her  woman,  my 
Lord  Ossory,  and  a  doctor,  to  make  oath  before 
most  of  the  judges  of  the  kingdom  concerning  all 
the  circumstances  of  their  marriage ;  and,  in  fine, 
it  is  confessed  that  they  were  not  fully  married  till 
about  a  month  or  two  before  she  was  brought  to 
bed  ;  but  that  they  were  contracted  long  before, 
and  [were  manied]  time  enough  for  the  child  to  be 


438 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  XI. 


only  be  atti'ibuted  to  the  power  of  early  hab- 
it over  the  most  thoughtless  tempers.  But 
it  rarely  happens  that  kings  do  not  ultimate- 
ly shake  oft'  these  fetters,  and  release  them- 
selves from  the  sort  of  subjection  which  they 
feel  in  acting  always  by  the  same  advisers. 
Charles,  acute  himself  and  cool-headed, 
could  not  fail  to  discover  the  passions  and 
prejudices  of  his  minister,  even  if  he  had 
wanted  the  suggestion  of  others,  who,  with- 
out reasoning  on  such  broad  principles  as 
Clarendon,  were  perhaps  his  superiors  in 
judging  of  temporaiy  business.  He  wished, 
too,  as  is  common,  to  depreciate  a  wisdom, 
and  to  suspect  a  virtue,  which  seemed  to  re- 
proach his  own  vice  and  folly.  Nor  has  Clar- 
endon spared  those  remonstrances  against 
the  king's  course  of  life,  which  are  seldom 
borne  without  impatience  or  resentment. 
He  was  strongly  suspected  by  the  king,  as 
well  as  his  courtiers  (though,  according  to  his 
own  account,  without  any  reason),  of  having 
promoted  the  marriage  of  Miss  Stewart  to 
the  Duke  of  Richmond  ;*  but,  above  all,  he 
stood  in  the  way  of  projects  which,  though 
Still  probably  unsettled,  were  floating  in  the 
legitimate.  But  I  do  uot  hear  tliat  it  was  put  to 
the  judges  to  determine  that  it  was  so  or  not." 
[There  was  no  question  to  put  about  the  child's 
legitimacy,  winch  was  beyond  all  doubt.]  He 
had  said  before  that  Lord  Sandwich  told  him,  on 
the  17th  of  Oct.,  1660,  "the  king  wanted  him  [the 
duke]  to  maiTy  her,  but  he  would  not."  This 
seems,  at  first  sight,  inconsistent  with  what  James 
says  himself  But  at  this  time,  though  the  private 
maiTiage  had  really  taken  place,  he  had  been  per- 
suaded by  a  most  infamous  conspiracy  of  some 
profligate  courtiers  that  the  lady  was  of  a  licentious 
character,  and  that  Berkley,  afterward  Lord  Fal- 
mouth, had  enjoyed  her  favors. — Life  of  Clarendon, 
33.  It  must  be  presumed  that  those  men  knew 
only  of  a  contract  which  they  thought  he  could 
break.  Hamilton,  in  the  Memoirs  of  Grammont, 
speaks  of  this  transaction  with  his  usual  levity, 
though  the  parties  showed  themselves  as  destitute 
of  spirit  as  of  honor  and  humanity.  Clarendon,  we 
must  believe  (and  the  most  favorable  hypothesis 
for  him  is  to  give  up  his  veracity),  would  not  per- 
mit his  daughter  to  be  made  the  victim  of  a  few 
perjured  debauchees,  and  of  her  husband's  fickle- 
ness or  credulity.  [Upon  reconsidering  this  note, 
I  think  it  probable  that  Clarendon's  conversation 
with  his  daughter,  when  he  ascertained  her  mar- 
riage, was  subsequent  to  the  3d  of  September.  It 
is  always  difficult  to  make  out  his  dates.] — 1845. 

*  Hamilton  mentions  this  as  the  curreijt  rumor 
of  the  court,  and  Burnet  has  done  the  same.  But 
Clarendon  himself  denies  that  he  had  anj-  concern 
in  it,  or  any  acquaintance  with  the  parties.  He 
wrote  in  too  humble  a  strain  to  the  king  on  the 
subject. — Life  of  Clarendon,  p.  454. 


king's  mind.  No  one  was  more  zealous  to 
uphold  the  prerogative  at  a  height  where  it 
must  overtop  and  chill  with  its  shadow  the 
pi-ivileges  of  the  people.  No  one  was  more 
vigilant  to  limit  the  functions  of  Parliament, 
or  more  desirous  to  see  them  confiding  and 
submissive.  But  there  were  landmarks 
which  he  could  never  be  brought  to  trans- 
gress. He  would  prepare  the  road  for  abso- 
lute monarch  J',  but  not  introduce  it ;  he  would 
assist  to  batter  down  the  walls,  but  not  to 
inarch  into  the  town.  His  notions  of  what 
the  English  Constitution  ought  to  be,  appear 
evidently  to  have  been  derived  from  the  times 
of  Elizabeth  and  James  I.,  to  which  he  fre- 

I  quently  refers  with  approbation.  In  the 
history  of  that  age,  he  found  much  that 
could  not  be  reconciled  to  any  liberal  princi- 

I  pies  of  government ;  but  there  were  two 
things  which  he  cei-tainly  did  not  find :  a 
revenue  capable  of  meeting  an  extraordinary 
demand  without  Parliamentary  supply,  and 

j  a  standing  army.    Hence  he  took  no  pains, 

j  if  he  did  not  even,  as  is  asserted  by  Burnet, 
discoiu'age  the  proposal  of  others,  to  obtain 
such  a  fixed  annual  revenue  for  the  king  on 
the  Restoration  as  would  have  rendered  it 
very  rarely  necessary  to  have  recourse  to 
Parliament,*  and  did  not  advise  the  keeping 


*  Buniet  says  that  Southampton  had  come  into 
a  scheme  of  obtaining  £2,000.000  as  the  annual 
j  revenue,  which  was  prevented  by  Clarendon,  lest 
it  should  put  the  king  out  of  need  of  Parliaments. 
This  the  king  found  out,  and  hated  him  mortally  for 
it. — P.  223.  It  is  the  fashion  to  discredit  all  that 
Burnet  says.  But  observe  what  we  may  read  in 
Pepys  :  "  Sir  W.  Coventry  did  tell  me  it  as  the 
wisest  thing  that  was  ever  said  to  the  king  by  any 
statesman  of  his  time  ;  and  it  was  by  my  lord-treas- 
urer that  is  dead,  whom,  I  find,  he  takes  for  a  very 
exeat  statesman,  that  when  the  king  did  show  him- 
self forward  for  passing  the  Act  of  Indemnity,  he 
did  advise  the  king  that  he  would  hold  his  hand  in 
doing  it,  till  he  had  got  his  power  restored  that  had 
been  diminished  by  the  late  times,  and  his  revenue 
settled  in  such  a  manner  as  he  might  depend  upon 
himself  without  resting  upon  Parliaments,  and  then 
pass  it.  But  my  lord-chancellor,  who  thought  he 
could  have  the  command  of  Parliaments  forever, 
because  for  the  king's  sake  they  were  a  while  will- 
ing to  grant  all  the  king  desired,  did  press  for  its 
being  done ;  and  so  it  was,  and  the  king  from  that 
time  able  to  do  nothing  with  the  Parliament  al- 
most, "  March  20,  1609.  Rari  quippe  boni !  Kei- 
ther  Southampton  nor  Coventry  make  the  figure  ia 
this  extract  we  should  wish  to  find  ;  yet  who  were 
their  superiors  for  integrity  and  patriotism  under 
Charles  II.  ?  Perhaps  Pepys,  like  most  gossiping 
men,  was  not  always  correct. 


Cha.  II.— 1C60-73.]  FROM  HENRY  VII.  TO  GEORGE  II. 


439 


up  any  part  of  the  army.  That  a  few 
troops  were  retained  was  owing  to  the  Duke 
of  i'ork.  Nor  did  he  go  the  length  that 
was  expected  in  procuring  the  repeal  of  ail 
the  laws  that  had  been  enacted  in  the  Long 
Parliament.* 

These  omissions  sank  deep  in  Charles's 
heart,  especially  when  lie  found  that  he 
had  to  deal  with  an  unmanageable  House 
of  Commons,  and  n)ust  fight  tlie  battle  for 
arbitrary  power,  which  might  have  been 
achieved,  he  thought,  without  a  struggle  by 
his  minister.  Thei-e  was  still  less  hope  of 
obtaining  any  concurrence  from  Clarendon 
in  the  king's  designs  as  to  religion.  Though 
he  does  not  once  hint  at  it  in  his  writings, 
there  can  be  little  doubt  that  he  must  have 
suspected  his  master's  inclination  toward 
tlie  Church  of  Rome.  The  Duke  of  York 
considered  this  as  the  most  likely  cause  of 
his  remissness  in  not  sufficiently  advancing 
tlie  prerogative.!  He  was  always  opposed 
to  the  various  schemes  of  a  general  indul- 
gence toward  popery,  not  only  from  his 
strongly  Protestant  principles  and  his  dis- 
like of  all  tolei'ation,  but  from  a  prejudice 
against  the  body  of  the  English  Catholics, 
whom  he  thought  to  arrogate  more  on  the 
ground  of  merit  than  they  could  claim. 
That  interest,  so  powerful  at  court,  was  de- 
cidedly hostile  to  the  chancellor;  for  the 
Duke  of  York,  who  strictly  adhered  to  him, 
if  he  had  not  kept  his  change  of  religion 
wholly  secret,  does  not  seem  to  have  hith- 
erto formed  any  avowed  connection  with 
the  popish  paity.J 

*  Macplierson's  Extracts  from  Life  of  James,  17, 
18.  Compare  Innes's  Life  of  James,  published  by 
Clarke,  i.,  391,  393.  In  the  former  work  it  is  said 
that  Clarendon,  upon  Venner's  insurrection,  advised 
tliat  the  guards  s'noulduot  be  disbanded.  But  this 
Beems  to  be  a  mistake  in  copying  ;  for  Clarendon 
read  the  Duke  of  York.  Pepys,  however,  who 
heard  all  the  gossip  of  the  town,  mentions  the  year 
after  that  the  chancellor  thought  of  raising  an 
army,  with  the  duke  as  general,  Dec.  22,  1661. 

t  Ibid. 

t  The  Earl  of  Bristol,  with  all  bis  constitutional 
precipitancy,  made  a  violent  attack  on  Clarendon, 
by  exhibiting  articles  of  treason  against  him  in  the 
House  of  Lords  in  1663  ;  believing,  no  doubt,  that 
the  schemes  of  the  intriguers  were  more  mature, 
and  the  king  more  alienated,  than  was  really  the 
case  ;  and  thus  disgraced  himself  at  court  instead 
of  his  enemy.— Pari.  Hist.,  276.  Life  of  Clar.,  209. 
Before  this  time  Pepys  had  heard  that  the  chan- 
cellor had  lost  the  king's  favor,  and  that  Bristol, 
with  Buckingham  and  two  or  three  more,  m\ed 
him,  May  15,  1663. 


This  estrangement  of  the  king's  favor  is 
sufficient  to  account  for  Claren-  Loss  of  the 
don's  loss  of  power:  but  his  en-  kmg's  favor. 

*  Coalition 

tire  rum  was  rather  accomplished  againstClar- 
by  a  strange  coalition  of  enemies, 
which  his  virtues,  or  his  errors  and  infirm- 
ities, had  brought  into  union.  The  Cava- 
liers hated  him  on  account  of  the  Act  of  In- 
demnity, and  the  Presbyterians  for  that  of 
Uniformity.  Yet  the  latter  were  not,  in 
general,  so  eager  in  his  prosecution  as  the 
others.*    But  he  owed  great  part  of  the 

*  A  motion  to  refer  the  heads  of  charge  against 
Clarendon  to  a  committee  was  lost  by  194  to  128 ; 
Seymour  and  Osborne  telling  the  noes,  Birch  and 
Clarges  the  ayes. — Commons'  Journals,  Nov.  6, 
1667.  These  names  show  how  parties  ran,  Sey- 
mour and  Osborne  being  high-flying  Cavaliers,  and 
Birch  a  Presbyterian.  A  motion  that  he  be  im- 
peached for  treason  on  the  first  article  was  lost  by 
172  to  103,  the  two  former  tellers  for  the  ayes,  Nov. 
9.  In  the  Harleian  MS.,  881,  we  have  a  copious 
account  of  the  debates  on  this  occasion,  and  a  tran- 
script in  No.  1218.  Sir  Heneage  Finch  spoke  much 
against  the  chai-ge  of  treason  ;  Maynard  seems  to 
have  done  the  same.  A  charge  of  secret  corre- 
spondence with  Cromwell  was  introduced  merely 
ad  invidiam,  the  prosecutors  admitting  that  it  was 
pardoned  by  the  Act  of  Indemnity,  but  wishing  to 
make  the  chancellor  plead  that :  Maynard  and 
Hampden  opposed  it,  and  it  was  given  up  out  of 
shame  without  a  vote.  Vaughan,  afterward  chief- 
justice,  argued  that  counseling  the  king  to  govern 
by  a  standing  army  was  treason  at  common  law, 
and  seems  to  dispute  what  Finch  laid  down  most 
broadly,  that  there  can  be  no  such  thing  as  a  com- 
mon-law treason ;  relying  on  a  jjassage  in  Glan- 
vill,  where  "seductio  domini  regis"  is  said  to  be 
treason.  Maynard  stood  up  for  the  opposite  doc- 
trine. Waller  and  Vaughan  argued  that  the  sale 
of  Dunkirk  was  treason,  but  the  article  passed 
without  declaring  it  to  be  so  ;  nor  would  the  word 
have  appeared  probably  in  the  impeachment,  if  a 
young  Lord  Vaughan  had  not  asserted  that  he 
could  prove  Clarendon  to  have  betrayed  the  king's 
councils,  on  which  an  article  to  that  effect  was 
carried  by  161  to  89.  Garraway  and  Littleton 
were  forward  against  the  chancellor;  but  Coventry 
seems  to  have  taken  no  great  part. — See  Pepys's 
Diary,  Dec.  3d  and  6th,  1667.  Baxter  also  says 
that  the  Presbyterians  were  by  no  means  strenuous 
against  Clarendon,  but  rather  the  contrary,  fearing 
that  worse  might  come  for  the  countiy,  as  giving 
him  credit  for  having  kept  off  militaiy  government. 
— Baxter's  Life,  part  iii.,  21.  This  is  very  highly 
to  the  honor  of  that  party  whom  he  had  so  much 
oppressed,  if  not  betrayed.  "  It  was  a  notable 
providence  of  God,''  he  says,  "  that  this  man,  who 
had  been  the  great  instrument  of  state,  and  done 
almost  all,  and  had  dealt  so  ciuelly  with  the  Non- 
conformists, should  thus,  by  his  own  friends,  be 
cast  out  and  banished  ;  while  those  that  he  had  per- 
secuted were  the  most  moderate  in  his  cause,  and 


440 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XI. 


severity  with  which  he  was  treated  to  his 
own  pride  and  ungovernable  passionateness, 
by  which  he  had  rendered  very  eminent 
men  in  the  House  of  Commons  implacable, 
and  to  the  language  he  had  used  as  to  the 
dignity  and  privileges  of  the  House  itself.* 

many  for  liim.  And  it  was  a  t^eat  ease  that  be- 
fell the  good  people  throughout  the  land  by  his  de- 
jection;  for  his  vyay  was  to  decoy  men  into  con- 
spiracies or  to  pretend  plots,  and  upon  the  rumor 
of  a  plot  the  innocent  people  of  many  countries 
were  laid  in  prison,  so  that  no  man  knew  when  he 
was  safe ;  whereas,  since  then,  though  laws  have 
been  made  more  and  more  severe,  yet  a  man  know- 
eth  a  little  better  what  he  is  to  expect,  when  it  is 
by  a  law  that  he  is  to  be  tried."  Sham  plots  there 
seem  to  have  been  ;  but  it  is  not  reasonable  to 
charge  Clarendon  with  inventing  them. — llalph, 
122. 

*  In  his  wrath  against  the  proviso  inserted  by 
Sir  George  Downing,  as  above  mentioned,  in  the 
bill  of  supply,  Clarendon  told  liim,  as  he  confesses, 
that  the  king  could  never  be  well  served  while  fel- 
lows of  his  condition  were  admitted  to  speak  as 
mueh  as  they  had  a  mind ;  and  that  in  the  best 
times  such  presumptions  had  been  punished  with 
imprisonment  by  the  lords  of  the  council,  without 
tlie  king's  taking  notice  of  it,  321.  The  king  was 
naturally  displeased  at  this  insolent  language  to- 
ward one  of  his  servants,  a  man  who  had  filled  an 
eminent  station,  and  done  services,  for  a  suggestion 
intended  to  benefit  the  revenue  ;  and  it  was  a  still 
more  flagrant  affront  to  the  House  of  Commons,  of 
which  Downing  was  a  member,  and  where  he  had 
proposed  this  clause,  and  induced  the  House  to 
adopt  it. 

Coventry  told  Pepys  "many  things  about  the 
chancellor's  dismissal  not  fit  to  be  spoken ;  and  yet 
not  any  unfaithfulness  to  the  king,  but  instar  om- 
nium, that  he  was  so  great  at  the  council-board 
and  in  the  administration  of  matters  there  was  no 
room  for  any  body  to  propose  any  remedy  for  what 
was  amiss,  or  to  compass  any  thing,  though  never 
80  good  for  the  kingdom,  unless  approved  of  by  the 
chancellor;  he  managing  all  things  with  that  great- 
ness which  now  will  be  removed,  that  the  king 
may  have  the  benefit  of  others'  advice,"  Sept.  2, 
1667.  His  own  memoirs  are  full  of  proofs  of  this 
haughtiness  and  intemperance.  He  set  himself 
against  Sir  William  Coventry,  and  speaks  of  a  man 
as  able  and  virtuous  as  himself  with  marked  aver- 
sion.— See,  too,  Life  of  James,  398.  Coventiy,  ac- 
cording to  this  writer,  431,  was  the  chief  actor  in 
Clarendon's  impeachment ;  but  this  seems  to  be  a 
mistake ;  though  he  was  certainly  desirous  of  get- 
ting him  out  of  place. 

The  king,  Clarendon  tell  us,  438,  pretended  that 
the  anger  of  Parliament  was  such,  and  their  power 
too,  as  it  was  not  in  his  power  to  save  him.  The 
fallen  minister  desired  him  not  to  fear  the  power 
of  Parliament,  "  which  was  more  or  less,  or  nothing, 
as  he  pleased  to  make  it."  So  preposterous  as 
well  as  unconstitutional  a  way  of  talking  could  not 
but  aggravate  his  unpopularity  with  that  great 
body  he  pretended  to  contemn. 


A  sense  of  this  eminent  person's  great  tal- 
ents as  well  as  general  integrity  and  consci- 
entiousness on  the  one  hand,  an  indignation 
at  the  king's  ingratitude  and  the  profligate 
counsels  of  those  who  supplanted  him  on 
the  other,  have  led  most  writers  to  overlook 
his  faults  in  administration,  and  to  treat  all 
the  articles  of  accusation  against  him  as  friv- 
olous or  unsupported.  It  is  doubtless  im- 
possible to  justify  the  charge  of  high  trea- 
son, on  which  he  was  impeach-  ^fs  impeach- 
ed ;  but  there  are  matters  that  ■ 

,  articles  of  it 

never  were  or  could  be  disprov-  not  unfuusd- 
ed  ;  and  our  own  knowledge  en- 
ables  us  to  add  such  grave  accusations  as 
must  show  Clarendon's  unfitness  for  the 
government  of  a  free  country.* 

1.  It  is  the  fourth  article  of  his  impeach- 
ment, that  he  "  advised  and  pro-  inegai  im- 
cured  divers  of  his  majesty's  sub-  P"sc"i'«ents 
I  jects  to  be  imprisoned  against  law,  in  re- 
!  mote  islands,  garrisons,  and  other  places, 
thereby  to  prevent  them  from  the  benefit 
of  the  law,  and  to  produce  precedents  for 
the  imprisoning  any  other  of  his  majesty's 
subjects  in  like  manner."    This  was  un- 
doubtedly true.    There  was  some  gi-ound 
for  apprehension  on  the  part  of  the  govern- 
ment from  those  bold  spirits  who  had  been 
j  accustomed  to  revolutions,  and  drew  encour- 
j  agement  from  the  vices  of  the  court  and  the 
I  embarrassments  of  the  nation.    Ludlow  and 
!  Algernon  Sidney,  about  the  year  166.S,  had 
!  projected  an  insurrection,  the  latter  solicit- 
1  ing  Louis  XIV.  and  the  pensionary  of  Hol- 
land for  aid.f    Many  officers  of  the  old  ar- 
'  my,  Wildman,  Creed,  and  others,  suspect- 
'  ed,  perhaps  justly,  of  such  conspiracies,  had 
been  illegally  detained  in  prison  for  several 
years,  and  only  recovered  their  liberty  on 
Clarendon's  dismissal.  J    He  had  too  much 
encouraged  the  hateful  race  of  informers, 
though  he  admits  that  it  had  grown  a  trade 
by  which  men  got  money,  and  that  many 
were  committed  on  slight  grounds. §  Thus 
Colonel  Hutchinson  died  in  the  close  con- 
finement of  a  remote  prison,  far  more  prob- 

*  State  Trials,  vi.,  318.    Pari.  Hist. 

t  Ludlow,  iii.,  118,  165,  et  post.  Clarendon's 
Life,  290.  Burnet,  226.  (Euvres  de  Louis  XIV., 
ii.,  204. 

I  Harris's  Lives,  v.,  28.  Biogr.  Brit,  art.  Har- 
rington.  Life  of  James,  396.  Somers  Tracts,  vii., 
530,  534. 

§  See  Kennet's  Register,  7.57  ;  Ralph,  78.  et 
post;  Harris's  Lives,  v.,  182,  for  the  proofs  of  this. 


Cha.  II.— 1660-73.]  FROM  HENEY  VII.  TO  GEORGE  11. 


nbly  on  account  of  his  share  in  the  death  of 
Charles  I.,  from  which  the  Act  of  Indem- 
nity had  discharged  him,  than  any  just  pre- 
text of  treason.*  It  was  difficult  to  obtain 
a  liabeas  corpus  from  some  of  the  j  udges  in 
this  reign.  But  to  elude  that  provision  by 
removing  men  out  of  the  kingdom  was  such 
an  offense  against  the  Constitution  as  may 
be  thought  enough  to  justify  the  impeach- 
ment of  any  minister. 

2.  The  first  article,  and  certainly  the 
most  momentous,  asserts,  "  That  the  Earl 
of  Clarendon  hath  designed  a  standing  army 
to  be  raised,  and  to  govern  the  kingdom 
thereby,  and  advised  the  king  to  dissolve 
this  present  Parliament,  to  lay  aside  all 
thoughts  of  Parliaments  for  the  future,  to 
goveiTi  by  a  military  power,  and  to  maintain 
the  same  by  free  quarter  and  conti'ibution." 
This  was  prodigiously  exaggerated ;  yet 
there  was  some  foundation  for  a  part  of  it. 
In  the  disastrous  summer  of  1667,  when 
the  Dutch  fleet  had  insulted  our  coasts,  and 
burned  our  ships  in  the  Medway,  the  Ex- 
chequer being  empty,  it  was  proposed  in 
council  to  call  together  immediately  the 
Parliament,  which  then  stood  prorogued  to 
a  day  at  the  distance  of  some  months. 
Clarendon,  who  feared  the  hostility  of  the 
House  of  Commons  toward  himself,  and 
had  pressed  the  king  to  dissolve  it,  main- 
tained that  they  could  not  legally  be  sum- 
moned before  the  day  fixed ;  and,  with  a 
strange  inconsistency,  attaching  more  im- 
portance to  the  formalities  of  law  than  to 
its  essence,  advised  that  the  counties  where 
the  troops  were  quartered  should  be  called 
upon  to  send  in  pi'ovisions,  and  those  where 
tliere  were  no  troops  to  contribute  money, 
which  should  be  abated  out  of  the  next  tax- 
es ;  and  he  admits  that  he  might  have  used 
the  expression  of  raising  contributions,  as  in 
tlie  late  civil  war.  This  unguarded  and  un- 
warrantable language,  thrown  out  at  the 
council-table  where  some  of  his  enemies 
were  sitting,  soon  reached  the  ears  of  the 
Commons,  and,  mingled  up  with  the  usual 
misrepresentations  of  faction,  was  magnified 
into  a  charge  of  high  treason. f 

*  Mem.  of  Hutchinson,  303.  It  seems,  however, 
that  he  was  suspected  of  some  concern  with  an  in- 
tended rising  in  1663,  though  nothing  was  proved 
against  him. — Miscellanea  Aulica,  319. 

t  Life  of  Clarendon,  424.  Pepys  says  the  Par- 
liament was  called  together  "  against  the  Duke  of 
York's  mind  flatly,  who  did  rather  advise  the  king 


441 

3.  The  eleventh  article  charged  Lord 
Clarendon  with  having  advised  saieofDun- 
and  effected  the  sale  of  Dunkirk 
to  the  French  king,  being  part  of  his  maj- 
esty's dominions,  for  no  greater  value  than 
the  ammunition,  artillery,  and  stores  were 
worth.  The  latter  part  is  generally  assert- 
ed to  be  false.  The  sum  received  is  deem- 
ed the  utmost  that  Louis  would  have  given, 
who  thought  he  had  made  a  hard  bargain. 
But  it  is  veiy  difificult  to  reconcile  what 
Clarendon  asserts  in  his  defense,  and  much 
more  at  length  in  his  life  (that  the  business 
of  Dunkirk  was  entirely  decided  before  he 
had  any  thing  to  do  in  it,  by  the  advice  of 
Albemarle  and  Sandwich),  with  the  letters 
of  D'Estrades,  the  negotiator  in  this  trans- 
action on  the  part  of  France.  In  these  let- 
ters, written  at  the  time  to  Louis  XIV., 
Clarendon  certainly  appears  not  only  as  the 
person  chiefly  concerned,  but  as  represent- 
ing himself  almost  the  only  one  of  the  coun- 
cil favorable  to  the  measure,  and  having  to 
overcome  the  decided  repugnance  of  South- 
ampton, Sandwich,  and  Albemarle.*    I  can 

to  raise  money  as  he  pleased ;  and  against  the 
chancellor,  who  told  the  king  that  dueen  Eliza- 
beth did  do  all  her  business  in  1.588  without  calling 
a  Parliament,  and  so  might  he  do  for  any  thing  he 
saw,"  June  25,  f667.  He  probably  got  this  from 
his  friend  Sir  W.  Coventry. 

*  Ralph,  78,  &c.  The  overture  came  from  Clar- 
endon, the  French  having  no  expectation  of  it. 
The  worst  was,  that,  just  before,  he  had  dwelt  in  a 
speech  to  Parliament  on  the  importance  of  Dunkirk. 
This  was  on  May  19,  16G2.  It  appears  by  Louis 
XIV. 's  own  account,  which  certainly  does  not  tally 
with  some  other  authorities,  that  Dunkirk  bad  been 
so  great  an  object  with  Cromwell,  that  it  was  the 
stipulated  price  of  the  English  alliance.  Louis, 
however,  was  vexed  at  this,  and  detemiined  to  re- 
cover it  at  any  price  :  il  est  certain  que  je  ue  pou vols 
trop  donner  pour  racheter  Dunkerque.  He  sent 
D'Estrades  accordingly  to  England  in  1661,  direct- 
ing him  to  make  this  his  gi'eat  object.  Charles  told 
the  ambassador  that  Spain  had  made  him  great 
offers,  but  be  would  rather  treat  with  France. 
Louis  was  delighted  at  this ;  and  though  the  sum 
asked  was  considerable,  5,000,000  livres,  he  would 
not  break  off,  but  finally  concluded  the  treaty  for 
4,000,000,  payable  in  three  years  ;  nay,  saved 
500,000  without  its  being  found  out  by  the  English, 
for  a  banker  having  offered  them  prompt  payment 
at  this  di.scount,  they  gladly  accepted  it;  but  this 
banker  was  a  person  employed  by  Louis  himself, 
who  had  the  money  ready.  He  had  the  greatest 
anxiety  about  this  affair;  for  the  city  of  London 
deputed  the  lord-mayor  to  offer  any  sum  so  that 
Dunkirk  might  not  be  alienated. — ffiuvres  de  Louis 
XIV.,  i.,  167.  If  this  be  altogether  correct,  the 
King  of  France  did  not  fancy  he  had  made  so  bad 


442 


COXSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  XL 


uot,  indeed,  see  anv  other  explanation  than 
that  he  uiagnitied  the  obstacles  in  the  way 
of  this  tieatr.  in  order  to  obtain  better 
terms ;  a  management  not  veiy  miusual  in 
diplomatical  dealing,  but  in  the  degree  at 
least  to  which  he  carried  if.  scarcely  recon- 
cilable with  the  good  faith  we  should  ex- 
pect from  this  minister.  For  the  transac- 
tion itself,  we  can  hardly  deem  it  honorable 
or  impolitic.  The  expense  of  keep'mg  up 
Dunkirk,  though  not  trifling,  would  have 
been  wUlingly  defrayed  by  Parliament,  and 
could  not  well  be  pleaded  by  a  government 
which  had  just  encumbered  itself  with  the 
useless  burden  of  Tangier.  That  its  pos- 
session  was  of  no  great  du"ect  value  to  Eng- 
land must  be  confessed :  but  it  was  anotlier 
question  whether  it  ought  to  have  been  sur- 
rendered into  the  hands  of  France. 

4.  This  close  connection  with  France  is 
indeed  a  great  reproach  to  Clarendon's  pol- 
icy, and  was  the  spring  of  mischiefs  to  which 
he  contributed,  and  which  he  ought  to  have 
foreseen.  WTiat  were  the  motives  of  these 
strong  professions  of  attachment  to  the  in- 
terests of  Louis  XIV.  which  he  makes  in 
some  of  his  letters,  it  is  diificult  to  say.  since 
he  had  undoubtedly  an  ancient  prejudice 
against  that  nation  and  its  government.  I 
should  incline  to  conjecture  tliat  his  knowl- 
edge of  the  king's  unsoundness  in  religion 
led  him  to  keep  at  a  distance  from  the  court 
of  Spain,  as  being  far  more  zealous  in  its 
popery,  and  more  connected  with  the  Jes- 
uit faction,  than  that  of  France  ;  and  this 
possibly  influenced  him.  also,  with  respect  to 
the  Portuguese  match,  wherein,  though  not 
the  first  adviser,  he  certainly  took  much  in- 
terest ;  an  alliance  as  little  judicious  in  the 
outset  as  it  proved  eventually  fortimate.* 
But  the  capital  misdemeanor  that 

Solicitation  ' 

of  French  he  committed  m  this  relation  with 
France  was  the  clandestine  solic- 
itation of  pecuniary  aid  for  the  king.  He 
■*  first  taught  a  lavish  prince  to  seek  the  wa- 
ges of  dependence  in  a  foreign  power,  to 
elude  the  control  of  Parliament  by  the  help 
of  French  money. t    The  purpose  for  which 

a  bareaiu ;  and.  indeed,  with  his  projects,  if  he  had 
the  money  to  spare,  he  could  not  think  so. — Com- 
pare the  Memoires  d'Estrades.  and  the  Supplement 
to  the  third  volume  of  Clarendon  State  Papers. 
The  historians  are  of  no  value,  except  as  they  copy 
from  some  of  these  original  testimonies. 

*  Life  of  Clar,  "fl.    Life  o!  James.  393. 

t  See  Supplement  to  third  volume  of  Clarendon 


I  this  aid  was  asked,  the  succor  of  Portugal, 
might  be  fair  and  laudable :  but  the  prece- 
dent was  most  base,  dangerous,  and  abom- 
inable. A  king  who  had  once  tasted  the 
sweets  of  dishonest  and  clandestine  lucre 
would,  in  the  words  of  the  jjoet.  be  no  more 
capable  afterward  of  abstaining  from  it  than 
a  dog  from  his  greasy  offal. 

These  are  the  errors  of  Clarendon's  po- 
litical life  :  which,  besides  his  no-         ,  . 

C'.irenoon  s 

tonous  concurrence  in  all  meas-  faults  as  a 
ures  of  severity  and  restraint  to- 
wai-d  the  Non-conformists,  tend  to  diminish 
our  respect  for  his  memory,  and  to  exclude 
his  name  from  that  list  of  great  and  wise 
ministers,  where  some  are  willing  to  place 
huu  near  the  head.  If  I  may  seem  to  my 
readers  less  favorable  to  so  eminent  a  per- 
son than  common  history"  might  warrant,  it 
is  at  least  to  be  said  that  I  have  formed  my 
decision  from  his  own  recorded  sentiments, 
or  from  equally  undisputable  sources  of  au- 
thority. The  publication  of  his  lil'e.  that  is, 
of  the  history  of  his  administration,  has  not 
contributed  to  his  honor.  AVe  find  in  it  lit- 
tle or  nothing  of  that  attachment  to  the  Con- 
stitution for  which  he  had  acquired  credit, 
and  some  things  which  we  must  struggle 
hard  to  reconcile  with  his  veracity,  even  if 
the  suppression  of  truth  is  not  to  be  reck- 
oned an  impeachment  of  it  in  a  historian.* 
State  Papers,  tor  abundant  evideiice  of  the  cloea 
connection  between  the  courts  of  France  and  Eng- 
land. The  former  offered  bribes  to  Lord  Clarendon 
so  frequently  and  unceremoniously,  that  one  is  dis- 
posed to  think  he  did  not  show  so  much  indigna- 
tion at  the  first  overture  as  he  ou^ht  to  have  done. 
— See  p.  1.  -1,  13.  The  aim  of  Louis  was  to  effect 
;  the  match  with  Catharine.  Spain  would  have  siv- 
en  a  great  portion  with  any  Protestant  princess,  in 
order  to  break  it.  Clarendon  asked,  on  his  mas- 
ters account,  for  .£50,000  to  avoid  application  to 
Parliament,  p.  i.  The  Frendh  offered  a  secret 
loan,  or  subsidy,  perhaps,  of  2,000.000  livres  for  the 
succor  of  PortusaL  This  was  accepted  by  Claren- 
don, p.  15  :  bat  I  do  not  find  any  thing  more  about  it. 

*  As  no  one  who  res-ards  with  attachment  the 
present  system  of  the  English  Constitution  can 
look  upon  Lord  Clarendon  as  an  excellent  minister, 
or  a  friend  to  the  soundest  principles  of  civil  and 
religious  hberty,  so  no  man  whatever  can  avoid 
considering  his  incessant  deviations  from  the  ereat 
duties  of  a  historian  as  a  moral  blemish  in  his  cbar* 
acter.  He  dares  very  frequently  to  say  what  is 
not  true,  and  what  he  must  have  known  to  be 
otherwise :  he  does  not  dare  to  say  what  is  true. 
And  it  is  almost  an  aggravation  of  this  reproach, 
that  he  aimed  to  deceive  posterity,  and  poisoned 
at  the  fountain  a  stream  from  which  another  gen- 
eration was  to  drink.   Xo  defense  has  ever  been 


Cha.  11.-1660-73.] 


FROM  HENRY  VU. 


:.  TO  GEORGE  11. 


443 


But  the  manifest  profligacy  of  those  who 
contributed  most  to  his  ruin,  and  the  meas- 
ures which  the  court  tooiv  soon  afterward, 
have  rendered  his  administration  compara- 
tively honorable,  and  attached  veneration  to 
bis  raemoiy.  We  are  unwilling  to  believe 
that  there  was  any  thing  to  censure  in  a 
minister  whom  Buckingham  persecuted,  and 
against  whom  Arlington  intrigued.* 

set  np  for  the  fidelity  of  Clarendon's  history ;  nor 
can  men,  who  have  sifted  the  authentic  materials, 
entertain  much  difference  of  judgment  in  this  re- 
spect ;  though,  as  a  monument  of  powerful  abiHty 
and  impressive  eloquence,  it  will  always  be  read 
with  that  delight  which  we  receive  from  many 
great  historians,  especially  the  ancient,  independ- 
ent oPany  confidence  in  their  veracity. 

One  more  instance,  before  we  quit  Lord  Claren- 
don forever,  may  here  be  mentioned  of  his  disre- 
gard for  truth.  The  strange  tale  of  a  fruitless 
search  after  the  restoration  for  the  body  of  Charles 
I.  is  well  known.  Lords  Southampton  and  Liud- 
sey,  he  tells  us,  who  had  assisted  at  their  master's 
obsequies  in  St.  George's  Chapel  at  Windsor,  were 
so  overcome  with  grief  that  they  could  not  recog- 
nize the  place  of  interment ;  and,  after  several  vain 
attempts,  the  search  was  abandoned  in  despair. — 
Hist,  of  Rebellion,  vi.,  244.  'Whatever  motive  the 
noble  historian  may  have  had  for  this  story,  it  is 
absolutely  incredible  that  any  such  ineffectual 
search  was  ever  made.  Nothing  could  have  been 
more  easy  than  to  have  taken  up  the  pavement  of 
the  choir.  But  this  was  unnecessaiy.  Some,  at 
least,  of  the  workmen  employed  must  have  remem- 
bered the  place  of  the  vault.  Nor  did  it  depend 
on  them ;  for  Sir  Thomas  Herbert,  who  was  pres- 
ent had  made  at  the  time  a  note  of  the  spot,  "just 
opposite  the  eleventh  stall  on  the  king's  side." — 
Herbert's  Memoirs,  142.  And  we  find  from  Pepys's 
Diarj',  Feb.  26,  1666,  that  "  he  was  shown  at 
Windsor  where  the  late  king  was  buried,  and 
King  Henry  VIII.,  and  my  Lady  Seymour;"  in 
■which  spot,  as  is  well  known,  the  royal  body  has 
twice  been  found,  once  in  the  reign  of  Anne,  and 
again  in  1813.  [It  has  been  sometimes  suggested, 
that  Charles  II.,  having  received  a  large  sum  of 
money  from  Parliament  toward  his  father's  funeral, 
chose  to  have  it  believed  that  the  body  could  not 
be  found,  But  the  vote  of  XTO.OOO  by  the  Com- 
mons for  this  purpose  was  on  Jan.  30,  1678,  long 
after  the  pretended  search  which  Clarendon  has 
mentioned.  Wren  was  directed  to  make  a  design 
for  a  monument,  which  is  in  All  Souls'  College ; 
but  no  further  steps  were  taken. — Ellis's  Letters, 
1st  series,  vol.  iii.,  p.  329.  It  seems  veiy  unlikely 
that  the  king  ever  got  the  money  which  had  been 
voted,  and  the  next  Parliaments  were  not  in  a 
temper  to  repeat  the  offer.] — 1845. 

'  The  tenor  of  Clarendon's  life  and  writings  al- 
most forbids  any  surmise  of  pecuniary  corruption. 
Yet  this  is  insinuated  by  Pepys,  on  the  authority 
of  Evelyn,  April  27  and  May  16,  1667.  But  the 
one  was  gossiping,  though  shrewd ;  and  the  other 
feeble,  though  accomplished.    Lord  Dartmouth, 


A  distinguished  characteristic  of  Claren- 
don liad  been  his  firmness,  called,  Hisposiiian. 
indeed,  by  most,  pride  and  obsti-  '"'""^  "'g""'' 
nacy,  whicli  no  circumstances,  no  perils, 
seemed  likely  to  bend.  But  his  spirit  sunk 
all  at  once  with  liis  fortune.  Clinging  too 
long  to  office,  and  cheating  himself  against 
all  probability  with  a  liope  of  his  master's 
kindness  when  he  had  lost  liis  confidence, 
he  forgot  that  dignified  philosophy  which 
ennobles  a  voluntary  retirement,  that  stern 
courage  which  innocence  ought  to  inspire  ; 
and,  hearkening  to  tlie  king's  treacherous 
counsels,  fled  before  his  enemies  into  a  for- 
eign country.  Though  the  impeachment, 
at  least  in  the  point  of  high  treason,  can  not 
be  defended,  it  is  impo.ssible  to  , 

'  »  and  conse- 

deny  that  the  act  of  banishment,  quent  bauish- 
under  the  circumstances  of  his 
flight,  was  capable,  in  the  main,  of  full  jus- 
tification. In  an  ordinary  criminal  suit,  a 
process  of  outlawry  goes  against  the  accus- 
ed who  flies  from  justice;  and  his  neglect 
to  a])pear  within  a  given  time  is  equivalent, 
in  cases  of  treason  or  felonj',  to  a  conviction 
of  the  offense  :  can  it  be  complained  of,  that 
a  minister  of  state,  who  dai-es  not  confront 
a  Parliamentaiy  impeachment,  should  be 
visited  with  an  analogous  penalty?  But, 
whatever  injustice  and  violence  may  be 
found  in  this  prosecution,  it  estabfished  for- 
ever the  right  of  impeachment,  which  the 
discredit  into  which  the  Long  Parliament 
had  fallen  exposed  to  some  hazai  d ;  the 
strong  abettors  of  prerogative,  such  as  Clar- 
endon himself,  being  inclined  to  dispute  this 
responsibility  of  the  king's  advisers  to  Par- 
liament. The  Commons  had,  in  the  pre- 
ceding session,  sent  up  an  impeachment 
against  Lord  Mordaunt,  upon  charges  of  so 
little  public  moment,  that  they  may  be  sus- 

who  lived  in  the  next  age,  and  whose  splenetic 
humor  makes  him  no  good  witness  against  any 
body,  charges  him  with  receiving  bribes  from  the 
main  instruments  and  promoters  of  the  late  trouhles, 
and  those  who  had  plundered  the  Royahsts,  which 
enabled  him  to  build  his  gTeat  mansion  in  Picca- 
dilly ;  asserting  that  it  was  full  of  pictures  belong- 
ing to  families  who  had  been  despoiled  of  them ; 
"  and  whoever  had  a  mind  to  see  what  gi-eat  fam- 
ilies had  been  plundered  during  the  civil  war, 
might  find  some  remains  either  at  Clarendon  House 
or  at  Cornbury.'' — Note  on  Buniet,  88. 

The  character  of  Clarendon,  as  a  minister,  is 
fairly  and  judiciously  drawn  by  Macphcrson,  Hist, 
of  England,  98 ;  a  work  by  no  means  so  full  of  a  , 
Tory  spirit  as  has  been  supposed. 


444 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  XL 


pected  of  having  chiefly  had  in  view  the  as- 
sertion of  this  important  privilege.*  It  was 
never  called  in  question  from  this  time;  and, 
indeed,  they  took  care,  during  the  remain- 
der of  this  reign,  that  it  should  not  again  be 
endangered  by  a  paucity  of  precedents. f 

The  period  between  the  fall  of  Clarendon 
in  1667,  and  the  commencement  of  Lord 
Danby's  administration  in  1673,  is  general- 

*  Pari.  Hist.,  347. 

t  The  Lords  refused  to  commit  the  Earl  of  Clar- 
endon on  a  general  impeacluneut  of  liigh  treason  ; 
and  in  a  conference  with  the  Lower  House,  denied 
the  authority  of  the  precedent  in  Strafford's  case, 
which  was  pressed  upon  them.  It  is  remarkable 
that  the  managers  of  this  conference  for  the  Com- 
mons vindicated  the  first  proceedings  of  the  Long 
Parliament,  which  shows  a  considerable  change  in 
their  tone  since  1661.  They  do  not,  howevei',  seem 
to  have  urged,  what  is  an  apparent  distinction  be- 
tween the  two  precedents,  that  the  commitment 
of  Strafford  was  on  a  verbal  request  of  Pym  in  the 
name  of  the  Commons,  without  alleging  any  special 
matter  of  treason,  and,  consequently,  irregular  and 
illegal,  while  the  16th  article  of  Clarendon's  im- 
peachment charges  him  with  betraying  the  king's 
counsels  to  his  enemies,  which,  however  untrue, 
evidently  amounted  to  treason  within  the  statute 
of  Edward  III. ;  so  that  the  objection  of  the  Lords 
extended  to  committing  any  one  for  treason  upon 
iuipeachmeut,  without  all  the  particularity  required 
in  an  indictment.  This  showed  a  very  commenda- 
ble regard  to  the  liberty  of  the  subject ;  and  from 
this  time  we  do  not  find  the  vague  and  unintelligi- 
ble accusations,  whether  of  treason  or  misdemean- 
or, so  usual  in  former  proceedings  of  Parliament. — 
Pari.  Hist.,  387.  A  protest  was  signed  by  Buck- 
ingham, Albermarle,  Bristol,  Arlington,  and  others 
of  their  party,  including  three  bishops  (Cosins, 
Croft,  and  another),  against  the  refusal  of  their 
House  to  commit  Clarendon  upon  the  general 
charge.  A  few,  on  the  other  hand,  of  whom  Hollis 
is  the  only  remarkable  name,  protested  against  the 
bill  of  banishment. 

"  The  most  fatal  blow  (says  James)  the  king 
gave  himself  to  his  power  and  prerogative,  was 
when  he  sought  aid  from  the  House  of  Commons 
to  destroy  the  Earl  of  Clarendon;  by  that  he  put 
that  House  again  in  mind  of  their  impeaching  priv- 
ilege, which  had  been  wrested  out  of  their  hands 
by  the  Kestoration ;  and  when  ministers  found 
they  were  like  to  be  left  to  the  censure  of  Parlia- 
ment, it  made  them  have  a  greater  attention  to 
court  an  interest  there  than  to  pursue  that  of  their 
princes,  from  whom  they  hoped  not  for  so  sure  a  ! 
support." — Life  of  James,  593.  [ 

The  king,  it  is  said,  came  rather  slowly  into  the  [ 
measui'e  of  impeachiueut ;  but  became  afterward  j 
BO  eager  as  to  give  the  attorney-general.  Finch, 
positive  orders  to  be  active  in  it,  observing  him  to 
be  silent. — Carte's  Ormond,  ii.,  353.    Buckingham  ' 
had  made  the  king  great  promises  of  what  the 
Commons  would  do,  in  case  he  would  sacrifice 
Clarendon.  I 


ly  reckoned  one  of  the  most  disgraceful  in 
the  annals  of  our  monarchy.  This  cabaimin- 
was  the  age  of  what  is  usually  de- 
nominated  the  Cabal  administration,  from 
the  five  initial  letters  of  Sir  Thomas  Clif- 
ford, first  commissioner  of  the  treasury,  af- 
terward Lord  ClifTord  and  high-treasurer; 
the  Earl  of  Arlington,  secretary  of  state; 
the  Duke  of  Buckingham ;  Lord  .\shley, 
chancellor  of  the  Exchequer,  aftenvard 
Earl  of  Shaftesbury  and  lord-chancellor; 
and,  lastly,  the  Duke  of  Lauder-  Scheme  of 
dale.  Yet,  though  the  counsels  'Zr.tZ- 
of  these  persons  soon  became  ex-  <iuigcnce. 
tremely  pernicious  and  dishonorable,  it  must 
be  admitted  that  the  first  measures  after  the 
banishment  of  Clarendon,  both  in  domestic 
and  foreign  policy,  were  highly  praisewor- 
thy. Bridgman,  who  succeeded  the  late 
chancellor  in  the  custody  of  the  great  seal, 
'  with  the  assistance  of  Chief-baron  Hale  and 
Bishop  Wilkins,  and  at  the  instigation  of 
Buckingham,  who,  careless  about  eveiy  re- 
ligion, was  from  humanitj'  or  politic  motives 
friendly  to  the  indulgence  of  all,  laid  the 
foundations  of  a  treaty  with  the  Non-con- 
formists, on  the  basis  of  a  comprehension 
for  the  Presbyterians,  and  a  toleration  for 
1  the  rest.*  They  had  nearly  come,  it  is 
I  said,  to  terms  of  agi-eement,  so  that  it  was 
thought  time  to  intimate  their  design  in  a 
speech  from  the  throne.  But  the  spirit  of 
1662  was  still  too  powerful  in  the  Com- 
mons ;  and  the  friends  of  Clarendon,  whose 
administration  this  change  of  counsels  seem- 
ed to  reproach,  taking  a  warm  part  against 
all  indulgence,  a  motion  that  the  king  be  de- 
sired to  send  for  such  persons  as  he  should 
think  fit  to  make  proposals  to  him  in  order 
to  the  uniting  of  his  Protestant  subjects  was 
negatived  by  176  to  70. f    They  proceeded, 

*  Kennet,  293,  300.  Burnet.  Baxter,  23.  The 
design  was  to  act  on  the  principle  of  the  declara- 
tion of  1600,  so  that  Presbyterian  ordinations  should 
pass  sub  modo.  Tillotson  and  Stillingfleet  were 
concerned  in  it.  The  king  was  at  this  time  exas- 
perated against  the  bishops  for  their  support  of 
Clarendon.  —  Burnet,  ibid.  Pepys's  Diarj',  21st 
Dec,  1667.    And  he  had  also  deeper  motives. 

t  Pari.  Hist.,  421.  Ralph,  170.  Carte  s  Life  of 
Ormond,  ii.,  362.  Sir  Thomas  Littleton  spoke  in 
favor  of  the  comprehension,  as  did  Seymour  and 
Waller;  all  of  them  enemies  of  Clarendon,  and 
probably  connected  with  the  Buckingham  faction; 
but  the  Church  party  was  much  too  strong  for  them. 
Pepys  says  the  Commons  were  furious  against  the 
project ;  it  was  said  that  whoever  proposed  new 


Cha.  II.— 1660-73.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


445 


by  almost  an  equal  majoiity,  to  continue  the 
bill  of  1664,  for  suppressing  seditious  con- 
venticles;  which  failed,  however,  for  the 
present,  in  consequence  of  the  sudden  pro- 
rogation.* 

But,  whatever  difference  of  opinion  might 
Triple  alii-  t^^''  time  prevail  with  respect 
■"<=®-  to  this  tolerant  disposition  of  the 
new  government,  there  was  none  as  to 
their  great  measure  in  external  policy,  the 
tjriple  alliance  with  Holland  and  Sweden.  A 
considerable  and  pretty  sudden  change  had 
taken  place  in  the  temper  of  the  English 
people  toward  France.  Though  the  dis- 
cordance of  national  character,  and  the  dis- 
like that  seems  natural  to  neighbors,  as  well 
as  in  some  measure  the  recollections  of  their 
ancient  hostility,  had  at  all  times  kept  up  a 
certain  ill  will  between  the  two,  it  is  mani- 
fest that  before  the  reign  of  Charles  II. 
there  was  not  that  antipathy  and  inveterate 
enmity  toward  the  French  in  general  which 
it  has  since  been  deemed  an  act  of  pati'iot- 
ism  to  jjrofess.  The  national  prejudices, 
from  the  accession  of  Elizabeth  to  the  Res- 
toration, ran  far  more  against  Spain ;  and  it 
is  not  surprising  that  the  apprehensions  of 
that  ambitious  monarchy,  which  had  been 
very  just  in  the  age  of  Philip  II.,  should 
have  lasted  longer  than  its  ability  or  inclina- 
tion to  molest  us.  But  the  rapid  declension 
of  Spain  after  the  peace  of  the  Pyrenees, 
and  the  towering  ambition  of  Louis  XIV., 
master  of  a  kingdom  intrinsically  so  much 
more  formidable  than  its  rival,  manifested 
that  the  balance  of  power  in  Europe,  and 
our  own  immediate  security,  demanded  a 
steady  opposition  to  the  aggrandizement  of 
one  monarchy,  and  a  regard  to  the  preser- 
vation of  the  other.  These,  indeed,  were 
rather  considerations  for  statesmen  than  for 
the  people ;  but  Louis  was  become  unpop- 
ular both  by  his  acquisition  of  Dunkirk  at 
the  expense,  as  it  was  thought,  of  our  hon- 
or, and  much  more  deservedly  by  his  shuf- 
fling conduct  in  the  Dutch  war,  and  union 
in  it  with  our  adversaries.  Nothing,  there- 
fore, gave  greater  satisfaction  in  England 

laws  about  religion  must  do  it  with  a  rope  about 
bis  neck.  Jan.  10,  1668.  This  is  the  first  instance 
of  a  triumph  obtained  by  the  Churcli  over  the 
crown  in  the  House  of  Commons.  Ralph  obsei-ves 
upon  it,  "  It  is  not  for  naught  that  the  words  Church 
and  State  are  so  often  coupled  together,  and  that 
the  first  has  so  insolently  usurped  the  precedency 
of  the  last."  "  *  Pari.  Hist.,  422. 


than  the  triple  alliance,  and  consequent 
peace  of  Aix  la  Chapelle,  whicli  saved  the 
Spanish  Netherlands  from  absolute  con- 
quest, though  not  without  important  sacri- 
fices.* 

Charles  himself,  meanwhile,  by  no  means 
partook  in  this  common  jealousy  intrigue  with 
of  France.  He  had,  from  the  France, 
time  of  his  restoration,  entered  into  close 
relations  with  that  power,  which  a  short 
period  of  hostility  had  interrupted  without 
leaving  any  resentment  in  his  mind.  It  is 
now  known  that,  while  his  minister  was 
negotiating  at  the  Hague  for  the  triple  al- 
liance, he  had  made  overtures  for  a  clandes- 
tine treaty  with  Louis,  through  his  sister 
the  Duchess  of  Orleans,  the  Duke  of  Buck- 
ingham, and  the  French  ambassador  Rou- 
^'gny-f  As  the  King  of  France  was  at  first 
backward  in  meeting  these  advances,  and 
the  letters  published  in  regard  to  them  are 
very  few,  we  do  not  find  any  precise  object 
expressed  beyond  a  close  and  intimate 
friendship.  But  a  few  words  in  a  memo- 
rial of  Rouvigny  to  Louis  XIV.  seem  to 
let  us  into  the  secret  of  the  real  purpose. 
"  The  Duke  of  York,"  he  says,  "  wishes 
much  for  this  union ;  the  Duke  of  Bucking- 
ham the  same :  they  use  no  art,  but  say 
that  nothing  else  can  re-establish  the  affairs 
of  this  court. "t 

Charles  II.  was  not  of  a  temperament  to 
desire  arbitrary  power,  either        ,  .  ■ 

^     *  King  s  desire 

through  haughtiness  and  conceit  to  be  abso- 
of  his  station,  which  he  did  not 
greatly  display,  or  through  the  love  of  tak- 
ing into  his  own  hands  the  direction  of  pub- 
lic affairs,  about  which  he  was,  in  general, 
pretty  indifferent.  He  did  not  wish,  as  he 
told  Lord  Essex,  to  sit  like  a  Turkish  sul- 

*  France  retained  Lille,  Toumay,  Douay,  Char- 
leroi,  and  other  places  by  the  treaty.  The  allies 
were  surprised,  and  not  pleased  at  tlie  choice  Spain 
made  of  yielding  these  towns  in  order  to  save 
Franche  Comte. — Temple's  Letters,  97.  In  fact, 
they  were  not  on  good  teiTns  with  that  power ;  she 
had  even  a  project,  out  of  spite  to  Holland,  of  giv- 
ing up  the  Netherlands  entirely  to  France,  in  ex- 
change for  Rousillon,  but  thought  better  of  it  on 
cooler  reflection. 

t  Dalrj'mple,  ii.,  5,  et  post.  Temple  was  not 
treated  very  favorably  by  most  of  the  ministers  on 
his  retai-u  from  concluding  the  triple  alliance  :  Clif- 
ford said  to  a  friend,  "Well,  for  all  this  noise,  we 
mast  yet  have  another  war  with  the  Dutch  before 
it  be  long." — Temple's  Letters,  1*23. 

X  Dalrymple,  ii.,  12. 


446 


CONSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


tan,  and  sentence  men  to  the  bowstring,  but 
could  not  bear  that  a  set  of  fellows  should 
inquire  into  his  conduct.*  His  aim,  in  fact, 
was  liberty  rather  than  power ;  it  was  that 
immunity  from  control  and  censure,  in  which 
men  of  his  character  place  a  great  part  of 
their  happiness.  For  some  years  he  had 
cared  probably  veiy  little  about  enhancing 
his  prerogative,  content  with  the  loyaltj', 
though  not  quite  with  the  liberality,  of  his 
Parliament.  And  had  he  not  been  drawn, 
against  his  better  judgment,  into  the  war 
with  Holland,  this  harmony  might  perhaps 
have  been  protracted  a  good  deal  longer. 
But  the  vast  expenditure  of  that  war,  pro- 
ducing little  or  no  decisive  success,  and  com- 
ing, unfortunately,  at  a  time  when  trade  was 
not  very  thriving,  and  when  rents  had  con- 
siderably fallen,  exasperated  all  men  against 
the  prodigality  of  the  court,  to  which  they 
might  justly  ascribe  part  of  their  burdens, 
and,  with  the  usual  miscalculations,  believ- 
ed that  much  more  of  them  was  due. 
Hence  the  bill  appointing  commissioners  of 
public  account,  so  ungi-ateful  to  the  king, 
whose  personal  reputation  it  was  likely  to 
affect,  and  whose  favorite  excesses  it  might 
tend  to  resti-ain. 

He  was  almost  equally  provoked  by  the 
license  of  his  people's  tongues.  A  court 
like  that  of  Charles  is  the  natural  topic  of 
the  idle  as  well  as  the  censorious.  An  ad- 
ministration so  ill  conducted  could  not  es- 
cape the  remarks  of  a  well-educated  and  in- 
telligent city.  There  was  one  method  of 
putting  an  end  to  these  impertinent  com- 
ments, or  of  rendering  them  innoxious  ;  but 
it  was  the  last  which  he  would  have  adopt- 
ed. Clarendon  informs  us  that  the  king  one 
day  complaining  of  the  freedom,  as  to  polit- 
ical conversation,  taken  in  coffee-houses,  he 
recommended  either  that  all  persons  should 
be  forbidden  by  proclamation  to  resort  to 
them,  or  that  spies  should  be  placed  in  them 
to  give  information  against  seditious  speak- 
ers.f  The  king,  he  says,  liked  both  expe- 
dients, but  thought  it  unfair  to  have  recourse 
to  tlie  latter  till  the  former  had  given  fair 
warning,  and  directed  him  to  propose  it  to 
the  council ;  but  here.  Sir  William  Coven- 
try objecting,  the  king  was  induced  to  aban- 
don the  measure,  much  to  Clarendon's  dis- 
appointment, thougli  it  probably  saved  him 
*  Buruet. 

t  Life  of  Clarendon,  357. 


an  additional  article  in  his  impeachment. 
The  unconstitutional  and  arbitrarj-  tenor  of 
this  great  minister's  notions  of  government 
is  strongly  displayed  in  this  little  anecdote. 
Coventry  was  an  enlightened,  and,  for  that 
age,  an  upright  man,  whose  enmity  Claren- 
don brought  on  himself  by  a  marked  jealousy 
of  his  abilities  in  council. 

Those  who  stood  nearest  to  the  king 
were  not  backward  to  imitate  his  discontent 
at  the  privileges  of  his  people  and  their  rep- 
resentatives. The  language  of  courtiers  and 
court  ladies  is  always  intolerable  to  honest 
men,  especially  that  of  such  courtiers  as 
surrounded  the  throne  of  Charles  H.  It  is 
worst  of  all  amid  public  calamities,  such  as 
pressed  very  closely  on  one  another  in  a 
part  of  his  reign  ;  the  awful  pestilence  of 
166.5,  the  still  more  ruinous  fire  of  1666, 
the  fleet  burned  by  the  Dutch  in  the  Med- 
way  next  summer.  No  one  could  reproach 
the  king  for  outward  inactivity  or  indiffer- 
ence during  the  great  fire.  But  there  were 
some,  as  Clarendon  tells  us,  who  presumed 
to  assure  him  "  that  this  was  the  greatest 
blessing  that  God  had  ever  confen-ed  on 
him,  his  restoration  only  excepted  ;  for  the 
walls  and  gates  being  now  burned  and 
thrown  do-wn  of  that  rebellious  city,  which 
was  always  an  enemy  to  the  crown,  his 
majesty  would  never  suffer  them  to  repair 
and  build  them  up  again,  to  be  a  bit  in  his 
mouth  and  a  bridle  upon  his  neck,  but  would 
keep  all  open,  that  his  troops  might  enter 
upon  them  whenever  he  thought  it  neces-' 
sary  for  his  senice,  there  being  no  other 
way  to  govern  that  rude  multitude  but  by 
force."*  This  kind  of  discourse,  he  goes 
on  to  say,  did  not  please  the  king.  But 

I  here  we  may  venture  to  doubt  his  testi- 
mony ;  or,  if  the  natural  good  temper  of 
Charles  prevented  him  from  taking  pleasure 

i  in  such  atrocious  congratulations,  we  may 
be  sure  that  he  was  not  sorry  to  think  the 
city  more  in  his  power. 

It  seems  probable  that  this  loose  and  prof- 
ligate way  of  speaking  gave  rise,  in  a  great 
degi'ee,  to  the  suspicion  that  the  city  had 
been  purposely  burned  by  those  who  were 
more  enemies  to  religion  and  liberty  than  to 
the  court.  The  papists  stood  ready  to  bear 
the  infamy  of  every  unproved  crime  ;  and  a 
committee  of  the  House  of  Commons  col- 
lected evidence  enough  for  those  who  were 
*  Life  of  Clarendon,  355. 


Cha.  U.— 1660-73.] 


PROM,  HENRY  VII.  TO  GEORGE  II. 


447 


already  convinced,  that  London  had  been 
burned  by  that  obnoxious  sect.  Though 
the  House  did  not  proceed  further,  there 
can  be  no  doubt  that  the  inquiry  contributed 
to  produce  that  inveterate  distrust  of  the 
court,  whose  connections  with  the  popish 
faction  were  half  known,  half  conjectured, 
which  gave  from  this  time  an  entirely  new 
complexion  to  the  Parliament.  Prejudiced 
as  the  Commons  were,  they  could  hardly 
have  imagined  the  Catholics  to  have  burned 
the  city  out  of  mere  malevolence,  but  must 
have  atti'ibuted  the  crime  to  some  far-spread- 
ing plan  of  subverting  the  established  Con- 
stitution.* 

The  retention  of  the  king's  guards  had 
excited  some  jealousy,  though  no  complaints 
seem  to  have  been  made  of  it  in  Parliament ; 
but  the  sudden  levy  of  a  considerable  force 
in  16C7,  however  founded  upon  a  very  plau- 
sible pretext  from  the  circumstances  of  the 
war,  lending  credit  to  these  dark  surmises 
of  the  court's  sinister  designs,  gave  much 
greater  alarm.  The  Commons,  summoned 
together  in  July,  instantly  addressed  the 
king  to  disband  his  army  as  soon  as  the 
peace  should  be  made.  We  learn  from  the 
Duke  of  York's  private  memoirs,  that  some 
of  those  who  were  most  respected  foi  their 
ancient  attachment  to  liberty,  deemed  it  in 
jeopardy  at  this  crisis.  The  Earls  of  North- 
umberland and  Leicester,  Lord  HoUis,  Mr. 
Pierpoint,  and  others  of  the  old  Parliament- 
ary party,  met  to  take  measures  together. 
The  first  of  these  told  the  Diike  of  York  that 
the  nation  would  not  be  satisfied  with  the 
removal  of  the  chancellor  imless  the  guards 
were  disbanded,  and  several  other  grievan- 
ces redressed,    The  duke  bade  him  be  cau- 

*  State  Trials,  vi.,  807.  One  of  the  oddest  things 
connected  with  this  fire  was,  that  some  persons  of 
the  fanatic  party  had  been  hanged  in  April  for  a 
conspiracy  to  surprise  the  Tower,  murder  the  Duke 
of  Albennarle  and  others,  and  tlien  declare  for  an 
equal  division  of  lauds,  Acc.  In  order  to  effect  this, 
the  city  was  to  be  fired,  and  the  guards  secured  in 
their  quarters ;  and  for  this  the  3d  of  September 
following  was  fixed  upon  as  a  lucky  day.  This  is 
undoubtedly  to  be  read  in  the  London  Gazette  for 
April  30,  1666;  and  it  is  equally  certain  that  the 
city  was  in  flames  on  the  3d  of  September ;  but, 
though  the  coincidence  is  curious,  it  would  be  very 
weak  to  think  it  more  than  a  coincidence,  for  the 
same  reason  as  applies  to  the  suspicion  which  the 
Catholics  incurred — that  the  mere  destniction  of 
the  city  could  not  have  been  the  object  of  any  party, 
and  that  nothing  was  attempted  to  manifest  any 
further  design. 


tious  what  he  said,  lest  he  should  be  obliged 
to  inform  the  king ;  but  Northumberland  re- 
plied that  it  Avas  his  intention  to  repeat  the 
same  to  the  king,  which  he  did,  accordingly, 
the  next  day.* 

This  change  in  public  sentiment  gave 
warning  to  Charles  that  he  could  not  expect 
to  reign  with  as  little  trouble  as  he  had  hith- 
erto experienced  ;  and  doubtless  the  recol- 
lection of  his  father's  history  did  not  con- 
tribute to  cherish  the  love  he  sometimes 
pretended  for  Parliaments. f  His  brother, 
more  reflecting  and  more  impatient  of  re- 
straint on  royal  authority,  saw,  with  still 
greater  clearness  than  the  king,  that  they 
could  only  keep  the  prerogative  at  its  desired 
height  by  means  of  intimidation.  A  regular 
army  was  indispensable  ;  but  to  keep  up  an 
anny  in  spite  of  Parliament,  or  to  raise  mon- 
ey for  its  support  without  Parliament,  were 
very  difficult  undertakings.  It  seemed  nec- 
essary to  call  in  a  more  powerful  arm  than 
their  own ;  and,  by  establishing  the  closest 
union  with  the  King  of  France,  to  obtain 
either  military  or  pecuniary  succors  from 
him,  as  circumstances  might  demand.  But 
there  was  another  and  not  less  imperious 
motive  for  a  secret  treaty.  The  king,  as 
has  been  said,  though  little  likely,  from  the 
tenor  of  his  life,  to  feel  very  strong  and  last- 
ing impressions  of  religion,  had  at  times  a 
desire  to  testify  publicly  his  adherence  to 
the  Romish  communion.  The  Duke  of 
York  had  come  more  gradually  to  change 
the  faith  in  which  he  was  educated.  He 
describes  it  as  the  result  of  patient  and  anx- 

*  Macpherson's  Extracts,  38,  49.  Life  of  James, 
426. 

t  ["  I  am  sorry,"  says  Temple,  very  wisely  and 
virtuously,  "his  majesty  should  meet  with  any 
thing  he  did  not  look  for  at  the  opening  of  this  ses- 
sion of  Parliament;  but  confess  I  do  not  see  why 
his  majesty  should  [not]  not  only  consent,  but  en- 
courage any  inquiries  or  disquisitions  they  desire 
to  make  into  the  miscarriages  of  the  late  war,  as 
well  as  he  had  done  already  in  the  matter  of  ac- 
counts ;  for  if  it  be  not  necessary,  it  is  a  king's 
care  and  happiness  to  content  his  people.  1  doubt, 
as  men  will  never  part  willingly  with  their  money, 
unless  they  be  well  persuaded  it  will  be  employed 
directly  to  those  ends  for  which  they  gave  it,  so 
they  will  never  be  satisfied  with  a  government, 
unless  they  see  men  are  chosen  into  offices  and 
employments  by  being  fit  for  them,  continued  for 
discharging  them  well,  rewarded  for  extraordinary 
merit,  and  punished  for  remarkable  faults,"  March 
2,  16G3.  Courtenay's  Life  of  Temple,  vol.  ii.,  p. 
90.]— 1845. 


I 


448 


COXSTITUTIONAL  HISTORY  OF  ENGLAXD 


[Chap.  XI. 


ious  inquhy ;  nor  would  it  be  possible,  there- 
fore, to  fix  a  precise  date  for  his  conversion, 
which  seems  to  have  been  not  fully  accom- 
plished till  after  the  Restoration.*  He, 
however,  continued  in  conformity  to  the 
Church  of  England,  till,  on  discovering  that 
the  Catholic  religion  exacted  an  outward 
communion,  which  he  had  fancied  not  indis- 
pensable, he  became  more  uneasy  at  the 
resti'aint  that  policy  imposed  on  him.  This 
led  to  a  conversation  with  the  king,  of  whose 
private  opinions  and  disposition  to  declare 
them  he  was  probably  informed,  and  to  a 
close  union  with  Clifford  and  Arlington,  from 
whom  he  had  stood  aloof  on  account  of  their 
animosity  against  Clarendon.  The  king  and 
duke  held  a  consultation  with  those  two 
ministers,  and  with  Lord  Arundel  of  War- 
dour,  on  the  25th  of  January,  1669,  to  dis- 
cuss the  ways  and  methods  fit  to  be  taken 
for  the  advancemeut  of  the  Catholic  religion 
in  these  kingdoms.  The  king  spoke  earn- 
estly, and  with  tears  in  his  eyes.  After  a 
long  deliberation,  it  was  agi-eed  that  there 
was  no  better  way  to  accomplish  tliis  pur- 
pose than  through  France,  the  house  of 
Austria  being  in  no  condition  to  give  any  as- 
sistance, f 

The  famous  secret  treaty,  which,  though 
Secret  trea-  believed  on  pretty  good  evidence 
ty  of  1676.  jjot  long  after  the  time,  was  first 
actually  brought  to  light  by  Dalrymple  about 
half  a  century  since,  began  to  be  negotiated 

*  He  tells  us  himself  that  it  began  by  his  read- 
ing a  book  written  by  a  learned  bishop  of  the 
Church  of  England  to  clear  her  from  schism  iu 
leaving  the  Roman  communion,  which  had  a  con- 
trary effect  on  him;  especially  when,  at  the  said 
bishop's  desire,  he  read  an  answer  to  it.  This 
made  him  inquisitive  about  the  grounds  and  man- 
ner of  the  Reformation.  After  his  return,  Heyhn's 
Histoiy  of  the  Reformation,  and  the  preface  to 
Hooker's  Ecclesiastical  Polity,  thoroughly  con- 
vinced him  that  neither  the  Church  of  England, 
nor  Cahdn,  nor  any  of  the  Reformers,  had  power 
to  do  what  they  did ;  and  he  was  confident,  he  said, 
that  whosoever  reads  those  two  books  with  atten- 
tion and  without  prejudice,  would  be  of  the  same 
opinion. — Life  of  James,  i.,  629.  The  Duchess  of 
York  embraced  the  same  creed  as  her  husband, 
and,  as  he  tells  us,  without  knowledge  of  his  sen- 
timents, but  one  year  before  her  death  in  1670. 
She  left  a  paper  at  her  death  containing  the  reas- 
ons for  her  change. — See  it  in  Kennet,  320.  It  is 
plain  that  she,  as  well  as  the  duke,  had  been  in- 
fluenced by  the  Romanizing  tendency  of  some  An- 
glican divines. 

t  Macpherson,  50.    Life  of  James,  414. 


very  soon  after  this  consultation.*  We  find 
allusions  to  the  king's  projects  in  one  of  his 
letters  to  the  Duchess  of  Orleans,  djited  22d 
of  March,  1669. f  In  another  of  June  6, 
the  methods  he  was  adopting  to 

1  .  ^1  •  1       •  Its  objects. 

secure  himseli  mtliis  perilous  junc- 
ture appear.  He  was  to  fortify  Plymouth, 
,  Hull,  and  Portsmouth,  and  to  place  them  in 
trusty  hands.  The  fleet  was  under  the 
I  duke,  as  lord-admiral ;  the  guards  and  their 
officers  were  thought,  in  general,  well  af- 
fected ;t  but  his  great  reliance  was  on  the 
most  Christian  king.  He  stipulated  for 
j£200,000  annually,  and  for  the  aid  of  6000 
French  troops. §    In  return  for  such  import- 

*  De  Witt  was  apprised  of  the  intrigue  between 
France  and  England  as  early  as  April,  1669,  through 
a  Swedish  agent  at  Paris. — Temple,  179.  Temple 
himself,  in  the  course  of  that  year,  became  con- 
vinced tliat  the  king's  views  were  not  those  of  his 
people,  and  reflects  severely  on  his  conduct  in  a 
letter,  December  24,  1669,  p.  206.  In  September, 
1670,  on  his  sudden  recall  from  the  Hague,  De 
Witt  told  him  his  suspicions  of  a  clandestine 
treaty,  241.  He  was  received  on  his  return  coldly 
by  Arlington,  and  almost  with  rudeness  by  CUfford, 
244.  They  knew  he  would  never  concur  in  the 
new  projects.  But  in  1682,  during  one  of  the  in- 
tervals when  Charles  was  playing  false  with  his 
brother  Louis,  the  latter,  in  revenge,  let  an  Abb6 
Primi,  in  a  history  of  the  Dutch  war,  publish  an 
account  of  the  whole  secret  treaty,  under  the  name 
of  the  Count  de  St.  Majolo.  This  book  was  imme- 
diately suppressed  at  the  instance  of  the  EngUsh 
ambassador,  and  Primi  was  sent  for  a  short  time 
to  the  Bastile.  But  a  pamphlet,  published  in  Lon- 
don just  after  the  Revolution,  contains  extracts 
from  it. — Dalrymple,  ii.,  80.  Somers  Tracts,  viii., 
13.  State  Tracts,  temp.  W.  III.,  vol.  i.,  p.  1.  HarL 
Misc.,  ii.,  387.  CEuvres  de  Louis  XIV.,  vi.,  476. 
It  is  singular  that  Hume  should  have  slighted  so 
well  authenticated  a  fact,  even  before  Dalrj-mple's 
publication  of  the  treatj" ;  but  I  suppose  he  had 
never  heard  of  Primi's  book.  [Yet  it  had  been 
quoted  by  Bolingbroke.  Dissertation  on  Parties, 
Letter  iv.,  who  alludes,  also,  to  "  other  proofs  which 
have  not  seen  the  light."  And  in  the  "  Letters  on 
the  Study  of  Historj  ,"  Lett,  vii.,  he  is  rather  more 
explicit  about  "  the  private  relations  I  have  read 
formerly,  drawn  up  by  those  who  were  no  enemies 
to  such  designs,  and  on  the  authority  of  those  who 
were  parties  to  them."]  The  original  treaty  has 
lately  been  published  by  Dr.  Lingard,  from  Lord 
Cliftbrd  s  cabinet.  [Dalrj-mple  had  only  given  a 
rough  draft  from  the  depot  at  Versailles,  drawn  by 
Sir  Richard  Healing  for  the  French  court.  The 
variations  are  not  very  material.] 

t  Dalrj-mple,  ii.,  22. 

t  Dalrj-mple,  ii.,  23.    Life  of  James,  442. 

§  The  tenor  of  the  article  leads  me  to  conclude 
that  these  troops  were  to  be  landed  in  England  at 
all  events,  in  order  to  secure  the  public  tranquillity, 
without  waiting  for  any  disturbance. 


I 


Cha.  11.-1660-73  ]  FBOM  HENRY  V: 


U.  TO  GEORGE  II. 


449 


ant  succor,  Charles  undertook  to  serve  his 
ally's  ambition  and  wounded  pride  against 
the  United  Provinces.  These,  when  con- 
quered by  the  French  arras,  with  the  co- 
operation of  an  EngUsh  navy,  were  already 
shared  by  the  royal  conspirators.  A  part 
of  Zealand  fell  to  the  lot  of  England,  the  re- 
mainder of  the  Seven  Provinces  to  France, 
with  an  understanding  that  some  compensa- 
tion should  be  made  to  the  Prince  of  Or- 
ange. In  the  event  of  any  new  rights  to 
the  Sjwinish  monarchy  accruing  to  the  most 
Christian  king,  as  it  is  worded  (that  is,  on 
the  death  of  the  King  of  Spain,  a  sickly 
child),  it  was  agreed  that  f^nglaud  should  as- 
sist him  with  all  her  force  by  sea  and  land, 
but  at  his  own  expense  ;  and  should  obtain, 
not  only  Ostend  and  Minorca,  but,  as  far  as 
the  King  of  France  could  contribute  to  it, 
such  parts  of  Spanish  America  as  she  should 
choose  to  conquer.*  So  strange  a  scheme 
of  partitioning  that  vast  inheritance  was  nev- 
er, I  believe,  suspected  till  the  publication 
of  the  treaty,  though  Bolingbi-oke  had  al- 
luded to  a  previous  treaty  of  partition  be- 
tween Louis  and  the  Emperor  Leopold,  the 
complete  discovery  of  which  has  been  but 
lately  made.f 

»  P.  49. 

t  Boliugbroke  has  a  remarkable  passage  as  to 
this  in  his  Letters  on  History  (Letter  VII.):  it 
may  be  also  alluded  to  by  others.  The  full  details, 
however,  as  well  as  more  authentic  proofs,  were 
reserved,  as  I  believe,  for  the  publication  of 
(Euvres  de  Louis  XIV.,  where  they  will  be  found 
in  vol.  ii.,  403.  The  proposal  of  Louis  to  the  em- 
peror in  1667  was,  that  France  should  have  the 
Pajs  Bas,  Franche  Comte,  Milan,  Naples,  the 
ports  of  Tuscany,  Navan-e,  and  the  Philippnie  Isl- 
ands, Leopold  taking  all  the  rest.  The  obvious 
drift  of  this  was,  that  France  should  put  herself  in 
possession  of  an  enormous  increase  of  power  and 
territory,  leaving  Leopold  to  fight  as  he  could  for 
Spain  and  America,  which  were  not  likely  to  sub- 
mit peaceably.  The  Austrian  cabinet  understood 
this,  and  proposed  that  they  should  exchange  their 
shares.  Finally,  however,  it  was  concluded  on  the 
king's  terms,  except  that  he  was  to  take  Sicily  in- 
stead of  Milan.  One  article  of  this  treaty  was, 
that  Louis  should  keep  what  he  had  conquered  in 
Flanders  ;  in  other  words,  the  terms  of  the  treaty 
of  Aix  la  Chapelle.  The  ratifications  were  ex- 
changed on  the  29th  of  February,  1668.  Louis 
represents  himself  as  more  induced  by  this  pros- 
pect than  by  any  fear  of  the  triple  alliance,  of 
which  he  speaks  slightingly,  to  conclude  the  peace 
of  Aix  la  Chapelle.  He  thought  that  he  should 
acquire  a  character  for  moderation  which  might  be 
serviceable  to  him,  "  dans  les  grands  accroissemeus 
que  ma  fortune  poun-oit  recevoir." — Vol.  ii.,  p.  369. 
F  F 


Each  conspirator,  in  his  coaUtion  against 
die  Protestant  faith  and  liberties 
of  E  urope,  hud  splendid  objects  between 
in  view;  but  those  of  Louis  £J;"]'^Vto'* 
seemed  by  far  the  most  probable  the  mode  of 
of  the  two,  and  less  liable  to  be 
defeated.  The  full  completion  of  their 
scheme  would  have  I'eunited  a  gi-eat  kingdom 
to  the  Catholic  religion,  and  turned  a  pow- 
erful neighbor  into  a  dependent  pensioner. 
But  should  this  fail  (and  Louis  was  too  saga- 
cious not  to  discern  the  chances  of  failure), 
he  had  pledged  to  him  the  assistance  of  an 
ally  in  subjugating  the  republic  of  Holland, 
which,  according  to  all  human  calculation, 
could  not  withstand  theii-  united  efforts; 
nay,  even  in  those  ulterior  projects  which 
his  restless  and  sanguine  ambition  had  ever 
in  view,  and  the  success  of  which  would 
have  realized,  not,  indeed,  the  chimera  of  a 
universal  monarchy,  but  a  supremacy  and 
dictatorship  over  Europe.  Charles,  on  the 
other  hand,  besides  that  he  had  no  other  re- 
turn to  make  for  the  necessary  protection 
of  France,  was  impelled  by  a  personal  hatred 
of  the  Dutch,  and  by  the  consciousness  that 
their  commonwealth  was  the  standing  re- 
proach of  arbitrary  power,  to  join  readily  in 
the  plan  for  its  subversion  ;  but,  looking  first 
to  his  own  objects,  and  perhaps  a  little  dis- 
trustful of  his  ally,  he  pressed  that  his  pro- 
fession of  the  Roman  Catholic  religion 
should  be  the  first  measure  in  prosecution 
of  the  treaty,  and  that  he  should  immediate- 
ly receive  the  stipulated  <f 200,000,  or  at 
least  a  part  of  the  money.  Louis  insisted 
that  the  declaration  of  war  against  Holland 
should  precede.  This  difference  occasioned 
a  considerable  delay ;  and  it  was  chiefly 
with  a  view  of  bringing  round  her  brother 
on  this  point,  that  the  Duchess  of  Orleans 
took  her  fainous  journey  to  Dover  in  the 
spring  of  1670  ;  yet,  notwithstanding  her  in- 
fluence, which  passed  for  irresistible,  he 
persisted  in  adhering  to  the  right  reserved 
to  him  in  the  di'aft  of  the  treaty,  of  choosing 
his  own  time  for  the  declaration  of  his  re- 
ligion ;  and  it  was  concluded  on  this  footing 
at  Dover,  by  Clifford,  Arimdel,  and  Arling- 
ton, on  the  22d  of  May,  1670,  during  the 
visit  of  the  Duchess  of  Orleans.* 

"  Dalrymple,  31-57.  James  gives  a  different 
account  of  this;  and  intimates  that  Henrietta, 
whose  visit  to  Dover  he  had,  for  this  reason,  been 
much  against,  prevailed  on  the  king  to  change  his 


450 

A  mutual  distrust,  however,  retarded  the 
further  progi'ess  of  this  scheme  ;  one  party 
unwilling  to  commit  himself  till  he  should 
receive  money,  the  other  too  cautious  to  run 
the  risk  of  throwing  it  away.  There  can 
be  no  question  but  that  the  King  of  France 
was  right  in  urging  the  conquest  of  Holland 
as  a  preliminary  of  the  more  delicate  busi- 
ness they  were  to  manage  in  England  ;  and, 
from  Charles's  subsequent  behavior,  as  well 
us  bis  general  fickleness  and  love  of  ease, 
there  seems  reason  to  believe  that  he  would 
gladly  have  receded  from  an  undertaking  of 
which  he  must  every  day  have  more  strong- 
ly perceived  the  difficulties.  Ho  confessed, 
in  fact,  to  Louis's  ambassador,  that  he  was 
almost  the  only  man  in  his  kingdom  who 
liked  a  French  alliance.*  The  change  of  re- 
ligion, on  a  nearer  view,  appeared  danger- 
ous for  himself,  and  impracticable  as  a  na- 
tional measure.  He  had  not  dared  to  intrust 
any  of  his  Protestant  ministers,  even  Buck- 
ingham, whose  indifference  in  such  points 
was  notorious,  with  this  gi-eat  secret ;  and, 
to  keep  them  the  better  in  the  dark,  a  mock 
negotiation  was  set  on  foot  with  France, 
and  a  pretended  treaty  actually  signed,  the 

resolution,  and  to  besnn  with  the  war.  He  gained 
over  Arlington  and  Clifford.  The  duke  told  them 
it  would  quite  defeat  the  Catholic  design,  because 
tlie  king  must  run  in  deht,  and  he  at  the  mercy  of 
his  Parliament.  They  answered  that,  if  the  war 
succeeded,  it  was  not  much  matter  what  people 
suspected. — P.  450.  This  shows  that  they  looked 
on  force  as  necessary  to  compass  the  design,  and 
that  the  noble  resistance  of  the  Dutch,  under  the 
Prince  of  Orange,  was  that  which  frustrated  the 
whole  conspiracy.  "  The  duke,"  it  is  again  said, 
p.  453,  "  was  in  his  own  judgment  against  entering 
into  this  war  before  his  majesty's  power  and  au- 
thority in  England  had  been  better  fixed  and  less 
precarious,  as  it  would  have  been  if  the  private 
b'eaty  first  agreed  on  had  not  been  altered."  The 
French  court,  however,  was  evidently  right  in 
thinking  that,  till  the  conquest  of  Holland  should 
be  achieved,  the  declaration  of  the  king's  religion 
would  only  weaken  him  at  home.  It  is  gratifying 
to  find  the  heroic  character  of  our  glorious  deliv- 
erer displaying  itself  among  these  foul  conspiracies. 
The  Prince  of  Orange  came  over  to  England  in 
1670.  He  was  then  very  young;  and  his  uncle, 
who  was  really  attached  to  him,  would  have  gladly 
associated  him  in  the  design ;  indeed,  it  had  been 
agreed  that  he  was  to  possess  part  of  the  United 
Provinces  in  sovereignty.  But  Colbert  writes  that 
the  king  had  found  him  so  zealous  a  Dutchman  and 
Protestant,  that  he  could  not  trust  him  with  any 
part  of  the  secret.  He  let  him  know,  however,  as 
we  learn  from  Buniet,  382,  that  he  had  himself 
embraced  the  Romish  faith.        *  Dalrymple,  57. 


[Chap.  XL 

exact  counterpart  of  the  other,  except  as  to 
religion.  Buckingham,  Shaftesbury,  and 
Lauderdale  were  concerned  in  this  simula- 
ted treaty,  the  negotiation  for  which  did  not 
commence  till  after  the  original  convention 
had  been  signed  at  Dover.* 

The  court  of  France  having  yielded  to 
Charles  the  point  about  which  he  had 
seemed  so  anxious,  had  soon  the  mortifica- 
tion to  discover  that  he  would  take  no  steps 
to  eflfect  it.  They  now  urged  that  immedi- 
ate declai'ation  of  his  religion,  which  they 
had,  for  veiy  wise  reasons,  not  long  before 
dissuaded.  The  King  of  England  hung  back, 
and  tried  so  many  excuses,  that  they  had 
reason  to  sus])ect  his  sincerity ;  not  that  in 
fact  he  had  played  a  feigned  part  from  the 
beginning,  but  his  zeal  for  popery  having 
given  way  to  the  seductions  of  a  voluptuous 
and  indolent  life,  he  had  been  led,  with  the 
good  sense  he  naturally  possessed,  to  form 
a  better  estimate  of  his  resources  and  of  the 
opposition  he  must  encounter.  Meanwhile, 
the  eagerness  of  his  ministers  had  plunged 
the  nation  into  war  with  Holland  ;  and  Lou- 
is, having  attained  his  principal  end,  ceased 
to  trouble  the  king  on  the  subject  of  religion. 
He  received  large  sums  from  France  during 
the  Dutch  war.f 

This  memorable  ti'ansaction  explains  and 
justifies  the  strenuous  opposition  made  in 
Parliament  to  the  king  and  Duke  of  York, 
and  may  be  reckoned  the  first  act  of  a  dra- 
ma which  ended  in  the  Revolution.  It  is 
true  that  the  precise  terms  of  this  ti-eaty 
were  not  authentically  known ;  but  there 
can  be  no  doubt  that  those  who  from  this 
time  displayed  an  insuperable  jealousy  of 
one  brother,  and  a  determined  enmity  to 
the  other,  had  proofs,  enough  for  moral  con- 
viction, of  their  deep  conspiracy  with  France 
against  religion  and  liberty.  This  suspicion 
is  implied  in  all  the  conduct  of  that  Parlia- 
mentary opposition,  and  is  the  apology  of 
much  that  seems  violence  and  faction,  es- 
pecially in  the  business  of  the  Popish  Plot 
and  the  Bill  of  Exclusion.  It  is  of  import- 
ance, also,  to  observe  that  James  II.  was 
not  misled  and  beti-aj-ed  by  false  or  foolish 


*  P.  68.  Life  of  James,  444.  In  this  work  it  is 
said  that  even  the  Duchess  of  Orleans  had  no 
knowledge  of  the  real  treaty,  and  that  the  other 
originated  with  Buckingham.  But  Dalrjmple's 
authority  seems  far  better  in  diis  instance. 

t  Daliymple,  84,  &c. 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


THA.  II.— 1C60-73.J 


FROM  HENRY  VII.  TO  GEORGE  II. 


451 


counselors,  ns  some  would  suggest,  in  his 
endeavors  to  subvert  the  laws,  but  acted  on 
a  plan  long  since  concerted,  and  in  wliich  he 
had  taken  a  principal  share. 

It  must  be  admitted  that  neither  in  the 
treaty  itself,  nor  in  the  few  letters  which 
have  been  published  by  Dalrymple,  do  we 
find  any  explicit  declaration,  either  that  the 
Catholic  religion  was  to  be  established  as 
the  national  church,  or  arbitrary  power  in- 
troduced in  England.  But  there  are  not 
Wanting  strong  presumptions  of  this  design. 
The  king  speaks,  in  a  letter  to  his  sister,  of 
finding  means  to  put  the  proprietors  of 
church  lands  out  of  apprehension.*  He 
uses  the  expression  "  retablir  la  religion 
Catholique  ;"  which,  though  not  quite  une- 
quivocal, seems  to  convey  more  than  a  bare 
toleration,  or  a  personal  profession  by  the 
sovereign. f  He  talks  of  a  negotiation  with 
tlie  court  of  Rome  to  obtain  the  permission 
of  having  mass  in  the  vulgar  tongue  and  com- 
tnuniou  in  both  kinds,  as  terras  that  would 
render  his  conversion  agreeable  to  his  sub- 
jects.t  He  tells  the  French  ambassador,  that 
not  only  his  conscience,  but  the  confusion  he 
saw  every  day  increa^g  in  his  kingdom,  to 
the  diminution  of  his  authority,  impelled 
him  to  declare  himself  a  Catholic  ;  which, 
besides  the  spiritual  advantage,  he  believed 
to  be  the  only  means  of  restoring  the  mon- 
archy. These  passages,  as  well  as  the  pre- 
cautions taken  in  expectation  of  a  vigorous 
resistance  from  a  part  of  the  nation,  appear 
to  intimate  a  formal  re-establishment  of  the 
Catholic  Church ;  a  measure  connected,  in 
the  king's  apprehension,  if  not  strictly  with 
Qrbitraiy  power,  yet  with  a  very  material 
enhancement  of  his  prerogative  ;  for  the 
profession  of  an  obnoxious  faith  by  the  king, 
as  an  insulated  person,  would,  instead  of 
strengthening  his  authority,  prove  the  gi-eat- 
est  obstacle  to  it ;  as,  in  the  next  reign, 
turned  out  to  be  the  case.  Charles,  how- 
ever, and  the  Duke  of  York  deceived  them- 
selves into  a  confidence  that  the  ti'ansition 
could  be  efl'ected  with  no  extraordinary 
difficulty.  The  king  knew  the  prevailing 
laxity  of  religious  principles  in  many  about 

"  Dalrjmple,  23. 

t  P.  52.  The  reluctance  to  let  the  Duke  of  Buck- 
ingham into  the  secret  seems  to  prove  that  more 
was  meant  than  a  toleration  of  the  Roman  Catho- 
lic religion,  toward  which  he  had  always  been  dis- 
posed, and  which  was  hardly  a  secret  at  court. 

t  P.  62,  84. 


hi  scourt,  and  thought  he  had  reason  to  rely 
on  others  as  secretly  Catholic.  Sunder- 
land is  mentioned  as  a  young  man  of  talent, 
inclined  to  adopt  that  religion.*  Even  the 
Earl  of  Orrery  is  spoken  of  as  a  Catholic  in 
his  heart. f  The  duke,  who  conversed 
more  among  divines,  was  led  to  liope,  from 
the  sti-ange  language  of  the  High-Churdfi 
party,  that  they  might  readily  be  persuaded 
to  make  what  seemed  no  long  step,  and 
come  into  easy  terms  of  union. J  It  was 
the  constant  policy  of  the  Romish  priests  to 
extenuate  the  differences  between  the  two 
churches,  and  to  throw  the  main  odium  of 
the  schism  on  the  Calvinistic  sects :  and 
many  of  the  Anglicans,  in  their  abhorrence 
of  Protestant  Non-conformists,  played  into 
the  hands  of  the  common  enemy. 

The  court,  however,  entertained  great 
hopes  from  the  depressed  condi-  _  , 

^  1  ^    r  resri  serer- 

tion  of  the  Dissenters,  whom  it  ities  against 
was  intended  to  bribe  with  that  O'^^^"'^"- 
toleration  under  a  Catholic  I'egimen,  which 
they  could  so  little  expect  fi'om  the  Church 
of  England.  Hence  the  Duke  of  York 
was  always  strenuous  against  schemes  of 
comprehension,  which  would  invigorate  the 
Protestant  interest  and  promote  conciliation. 
With  the  opposite  view  of  rendering  a  union 
among  Protestants  impracticable,  the  rigor- 
ous Episcopalians  were  encouraged  under- 
hand to  prosecute  the  Non-conformists. § 
The  Duke  of  York  took  pains  to  assure 
Owen,  an  eminent  divine  of  the  Independent 
persuasion,  that  he  looked  on  all  persecution 
as  an  unchristian  thing,  and  altogether 
against  his  conscience  ;||  yet  the  court  pro- 
moted a  renewal  of  the  temporary  act,  passed 
in  1664  against  conventicles,  which  was  re- 
enforced  by  the  addition  of  an  extraordinary 
proviso,  "  That  all  clauses  in  the  act  should 
be  construed  most  largely  and  beneficially 
for  suppressing  conventicles,  and  for  the  jus- 
tification and  encouragement  of  all  persons 
to  be  employed  in  the  execution  thereoflT 

*  P.  81.  t  P.  33. 

t  "  The  generality  of  the  Church  of  England  men 
was  not  at  that  time  very  averse  to  the  Catholic 
religion;  many  that  went  under  that  name  had 
their  religion  to  choose,  and  went  to  church  for 
company's  sake." — Life  of  James,  p.  ■442. 

$  Ibid.         II  Macpherson's  Extracts,  p.  51. 

«[[  22  Car.  II.,  c.  1.  Kennet,  p.  306.  The  zeal  in 
the  Commons  against  poperj-  tended  to  aggravate 
this  persecution  of  the  Dissenters.  They  had  been 
led  by  some  furious  clergymen  to  believe  the  ab- 


452 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XL 


Wilkins,  the  most  honest  of  the  bishops,  op- 
posed this  act  in  the  House  of  Lords,  not- 
withstanding the  king's  personal  request 
that  ho  would  be  silent.*  Sheldon,  and 
others,  who,  like  him,  disgi'aced  the  Church 
of  England  by  their  unprincipled  policy  or 
their  passions,  not  only  gave  it  their  earnest 
support  at  the  time,  but  did  all  in  their 
power  to  enforce  its  execution. f  As  the 
king's  temper  was  naturally  tolerant,  his  co- 
operation in  this  severe  measure  would  not 
easily  bo  understood,  without  the  explana- 
tion that  a  knowledge  of  his  secret  policy 
enables  us  to  give.  In  no  long  course  of 
time  the  persecution  was  relaxed,  the  im- 
prisoned ministers  set  at  liberty,  some  of  the 
leading  Dissenters  received  pensions,  and 
the  king's  declaration  of  a  general  indulgence 
held  forth  an  asylum  from  the  law  under 
tlie  banner  of  prerogative. t  Though  this 
is  said  to  have  proceeded  from  the  advice 
of  Shaftesbury,  who  had  no  concern  in  the 
original  secret  treaty  with  France,  it  was 
completely  in  the  spirit  of  that  compact,  and 
must  have  been  acceptable  to  the  king. 

But  the  factious,  fanatical  Republican 
party  (such  were  the  usual  epithets  of  the 
court  at  the  time,  such  have  ever  since 
been  applied  by  the  advocates  or  apologists 
of  the  Stuarts)  had  gi-adually  led  away  by 

surdity  that  there  was  a  good  understanding  be- 
tween the  two  parties. 
Burnet,  p.  272. 

t  Baxter,  p.  74,  8C.  Kennet,  p.  31].  See  a  let- 
ter of  Sheldon,  written  at  this  time,  to  the  bishops 
of  his  province,  iirging  tliem  to  persecute  the  Non- 
conformists.— Harris's  Life  of  Charles  II.,  p.  106. 
Proofs,  also,  are  given  by  this  author  of  the  manner 
in  which  some,  such  as  Laniplugh  and  Ward,  re- 
sponded to  their  primate's  wishes. 

Sheldon  found  a  panegyrist  quite  worthy  of  him 
in  his  chaplain  Parker,  afterward  Bishop  of  Oxford. 
This  notable  person  has  left  a  Latin  historj'  of  his 
own  time,  wherein  he  largely  commemorates  the 
archbishop's  zeal  in  molesting  the  Dissenters,  and 
praises  him  for  defeating  the  scheme  of  compre- 
hension.— P.  25.  I  observe  that  the  late  excellent 
editor  of  Burnet  has  endeavored  to  slide  in  a  word 
for  the  primate  (note  on  vol.  i.,  p.  243),  on  the  au- 
thority of  that  history  by  Bishop  Parker,  and  of 
Sheldon's  Life  in  the  Biographia  Britannica.  It  is 
lamentable  to  rest  on  such  proofs.  I  should  cer- 
tainly not  have  expected  that,  iu  Magdalen  College, 
of  all  places,  the  name  of  Parker  would  have  been 
held  in  honor;  and  as  to  the  Biographia,  laudatoi-y 
as  it  is  of  primates  in  general  (save  TUlotsou,  whom 
it  depreciates),  I  find,  on  reference,  that  its  praise 
of  Sheldon's  virtues  is  grounded  on  the  authority  of 
his  epitaph  in  Croydon  Church.         t  Baxter,  87. 


their  delusions  that  Parliament  of  Cava- 
liers; or,  in  other  words,  the  glaring  vices 
of  the  king,  and  the  manifestation  of  designs 
against  religion  and  liberty,  had  dispossess- 
ed them  of  a  confiding  loyalty,  which,  though 
highly  dangerous  from  its  excess,  had  al- 
ways been  rather  ardent  than  servile.  The 
sessions  had  been  short,  and  the  intervals 
of  repeated  prorogations  much  longer  than 
usual ;  a  policy  not  well  calculated  for  that 
age,  where  the  growing  discontents  and 
suspicions  of  the  people  acquired  strength 
by  the  stoppage  of  the  regular  channel  of 
complaint.  Yet  the  House  of  Commons, 
during  this  period,  though  unmanageable  on 
the  one  point  of  toleration,  had  displayed 
no  want  of  confidence  in  the  king,  nor  any 
animosity  toward  his  administration ;  not- 
withstanding the  flagi-ant  abuses  in  the  ex- 
penditure, which  the  Parliamentary  com- 
mission of  public  accounts  had  brought  to 
light,  and  the  outrageous  assault  on  Sir 
John  Coventry,  a  crime  notoriously  perpe- 
trated by  persons  employed  by  the  court, 
and  probably  by  the  king's  direct  order.* 

The  war  with  Holland  at  the  beginning 
of  1672,  so  repugnant  to  English 

^  .  ,    *        Dutch  war. 

mterests,  so  unwarranted  by  any 
provocation,  so  infamously  piratical  in  its 
commencement,  so  ominous  of  further 
schemes  still  more  dark  and  dangerous, 
finally  opened  the  eyes  of  all  men  of  integri- 
tj'.  It  was  accompanied  by  the  shutting  up 
of  the  Exchequer,  an  avowed  bankruptcy 
at  the  moment  of  beginning  an  expensive 
war,f  and  by  the  Declaration  of  Indulgence, 

*  This  is  asserted  by  Burnet,  and  seems  to  be 
acknowledged  by  the  Duke  of  York.  The  court 
endeavored  to  mitigate  the  effect  of  the  bill  brought 
into  the  Commons,  in  consequence  of  Coventry's 
injury ;  and  so  far  succeeded,  that,  instead  of  a 
partial  measure  of  protection  for  the  members  of 
the  House  of  Commons,  as  originally  designed 
(which  seemed,  I  suppose,  to  carry  too  marked  a 
reference  to  the  particular  transaction),  it  was  turn- 
ed into  a  general  act,  making  it  a  capital  felony  to 
wound  with  intention  to  maim  or  disfigure.  But 
the  name  of  the  Coventry  Act  has  always  clung  to 
this  statute. — Pari.  Hist,  461. 

t  The  king  promised  the  bankers  interest  at  six 
per  cent,  instead  of  the  money  due  to  them  from 
the  Exchequer ;  but  this  was  never  paid  till  the 
latter  part  of  William's  reign.  It  may  be  consid- 
ered as  the  beginning  of  our  national  debt.  It 
seems  to  have  been  intended  to  foUow  the  shutting 
up  of  the  E.\chequer  with  a  still  more  unwarrant- 
able stretch  of  power,  by  gi'anting  an  injunction  to 
the  creditors  jvho  were  suing  the  bankers  at  law. 
According  to  North  (Examen,  p.  38,  47),  Lord-keep- 


Cha.  II.— 1660-73  ]  FROM  HENRY  VII.  TO  GEORGE  II. 


453 


or  suspension  of  all  penal  laws  in  religion ; 
an  assertion  of  prerogative  which  seemed 
without  limit.  These  exorbitances  were 
the  more  scandalous,  that  they  happened 
during  a  very  long  prorogation.  Hence  the 
court  so  lost  the  confidence  of  the  House 
of  Commons,  that,  with  all  the  lavish  cor- 
ruption of  the  following  period,  it  could  nev- 
er regain  a  secure  majority  on  any  import- 
ant question.  The  superiority  of  what  was 
called  the  countiy  party  is  referred  to  the 
session  of  Febiuary,  1673,  in  which  they 
compelled  the  king  to  recall  his  proclama- 
tion suspending  the  penal  laws,  and  raised  a 
barrier  against  the  encroachments  of  popeiy 
in  the  Test  Act. 

The  king's  Declaration  of  Indulgence  had 
Deciaraiionof  been  projected  by  Shaftesbury, 
Indulgence  \q  order  to  conciliate  or  lull  to 
sleep  the  Protestant  Dissenters.  It  re- 
dounded, in  its  immediate  effect,  chiefly  to 
their  benefit ;  the  Catholics  ah-eady  enjoy- 
ing a  connivance  at  the  private  e.xercise  of 
their  religion,  and  the  Declaration  express- 
ly refusing  them  public  places  of  worship. 
The  plan  was  most  laudable  in  itself,  could 
we  separate  the  motives  which  prompted 
it,  and  the  means  by  which  it  was  pretend- 
ed to  be  made  effectual ;  but  in  the  Declara- 
tion the  king  says,  "  We  think  ourselves 
obliged  to  make  use  of  that  supreme  pow- 
er in  ecclesiastical  matters,  which  is  not 
only  inherent  in  us,  but  hath  been  declared 
and  recognized  to  be  so  by  several  statutes 
and  acts  of  Parliament."  "  We  do,"  he 
Bays,  not  long  aftenvard,  "  declare  our  will 
and  pleasure  to  be,  that  the  execution  of  all 
and  all  manner  of  penal  laws  in  matters  ec- 
clesiastical, against  whatsoever  sort  of  non- 
conformists or  recusants,  be  immediately 
suspended,  and  they  are  hereby  suspend- 
ed." He  mentions,  also,  his  intention  to  li- 
cense a  certain  number  of  places  for  the  re- 
ligious worship  of  non-conforming  Protes- 
tants.* 

It  was  generally  understood  to  be  an  an- 
cient prerogative  of  the  crown  to  dispense 
with  penal  statutes  in  favor  of  particular 
persons,  and  under  certain  restrictions.  It 

er  Brid^mau  resigned  tlie  great  seal  rather  than 
comply  with  this ;  and  Shaftesbury  himself,  who 
succeeded  him,  did  not  venture,  if  I  understand  the 
passage  rightly,  to  grant  an  absolute  injunction. 
The  promise  of  interest  for  their  money  seems  to 
have  been  given  instead  of  this  more  illegal  and  vi- 
olent remedy.       *  Pari.  Hist.,  515.    Kennet,  313. 


was  undeniable  that  the  king  might,  by 
what  is  called  a  "  noli  prosequi,"  stop  any 
criminal  prosecution  commenced  in  his 
courts,  though  not  an  action  for  the  recov- 
ery of  a  pecuniary  penalty,  which,  by 
many  statutes,  was  given  to  the  common 
informer.  He  might,  of  course,  set  at  lib- 
erty, by  means  of  a  pardon,  any  person  im- 
prisoned, whether  upon  conviction  or  by  a 
magistrate's  waiTant.  Thus  the  operation 
of  penal  statutes  in  religion  might  in  a  great 
measure  be  rendered  ineffectual,  by  an 
exercise  of  undisputed  prerogatives;  and 
thus,  in  fact,  the  Catholics  had  been  ena- 
bled, since  the  accession  of  the  house  of 
Stuart,  to  ^\'ithstand  the  crushing  severity 
of  the  laws.  But  a  pretension,  in  explicit 
terms,  to  suspend  a  body  of  statutes,  a  com- 
mand to  magistrates  not  to  put  them  in  exe- 
cution, arrogated  a  sort  of  absolute  power 
which  no  benefits  of  the  Indulgence  itself 
(had  they  even  been  less  insidiously  of- 
fered) could  induce  a  lover  of  constitutional 
privileges  to  endure.*  Notwithstanding  the 
affected  distinction  of  tempoi*al  and  ecclesi- 
astical matters,  it  was  evident  that  the 
king's  supremacy  was  as  much  capable  of 
being  bounded  by  the  Legislature  in  one  as 
in  the  other,  and  that  eveiy  law  in  the 
statute-book  might  be  repealed  by  a  similar 
I  proclamation.  The  House  of  Commons 
voted  that  the  king's  prerogative,  in  matters 
ecclesiastical,  does  not  extend  to  repeal  acts 
of  Parliament,  and  addressed  the  opposed  by 
king  to  recall  his  Declaration.  Parliament, 
Whether  from  a  desire  to  protect  the  Non- 
conformists in  a  toleration  even  illegally  ob- 
tained, or  from  the  influence  of  Bucking- 
ham among  some  of  the  leaders  of  opposi- 
tion, it  appears  from  the  debates  that  many 
of  those  who  had  been,  in  general,  most 
active  against  the  court,  resisted  this  vote, 
which  was  earned  by  168  to  116.  The 
king,  in  his  answer  to  this  address,  lament- 
ed that  the  House  should  question  his  ec- 
clesiastical power,  which  had  never  been 
done  before.  This  brought  on  fresh  re- 
buke ;  and,  in  a  second  address,  they  posi- 
tively deny  the  king's  right  to  suspend  any 
law.  "  The  legislative  power,"  they  say, 
"  has  always  been  acknowledged  to  reside 

*  Bridgman,  the  lord-keeper,  resigned  the  great 
seal,  according  to  Burnet,  because  he  would  not 
put  it  to  the  Declaration  of  Indulgence,  and  was 
succeeded  by  Sbaftesburj-. 


454 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XL 


in  the  king  and  two  houses  of  Parliament." 
The  king,  in  a  speech  to  the  House  of 
Lords,  complained  much  of  the  opposition 
made  by  the  Commons,  and  found  a  major- 
ity of  the  fomier  disposed  to  support  him, 
though  both  Houses  concun-ed  in  an  ad- 
dress against  the  growth  of  popery.  At 
and  with-  length,  against  the  advice  of  the 
drawn,  bolder  part  of  his  council,  but  cer- 
tainly with  a  just  sense  of  what  he  most 
valued,  his  ease  of  mind,  Charles  gave  way 
to  the  public  voice,  and  withdrew  his  Dec- 
laration.* 

There  was,  indeed,  a  line  of  policy  indi- 
cated at  this  time,  which,  though  intolera- 
ble to  the  bigotiy  and  passion  of  the  House, 
would  best  have  foiled  the  schemes  of  the 
ministry ;  a  legislative  repeal  of  all  the  pe- 
nal statutes  both  against  the  Catholic  and 
the  Protestant  Dissenter,  as  far  as  regard- 
ed the  exercise  of  their  religion.  It  must 
be  evident  to  any  impartial  man,  that  the 
unrelenting  harshness  of  Parliament,  from 
■whom  no  abatement,  even  in  the  sanguina- 
ry laws  against  the  priests  of  the  Romish 
Church,  had  been  obtained,  had  naturally, 
and  almost  irresistibly,  driven  the  members 
of  that  persuasion  into  the  camp  of  prerog- 
ative, and  even  furnished  a  pretext  for  that 
continual  intrigue  and  conspiracy,  which 
was  carried  on  in  the  court  of  Charles  II., 
as  it  had  been  in  that  of  his  father.  A  gen- 
uine toleration  would  have  put  an  end  to 
much  of  this ;  but,  in  the  circumstances  of 
that  age,  it  could  not  have  been  safely  gi-ant- 

*  Pari.  Hist.,  517.  The  Presbyterian  party  do 
not  appear  to  have  supported  the  Declaration ;  at 
least  Birch  spoke  against  it ;  Waller,  Seymour, 
Sir  Robert  Howard,  in  its  favor.  Baxter  says,  the 
Non-conformists  were  divided  in  opinion  as  to  the 
propriety  of  availing  themselves  of  the  Declara- 
tion.— P.  99.  Birch  told  Pepys,  some  years  be- 
fore, that  he  feared  some  would  try  for  extending 
the  toleration  to  papists  :  but  the  sober  parly  would 
rather  be  without  it  than  have  it  on  those  temis. — 
Pepys's  Diary,  Jan.  31,  16G8.  Pari.  Hist.,  546,  5C1. 
Father  Orleans  says,  that  Ormond,  Arlington,  and 
some  others  advised  the  king  to  comply;  the  duke 
and  the  rest  of  the  council  urging  him  to  adhere, 
and  Shaftesbury,  who  had  been  the  first  mover  of 
the  project,  pledging  himself  for  its  success  :  there 
being  a  party  for  the  king  among  the  Commons, 
and  a  force  on  foot  enough  to  daunt  the  other  side. 
It  was  suspected  that  the  women  interposed,  and 
prevailed  on  the  king  to  withdraw  his  Declaration. 
Upon  this,  Shaftesbury  turned  short  round,  provok- 
ed at  the  king's  want  of  steadiness,  and  especially 
at  his  giving  up  the  point  about  issuing  wiits  in 
the  recess  of  Parliament. 


ed  without  an  exclusion  from  those  public 
trusts,  which  were  to  be  confeiTed  by  a  sov- 
ereign in  whom  no  trust  could  be  reposed. 

The  Act  of  Supremacy,  in  the  first  year 
of  Elizabeth,  had  imposed  on  all,  accepting 
temporal  as  well  as  eccleciastical  offices,  an 
oath  denying  the  spiritual  jurisdiction  of 
the  pope ;  but,  though  the  refusal  of  this 
oath,  when  tendered,  incurred  various  pen- 
alties, yet  it  does  not  appear  that  any  were 
attached  to  its  neglect,  or  that  the  oath  w  as 
a  previous  qualification  for  the  enjoyment 
of  office,  as  it  was  made  by  a  subsequent 
act  of  the  same  reign  for  sitting  in  the 
House  of  Commons.  It  was  found,  also, 
by  experience,  that  persons  attached  to  the 
Roman  doctrine  sometimes  made  use  of 
strained  constiuctions  to  reconcile  the  oath 
of  supremacy  to  their  faith.  Nor  could 
that  test  be  offered  to  peers,  who  were  ex- 
cepted by  a  special  provision.  For 

,  ,  ^         Test  Art. 

these  several  reasons,  a  more  effect- 
ual security  against  popish  counselors,  at 
least  in  notorious  power,  was  created  by  the 
famous  Test  Act  of  1673,  which  renders 
the  reception  of  the  sacrament  according  to 
the  rites  of  the  Church  of  England,  and  a 
declaration  renouncing  the  doctrine  of  tran- 
substantiation,  preliminary  conditions,  with- 
out which  no  temporal  office  of  tnist  can  be 
enjoyed.*  In  this  fundamental  article  of 
faith,  no  compromise  or  equivocation  would 
be  admitted  by  any  member  of  the  Church 
of  Rome  :  and,  as  the  obligation  extended 
to  the  highest  ranks,  this  reached  the  end 
for  which  it  was  immediately  designed ; 
compelling,  not  only  the  Lord-treasurer 
Clifford,  the  boldest  and  most  dangerous  of 
that  party,  to  retire  from  public  business, 
but  the  Duke  of  York  himself,  whose  de- 
sertion of  the  Protestant  Church  was  hith- 
erto not  absolutelj'  undisguised,  to  quit  the 
post  of  lord-admiral. f 

*  25  Car.  IL,  c.  2.    Burnet,  p.  490. 

t  The  Test  Act  began  in  a  resolution,  February 
28,  1673,'  that  all  who  refuse  to  take  the  oaths  and 
receive  the  sacrament,  according  to  the  rites  of  the 
Church  of  England,  shall  be  incapable  of  all  public 
employments. — Pari.  Hist.,  556.  The  court  party 
endeavored  to  oppose  the  declaration  against  ti-an- 
sabstautiation,  but  of  course  in  vain. — Id.,  561,  592. 

The  king  had  pressed  his  brother  to  receive  the 
sacrament,  in  order  to  avoid  suspicion,  which  lie 
absolutely  refused ;  and  this  led,  he  says,  to  the 
test. — Life  of  James,  p.  482.  But  his  religion  was 
long  pretty  well  known,  though  he  did  not  cease 
to  conform  till  1672. 


CUA.  II.— 1660-73.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


455 


It  was  evident  that  a  test  might  have  been 
framed  to  exclude  the  Roman  Catholic  as 
effectually  as  the  present,  without  bearing 
like  this  on  the  Protestant  Nonconform- 
ist. But,  though  the  preamble  of  the  bill, 
and  the  whole  history  of  the  transaction, 
«how  that  the  main  object  was  a  safeguard 
against  popeiy,  it  is  probable  that  a  majori- 
ty of  both  Houses  liked  it  the  better  for  this 
secondary  effect  of  shutting  out  the  Pres- 
byterians still  more  than  had  been  done  by 
previous  statutes  of  this  reign.  There  took 
place,  however,  a  remarkable  coalition  be- 
tween the  two  parties  ;  and  many  who  had 
always  acted  as  High-Church  men  and  Cav- 
aliers, sensible  at  last  of  the  policy  of  their 
common  adversaries,  renounced  a  good  deal 
of  the  intolerance  and  bigotry  that  had  char- 
acterized the  present  Parliament.  The 
Dissenters,  with  much  prudence  or  lauda- 
ble disinterestedness,  gave  their  support  to 
the  Test  Act.  In  return,  a  bill  was  brought 
in,  and,  after  some  debate,  passed  to  the 
Lords,  repealing  in  a  considerable  degree 
the  persecuting  laws  against  their  worship.* 
The  Upper  House,  perhaps  insidiously,  re- 
turned it  with  amendments  more  fiiVorable 
^to  the  Dissenters,  and  insisted  upon  them, 
after  a  conference. f  A  sudden  prorogation 
very  soon  put  an  end  to  this  bill,  which 
was  iis  unacceptable  to  the  court  as  it  was 
to  the  zealots  of  the  Church  of  England. 

*  Pari.  Hist.,  526-585.  These  debates  are  copi- 
ed from  those  published  by  Anchitel  Grey,  a  mem- 
ber of  the  Commons  for  thirty  years  ;  but  his  notes, 
though  collectively  most  valuable,  are  sometimes 
80  brief  and  ill-expressed,  that  it  is  hardly  possi- 
ble to  make  out  their  meaning.  The  Court  and 
Church  party,  or,  rather,  some  of  them,  seem  to 
have  much  opposed  this  bill  for  the  relief  of  Prot- 
estant Dissenters. 

t  Commons'  Journals,  28th  and  29th  of  March, 
1673.  Lords'  Journals,  94th  and  29th  of  March. 
The  Lords  were  so  slovs^  about  this  bill,  that  the 
Lower  House,  knowing  an  adjournment  to  be  in 
contemplation,  sent  a  message  to  quicken  them, 
according  to  a  practice  not  unusual  in  this  reign. 
Perhaps,  on  an  attentive  consideration  of  the  re- 
port on  the  conference  (March  29),  it  may  appear 
that  the  Lord.s'  amendments  had  a  tendency  to  let 
in  popish,  rather  than  to  favor  Protestant,  Dissent- 
ers. Parker  says  that  this  Act  of  Indulgence  was 
defeated  by  liis  great  hero,  Archbishop  Sheldon, 
who  proposed  tliat  the  Non-conformists  should  ac- 
knowledge the  war  against  Cliarles  I.  to  be  un- 
lawful.— Hist,  sui  tempoiis,  p.  203  of  the  transla- 
tion. 


It  had  been  intended  to  follow  it  up  by  an- 
other, excluding  all  who  should  not  conform 
to  the  Established  Church  from  serving  in 
the  House  of  Commons.* 

It  may  appear  remarkable  that,  as  if  con- 
tent with  these  provisions,  the  victorious 
country  party  did  not  remonstrate  against 
the  shutting  up  of  the  Exchequer,  nor  even 
wage  any  direct  war  against  the  king's  ad- 
visers. They  voted,  on  the  contrary,  a 
large  supply,  which,  as  they  did  not  choose 
explicitly  to  recognize  the  Dutch  war,  was 
expressed  to  be  granted  for  the  king's  ex- 
traordinary occasions.!  This  moderation, 
which  ought,  at  least,  to  rescue  them  from 
the  charges  of  faction  and  violence,  has  been 
censured  by  some  as  servile  and  coiTupt ; 
and  would  really  incur  censure,  if  they  had 
not  attained  the  gi'eat  object  of  breaking 
the  court  measures  by  other  means.  But 
the  Test  Act,  and  their  steady  Fall  of 
protestation  against  the  suspend-  ^i^'coi- 
ing  prerogative,  crushed  the  proj-  leagues, 
ects  and  dispei'sed  the  members  of  the  ca- 
bal. The  king  had  no  longer  any  minister 
on  whom  he  could  rely,  and,  with  his  indo- 
lent temper,  seems  from  this  time,  if  not  to 
have  abandoned  all  hope  of  declaring  his 
change  of  religion,  yet  to  have  seen  both 
that  and  his  other  favorite  projects  post- 
poned without  much  reluctance.  From  a 
real  predilection,  from  the  prospect  of  gain, 
and  partly,  no  doubt,  from  some  distant 
views  of  arbitrary  power  and  a  C'atholic 
establishment,  he  persevered  a  long  time  in 
clinging  secretly  to  the  interest  of  France ; 
but  his  active  co-operation  in  the  schemes 
of  1669  was  at  an  end.  In  the  next  session 
of  October,  1673,  the  Commons  drove  Buck- 
ingham from  the  king's  councils ;  they  in- 
timidated Arlington  into  a  change  of  policy ; 
and,  though  they  did  not  succeed  in  remov- 
ing the  Duke  of  Lauderdale,  compelled 
him  to  confine  himself  chiefly  to  the  affairs 
of  S Gotland. t 

"  It  was  proposed,  as  an  instruction  to  the  com- 
mittee on  the  Test  Act,  that  a  clause  should  be  in- 
troduced rendering  Non-conformists  incapable  of 
sitting  in  the  House  of  Commons.  This  was  lost 
by  163  to  107  ;  but  it  was  resolved  that  a  distinct 
bill  should  be  brought  in  for  that  purpose,  10th  of 
March,  1673.  t  Kennet,  p.  318. 

t  Commons'  Journals,  20th  of  Jan.,  167-1.  Pari. 
Hist.,  608,  625,  649.  Burnet. 


456 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


IChap.  XIL 


CHAPTER  XII. 


Earl  of  Danby's  Administration. —  Opposition  in 
the  Commons. — Frequently  comjpt. — Character 
of  Lord  Danby. — Connection  of  the  popular  Par- 
ty with  France. — Its  Motives  on  both  Sides. — 
Doubt  as  to  their  Acceptance  of  Money. — Se- 
cret Treaties  of  the  King  with  France. — Fall 
of  Danby. — His  Impeachment. — duestious  aris- 
ing on  it. — His  Commitment  to  the  Tower. — 
Pardon  pleaded  in  Bar. — Votes  of  Bishops. — 
Abatement  of  Impeachments  by  Dissolution. — 
Popish  Plot.  —  Coleman's  Letters.  —  Godfrey's 
Death.  —  Injustice  of  Judijes  on  the  Trials.  — 
Parliament  dissolved.  —  Exclnsiou  of  Duke  of 
York  proposed.  —  Schemes  of  Shaftesbury  and 
Monmouth. — Unsteadiness  of  the  King. — Expe- 
dients to  avoid  the  Exclusion. — Names  of  Whig 
and  Tory. — New  Council  formed  by  Sir  William 
Temple. — Long  Prorogation  of  Parliament. — Pe- 
titions and  Addresses. — Violence  of  the  Com- 
mons.—  Oxford  Parliament.  —  Impeachment  of 
Commoners  for  Treason  Constitutional.  —  Fitz- 
harris  impeached. — Proceedings  against  Shaftes- 
bury and  his  Colleagues. — Triumph  of  the  Court. 
— Forfeiture  of  Charter  of  London,  and  of  other 
Places. — Projects  of  Lord  Russell  and  Sidney. 
— Their  Trials. —  High  Tory  Principles  of  the 
Clergy.  —  Passive  Obedience.  —  Some  contend 
for  absolute  Power.— Filmer. — Sir  George  Mac- 
kenzie. —  Decree  of  University  of  Oxford.  — 
Connection  with  Louis  broken  off  —  King's 
Death. 

The  period  of  Lord  Danby's  administra- 

_  ,  tion,  fi-om  1673  to  1678,  was  full 

Earl  of  Dan-         '  ,  ,  .    .  , 

by'sadminis-  of  cliicaneiy  and  dissimulation  on 
tration.  king's   side,    of  increasing 

suspiciousness  on  that  of  the  Commons. 
Forced  by  the  voice  of  Parliament,  and  the 
bad  success  of  his  arms,  into  peace  with 
Holland,  Charles  struggled  hard  against  a 
•o-operation  with  her  in  the  great  confed- 
eracy of  Spain  and  the  empire  to  resist  the 
encroachments  of  France  on  the  Nether- 
lands. Such  was  in  that  age  the  sti-ength 
of  the  barrier  fortresses,  and  so  heroic  the 
resistance  of  the  Prince  of  Orange,  that, 
notwithstanding  the  extreme  weakness  of 
Spain,  there  was  no  moment  in  that  war 
when  the  sincere  and  strenuous  interven- 
tion of  England  would  not  have  compelled 
Louis  XIV.  to  accept  the  terms  of  the 
treaty  of  Aix  la  Chapelle.  It  was  the 
treacherous  attachment  of  Charles  II.  to 
French  interests  that  brought  the  long  Con- 
gress of  Nimeguen  to  an  unfortunate  term- 
ination ;  and,  by  surrendering  so  many  towns 
of  Flandej-s  as  laid  the  rest  open  to  future 


aggi  ession,  gave  rise  to  the  tedious  strag- 
gles of  two  more  wars.* 

In  the  behavior  of  the  House  of  Com- 
mons during  this  period,  pi-evi-  „ 

,  r  ,.  Oppowtion 

ously,  at  least,  to  the  session  of  in  the  Com- 
1678,  there  seems  nothing  which 
can  incur  much  reprehension  from  those 
who  reflect  on  the  king's  character  and  in- 
tentions, unless  it  be  that  they  granted  sup- 
plies rather  too  largely,  and  did  not  suffi- 
ciently provide  again.st  the  perils  of  the 
time.  But  the  House  of  Lords  contained^ 
unfoi-tunately,  an  invincible  majority  for  the 
court,  ready  to  frustrate  any  legislative  se- 
curity for  public  liberty.  Thus  the  Habeas 
Corpus  Act,  first  sent  up  to  that  House  in 
1674,  was  lost  there  in  severed  successive 
ses.sions.  The  Commons,  therefore,  testi- 
fied their  sense  of  public  grievances,  and 
kept  alive  an  alarm  in  the  nation  by  resolu- 
tions and  addresses,  which  a  phlegmatic 
reader  is  sometimes  too  apt  to  consider  as 
factious  or  unnecessary.  If  they  seem  to 
have  dwelt  more,  in  some  of  these,  on  the 
dangers  of  religion,  and  less  on  those  of  lib- 
erty, than  we  may  now  think  reasonable,  it 
is  to  be  remembered  that  the  fear  of  fwpery 
has  al\yays  been  the  surest  string  to  touch 
for  effect  on  the  people  ;  and  that  the  gen- 
eral clamor  against  that  religion  was  all  cov- 
ertly directed  against  the  Duke  of  York, 
the  most  dangerous  enemy  of  every  part  of 
our  Constitution.  The  real  vice  of  this 
Parliament  was  not  intemperance,  Qarmptiaa 
but  corruption.  Clifford,  and  still  of  the  Par- 
iDore  Danby,  were  masters  in  an 
art  practiced  by  ministers  from  the  time  of 
James  I.  (and  which,  indeed,  can  never  be 
unknown  where  there  exists  a  court  and  a 
popular  assembly),  that  of  turning  to  their 
use  the  weapons  of  mercenaiy  eloquence 
by  office,  or  blunting  their  edge  by  bribeiy.f 


*  Temple's  Memoirs. 

t  Burnet  says  that  Danby  bribed  the  less  im- 
portant members  instead  of  the  leaders,  which  did 
not  answer  so  well.  But  he  seems  to  have  been 
liberal  to  all.  The  Parliament  has  gained  the  name 
of  the  pensioned.  In  that  of  1679,  Sir  Stephen  Fox 
was  called  upon  to  produce  an  account  of  the  mon- 
eys paid  to  many  of  their  predecessors.  Those 
who  belonged  to  the  new  Parliament  endeavored 
to  defend  themselves,  and  gave  reasons  for  their 


Cha.  II.— 1673-85.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


457 


Some  who  had  been  once  prominent  in  op- 
position, as  Sir  Robert  Howard  and  Sir 
Richard  Temple,  became  placemen  ;  some, 
like  Garraway  and  Sir  Thomas  Lee,  while 
they  continued  to  lead  the  country  party, 
took  money  from  the  court  for  softening  par- 
ticular votes  ;*  many,  as  seems  to  have  been 
the  case  with  Reresby,  were  won  by  prom- 
ises, and  the  pretended  friendship  of  men 
in  power.f  On  two  great  classes  of  ques- 
tions, France  and  popery,  the  Commons 
broke  away  from  all  management ;  nor  was 
Danby  unwilling  to  let  his  master  see  their 
indocility  on  these  subjects.  But,  in  gener- 
al, till  the  year  1678,  by  dint  of  the  means 
before  mentioned,  and  partly,  no  doubt, 
thi-ough  the  honest  conviction  of  many  that 
the  king  was  not  likely  to  employ  any  min- 
ister more  favorable  to  the  Protestant  re- 
ligion and  liberties  of  Europe,  he  kept  his 
gi-ouud  without  any  insuperable  opposition 
fi-om  Parliament.t 

pensions  ;  but  I  observe  no  one  says  he  did  not  al- 
ways vote  with  the  court.  —  Pari.  Hist,  1137. 
North  admits  that  great  clamor  was  excited  by 
tliis  discovery ;  and  well  it  might.  See,  also,  Dal- 
rmyple,  ii.,  92. 

•  Burnet  charges  these  two  leaders  of  opposi- 
tion with  being  bribed  by  the  court  to  draw  the 
House  into  granting  an  enormous  supply,  as  the 
consideration  of  passing  the  Test  Act ;  and  see 
Pepys,  Oct.  6,  1666.  Sir  Robert  Howai'd  aud  Sir 
Richard  Temple  were  said  to  have  gone  over  to 
the  court  in  1670  through  similar  inducements. — 
Ralph.  Roger  North  (Examen,  p.  4-56)  gives  an 
account  of  the  manner  in  which  men  were  bought 
off  from  the  opposition,  though  it  was  sometimes 
advisable  to  let  them  nominally  continue  in  it; 
and  mentions  Lee,  Garraway,  aud  Meres,  all  very 
active  patriots,  if  we  trust  to  the  Parliamentary 
debates.  But,  after  all,  neither  Burnet  nor  Roger 
North  are  wholly  to  be  relied  on  as  to  particular 
instances,  though  the  general  fact  of  an  extensive 
corruption  be  indisputable. 

t  This  cunning,  self-interested  man,  who  had 
been  introduced  to  the  House  by  Lord  Russell 
and  Lord  Caverwlish,  and  was  connected  with  the 
country  party,  tells  us  that  Danby  sent  for  him  in 
February.  1677,  and  assured  him  that  the  jealous- 
ies of  that  party  were  wholly  without  foundation  ; 
that,  to  his  certain  knowledge,  the  king  meant  no 
other  than  to  preserve  the  religion  aud  government 
by  law  established ;  that,  if  the  government  was 
in  any  danger,  it  was  from  those  who  pretended 
gnch  a  mighty  zeal  for  it.  On  finding  him  well 
disposed,  Danby  took  his  proselyte  to  the  king, 
who  assured  him  of  his  regard  for  the  Constitution, 
aud  was  right  loyally  believed. — Reresby's  Me- 
moirs, p.  36. 

{  "  There  were  two  things,"  says  Bishop  Par- 
ker, "  which,  like  Circe's  cup,  bewitched  men  and 


The  Earl  of  Danby  had  virtues  as  aa 
English  minister,  which  serve  to  „,      .  , 

'  Character  of 

extenuate  some  great  eiTors  and  the  Earl  of 

Daub 

an  entire  want  of  scrupulousness  ■"'  ^' 
in  his  conduct.  Zealous  against  the  Church 
of  Rome  and  the  aggrandizement  of  Franco, 
he  counteracted,  while  he  seemed  to  yield 
to,  the  prepossessions  of  his  master.  If  the 
policy  of  England  before  the  peace  of  Nime- 
guen  was  mischievous  and  disgraceful,  it 
would  evidently  liave  been  far  more  so  had 
the  king  and  Duke  of  York  been  abetted 
by  this  minister  in  their  fatal  predilection 
for  France.  We  owe  to  Danby's  influ- 
ence, it  must  ever  be  remembered,  the 
marriage  of  Princess  Mary  to  the  Prince 
of  Orange,  the  seed  of  the  Revolution  and 
the  Act  of  Settlement:  a  courageous  and 
disinterested  counsel,  which  ought  not  to 
have  proved  the  source  of  his  greatest  mis- 
fortimes.*  But  we  can  not  pretend  to  say 
that  he  was  altogether  as  sound  a  friend  to 
the  Constitution  of  his  country,  as  to  her 
national  dignity  and  interests.  I  do  not 
mean  that  he  wished  to  render  the  king 
absolute ;  but  a  minister,  harassed  and  at- 
tacked in  Parliament,  is  tempted  to  desire 
the  means  of  crushing  his  opponents,  or  at 

tunied  them  into  brutes ;  viz.,  popery  and  French 
interest.  If  men  otherwise  sober  heard  them  once, 
it  was  sufficient  to  make  them  mn  mad  ;  but,  when 
those  things  were  laid  aside,  their  behavior  to  his 
majesty  was  with  a  becoming  modesty." — P.  244. 
Whenever  the  court  seemed  to  fall  in  with  the 
national  interests  on  the  two  points  of  France  and 
popeiy,  many  of  the  countiy  party  voted  with  them 
on  other  questions,  though  more  numerous  than 
their  own. — Temple,  p.  458.  See,  too,  Reresby, 
p.  25,  et  alibi. 

*  The  king,  according  to  James  himself,  readily 
consented  to  the  marriage  of  the  princess,  when  it 
w^as  first  suggessted  in  1675 ;  the  difficulty  was 
with  her  father.  He  gave,  at  last,  a  reluctant  con- 
sent; and  the  offer  was  made  by  Lords  Arhngtofl 
and  Ossory  to  the  Prince  of  Orange,  who  received 
it  coolly. — Life  of  James,  501.  Temple's  Memoirs, 
p.  397.  When  he  came  over  to  England  in  Octo- 
ber, 1677,  with  the  intention  of  effecting  the  match, 
the  king  and  duke  wished  to  refer  it  till  the  con- 
clusion of  the  ti-eaty  then  in  negotiation  at  Nime- 
guen ;  but  "the  obstinacy  of  the  prince,  with  the 
assistance  of  the  treasurer,  who  from  that  time  en- 
tered into  the  measures  and  interests  of  the  prince, 
prevailed  upon  the  flexibihty  of  the  king  to  let  the 
marriage  be  first  agreed  and  concluded." — P.  508. 
[If  we  may  trust  Reresby,  which  is  not,  perhaps, 
always  the  case,  the  Duke  of  York  had  hopes  of 
marrying  the  Princess  Mary  to  the  dauphin,  thus 
rendei-ing  England  a  province  of  France. — Reres- 
by's  Memoirs,  p.  109. — 1845.] 


% 


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458 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIL 


least  of  augmenting  his  own  sway.  The 
mischievous  bill  that  passed  the  House  of 
Lords  in  1G73,  imposing  as  a  test  to  be 
taken  by  both  houses  of  Parliament,  as  well 
as  all  holding  beneficed  offices,  a  declaration 
that  resistance  to  persons  commissioned  by 
the  king  was  in  all  cases  unlawful,  and  that 
tliey  would  never  attempt  any  alteration  in 
the  government  in  Church  or  State,  was 
promoted  by  Danby,  though  it  might  possi- 
bly originate  with  others.*  It  was  appa- 
rently meant  as  a  bone  of  contention  among 
the  country  party,  in  which  Presbyteiians 
and  old  Parliamentarians  were  associated 
with  discontented  Cavaliers.  Besides  the 
mischief  of  weakening  this  partj-,  which, 
indeed,  the  minister  could  not  fairly  be  ex- 
pected to  feel,  nothing  could  have  been  de- 
vised more  unconstitutional,  or  more  advan- 
tageous to  the  court's  projects  of  arbitrary 
power. 

It  is  certainly  possible  that  a  minister 
who,  aware  of  the  dangerous  intentions  of 
his  sovereign  or  his  colleagues,  remains  in 
the  cabinet  to  thwart  and  countermine  them, 
may  serve  the  public  more  effectually  than 

*  Keiuiet,  p.  332.  North's  Examen,  p.  61.  Bur- 
net. This  test  was  covertly  meant  against  the 
Homish  party,  as  well  as  more  openly  against  the 
Dissenters. — Life  of  James,  p.  499.  Danby  set 
himself  up  as  the  patron  of  the  Church-party  and 
old  Cavaliers  against  the  two  opposing  religions, 
trusting  that  they  were  stronger  in  the  House  of 
Commons.  But  the  times  were  so  changed  that 
the  same  men  had  no  longer  the  same  principles, 
and  the  House  would  listen  to  no  measures  against 
Kou-conformists.  He  propitiated,  however,  the 
prelates,  by  renewing  the  persecution  under  the 
existing  laws,  which  had  been  relaxed  by  the  ca- 
bal ministry.— Baxter,  156,  172.  Kennet,  33]. 
Neal,  69«.    Somers  Tracts,  vii.,  336. 

Meanwhile,  schemes  of  comprehension  were 
Bometimes  on  foot ;  and  the  prelates  affected  to  be 
desirous  of  bi-jnging  about  a  union  ;  but  Morley  and 
Sheldon  frustrated  them  all. — Baxter,  156.  Ken- 
net,  326.  Parker,  25.  The  bishops,  however, 
were  not  uniformly  intolerant :  Croft,  bishop  of 
Hereford,  published,  about  1675,  a  tract  that  made 
some  noise,  entitled  the  Naked  Truth,  for  the  pur- 
pose of  moderating  differences.  It  is  not  written 
with  extraordinary  ability;  but  is  very  candid  and 
well  designed,  though  conceding  so  much  as  to 
scandalize  his  brethren. — Somers  Tracts,  vii.,  268. 
Biogr.  Brit.,  art.  Croft,  where  the  book  is  extrava- 
gantly over-praised.  Croft  was  one  of  the  few 
bishops  who,  being  then  very  old,  advised  his  cler- 
ery  to  read  James  II.'s  declaration  in  1687 ;  think- 
iug,  I  suppose,  though  iu  those  circumstances  er- 
roneously, that  toleration  was  so  good  a  thing,  it 
was  better  to  have  it  irregularly  than  not  at  all. 


by  retiring  frpm  office  ;  but  he  will  scarce- 
ly succeed  in  avoiding  some  material  sacri- 
fices of  integrity,  and  still  less  of  reputation. 
Danby,  the  ostensible  adviser  of  Charles 
II.,  took  on  himself  the  just  odium  of  that 
hollow  and  suspicious  policy  which  appear- 
ed to  the  world.  We  know,  indeed,  that 
he  was  concerned,  against  his  own  judg- 
ment, in  the  king's  secret  receipt  of  money 
from  France,  the  price  of  neutrality,  both  in 
1G76  and  in  1678,  the  latter  to  his  own 
ruin.*  Could  the  opposition,  though  not 
so  well  apprised  of  these  transactions  as  we 
are,  be  censured  for  giving  little  credit  to 
his  assurances  of  zeal  against  that  power, 
which,  though  sincere  in  him,  were  so  little 
in  unison  with  the  disposition  of  the  court  ? 
Had  they  no  cause  to  dread  that  the  great 
army  suddenly  raised  in  1677,  on  pretense 
of  being  employed  against  France,  might  be 
turned  to  some  worse  purposes  more  con- 
genial to  the  king's  temper?! 

This  invincible  distrust  of  the  court  is  the 
best  apology  for  that  which  has  „ 

.    ''•^  Connection 

given  rise  to  so  much  censure,  of  the  popu- 
the  secret  connections  formed  !?f,F1J2„^« 

with  r  ranee. 

by  the  leaders  of  opposition  with  its  motives 
Louis  XIV.,  through  his  ambas- 


*  Charles  received  500.000  crowns  for  the  long 
prorogation  of  Parliament,  from  Nov.,  1675,  to  Feb., 
1677.  In  the  beginning  of  the  year  1676,  the  two 
kings  bound  themselves  by  a  formal  treaty  (to 
which  Dauby  and  Lauderdale,  but  not  Coventry  or 
Williamson,  were  privy)  not  to  enter  on  any  treat- 
ies but  by  mutual  consent ;  and  Charles  promised, 
in  consideration  of  a  pension,  to  prorogue  or  dis- 
solve Parliament  if  they  should  attempt  to  force 
such  treaties  upon  him. — Dalrj  mple,  p.  99.  Danby 
tiied  to  break  this  off,  but  did  not  hesitate  to  press 
the  French  cabinet  for  the  money;  and  £200,000 
was  paid.  The  Prince  of  Orange  came  afterward, 
through  Ilou\'igny,  to  a  knowledge  of  this  secret 
treaty.— P.  117. 

t  This  army  consisted  of  between  twenty  and 
thiity  thousand  men,  as  fine  troops  as  could  be 
seen  (Life  of  James,  p.  512) :  an  alarming  sight  to 
those  who  denied  the  lawfulness  of  any  standing 
army.  It  is  impossible  to  doubt,  from  BariUon's 
correspondence  in  Dalrj-mple,  that  the  king  and 
duke  looked  to  this  force  as  the  means  of  consoli- 
'datiug  the  roj  al  authority.  This  was  suspected  at 
home,  and  verj' justly  :  "  Many  well-meaning  men," 
says  Reresby,  "  began  to  fear  the  army  now  rais- 
ed was  rather  intended  to  awe  our  own  kingdom 
than  to  war  against  France,  as  had  at  first  been 
suggested." — P.  62.  And  in  a  former  passage,  p. 
57,  he  positively  attributes  the  opposition  to  the 
French  war  in  1678  to  "  a  jealousj-  that  the  king 
indeed  intended  to  raise  an  arm\-,  but  never  de- 
signed to  go  on  with  the  war;  and,  to  say  the 


Cha.  II.— 1673-85.] 


i-ROM  HENEY  VII.  TO  GEORGE  II. 


459 


sadors  Bai"illon  and  Eouvigny,  about  the 
spring  of  1678.*  They  well  knew  that  the 
king's  designs  against  their  liberties  had 
been  planned  in  concert  with  France,  and 
could  hardly  be  rendered  effectual  witliout 
her  aid  in  money,  if  not  in  arms-f  If  they 
could  draw  over  tliis  dangerous  ally  from 
his  side,  and  convince  the  King  of  France 
that  it  was  not  his  interest  to  crush  their 
power,  they  would  at  least  frustrate  the 
suspected  conspiracy,  and  secure  the  dis- 

truth,  some  of  the  king's  own  party  vreve  not  very 
sure  of  the  coutraiy." 

*  DalrjTuple,  p.  129.  The  immediate  cause  of 
those  intrigues  was  the  indignation  of  Louis  at  the 
Princess  Mary's  marriage.  That  event,  whicli,  as 
we  know  from  James  himself,  was  very  suddenly 
brought  about,  took  the  King  of  France  by  sur- 
prise. Charles  apologized  for  it  to  Barillon  by 
Baying,  "  I  am  the  only  one  of  my  party,  except 
my  brother." — (P.  125.)  This,  in  fact,  was  the  se- 
cret of  his  apparent  relinquishmeut  of  French  in- 
terests at  different  times  in  tlie  latter  years  of  his 
reign  ;  he  found  it  hard  to  kick  constantly  against 
the  pricks,  and  could  employ  no  minister  who  went 
cordially  along  with  his  predilections.  He  seems, 
too,  at  times,  as  well  as  the  Duke  of  York,  to  have 
been  seriously  provoked  at  the  unceasing  encroach- 
ments of  France,  which  exposed  him  to  so  much 
vexation  at  Rome. 

The  comiection  with  Lords  Russell  and  HoUis 
began  in  March,  1678,  though  some  of  the  opposi- 
tion had  been  making  advances  to  Barillon  in  the 
preceding  November,  p.  129,  131.  See,  also,  "Cop- 
ies and  Extracts  of  some  Letters  written  to  him 
from  the  Earl  of  Dauby,  "  published  in  1716, 
whence  it  appears  that  Montagu  suspected  the  in- 
trigues of  Barillon,  and  the  mission  of  Rouviguy, 
Lady  Russell's  first  cousin,  for  the  same  purpose, 
as  early  as  Jan.,  1678,  and  informed  Danby  of  it, 
p.  50,  53,  59. 

t  Courtin,  the  French  ambassador  who  preceded 
Barillon,  had  been  engaged  through  gieat  part  of 
the  j  ear  1677  in  a  treaty  with  Charles  for  the  pro- 
rogation or  dissolution  of  Parliament.  After  a  long 
chaiFering,  the  sura  was  fixed  at  2,000,000  Uvres, 
in  consideration  of  which  the  King  of  England 
pledged  liimself  to  prorogue  Parliament  from  De- 
cember to  April,  1678.  It  was  in  consequence  of 
the  subsidj'  being  stopped  by  Louis,  in  resent- 
ment of  the  Princess  Mary's  marriage,  that  Parlia- 
ment, which  had  been  already  prorogued  till  April, 
was  suddenly  assembled  in  Februan,-. — Dalrym- 
ple,  p.  111.  It  appears  that  Courtin  had  employed 
French  money  to  bribe  members  of  the  Commons 
in  1677  with  tlie  knowledge  of  Charles,  assigning 
as  a  reason  that  Spain  and  the  emperor  were  dis- 
tributing money  on  the  other  side.  In  the  course 
of  this  negotiation,  be  assured  Chai'les  that  the 
King  of  France  was  ready  to  employ  all  his  forces 
for  the  confirmation  and  augmentation  of  the  royal 
authority  in  England,  so  that  he  should  always  be 
master  of  bis  subjects,  and  not  depend  upon  them. 


bauding  of  the  army,  though  at  a  great  sac- 
rifice of  the  Continental  policy  which  they 
had  long  maintained,  and  whicli  was  truly 
important  to  our  honor  and  safety.  Yet 
there  must  be  degrees  in  the  scale  of  pub- 
lic utility ;  and,  if  the  liberties  of  the  peo- 
ple were  really  endangered  by  domestic 
treacherj-,  it  was  ridiculous  to  tliink  of  sav- 
ing Tournay  and  Valenciennes  at  the  ex- 
pense of  all  that  was  dearest  at  home. 
This  is  plainlj'  the  secret  of  that  unaccount- 
able, as  it  then  seemed,  and  factious  oppo- 
sition, in  the  year  1678,  which  can  not  be 
denied  to  have  served  the  ends  of  France, 
and  thwarted  the  endeavors  of  Lord  Danby 
and  Sir  William  Temple  to  urge  on  the 
uncertain  and  half-reluctant  temper  of  the 
king  into  a  decided  course  of  policy.* 
Louis,  in  fact,  had  no  desire  to  see  the  King 
of  England  absolute  over  his  people,  unless 
it  could  be  done  so  much  by  his  own  help 
as  to  render  himself  the  real  master  of  both. 
In  the  estimate  of  kings,  or  of  such  kings 
as  Louis  XIV".,  all  limitations  of  sovereign- 
ty, all  co-ordinate  authority  of  estates  and 
*  See  what  Temple  says  of  this,  p.  460  ;  the 
king  raised  20,000  men  in  the  spring  of  1678,  and 
seemed  ready  to  go  into  the  war;  but  all  waa 
spoiled  by  a  vote,  on  Clarges's  motion,  that  no 
money  should  be  granted  till  satisfaction  should  be 
made  as  to  rehgion.    This  UTitated  the  king  so 
much  that  he  detenuined  to  take  the  money  which 
France  offered  him,  and  he  afterward  almost  com- 
pelled the  Dutch  to  sign  the  treaty ;  so  much 
against  the  Prince  of  Orange's  inclinations,  that 
he  has  often  been  charged,  though  unjustly,  with 
having  fought  the  battle  of  St.  Denis  after  he  knew 
that  the  peace  was  concluded.    Dauby,  also,  in  his 
vindication  (pubhshed  in  1679,  and  again  in  1710: 
see  State  Trials,  ii.,  634),  lays  the  blame  of  dis- 
couraging the  king  from  embarking  in  the  war  on 
this  vote  of  the  Commons.    And  the  author  of  the 
Life  of  James  II.  says  very  truly,  that  the  Com- 
mons "were  in  reality  more  jealous  of  the  king's 
power  than  of  the  power  of  France ;  for,  notwith- 
standing all  their  former  warm  addresses  for  hin- 
dering the  growth  of  the  power  of  France  when 
the  king  had  no  army,  now  that  he  had  one,  they 
passed  a  vote  to  have  it  immediately  disbanded; 
and  the  factious  party,  which  was  then  prevalent 
among  them,  made  it  their  only  business  to  be  rid 
of  the  duke,  to  pull  down  the  ministers,  and  to 
weaken  the  crown.'' — P.  512. 

In  defense  of  the  Commons  it  is  to  be  urged  that, 
if  they  had  any  strong  suspicion  of  tlie  king's  pri- 
vate intrigues  with  France  for  some  years  past, 
as  in  all  likelihood  they  had,  common  prudence 
would  teach  tliem  to  distrust  his  pretended  desire 
1  for  war  with  her ;  aiKl  it  is,  in  fact,  most  probable, 
that  his  real  object  was  to  be  master  of  a  consider- 
able army. 


460 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


fCHAP.  XIL 


Parliaments,  are  not  only  derogatory  to  the 
royal  dignity,  but  injurious  to  the  state  it- 
self, of  which  they  distract  the  councils  and 
enervate  the  force.  Great  armies,  prompt 
obedience,  unlimited  power  over  the  nation- 
al resources,  secrecy  in  council,  rapidity  in 
execution,  belong  to  an  energetic  and  en- 
lightened despotism  :  we  should  greatly  eiT 
m  supposing  that  Louis  XIV.  was  led  to 
concur  in  projects  of  subverting  our  Consti- 
tution from  any  jealousy  of  its  contributing 
to  our  prosperity.  He  saw,  on  the  contra- 
ly,  in  the  perpetual  jarring  of  the  kings  and 
Parliaments,  a  source  of  feebleness  and  vac- 
illation in  foreign  aflairs,  and  a  field  for  in- 
trigue and  corruption.  It  was  certainly  far 
from  his  design  to  see  a  republic,  either  in 
name  or  effect,  established  in  England ;  but 
a  unanimous  loyalty,  a  spontaneous  submis- 
sion to  the  court,  was  as  little  consonant  to 
his  interests ;  and,  especially  if  accompanied 
with  a  willing  return  of  the  majority  to  the 
Catholic  religion,  would  have  put  an  end  to 
his  influence  over  the  king,  and  still  more 
certainly  over  the  Duke  of  York.*  He 
had  long  been  sensible  of  the  advantage  to 
be  reaped  from  a  malcontent  party  in  Eng- 
land. In  the  first  years  after  the  Restora- 
tion, he  kept  up  a  connection  with  the  disap- 
pointed Commonwealth's  men,  while  their 
courage  was  yet  fresh  and  unsubdued,  and 
in  the  war  of  1665  was  very  nearly  exciting 
insurrections  both  in  England  and  Ireland. t 
These  schemes,  of  coui'se,  were  suspend- 
ed as  he  gi'ew  into  closer  friendship  with 
Charles,  and  saw  a  surer  method  of  pre- 
serving an  ascendency  over  the  kingdom ; 
but  as  soon  as  the  Princess  Mary's  mar- 
riage, conti-aiy  to  the  King  of  England's 
promise,  and  to  the  plain  intent  of  all  their 
clandestine  negotiations,  displayed  his  faith- 
less and  uncertain  character  to  the  French 
cabinet,  they  determined  to  make  the  pat- 


*  The  memorial  of  Blauchard  to  the  Prince  of 
Orange,  quoted  by  Daliymple,  p.  201,  contains 
these  words:  "Le  roi  auroit  ete  bien  fache  qu'il 
eut  ete  absolu  dans  ses  etats  ;  I'un  de  ses  plus  con- 
stants maximes  depuis  son  retablissement  ayant 
ete,  de  le  diviser  d'avec  son  Parlement,  et  de  se 
ser%nr  tant6t  de  I'un,  tantot  de  I'autre,  tonjours  par 
argent  pour  parveuir  a  ses  fins." 

t  Ralph,  p.  116.  CEuvres  de  Louis  XIV.,  ii., 
204,  and  v.,  67,  where  we  have  a  curious  and  char- 
acteristic letter  of  the  king  to  D'Estrades  in  Jan- 
uary, 1662,  when  he  had  been  provoked  by  some 
high  language  Clarendon  had  held  about  the  right 
of  the  flag. 


riotism,  the  passion,  and  the  cormption  of 
the  House  of  Commons  minister  to  their 
resentment  and  ambition. 

The  views  of  Lord  Hollis  and  Lord  Rus- 
sell in  this  clandestine  intercourse  with  the 
French  ambassador  were  sincerely  patriot- 
ic and  honorable :  to  detach  France  from 
the  king ;  to  crash  the  Duke  of  York  and 
popish  faction ;  to  procure  the  disbanding 
of  the  army,  the  dissolution  of  a  corrupted 
Parliament,  the  dismissal  of  a  bad  minister.* 
They  would,  indeed,  have  displayed  more 
prudence  in  leaving  these  dark  and  danger- 
ous paths  of  inti'igue  to  the  court  which 
was  practiced  in  them.  They  were  con- 
certing measures  with  the  natural  enemy 
of  their  country,  religion,  honor,  and  liber- 
ty, whose  obvious  policy  was  to  keep  the 
kingdom  disunited  that  it  might  be  power- 
less ;  who  had  been  long  abetting  the  worst 
designs  of  our  own  court,  and  who  could 
never  be  expected  to  act  against  popery  and 
despotism  but  for  the  temporary  ends  of 
his  ambition;  yet,  in  the  very  critical  cir- 
cumstances of  that  period,  it  was  impossible 
to  pursue  any  course  with  security ;  and 
the  dangers  of  excessive  circumspection  and 
adherence  to  general  niles  may  often  be  as 
formidable  as  those  of  temerity.  The  con- 
nection of  the  popular  party  with  France 
may  very  probably  have  frustrated  the  sin- 
ister intentions  of  the  king  and  duke,  by 

*  ThelettersofBariUoninDah^'mplcp.  134, 136, 
140,  are  sxtfflcient  proofs  of  this.  He  imputes  to 
Danby  in  one  place,  p.  142,  the  design  of  making 
the  king  absolute,  and  says,  "  M.  le  Due  d' York  Be 
croit  perdu  pour  sa  religion,  si  I'occasion  presente 
ne  lui  sert  a  soumettre  1' Angleterre  ;  c'eat  une  en- 
treprise  fort  bardie,  et  dont  le  succes  est  fort  dou- 
teux."  Of  Charles  himself  he  says,  "  Le  roi  d' An- 
gleterre balance  encore  a  se  porter  a  I'extremitej 
son  humeur  repugne  fort  au  dessein  de  changer  la 
gouvemement.  II  est  neanmoins  entraine  par  M. 
le  Due  d'York  et  par  le  grand  tresorier ;  mais  dans 
le  fond  il  aimeroit  mieux  que  la  paix  le  mit  eo 
etat  de  demeurer  en  repos,  et  retablir  ses  affaires, 
c'est-a-dire,  un  bon  revenu  ;  et  je  crois  qu'U  ne  se 
soncie  pas  beaucoup  d'etre  plus  absolu  qu'il  est. 
Le  due  et  le  tresorier  connoissentbien  a  qui  ils  ont 
affaire,  et  craignent  d'etre  abandonnes  par  le  roi 
d'AngleteiTe  aux  premiers  obstacles  considerables 
qu'ils  trOQveront  au  dessein  de  relever  I'autorite 
royale  en  Angleterre."  On  this  passage  it  may 
be  obsen  ed,  that  there  is  reason  to  believe  there 
was  no  co-operation,  but  rather  a  great  distrust,  at 
this  time,  between  the  Duke  of  York  and  Lord 
Danby.  But  Barillon  had  no  doubt  taken  care  to 
infuse  into  the  minds  of  the  opposition  those  sus- 
picions of  that  minister's  designs. 


Cha.  II.— 1673-85.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


461 


compelling  the  reduction  of  the  army, 
though  at  the  price  of  a  great  sacrifice  of 
European  policy.*  Such  may  be,  with  uu- 
prejudiced  men,  a  sufficient  apology  for  the 
conduct  of  Lord  Russell  and  Lord  Ilollis, 
the  most  public-spirited  and  high-minded 
characters  of  their  age,  in  this  extraordina- 
ry and  unnatural  alliance.  It  would  have 
been  unworthy  of  their  virtue  to  have  gone 
into  so  desperate  an  intrigue  with  no  better 
aim  than  that  of  ruining  Lord  Dauby  ;  and 
of  this  I  think  we  may  fully  acquit  them. 
The  nobleness  of  Russell's  disposition  beams 
forth  in  all  that  Barillon  has  written  of  their 
conferences ;  yet,  notwithstanding  the  plaus- 
ible gi-ounds  of  his  conduct,  we  can  hardly 
avoid  wishing  that  he  had  abstained  from  so 
dangerous  an  intercourse,  which  led  him  to 
impair,  in  the  eyes  of  posterity,  by  some- 
thing more  like  faction  than  can  be  ascribed 
to  any  other  part  of  his  Parliamentary  life, 
the  consistency  and  ingenuousness  of  his 
character.! 

I  have  purposely  mentioned  Lord  Russell 
Doubt  as  10  a"*!  Lord  Hollis  apart  from  oth- 
the  accept-  yf\xQ  were  mingled  in  the 

ance  of  money  .      .  i-    ,  i 

by  the  popular  Same  intrigues  01  the  Irencn 
ambassador,  both  because  they 
were  among  the  first  with  whom  he  tam- 
pered, and  because  they  are  honorably  dis- 
tinguished by  their  abstinence  from  all  pe- 
cuniary remuneration,  which  Hollis  refused, 
and  which  Barillon  did  not  presume  to  offer 
to  Russell.  It  appears,  however,  from  this 
minister's  accounts  of  the  money  he  had 
expended  in  tliis  secret  service  of  the 
French  crown,  that,  at  a  later  time,  name- 
ly, about  the  end  of  1680,  many  of  the  lead- 
ing members  of  opposition.  Sir  Thomas 
Littleton,  Mr.  Garraway,  Mr.  Hampden, 
Mr.  Powle,  Mr.  Sacheverell,  Mr.  Foley, 
received  sums  of  500  or  300  guineas,  as 
testimonies  of  the  King  of  France's  munifi- 
cence and  favor.  Among  others,  Algernon 
Sidney,  who,  though  not  in  Parliament,  was 
very  active  out  of  it,  is  more  than  once  men- 
tioned. Chiefly  because  the  name  of  Al- 
gernon Sidney  had  been  associated  with  the 


*  Barillon  appears  to  have  favored  the  opposi- 
tion rather  than  the  Duke  of  York,  who  urged  the 
keeping  up  of  the  army.  This  was  also  the  great 
object  of  the  king,  who  very  reluctantly  disbanded 
it  in  January,  1679. — Dalrymple,  207,  &c. 

t  This  delicate  subject  is  treated  with  great  can- 
dor as  well  as  judgment  by  Lord  John  Russell,  in 
bis  Life  of  William  Lord  Russell. 


most  stern  and  elevated  virtue,  this  state- 
ment was  received  with  great  reluctance ; 
and  many  have  ventured  to  call  the  truth 
of  these  pecuniary  gratifications  in  question. 
This  is  certainly  a  bold  surmise  ;  though 
Barillon  is  known  to  have  been  a  man  of 
luxurious  and  expensive  habits,  and  his  de- 
mands for  more  money  on  account  of  the 
English  court,  which  continually  occur  iu 
his  correspondence  with  Louis,  may  lead 
to  a  suspicion  that  he  would  bo  in  some 
measure  a  gainer  by  it.    This,  however, 
might  possibly  be  the  case  without  actual 
peculation.    But  it  must  be  obsci'ved  that 
there  are  two  classes  of  those  who  are  al- 
leged to  have  received  presents  through  his 
hands  ;  one,  of  such  as  were  in  actual  com- 
munication with  himself;  another,  of  such 
as  Sir  John  Baber,  a  secret  agent,  had  pre- 
vailed upon  to  accept  it.    Sidney  was  in  the 
first  class  ;  but  as  to  the  second,  compre- 
hending Littleton,  Hampden,  SachevereU, 
in  whom  it  is,  for  ditl'erent  reasons,  as  diffi- 
cult to  suspect  pecuniary  corruption  as  in 
him,  the  proof  is  manifestly  weaker,  de- 
pending only  on  the  assertion  of  an  intriguer 
that  he  had  paid  them  the  money.  The 
falsehood  either  of  Baber  or  Barillon  would 
acquit  these  considerable  men.    Nor  is  it 
to  be  reckoned  improbable  that  persons  em- 
ployed in  this  clandestine  service  should  be 
guilty  of  a  fraud,  for  which  they  could  ev- 
idently never  be  made  responsible.  We 
have,  indeed,  a  remarkable  confession  of 
Coleman,  the  famous  intriguer  executed  for 
the  Popish  Plot,  to  this  eflect.    He  depos- 
ed, iu  his  examination  before  the  House  of 
Commons,  in  November,  1678,  that  he  had 
received  last  session  from  Barillon  c£2500 
to  be  distributed  among  members  of  Par- 
hament,  which  he  had  converted  to  his  own 
use.*    It  is  doubtless  possible  that  Cole- 
man, having  actually  expended  this  money 
in  the  manner  intended,  bespoke  the  favor 
of  those  whose  secret  he  kejit  by  taking  the 
discredit  of  such  a  fraud  on  himself;  but  it 
is  also  possible  that  he  spoke  the  truth.  A 
similar  unceitainty  hangs  over  the  transac- 
tions of  Sir  John  Baber.    Nothing  in  the 
Parliamentary  conduct  of  the  above-men- 
tioned gentlemen  in  1680  corroborates  the 
suspicion  of  an  intrigue  with  France,  what- 
ever may  have  been  the  case  in  1678. 
I  must  fairly  confess,  however,  that  the 
'  Pari.  Hist.,  1035.    Dalrymple,  200. 


462 


COXSTITUTIONAL  HISTORY  OF  ENGLANT) 


[Chap.  XIL 


decided  bias  of  my  own  mind  is  on  the  af-  [ 
firmative  side  of  this  question,  and  that  prin-  j 
cipally  because  I  am  not  so  much  struck,  as  : 
some  have  been,  bj'  any  violent  improbabili- 1 
ty  in  what  Barillon  wrote  to  his  court  on  the  j 
subject.    If,  indeed,  we  were  to  read  that 
Algernon  Sidney  had  been  bought  over  by 
Louis  XIV.  or  Charles  II.  to  assist  in  set- ' 
ting  up  absolute  monarchy  in  England,  we  ' 
might  fairly  oppose  our  knowledge  of  his 
inflexible  and  haughty  character — of  his  ' 
zeal,  in  life  and  death,  for  Republican  lib- 
erty.   But  there  is,  I  presume,  some  mor- : 
al  distinction  between  the  acceptance  of  a  ' 
bribe  to  desert  or  betray  our  principles,  and  j 
that  of  a  ti'ifling  present  for  acting  in  con- 
formity to  them.    The  one  is,  of  course,  to  1 
be  styled  coiruption ;  the  other  is  repug- ' 
nant  to  a  generous  and  delicate  mind,  but , 
too  much  sanctioned  by  the  practice  of  an  | 
age  far  less  scrupulous  than  our  own,  to  i 
have  carried  with  it  any  great  self-reproach 
or  sense  of  degradation.    It  is  ti-uly  incon- 
ceivable that  men  of  such  property  as  Sir  j 
Thomas  Littleton  or  Mr.  Foley  should  have  , 
accepted  300  or  300  guineas,  the  sums  men-  j 
tioned  by  Barillon,  as  the  price  of  apostasy  [ 
from  those  pohtical  principles  to  which  they  | 
owed  the  esteem  of  their  couutiy,  or  of  an 
implicit  compliance  with  the  dictates  of  ] 
France.    It  is  sufficiently  discreditable  to  ^ 
the  times  in  which  they  lived,  that  they 
should  have  accepted  so  pitiful  a  gratuity ;  | 
unless,  indeed,  we  should  in  candor  resort  < 
to  a  hypothesis  which  seems  not  absurd, 
that  they  agreed  among  themselves  not  to 
oft'end  Louis,  or  excite  his  distrust,  by  a 
refusal  of  this  money.    Sidney  indeed  was, 
as  there  is  reason  to  tAiiuk,  a  distressed  man ; 
he  had  foimerly  been  in  connection  with  the 
court  of  France,*  and  had  persuaded  him- 

*  Louis  XIV.  tells  us  that  Siduey  Lad  made  pro- 
posals to  France  in  1666  for  an  insurrection,  and 
asked  100,000  crowns  to  effect  it;  which  was 
thought  too  much  for  an  experiment.  He  ti-ied  to 
persuade  the  ministers  that  it  was  against  the  in- 
terest of  France  that  England  should  continue  a 
monarchy. — (En\Tes  de  Louis  XIV.,  ii.,  204.  [Sid- 
ney's partialitv'  to  France  displays  itself  in  his 
Lettei-s  to  Saville,  in  1679,  published  by  HoUis. 
They  e\'ince,  also,  a  blind  ci-edulity  in  the  Popish 
Plot.  The  whole  of  Sidney "s  conduct  is  inconsist- 
ent with  his  having  possessed  either  practical 
good  sense,  or  a  just  appreciation  of  the  public  in- 
terests ;  and  his  influence  over  the  Whig  party  ap- 
pears to  have  been  entirely  mischievous,  though 
be  was  not  only  a  much  better  maa  than  Sbaftes- 


self  that  the  countenance  of  that  power 
might  one  day  or  other  be  afforded  to  his 
darling  scheme  of  a  commonwealth ;  he  had 
contracted  a  dislike  to  the  Prince  of  Orange, 
and  consequently  to  the  Dutch  alliance,  from 
the  same  governing  motive  :  is  it  strange 
that  one  so  circumstanced  should  have  ac- 
cepted a  small  gratification  from  the  King 
of  France  which  implied  no  dereliction  of 
his  duty  as  an  Englishman,  or  any  sacrifice 
of  political  integrity  ?  And  I  should  be  glad 
to  be  informed  by  the  idolaters  of  AlgeraoQ 
Sidney's  name,  what  we  know  of  him  from 
authentic  and  cotemporary  sources  which 
renders  this  incredible. 

France,  in  the  whole  course  of  these  in- 
trigues, held  the  game  in  her  Secret  trea- 
hands.  Mistress  of  both  parties,  ki"/Xuh 
she  might  either  emban-ass  the  Frauce. 
king,  through  Parliament,  if  he  pretended 
to  an  independent  course  of  policy,  or  cast 
away  the  latter  when  he  should  return  to 
his  former  engagements.  Hence,  as  early 
as  May,  1G78,  a  private  treaty  was  set  on 
foot  between  Charles  and  Louis,  by  which 
the  former  obliged  himself  to  keep  a  neu- 
trality if  the  allies  should  not  accept  the 
terms  offered  by  France,  to  recall  all  his 
troops  from  Flanders  within  two  months, 
to  disband  most  of  his  army,  and  not  to  as- 
semble his  Parliament  for  six  months ;  in 
return,  he  was  to  receive  6,000,000  livres. 
This  W£is  signed  by  the  king  himself  oh 
May  27,  none  of  his  ministers  venturing  to 
affix  their  names.*  Yet  at  this  time  ho 
was  making  outward  professions  of  an  in- 
tention to  cany  on  the  war.  Even  in  this 
secret  treaty,  so  thorough  was  his  insincer- 
ity, he  meant  to  evade  one  of  its  articles, 
that  of  disbanding  his  troops.  In  this  alone 
he  was  really  opposed  to  the  wishes  of 
France ;  and  her  pertinacity  in  disarming 
him  seems  to  have  been  the  chief  source  of 
those  capricious  changes  of  his  disposition, 
which  we  find  for  three  or  four  years  at 
this  period. f    Louis  again  appears  not  only 

bury,  which  is  no  high  praise,  but  than  the  greater 
number  of  that  faction,  as  they  must  be  called,  not- 
withstanding their  services  to  libertj-.  A  Tract  on 
Love,  by  Algernon  Sidney,  in  Somers  Tracts,  liii, 
612,  displays  an  almost  Platonic  elegance  and  del- 
icacy of  mind. — 1S45.]  *  Dalrj-mple,  162. 

t  His  exclamation  at  Barillon's  pressing  the  re- 
duction of  the  army  to  8000  men  is  well  known : 
"  God's  fish !  are  all  the  King  of  France's  promises 
to  make  me  master  of  my  subjects  come  to  this ! 


Cha.  II.— 1673-80.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


463 


to  have  mistrusted  tlie  king's  own  inclina- 
tions after  the  Prince  of  Orange's  marriage, 
and  his  abihty  to  withstand  the  eagerness 
of  the  nation  for  war,  but  to  have  appre- 
hended that  he  might  become  absohite  by 
means  of  his  army,  without  standing  indebt- 
ed for  it  to  liis  ancient  ally.  In  this  point, 
therefore,  he  faithfully  served  the  popular 
party.  Charles  used  every  endeavor  to 
evade  this  condition  ;  whether  it  were  that 
he  still  entertained  hopes  of  attaining  arbi- 
ti'ary  power  through  intimidation,  or  that, 
dreading  the  violence  of  the  House  of  Com- 
mons, and  ascribing  it  rather  to  a  Republi- 
can conspiracy  than  to  his  own  misconduct, 
ho  looked  to  a  military  force  as  his  security. 
From  this  motive  we  may  account  for  his 
strange  proposal  to  the  French  king  of  a 
league  in  support  of  Sweden,  by  which  he 
was  to  furnish  fifteen  ships  and  10,000  men, 
at  the  expense  of  France,  during  three 
years,  receiving  six  millions  for  the  first 
year,  and  four  for  each  of  the  next  two. 
Louis,  as  is  highly  probable,  betrayed  this 
project  to  the  Dutch  government,  and  thus 
frightened  them  into  that  hasty  signature 
of  the  treaty  of  Nimeguen,  which  broke  up 
the  confederacy,  and  accomplished  the  im- 
mediate objects  of  his  ambition.  No  longer 
in  need  of  the  court  of  England,  he  determ- 
ined to  punish  it  for  that  duplicity,  which 
none  resent  more  in  others  than  those  who 
are  accustomed  to  practice  it.  Ho  refused 
Charles  the  pension  stipulated  by  the  pri- 
vate treaty,  alleging  that  its  conditions  had 
not  been  performed ;  and  urged  ou  Monta- 
gu, with  promises  of  indemnification,  to  be- 
tray as  much  as  he  knew  of  that  secret,  in 
order  to  ruin  Lord  Danby.* 

The  ultimate  cause  of  this  minister's  fall 
Fall  of  Dan-  '''''^y  deduced  from  the 

by.  His  im-  best  action  of  his  life,  though  it 
'  ensued   unmediately   irom  his 

very  culpable  weakness  in  aiding  the  king's 
inclinations  toward  a  sordid  bargaining  with 
France.  It  is  well  known  that  the  famous 
letter  to  Montagu,  empowering  him  to 
make  an  offer  of  neutrality  for  the  price  of 
6,000,000  livres,  was  not  only  written  by 
the  king's  express  order,  but  that  Charles 

or  does  he  think  that  a  matter  to  be  done  with  8000 
men  !''    Temple  says,  "  He  seemed  at  this  time 
(May.  1678)  more  resolved  to  enter  into  the  war 
than  I  had  ever  before  seen  or  thought  him." 
*  Dalrymple,  178,  et  post. 


attested  this  with  his  own  signature  in  a 
postscript. 

This  bears  date  five  days  after  an  act  had 
absolutely  passed  to  raise  money  for  carry- 
ing on  the  war ;  a  circumstance  worthy  of 
particular  attention,  as  it  both  puts  an  end 
to  every  pretext  or  apology  which  the  least 
scrupulous  could  venture  to  urge  in  behalf 
of  this  negotiation,  and  justifies  the  Whig 
party  of  England  in  an  invincible  distrust, 
an  inexpiable  hatred,  of  so  perfidious  a  coz- 
ener as  filled  the  throne ;  but,  as  he  was 
beyond  their  reach,  they  exercised  a  con- 
stitutional right  in  the  impeachment  of  his 
responsible  minister ;  for  responsible  he 
surely  was;  though,  strangely  mistaking  the 
obligations  of  an  English  statesman,  Danby 
seems  to  fancy  in  his  printed  defense  that 
the  king's  order  would  be  sufficient  warrant 
to  justify  obedience  in  any  case  not  literally 
unlawful.  "  I  believe,"  he  says,  "  there  are 
very  few  subjects  but  what  would  take  it 
ill  not  to  be  obeyed  by  their  servants  ;  and 
their  servants  might  as  justly  expect  their 
master's  protection  for  their  obedience." 
The  letter  to  Montagu,  he  asserts,  "was 
written  by  the  king's  command,  upon  the 
subject  of  peace  and  war,  wherein  his  maj- 
esty alone  is  at  all  times  sole  judge,  and 
ought  to  be  obeyed  not  only  by  any  of  his 
ministers  of  state,  but  by  all  his  subjects."* 
Such  were,  in  that  age,  the  monarchical  or 
Tory  maxims  of  government,  which  the 
impeachment  of  this  minister  contributed 
in  some  measure  to  overthrow.  As  tho 
king's  authority  for  the  letter  to  Montagu 
was  an  undeniable  fact,  evidenced  by  his 
own  hand-writing,  the  Commons,  in  im- 
peaching Lord  Danby,  went  a  great  way 
toward  establishing  the  principle  that  no 
minister  can  shelter  himself  behind  the 
throne  by  pleading  obedience  to  the  orders 
of  his  sovei'eign.  He  is  considered,  in  the 
modern  theory  of  the  Constitution,  answer- 
able for  the  justice,  the  honesty,  the  utility 
of  all  measures  emanating  from  the  crown, 
as  well  as  for  their  legality ;  and  thus  the 
executive  administration  is  rendered  subor- 
dinate, in  all  great  matters  of  policy,  to  the 
superintendence  and  virtual  control  ef  the 
two  houses  of  Parliament.  It  must,  at  the 
same  time,  be  admitted  that,  through  the 

*  Memoirs  relating  to  the  Impeachment  of  the 
Earl  of  Danby,  1710,  p.  151, 227.  State  Trials,  vol. 
si. 


464 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chat.  XII. 


heat  of  honest  indignation  and  some  less 
woi  thy  passions  on  the  one  hand,  through 
uncertain  and  crude  principles  of  constitu- 
tional law  on  the  other,  this  just  and  neces- 
fiaiy  impeachment  of  the  Earl  of  Danby 
was  not  so  conducted  as  to  be  exempt  from 
all  reproach.  The  charge  of  high  treason 
for  an  offense  manifestly  amounting  only  to 
misdemeanor,  with  the  purpose,  not,  per- 
haps, of  taking  the  life  of  the  accused,  but 
at  least  of  procuring  some  punishment  be- 
yond the  law,*  with  the  strange  mixture  of 
articles,  as  to  which  there  was  no  presump- 
tive proof,  or  which  were  evidently  false, 
such  as  concealment  of  the  Popish  Plot, 
gave  such  a  character  of  intemperance  and 
faction  to  these  proceedings,  as  may  lead 
superficial  readers  to  condemn  them  alto- 
gether, f  The  compliance  of  Danby  with 
the  king's  corrupt  policy  had  been  higldy 
culpable,  but  it  was  not  unprecedented  ;  it 
was  even  conformable  to  the  court  standard 
of  duty  ;  and  as  it  sprang  from  too  inordi- 
nate a  desire  to  retain  power,  it  would 
have  found  an  appropriate  and  adequate 
chastisement  in  exclusion  from  office.  We 
judge,  perhaps,  somewhat  more  favorably 
of  Lord  Danby  than  his  cotemporaries  at 
that  juncture  were  warranted  to  do ;  but 
even  then  he  was  rather  a  minister  to  be 
pulled  down  than  a  man  to  be  severely  pun- 
ished. His  one  great  and  undeniable  serv- 
ice to  the  Protestant  and  English  interests 
should  have  palliated  a  multitude  of  errors; 
yet  this  was  the  mainspring  and  first  source 
of  the  intrigue  that  ruined  him. 

The  impeachmentof  Lord  Danby  brought 

„  forward  several  material  discus- 
Questions 

arising  on  the  sions  On  that  part  of  our  consti- 

S's"""''  t'onal  law,  which  should  not  be 

commitment  passed  over  in  this  place.  1. 

to  the  Tower.  '  ,        ,  ' 

As  soon  as  the  charges  present- 
ed by  the  Commons  at  the  bar  of  the  Up- 
per House  had  been  read,  a  motion  was 
made  that  the  earl  should  withdraw ;  and 

*  The  violence  of  the  next  House  of  Commons, 
who  refused  to  acquiesce  in  Danbj  's  banishment, 
to  which  the  Lords  had  changed  their  bill  of  attain- 
der, may  seem  to  render  it  very  doubtful  whether 
they  would  have  spared  his  life  ;  but  it  is  to  be  re- 
membered that  they  were  exasperated  by  the  par- 
don he  had  clandestinely  obtained,  and  pleaded  in 
bar  of  their  impeachment. 

t  The  impeachment  was  carried  by  179  to  116, 
Dec.  19.  A  motion,  Dec.  21,  to  leave  out  the  word 
traitorously,  was  lost  by  179  to  141. 


another  afterward,  that  he  should  be  com- 
mitted to  the  Tower  :  both  of  which  were 
negatived  by  considerable  majorities.*  This 
refusal  to  commit  on  a  chai  ge  of  treason 
had  created  a  dispute  between  the  two 
Houses  in  the  instance  of  Lord  Clarendon. f 
In  that  case,  however,  one  of  the  articles  of 
impeachment  did  actually  contain  an  un- 
questionable treason.  But  it  was  contended 
with  much  more  force  on  the  present  occa- 
sion, that  if  the  Commons,  by  merely  using 
the  words  traitorously,  could  alter  the  char- 
acter of  offenses  which,  on  their  own  show- 
ing, amounted  but  to  misdemeanors,  the 
boasted  certainty  of  the  law  in  matters  of 
treason  would  be  at  an  end ;  and,  unless  it 
were  meant  that  the  Lords  should  pass  sen- 
tence in  such  a  case  against  the  received 
rules  of  law,  there  could  be  no  pretext  for 
their  refusing  to  admit  the  accused  to  bail. 
Even  in  Strafford's  case,  which  was  a  con- 
demned precedent,  they  had  a  general 
charge  of  high  treason  upon  which  he 
was  committed ;  while  the  offenses  alleged 
figainst  Danby  were  stated  with  particulai- 
ity,  and  upon  the  face  of  the  articles  could 
not  be  brought  within  any  reasonable  inter- 
pretation of  the  statutes  relating  to  treason. 
The  House  of  Commons  faintly  urged  a  re- 
markable clause  in  the  act  of  Edward  HL, 
which  provides  that,  in  case  of  any  doubt 
arising  as  to  the  nature  of  an  offense  charg- 
ed to  amount  to  treason,  the  judges  should 
refer  it  to  the  sentence  of  Parliament; 
and  maintained  that  this  invested  the  two 
Houses  with  a  declaratory  power  to  extend 
the  penalties  of  the  law  to  new  oflFenses 
which  had  not  been  clearly  provided  for  in 
its  enactments.  But,  though  something  like 
this  might  possibly  have  been  in  contempla- 
tion with  the  frauiers  of  that  statute,  and 
precedents  were  not  absolutely  wanting  to 
support  the  construction,  it  was  so  repug- 
nant to  the  nmre  equitable  principles  of 
criminal  law  which  had  begun  to  gain 
ground,  that  even  the  heat  of  faction  did 
not  induce  the  Commons  to  insist  upon  it. 
They  may  be  considered,  however,  as  hav- 
ing carried  their  point ;  for,  though  the  pro- 
rogation and  subsequent  dissolution  of  the 

*  Lords'  Journals.  Dec.  26,  1C78.  Eighteen  peers 
entered  their  protests ;  Halifax,  Essex,  Shaftes- 
bury, &c. 

t  State  Trials,  vi.,  351,  et  post.  Hatsell's  Prec- 
edents, iv.,  176. 


Cha.  II.— 1673-85.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


465 


present  Parliament  ensued  so  quickly  that ; 
notliing  more  was  done  in  the  matter,  yet,  | 
when  the  next  House  of  Commons  revived  j 
the  impeachment,  the  Lords  voted  to  take 
Danby  into  custody  \vithout  any  further  ob-  j 
jection.*    It  ought  not  to  be  inferred  from 
hence  that  they  were  wrong  in  refusing  to 
commit ;  nor  do  I  conceive,  notwithstand- 
ing the  latter  precedent  of  Lord  Oxford,  | 
that  any  rule  to  the  conti'ary  is  established. 
In  any  future  case  it  ought  to  be  open  to 
debate  whether  articles  of  impeachment 
pretending  to  contain  a  charge  of  high  treas-  [ 
on  do  substantially  set  forth  overt  acts  of  j 
such  a  crime  ;  and  if  the  House  of  Lords  | 
shall  be  of  opinion,  either  by  consulting  the  ^ 
judges  or  otherwise,  that  no  treason  is  spe- 1 
cially  alleged,  they  should,  notwithstanding 
any  technical  words,  treat  the  offense  as  a 
misdemeanor,  and  admit  the  accused  to 
bail.f 

2.  A  still  more  important  question  arose 
Pnrdnn  ^^^^  king's  right  of  pardon  upon  a  | 

pleaded  Parliamentary  impeachment.  Dan- 
in  bar.  ^^^^  \yho  had  absconded  on  the  unex- 
pected revival  of  these  proceedings  in  the 
new  Parliament,  finding  that  an  act  of  at- 
tainder was  likely  to  pass  against  him  in 
consequence  of  his  flight  from  justice,  sur- 
rendered himself  to  the  usher  of  the  black 

*  Lords'  Journals,  April  16. 

t  "  The  lord-privy-seal,  Anglesea,  in  aconference 
between  the  two  Houses,"  said,  "  that  in  the  trans- 
action of  this  affair  were  two  ^eat  points  gained 
by  this  House  of  Commons  :  the  first  was,  that  im- 
peachments made  by  the  Commons  in  one  Parlia- 
ment continued  from  session  to  session,  and  Par- 
liament to  Parliament,  notwithstanding  proroga- 
tions or  dissolutions :  the  other  point  was,  that  in 
cases  of  impeachments,  upon  special  matter  shown, 
if  the  modesty  of  the  party  directs  him  not  to  with- 
draw, the  Lords  admit  that  of  right  they  ought  to 
order  him  to  withdraw,  and  that  afterward  he  ought 
to  be  committed.  But  he  understood  that  the 
Lords  did  not  intend  to  extend  the  points  of  with- 
drawing and  committing  to  general  impeachments 
•without  special  matter  alleged,  else  they  did  not 
know  liow  many  might  be  picked  out  of  their 
House  on  a  sudden." 

Shaftesbury  said,  indecently  enoagh,  that  they 
were  as  willing  to  be  rid  of  the  Earl  of  Danby  as 
the  Commons,  and  cavilled  at  the  distinction  be- 
tween general  and  special  impeachments. — Com- 
mons' Journals,  April  12,  1C79.  On  the  impeach- 
ment of  Scroggs  for  treason,  in  the  next  Parlia- 
ment, it  was  moved  to  commit  him ;  but  the  pre- 
vious question  was  carried,  and  he  was  admitted 
to  bail ;  doubtless  because  no  sutficient  matter  was 
alleged.  Twenty  peers  protested. — Lords'  Jour- 
nals, Jan.  7,  1681. 

Gg 


rod ;  and,  on  being  required  to  give  in  his 
Written  answer  to  the  charges  of  the  Com- 
mons, pleaded  a  pardon,  secretly  obtained 
from  the  king,  in  bar  of  the  prosecution.* 
The  Commons  resolved  that  the  pardon  was 
illegal  and  void,  and  ought  not  to  be  pleaded 
in  bar  of  the  impeachment  of  the  Commons 
of  England.  They  demanded  judgment  at 
the  Lords'  bar  against  Danby,  as  having  put 
in  a  void  plea.  They  resolved,  with  that 
culpable  violence  which  distinguished  this 
and  the  succeeding  House  of  Commons,  in 
order  to  deprive  the  accused  of  the  assist- 
ance of  counsel,  that  no  commoner  what- 
soever should  presume  to  maintain  the  va- 
lidity of  the  pardon  pleaded  by  the  Earl  of 
Danby  without  their  consent,  on  pain  of  be- 
ing accounted  a  beti'ayer  of  the  liberties  of 
the  Commons  of  England. f  They  denied 
the  right  of  the  bishops  to  vote  on  the  va- 
lidity of  this  pardon.  They  demanded 
the  appointment  of  a  committee  from  both 
Houses  to  regulate  the  form  and  manner  of 
proceeding  on  this  Impeachment,  as  well  as 
on  that  of  the  five  lords  accused  of  participa- 
tion in  the  Popish  Plot.  The  Upper  House 
gave  some  signs  of  a  vacillating  and  tempo- 
rizing spu-it,  not  by  any  means  unaccounta- 
ble. They  acceded,  after  a  first  refusal,  to 
the  proposition  of  a  committee,  though  man- 
ifestly designed  to  encroach  on  their  own 
exclusive  claim  of  judicature. t  But  they 
came  to  a  resolution  that  the  spiritual  lords 
had  a  right  to  sit  and  vote  in  Parliament  in 
capital  cases  until  judgment  of  death  shall 
be  pronounced. §  The  Commong,  of  course, 
protested  against  this  vote  ;||  but  a  proroga- 
tion soon  dropped  the  curtain  over  their  dif- 
ferences ;  and  Daubj^'s  impeachment  was 
not  acted  upon  in  the  next  Parliament. 

*  Lords'  Journals,  April  25.  Pari.  Hist.,  1121, 
&c.  t  Lords'  Journals,  May  9,  1679. 

i  Lords'  Journals,  May  10  and  11.  After  the 
former  vote,  50  peers,  out  of  107  who  appear  to 
have  been  present,  entered  their  dissent ;  and  an- 
other, the  Earl  of  Leicester,  is  known  to  have  vot- 
ed with  the  minority.  This  unusual  strength  of 
opposition,  no  doubt,  produced  the  change  next 
day. 

5  May  13.  Twenty-one  peers  were  entered  as 
dissentient.  The  Commons  inquired  whether  it 
were  intended  by  this  that  the  bishops  should  vote 
on  the  pardon  of  Danby,  which  the  Upper  House 
declined  to  answer,  but  said  they  could  not  vote  on 
the  trial  of  the  five  popish  lords,  May  15,  17,  27. 

II  See  the  report  of  a  committee  in  Journals,  May 
26,  or  Hatsell's  Precedents,  iv.,  374. 


466 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIL 


Thero  seems  to  be  no  kind  of  pretense  ' 
Votes  of  ior  objecting  to  the  votes  of  the  bish- 
bishops.  on  such  prelim  inaiy  questions  as 
may  arise  in  an  impeachment  of  ti'eason. 
It  is  true  that  ancient  custom  has  so  far  in- 
grafted the  provisions  of  the  ecclesiastical 
law  on  our  Constitution,  that  they  are  bound 
to  withdraw  when  judgment  of  life  or  death 
is  pronounced,  though  even  in  this  they  al- 
ways do  it  with  a  protestation  of  their  right 
to  remain.  This,  once  claimed  as  a  privi- 
lege of  the  Church,  and  reluctantly  admit- 
ted by  the  state,  became,  in  the  lapse  of 
ages,  an  exclusion  and  badge  of  inferiority. 
In  the  Constitutions  of  Clarendon,  under 
Heniy  II.,  it  is  enacted,  that  the  bishops 
and  others  holding  spiritual  benefices  "  in 
capite"  should  give  their  attendance  at  ti-ials 
in  Parliament  till  it  come  to  sentence  of  life 
or  member.  This,  although,  perhaps,  too 
ancient  to  have  authority  as  statute  law, 
was  a  sufficient  evidence  of  the  constitution- 
al usage,  where  nothing  so  material  could  be 
alleged  on  the  other  side ;  and  as  the  origi- 
nal privilege  was  built  upon  nothing  better 
than  the  narrow  superstitions  of  the  canon 
law,  there  was  no  reasonable  pretext  for 
carrying  the  exclusion  of  the  spiritual  lords 
further  than  certain  and  constant  precedents 
required.  Though  it  was  true,  as  the  ene- 
mies of  Lord  Danby  urged,  that  by  voting 
for  the  validity  of  his  pardon,  they  would,  in 
effect,  determine  the  whole  question  in  his 
favor,  yet  there  seemed  no  serious  reason, 
■considering  it  absti'actedly  from  party  views, 
why  they  should  not  thus  indirectly  be  re- 
stored for  once  to  a  privilege,  from  which 
the  prejudices  of  former  ages  alone  had  shut 
them  out. 

The  main  point  in  conh-oversy,  whether 
a  general  or  special  pardon  from  the  king 
could  be  pleaded  in  answer  to  impeachment 
of  the  Commons,  so  as  to  prevent  any  fur- 
tlier  proceedings  in  it,  never  came  to  a  reg- 
ular decision.  It  was  evident  that  a  minis- 
ter who  had  influence  enough  to  obtain  such 
an  indemnity,  might  set  both  houses  of  Par- 
liament at  defiance  ;  the  pretended  respon- 
sibility of  the  crown's  advisers,  accounted 
the  palladium  of  our  Constitution,  would  be 
an  idle  mockciy,  if  not  only  punishment 
could  be  averted,  but  inquiry  fi-ustrated. 
Even  if  the  king  could  remit  the  penalties 
of  a  guilty  minister's  sentence  upon  im- 
peachment, it  would  be  much  that  public 


indignation  should  have  been  excited  against 
him,  that  suspicion  should  have  been  turned 
into  proof,  that  shame  and  reproach,  irre- 
missible  by  the  great  seal,  should  avenge  the 
wrongs  of  his  countiy.  It  was  always  to 
be  presumed  that  a  sovereign,  undeceived 
by  such  a  judicial  inquiry,  or  sensible  to  the 
general  voice  it  roused,  would  voluntarily, 
or  at  least  prudently,  abandon  an  unworthy 
favoiite.  Though  it  might  be  admitted  that 
long  usage  had  established  the  royal  prerog- 
ative of  gi-anting  pardons  under  the  great 
seal,  even  before  trial,  and  that  such  pardons 
might  be  pleaded  in  bar  (a  prerogative,  in- 
deed, which  ancient  statutes  not  repealed, 
though  gone  into  disuse,  or  rather  in  no  time 
acted  upon,  had  attempted  to  restrain),  yet 
we  could  not  infer  that  it  extended  to  cases 
of  impeachment.  In  ordinary  criminal  pro- 
ceedings by  indictment  the  king  was  before 
the  court  as  prosecutor,  the  suit  was  in  his 
name;  he  might  stay  the  process  at  his 
pleasure  by  entering  a  "  noli  prosequi ;"  to 
pardon,  before  or  after  judgment,  was  a 
branch  of  the  same  prerogative ;  it  was  a 
great  constitutional  trust,  to  be  exercised  at 
his  discretion ;  but  in  an  appeal,  that  is,  an 
accusation  of  felony,  brought  by  the  injured 
party  or  his  next  of  blood,  a  proceeding 
wherein  the  king's  name  did  not  appear,  it 
was  undoubted  that  he  could  not  remit  the 
capital  sentence.  The  same  principle  seem- 
ed applicable  to  an  impeachment  at  the  suit 
of  the  Commons  of  England,  demanding  just- 
ice from  the  supreme  tribunal  of  the  other 
house  of  Parliament.  It  could  not  be  de- 
nied that  James  had  remitted  the  whole 
sentence  upon  Lord  Bacon.  But  impeach- 
ments were  so  unusual  at  that  time,  and  the 
privileges  of  Parliament  so  little  out  of  dis- 
pute, that  no  gi-eat  sti'ess  could  be  laid  on 
this  precedent. 

Such  must  have  been  the  course  of  ar- 
guing, strong  on  political,  and  specious  on 
legal  grounds,  which  induced  the  Commons 
to  resist  the  plea  put  in  by  Lord  Danby. 
Though  this  question  remained  in  suspense 
on  the  present  occasion,  it  was  finally  decid- 
ed by  the  Legislature  in  the  Act  of  Settle- 
ment, which  provides  that  no  pardon  under 
the  gi'eat  seal  of  England  be  pleadable  to  an 
impeachment  of  the  Commons  in  Parlia- 
ment.* These  expressions  seem  tacitly  to 
concede  the  crown's  right  of  granting  a  par- 
*  13  \Vm.  III.,  c.  2. 


Cha.  II.— 1C73-85.] 


FROM  HENRY  V: 


11.  TO  GEORGE  II. 


467 


don  after  sentence  ;  which,  though  perhaps 
it  could  not  well  be  distinguished  in  point 
of  law  from  a  pardon  pleadable  in  bar,  stands 
on  a  very  different  footing,  as  has  been  ob- 
served above,  with  respect  to  constitutional 
policy.  Accordingly,  upon  the  impeach- 
ment of  the  six  peers  who  had  been  con- 
cerned in  the  rebellion  of  1715,  the  House 
of  Lords,  after  sentence  passed,  having  come 
to  a  resolution  on  debate  that  the  king  had 
a  right  to  reprieve  in  cases  of  impeachment, 
addressed  him  to  exercise  that  prerogative 
as  to  such  of  them  as  should  deserve  his 
mercy ;  and  three  of  the  number  were  in 
consequence  pardoned.* 

3.  The  impeachment  of  Danby  first 
Abatement  brought  forward  another  question 
mj,"s  by of  •^'"■cl'y  'ess  magnitude,  and  re- 
dissoluiion.  markable  as  one  of  the  few  great 
points  in  constitutional  law  which  have  been 
discussed  and  finally  settled  within  the  mem- 
oiy  of  the  present  generation :  I  mean  the 
fcontinuance  of  an  impeachment  by  the 
Commons  from  one  Parliament  to  another. 
Though  this  has  been  put  at  rest  by  a  determ- 
ination altogether  consonant  to  maxims  of 
expediency,  it  seems  proper,  in  this  place, 
to  show  briefly  the  gi'ounds  upon  which  the 
argument  on  both  sides  rested. 

In  the  earlier  period  of  our  Parliamenta- 
ry I'ecords,  the  business  of  both  Houses, 
whether  of  a  legislative  or  judicial  nature, 
though  often  very  multifarious,  was  dis- 
patched, with  the  rapidity  natural  to  com- 
paratively rude  times,  by  men  impatient  of 
delay,  unused  to  doubt,  and  not  cautious  in 
the  proof  of  facts  or  attentive  to  the  subtle- 
ties of  reasoning.  The  session,  generally 
speaking,  was  not  to  terminate  till  the  peti- 
tions in  Parliament  for  redress  had  been  dis- 
posed of,  whether  decisively,  or  by  refer- 
ence to  some  more  permanent  ti'ibunal. 
Petitions  for  alteration  of  the  law,  present- 
ed by  the  Commons,  and  assented  to  by  the 
Lords,  were  drawn  up  into  statutes  by  the 
king's  council  just  before  the  prorogation  or 
dissolution.  They  fell  naturally  to  the 
ground  if  the  session  closed  before  they 
could  be  submitted  to  the  king's  pleasure. 
The  gi'eat  change  that  took  place  in  the 
reign  of  Hemy  VL,  by  passing  bills  com- 

"  Pari.  Hist.,  vii.,  383.  Mr.  Lechmere,  a  very 
ardent  Whig:,  then  solicitor-general,  and  one  of  the 
managers  on  the  impeachment,  had  most  confident- 
ly denied  this  picrogative. — Id.,  233. 


t  plete  in  their  form  through  the  two  Houses 
instead  of  petitions,  while  it  rendered  man- 
ifest to  every  eye  that  distinction  between 
legislative  and  judicial  proceedings  which 
the  simplicity  of  older  times  had  half  con- 
cealed, did  not  affect  this  constitutional  prin- 
ciple. At  the  close  of  a  session,  every  bill 
then  in  progress  through  Parliament  became 
a  nullity,  and  must  pass  again  through  all  its 
stages  before  it  could  be  tendered  for  the 
royal  assent.  No  sort  of  difference  existed 
in  the  effect  of  a  prorogation  and  a  dissolu- 
tion ;  it  was  even  maintained  that  a  session 
made  a  Parliament. 

During  the  fifteenth  and  sixteenth  centu- 
ries, writs  of  error  from  inferior  courts  to 
the  House  of  Lords  became  far  less  usual 
than  in  the  preceding  age  ;  and  when  they 
occurred,  as  error  could  only  be  assigned  on 
a  point  of  law  appearing  on  the  record,  they 
were  quickly  decided  with  the  assistance  of 
the  judges.  But  when  they  grew  more 
frequent,  and  especially  when  appeals  from 
the  chancellor,  requiring  often  a  tedious  ex- 
amination of  depositions,  were  brought  l)e- 
fore  the  Lords,  it  was  found  that  a  sudden 
prorogation  might  often  intemipt  a  decision ; 
and  the  question  arose  whether  writs  of  er- 
ror, and  other  proceedings  of  a  similar  nature, 
did  not,  according  to  precedent  or  analogy, 
cease,  or,  in  technical  language,  abate,  at  the 
close  of  a  session.  An  order  was  according- 
ly made  by  the  House  on  March  11,  1673, 
that  "  the  Lords'  committees  for  privileges 
should  inquire  whether  an  appeal  to  this 
House,  either  by  writ  of  error  or  petition, 
from  the  proceedings  of  any  other  court  be- 
ing depending,  and  not  determined  in  one 
session  of  Parliament,  continue  in  statu  quo 
unto  the  next  session  of  Parliament,  without 
renewing  the  writ  of  eiTor  or  petition,  or 
beginning  all  anew."  The  committee  re- 
ported on  the  29th  of  March,  after  mis-re- 
citing the  order  of  reference  to  them  in  a 
veiy  remarkable  manner,  by  omitting  some 
words  and  interpolating  others,  so  as  to 
make  it  far  more  extensive  than  it  roaUy 
was,*  that  upon  the  consideration  of  prece- 
dents, which  they  specify,  they  came  to  a 

*  Instead  of  the  words  in  the  order,  "  from  the 
proceedings  of  any  other  court,"  the  following  are 
uiserted,  "or  any  other  business  wherein  their 
lordships  act  as  in  a  court  of  judicature,  and  not  in 
tlieir  legislative  capacity."  The  importance  of  this 
alteration  as  to  the  quastion  of  impeachment  is 
obvious. 


468 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[cuAF.  xn. 


resolution  that  "businesses  depending  in  one 
Parliament  or  session  of  Parliament  have 
been  continued  to  the  next  session  of  the 
same  Parliament,  and  the  proceedings  there- 
upon have  remained  in  the  same  state  in 
which  they  were  left  when  last  in  agitation." 
The  House  approved  of  this  resolution,  and 
ordered  it  accordingly.* 

This  resolution  was  decisive  as  to  the 
continuance  of  ordinary  judicial  business  be- 
yond the  termination  of  a  session.  It  was 
still  open  to  dispute  whether  it  might  not 
abate  by  a  dissolution  ;  and  the  peculiar  case 
of  impeachment,  to  which,  after  the  disso- 
lution of  the  Long  Parliament  in  1G78,  ev- 
ery one's  attention  was  turned,  seemed  to 
stand  on  different  grounds.  It  was  referred, 
therefore,  to  the  committee  of  privileges,  on 
the  11th  of  March,  1679,  to  consider  wheth- 
er petitions  of  appeal  which  were  presented 
to  this  House  in  the  last  Parliament  be  still 
in  force  to  be  proceeded  on.  Next  day  it 
is  referred  to  the  same  committee,  on  a  re- 
port of  the  matter  of  fact  as  to  the  impeach- 
ments of  the  Earl  of  Danby  and  the  five 
popish  lords  in  the  late  Parliament,  to  con- 
sider of  the  state  of  the  said  impeachments, 
and  all  the  incidents  relating  thereto,  and 
to  report  to  the  House.  On  the  18th  of 
March,  Lord  Essex  reported  from  the  com- 
mittee that,  "  upon  perusal  of  the  judgment 
of  this  House  of  the  29th  of  March,  1673, 
they  are  of  opinion  that  in  all  cases  of  ap- 
peals and  writs  of  error  they  continue,  and 
are  to  be  proceeded  on,  in  statu  quo,  as  they 
stood  at  the  dissolution  of  the  last  Parlia- 
ment, without  beginning  de  novo  

And,  upon  considei'ation  of  the  matter  re- 
ferred to  their  lordships  concerning  the  state 
of  the  impeachments  brought  up  from  the 
House  of  Commons  the  last  Parliament, 
Arc  they  are  of  opinion  that  the  dis- 
solution of  the  last  Parliament  doth  not  al- 
ter the  state  of  the  impeachments  brought 
up  by  the  Commons  in  that  Pai-liament." 
This  report  was  taken  into  consideration 
next  day  by  the  House  ;  and  after  a  debate, 
which  appears  from  the  Journals  to  have 
lasted  some  time,  and  the  previous  question 
moved  and  lost,  it  was  resolved  to  agree 
with  the  committee. f 

This  resolution  became  for  some  years 

*  Lords'  Journals. 

t  Lords'  Journals.  Seventy-eight  peers  were 
present. 


the  acknowledged  law  of  Parliament.  Lord 
Sti'afford,  at  his  ti-ial  in  1680,  having  request- 
ed that  his  counsel  might  be  heard  as  to  the 
point  whether  impeachments  could  go  from 
one  Parliament  to  another,  the  House  took 
no  notice  of  this  question,  though  they  con- 
sulted the  judges  about  another  which  he 
had  put,  as  to  the  necessity  of  two  witness- 
es to  every  overt  act  of  treason.*  Lord 
Danby  and  Chief-justice  Scroggs  petitioned 
the  Lords  in  the  Oxford  Parliament,  one  to 
have  the  charges  against  him  dismissed,  the 
other  to  be  bailed ;  but  neither  take  the  ob- 
jection of  an  intervening  dissolution. f  And 
Lord  Danby,  after  the  dissolution  of  three 
successive  Parliaments  since  that  in  which 
he  was  impeached,  having  lain  for  three 
years  in  the  Tower,  when  he  applied  to  be 
enlarged  on  bail  by  the  Court  of  King's 
Bench  in  1682,  was  refused  by  the  judges, 
on  the  ground  of  their  incompetency  to 
meddle  in  a  Parliamentary  impeachment ; 
though,  if  the  prosecution  were  already  at 
an  end,  he  would  have  been  entitled  to  an 
absolute  discharge.  On  Jefferies  becoming 
chief-justice  of  the  King's  Bench,  Danby 
was  admitted  to  bail.t  But  in  the  Parlia- 
ment of  1685,  the  impeached  lords  having 
petitioned  the  House,  it  was  resolved  that 
the  order  of  the  19th  of  March,  1679,  be 
reversed  and  annulled  as  to  impeachments ; 
and  they  wei-e  consequently  released  from 
their  recognizances. § 

The  first  of  these  two  contradictory  de- 
terminations is  certainly  not  free  from  that 
reproach  which  so  often  contaminates  our 
precedents  of  Parliamentary  law,  and  ren- 
ders an  honest  man  reluctant  to  show  them 
any  greater  deference  than  is  stiictly  nec- 
essary. It  passed  during  the  violent  times 
of  the  Popish  Plot ;  and  a  conti-ary  resolu- 
tion would  have  set  at  liberty  the  five  Cath- 
olic peers  committed  to  the  Tower,  and 
enabled  them,  probably,  to  quit  the  kingdom 
before  a  new  impeachment  could  be  pre- 

*  Id.,  4th  of  Dec.,  1680. 

t  Lords'  Journ.,  March  24, 1681.  The  very  nest 
day  the  Commons  sent  a  message  to  demand  judg- 
ment on  the  impeachment  against  him. — Com. 
Jouni.,  March  25. 

J:  Shower's  Reports,  ii.,  335.  "He  was  bailed 
to  appear  at  the  Lords'  bar  the  first  day  of  the 
then  next  Parliament."  The  Catholic  lords  were 
bailed  the  next  day.  This  proves  that  the  im- 
peachment was  not  held  to  be  at  an  end. 

6  Lords'  Journals,  May  22,  1685. 


CHi.  n.— 1673-85.] 


FROM  HENRY  Vn.  TO  GEORGE  H. 


469 


ferred.  It  must  be  acknowledged,  at  the 
same  time,  that  it  was  borne  out,  in  a  con- 
siderable degree,  by  the  terms  of  the  order 
of  1673,  which  seems  liable  to  no  suspicion 
of  answering  a  teinporary  purpose  ;  and  that 
the  court  party  in  the  House  of  Lords  were 
powerful  enough  to  have  withstood  any  fla- 
grant innovation  in  the  law  of  Parliament. 
As  for  the  second  resolution,  that  of  1685, 
which  reversed  the  former,  it  was  passed 
in  the  very  worst  of  times ;  and,  if  we  may 
believe  the  protest,  signed  by  the  Earl  of 
Anglesea  and  three  other  peers,  with  gi-eat 
precipitation  and  neglect  of  usual  forms. 
It  was  not,  however,  annulled  after  the 
Revolution ;  but,  on  the  contraiy,  received 
what  may  seem,  at  first  siglit,  a  certain  de- 
gree of  confirmation,  from  an  order  of  the 
House  of  Lords  in  1690,  on  the  petitions  of 
Lords  Salisbury  and  Peterborough,  who  had 
been  impeached  in  the  preceding  Parlia- 
ment, to  be  discharged ;  which  was  done, 
after  reading  the  resolutions  of  1679  and 
1685,  and  a  long  debate  thereon.  But, 
as  a  general  pardon  had  come  out  in  the 
mean  time,  by  which  the  judges  held  that 
the  offenses  imputed  to  these  two  lords  had 
been  discharged,  and  as  the  Commons  show- 
ed no  disposition  to  follow  up  their  im- 
peachment against  them,  no  Parliamentary 
reasoning  can,  perhaps,  be  founded  on  this 
precedent.*  In  the  case  of  the  Duke  of 
Leeds,  impeached  by  the  Commons  in 
1695,  no  further  proceedings  were  had  ;  but 
the  Lords  did  not  make  an  order  for  his  dis- 
chai'ge  from  the  accusation  tiU  five  years 
after  three  dissolutions  had  intervened,  and 
grounded  it  upon  the  Commons  not  proceed- 
ing with  the  impeachment.  They  did  not. 
however,  send  a  message  to  inquire  if  the 
Commons  were  ready  to  proceed,  which, 
according  to  Parliamentary  usage,  would  be 
required  in  case  of  a  pending  impeachment. 
The  cases  of  Lords  Somers,  Oxford,  and 
Halifax  were  similar  to  that  of  the  Duke  of 
Leeds,  except  that  so  long  a  period  did 
not  intervene.  These  instances,  therefore, 
rather  tend  to  confirm  the  position,  that  im- 
peachments did  not  ipso  facto  abate  by  a 

•  Upon  considering  the  proceedings  in  tlie  House 
of  Lords  on  this  subject,  Oct.  6  and  30,  1690,  and 
especially  the  protest  signed  by  eight  peers  on  the 
latter  day,  there  can  be  little  doubt  that  tlieir  re- 
lease had  been  chiefly  grounded  on  the  act  of  grace, 
and  not  on  the  abandonment  of  the  impeachment. 


dissolution,  notwithstanding  the  reversal  of 
the  order  of  1679.  In  the  case  of  the  Earl 
of  Oxford,  it  was  formally  resolved  in  1717 
that  an  impeachment  does  not  determine  by 
a  prorogation  of  Parliament ;  an  authority 
conclusive  to  those  who  maintain  that  no 
difference  exists  in  the  law  of  Parliament 
between  the  effects  of  a  prorogation  and  a 
dissolution.  But  it  is  difficult  to  make  all 
men  consider  this  satisfactory. 

The  question  came  finally  before  both 
houses  of  Parliament  in  1791,  a  dissolution 
having  inteiTened  during  the  impeachment 
of  Mr.  Hastings  ;  an  impeachment  which, 
far  unlike  the  rapid  proceedings  of  former 
ages,  had  ah-eady  been  for  three  years  be- 
fore the  House  of  Lords,  and  seemed  hkely 
to  run  on  to  an  almost  interminable  length. 
It  must  have  been  abandoned  in  despair  if 
the  prosecution  had  been  held  to  determine 
by  the  late  dissolution.  The  general  reas^ 
onings,  and  the  force  of  precedents  on  both 
sides,  were  urged  with  great  ability,  and  by 
the  princi])al  speakers  in  both  Houses  ;  the 
lawyers  generally  inclining  to  maintain  the 
resolution  of  1685,  that  impeaclmients  abate 
by  a  dissolution,  but  against  greater  names 
which  were  united  on  the  opposite  side.  la 
the  end,  after  an  ample  discussion,  the  con- 
tinuance of  impeachments,  in  spite  of  a  dis- 
solution, was  caiTied  by  veiy  large  majori- 
ties ;  and  this  decision,  so  deliberately  tak- 
en, and  so  free  from  all  suspicion  of  partial- 
ity (the  majority  in  neither  House,  espe- 
cially the  Upper,  bearing  any  prejudice 
against  the  accused  person),  as  well  as  so 
con.sonant  to  principles  of  utility  and  con- 
stitutional policy,  must  forever  have  set  at 
rest  all  dispute  upon  the  question. 

The  year  1678,  and  the  last  session  of  the 
Parliament  that  had  continued 
since  1661,  were  memorable  for  ^"P'^**^'"'- 
the  great  national  delusion  of  the  Popish 
Plot ;  for  national  it  was  undoubtedly  to  be 
called,  and  by  no  means  confined  to  the 
Whig  or  opposition  party,  either  in  or  out 
of  Parliament,  though  it  gave  them  much 
temporary  strength  ;  and  though  it  were  a 
most  unhappy  instance  of  the  credulity  be- 
gotten by  heated  passions  and  mistaken 
reasoning,  yet  there  were  circumstances, 
and  some  of  them  veiy  singular  in  their  na- 
ture, which  explain  and  furnish  an  apology 
for  the  public  error,  and  which  it  is  more 
important  to  point  out  and  keep  in  mind, 


470 


CO^^STITUTIO^'AL  HISTOEY  OF  E:S GLAND 


[Chap.  Xn. 


than  to  inveigh,  as  is  the  custom  in  modern 
times,  against  the  factiousness  and  bigotiy 
of  our  ancestors ;  for  I  am  persuaded  that 
we  are  far  from  being  secure  from  similar 
public  delusions,  whenever  such  a  concur- 
rence of  coincidences  and  seeming  proba- 
bilities shall  again  arise,  as  misled  nearly 
the  whole  people  of  England  in  the  Popish 
Plot.* 

It  is  first  to  be  remembered  that  there 
was  really  and  truly  a  popish  plot  in  being, 
though  not  that  which  Titus  Gates  and  his 
associates  pretended  to  reveal ;  not  merely 
in  the  sense  of  Hume,  who,  arguing  from 
the  general  spirit  of  proselytism  in  that  re- 
ligion, says  there  is  a  perpetual  conspiracy 
against  all  governments,  Protestant,  Moham- 
medan, and  pagan,  but  one  alert,  enterpris- 
ing, effective,  in  direct  operation  against  the 
established  Protestant  religion  in  England. 
In  this  plot  the  king,  the  Duke  of  York,  and 
the  King  of  France  were  chief  conspirators  ; 
the  Romish  priests,  and  especially  the  Jes- 
uits, were  eager  co-operators.  Their  mach- 
inations and  their  hopes,  long  suspected, 
Coleman's  ^'^^  ^    general  sense  known,  were 
letters.     divulged  by  the  seizure  and  publi- 
cation of  Coleman's  letters.    "  We  have  , 
here,"  he  says,  in  one  of  these,  "  a  mighty  j 
work  upon  our  hands,  no  less  than  the  con-  j 
version  of  three  kingdoms,  and  by  that,  per-  j 
haps,  the  utter  subduing  of  a  pestilent  her- 
esy, which  has  a  long  time  domineered  over 
this  northern  world.     There  were  never 
such  hopes  since  the  death  of  our  Queen , 
Maiy  as  now  in  our  days.    God  hath  given 
us  a  prince  who  is  become  (I  may  say  by 
miracle)  zealous  of  being  the  author  and  in-  [ 
etrument  of  so  glorious  a  work ;  but  the  op- 
position we  are  sure  to  meet  with  is  also 
like  to  be  great,  so  that  it  imports  us  to  get  | 
all  the  aid  and  assistance  we  can."    These  : 
letters  were  addressed  to  Father  la  Chaise, , 
confessor  of  Louis  XIV.,  and  displayed  an  [ 
intimate  connection  with  France  for  the  1 
great  purpose  of  restoring  popeiy.    They  j 
came  to  light  at  the  veiy  period  of  Oates's 
discovery,  and,  though  not  giving  it  much 
real  confirmation,  could  hardly  faU  to  make 

*  Bishop  Parker  is  not  vrrong  in  saying  that  the  j 
House  of  Commons  had  so  long  accustomed  them-  J 
selves  to  strange  fictions  about  poperj-,  that,  upon 
the  first  discovery  of  Oates's  plot,  they  readily  be- 
lieved every  thing  he  said :  for  they  had  lonsr  ex- 
pected -whatever  he  declared. — Hist,  of  Lb  Own 
Time,  p.  248.  I 


a  powerful  impression  on  men  unaccustomed 
to  estimate  the  value  and  bearings  of  evi- 
dence.* 

The  conspiracy  supposed  to  have  been 
concerted  by  the  Jesuits  at  St.  Omer,  and 
in  which  so  many  English  Catholics  were 
implicated,  chiefly  consisted,  as  is  well 
known,  in  a  scheme  of  assEissinatiug  the 
king.  Though  the  obvious  falsehood  and 
absurdity  of  much  that  the  witnesses  de- 
posed in  relation  to  this  plot  render  it  abso- 
lutely incredible,  and  fully  acquit  those  un- 
fortunate victims  of  iniquity  and  prejudice, 
it  could  not  appear  at  the  time  an  extrava- 
gant supposition,  that  an  eager,  intriguing 
faction  should  have  considered  the  king's  life 
a  serious  obstacle  to  their  hopes.  Though 
as  much  attached  in  heart  as  his  nature 
would  permit  to  the  Catholic  religion,  he 
was  evidently  not  incUned  to  take  any  ef- 
fectual measures  in  its  favor;  he  was  but 
one  year  older  than  his  brother,  on  the  con- 
tingency of  whose  succession  all  their  hopes 
rested,  since  his  heiress  was  not  only 
brought  up  in  the  Protestant  faith,  but  unit- 
ed to  its  most  strenuous  defender.  Noth- 
ing could  have  been  more  anxiously  wished 
at  St.  Omer  than  the  death  of  Charles ;  and 
it  does  not  seem  improbable  that  the  atro- 
cious fictions  of  Oates  may  have  been 
originally  suggested  by  some  actual,  though 
vague,  projects  of  assassination,  which  he 
had  heard  in  discourse  among  the  ardent 
spirits  of  that  college. 

The  popular  ferment  which  this  tale, 
however  undeser\'ing  of  credit,  ex-  Murder 
cited  in  a  predisposed  multitude,  SirEd- 
was  naturally  wrought  to  a  high-  Godfrey, 
er  pitch  by  the  very  extraordinary  circura- 
stancesof  SirEdmondbury  Godfrey's  death. 
Even  at  this  time,  although  we  reject  the 
imputation  thrown  on  the  Catholics,  and  es- 
pecially on  those  who  suffered  death  for 
that  murder,  it  seems  impossible  to  frame 
any  hypothesis  which  can  better  account 
for  the  facts  that  seem  to  be  authenticated. 
That  he  was  murdered  by  those  who  de- 

*  Pari.  Hist.,  1024,  1035.  State  Trials,  vii.,  1. 
Kennet,  327,  337.  351.  North's  Examen,  129,  177. 
Ralph,  386.  Burnet,  i.,  555.  Scroggs  tried  Cole- 
man vrith  much  rudeness  and  partiality;  but  his 
summing  up  in  reference  to  the  famous  passage  in 
the  letters  is  not  deficient  in  acnteness.  In  fact, 
this  not  only  convicted  Coleman,  but  raised  a  gen- 
eral conviction  of  the  truth  of  a  plot;  and  a  plot 
there  was,  though  not  Oates's. 


Cha.  n— 1673-85.] 


FROM  HENRY  VII.  10  GEORGE  XI. 


471 


signed  to  lay  the  cliarge  ou  tlie  papists,  aud 
aggravate  the  public  fury,  may  pass  with 
those  who  rely  on  such  writers  as  Roger 
North,*  but  has  not  the  slightest  corrobora- 
tion from  any  evidence ;  nor  does  it  seem 
to  have  been  suggested  by  the  cotemporavy 
libelers  of  the  court  partj-.  That  he  might 
have  had,  as  an  active  magistrate,  private 
enemies,  whose  revenge  took  away  his  life, 
which  seems  to  be  Hume's  conjecture,  is 
hardly  more  satisfactory ;  the  enemies  of  a 
magistrate  are  not  likely  to  have  left  his 
person  unplundered,  nor  is  it  usual  for  jus- 
tices of  the  peace,  merely  on  account  of 
the  discharge  of  their  ordinary  duties,  to  in- 
cur such  desperate  resentment.  That  he 
fell  by  his  own  hands  was  doubtless  the 
suggestion  of  those  who  aimed  at  discredit- 
ing the  Plot;  but  it  is  impossible  to  recon- 
cile this  with  the  marks  of  violence  which 
are  so  positively  swoi'n  to  have  appeared  on 
his  neck ;  and,  on  a  later  investigation  of 
the  subject  in  the  year  1C82,  when  the 
court  had  become  veiy  j)oweiful,  and  a  be- 
lief iu  the  Plot  had  grown  almost  a  mark  of 
disloyalty,  an  attempt  made  to  prove  the 
self-nmrder  of  Godfrey,  in  a  trial  before 
Pemberton,  failed  altogether;  aud  tlie  re- 
sult of  the  whole  evidence,  on  that  occa- 
sion, was  strongly  to  confirm  the  supposi- 
tion that  he  had  perished  by  the  hands  of 
assassins. f  His  death  remains  at  this  mo- 
ment a  problem  for  which  no  tolerably  sat- 
isfactory solution  cau  be  ofiered ;  but,  at 
the  time,  it  was  a  very  natural  presumption 
to  connect  it  with  the  Plot,  wherein  he  had 
not  only  taken  the  deposition  of  Oates,  a 
circumstance  not  in  itself  highly  important, 
but  was  supposed  to  have  received  the  con- 
fidential communications  of  Coleman.t 

*  Examen,  p.  196. 

t  E.  v.  Farwell  and  others.  State  Trials,  viii., 
1361 .  They  vrere  indicted  for  pablishing-  some  let- 
ters to  prove  that  Godfrey  had  killed  himself.  They 
defended  themselves  by  calling  witnesses  to  prove 
the  truth  of  the  fact,  which,  though  iu  a  case  of 
libel,  Pemberton  allowed.  But  their  own  witness- 
es proved  that  Godfrey's  body  had  all  the  appear- 
ance of  being  strangled. 

The  Roman  Catholics  gave  out,  at  the  time  of 
Godfrey's  death,  that  he  had  killed  liimself ;  aud 
hurt  their  ovm  canse  by  foolish  lies. — North's  Ex- 
amen,  p.  200. 

t  It  wa«  deposed  by  a  respectable  witness  that 
Godfrey  entertained  apprehensions  on  account  of 
what  he  had  done  as  to  the  Plot,  and  had  said, 
"  On  my  conscience,  I  believe  I  shall  be  the  first 


Another  circumstance,  much  calculated 
to  persuade  ordinary  minds  of  the  trath  of 
the  Plot,  was  the  trial  of  Reading,  a  Rom- 
ish attorney,  for  tampering  with  the  wit- 
nesses against  the  accused  Catholic  peers, 
in  order  to  make  them  keep  out  of  the 
way.*  As  such  clandestine  dealing  with 
witnesses  creates  a  strong,  and  perhaps, 
with  some,  too  strong  a  presumption  of 
guilt,  where  justice  is  sure  to  be  uprightly 
administered,  men  did  not  make  a  fair  dis- 
tinction as  to  times  when  the  violence  of 
the  court  and  jury  gave  no  reasonable  hope 
of  escape,  and  when  the  most  innocent  par- 
ty would  much  rather  procure  the  absence 
of  a  perjured  witness  than  trust  to  the 
chance  of  disproving  his  testimony. 

There  was,  indeed,  good  reason  to  dis- 
trust the  course  of  justice.    Nev-  ...  , 

Injustice  of 

er  were  our  tribunals  so  disgi'aced  judges  on 

,       ,     ,         ,  ....    the  trials, 

by  the  brutal  manners  aud  miqui- 

tous  partiality  of  the  bench  as  in  the  latter 
years  of  this  reign.  The  State  Trials,  none 
of  which  appear  to  have  been  published  by 
the  prisoners'  friends,  bear  abundant  testi- 
mony to  the  turpitude  of  the  judges.  They 
explained  away  and  softened  the  palpable 
contradictions  of  the  witnesses  for  the 
crown,  insulted  and  threatened  those  of  the 
accused,  checked  all  cross-examination,  as- 
sumed the  ti'uth  of  the  charge  throughout 
the  whole  of  every  trial,  f    One  Whitbread, 

martjr."— State  Trials,  vii.,  168.  These  little  ad- 
ditional circumstances,  which  are  suppressed  by 
later  historians,  who  speak  of  the  Plot  as  unfit  to 
impose  ou  any  but  the  most  bigoted  fanatics,  con- 
tributed to  make  up  a  body  of  presumptive  and 
posirive  evidence,  from  which  human  belief  is 
rarely  withheld. 

It  is  remarkable  that  the  most  acute  and  dili- 
gent historian  we  possess  for  those  times,  Ralph, 
does  not  iu  the  slightest  degree  pretend  to  account 
for  Godfrey's  death  ;  though,  in  his  general  reflec- 
tions on  the  Plot,  p.  555,  he  relies  too  much  on  the 
assertions  of  North  and  L'Estrange. 

*  State  Trials,  vii.,  259.    North's  Examen,  240. 

t  State  Trials,  vol.  vii.,  passim.  Ou  the  trial  of 
Green,  Berry,  aud  Hill,  for  Godfrey's  murder,  part 
of  the  story  for  the  prosecution  was,  that  the  body 
was  brought  to  Hill's  lodgings  on  the  Saturday, 
and  remained  there  till  Monday.  The  prisoner 
called  witnesses  who  lodged  in  the  same  house  to 
prove  that  it  could  not  have  been  there  without 
their  knowledge.  Wild,  one  of  the  judges,  as- 
suming, as  usual,  the  truth  of  the  story  as  beyond 
controversy,  said  it  was  verj'  suspicious  that  they 
should  see  or  hear  nothing  of  it ;  and  another,  Dol- 
ben,  told  them  it  was  well  they  were  not  indicted. 
— Id.,  199.   Jones,  summing  up  the  evidence  on 


472 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  XIL 


a  Jesuit,  bavins  been  indicted  with  several 
■  1 
others,  and  tbe  evidence  not  being  suffi-  j 

cient,  Scroggs  discharged  the  jury  of  him, 
but  oi-dered  him  to  be  kept  in  custody  till  j 
more  proof  might  come  in.  He  was  ac- 
cordingly indicted  again  for  the  same  of- 
fense. On  his  pleading  that  he  had  been 
already  ti-ied,  Scroggs  and  North  had  the 
effrontery  to  deny  that  he  had  been  ever 
put  in  jeopardy,  though  the  witnesses  for 
the  crown  had  been  fully  heard,  before  the 
jury  were  most  irregularly  and  illegally  dis- 
charged of  him  on  the  former  ti-ial.  North 
said  he  had  often  known  it  done,  and  it  was 
the  common  course  of  law.  In  the  course 
of  this  proceeding,  Bedloe,  who  had  depos- 
ed nothing  explicit  against  the  prisoner  on 
the  former  trial,  accounted  for  this  by  say- 
ing, it  was  not  then  convenient ;  an  answer 
with  which  the  court  and  jury  were  con- 
tent.* 

It  is  remarkable  that,  although  the  king 
might  be  justly  surmised  to  give  little  cre- 
dence to  the  pretended  plot,  and  the  Duke  i 
of  York  was  manifestly  aff"ected  in  his  in- 
terests by  the  heats  it  excited,  j^et  the  judg- 
es most  subseiTient  to  the  court,  Scroggs, 
North,  Jones,  went  with  all  violence  into 
the  popular  cry,  till,  tbe  witnesses  begin- 
ning to  attack  the  queen  and  to  menace  the 
duke,  they  found  it  was  time  to  rein  in,  as 
far  as  they  could,  the  passions  they  had  in- 
stigated.f    Pemberton,  a  moi-e  honest  man 

Sir  Thomas  Gascoigne's  trial  at  York  (an  aged 
Catholic  gentleman,  most  improbably  accused  of 
accession  to  the  Plot),  says  to  tlie  jurj-,  "  Gentle- 
men, you  have  the  king's  witness  on  his  oath ;  he 
that  testifies  against  him  is  barely  on  his  word,  and 
he  is  a  papist" — Id.,  1039 — thus  deriving  an  argu- 
ment from  an  iniquitous  rule,  which,  at  that  time, 
prevailed  in  our  law,  of  refusing  to  hear  the  pris-  ■ 
oner's  witnesses  upon  oath.  Gascoigne,  however,  | 
was  acquitted. 

It  would  swell  this  note  to  an  unwarrantable  , 
length  were  I  to  extract  so  much  of  the  trials  as 
might  fully  exhibit  all  the  instances  of  gross  par- 
tiality in  the  conduct  of  the  judges.  I  must,  there- 
fore, refer  my  readers  to  the  volume  itself,  a  stand- 
ing monument  of  the  necessity  of  the  Revolution ; 
not  only  as  it  rendered  the  judges  independent  of 
the  crown,  but  as  it  brought  forward  those  princi- 
ples of  equal  and  indifferent  justice,  which  can  | 
never  be  expected  to  flourish  but  under  the  shad- 
ow of  liberty.  *  State  Trials,  119,  31.5,  344. 

t  Roger  North,  whose  long  account  of  the  Popish 
Plot  is,  as  usual  with  him,  a  medley  of  truth  and  j 
lies,  acuteness  and  absurdity,  represents  his  broth- 
er, the  chief  justice,  as  perfectly  immaculate  in  the 
midst  of  this  degradation  of  the  bench.    The  State  , 


in  political  matters,  showed  a  remarkable 
intemperance  and  unfairness  in  all  trials  re- 
lating to  popery.  Even  in  that  of  Lord 
Strafford  in  1680,  the  last,  and  perhaps 
the  worst,  proceeding  under  this  delusion, 
though  the  court  had  a  standing  majority 
in  the  House  of  Lords,  he  was  convicted 
by  fifty-five  peers  against  thirty-one;  the 
Earl  of  Nottingham,  lord-chancellor,  the 
Duke  of  Lauderdale,  and  several  others  of 
the  administration  voting  him  guilty,  while 
he  was  acquitted  by  the  honest  Hollis  and 
the  acute  Halifax.*  So  far  was  the  belief 
in  the  Popish  Plot,  or  the  eagerness  in 
haunting  its  victims  to  death,  from  being 
confined  to  the  Whig  faction,  as  some  writ- 
ers have  been  willing  to  insinuate.  None 
had  more  contributed  to  rouse  the  national 
outcry  against  the  accused,  and  create  a 
firm  persuasion  of  the  reality  of  the  Plot, 
than  the  clergy  in  their  sermons,  even  the 
most  respectable  of  their  order,  Sancroft, 
Sharp,  Barlow,  Burnet,  Tillotson,  Stilling- 
fleet;  infemng  its  troth  from  Godfrey's 
murder  or  Coleman's  letter,  calling  for  the 
severest  laws  against  Catholics,  and  imput- 
ing to  them  the  fire  of  London,  nay,  even 
the  death  of  Charles  I.f 

Trials,  however,  show  that  he  was  as  partial  and 
unjust  toward  the  prisoners  as  any  of  the  rest,  till 
the  government  thought  it  neccssarj-  to  interfere. 
The  moment  when  the  judges  veered  round  was 
on  the  trial  of  .Sir  George  Wakeman,  physician  to 
the  queen.  Scroggs,  who  had  been  infamously 
partial  against  the  prisoners  upon  every  former  oc- 
casion, now  treated  Oates  and  Bedloe  as  they  de- 
served, though  to  the  aggravation  of  his  own  dis- 
grace.— State  Trials,  \-ii.,  619-686.' 

*  Lords'  Journals,  7th  of  December.  State  Tri- 
als, 1552.  Pari.  Hist.,  1229.  Strafford,  though  not 
a  man  of  much  abilitj',  had  rendered  himself  ob- 
noxious as  a  prominent  opposer  of  all  measures  in- 
tended to  check  the  growth  of  popery.  His  name 
appears  constantly  in  protests  upon  such  occasions ; 
as,  for  instance,  March  3,  1678,  against  the  biU  for 
raising  money  for  a  French  war.  Reresby  praises 
his  defense  very  highly,  p.  108.  The  Duke  of  York, 
on  the  contrar*-,  or  his  biographer,  observes,  "  Those 
who  wished  Lord  Strafford  well  were  of  opinion 
that,  had  he  managed  the  advantages  which  were 
given  him  with  dexterity,  he  would  have  made  the 
greatest  part  of  his  judges  ashamed  to  condemn 
him ;  but  it  was  his  misfortune  to  play  his  game 
worst  when  he  had  the  best  cards."— P.  637. 

t  I  take  this  fi-om  extracts  out  of  those  sermons, 
contained  in  the  Roman  Catholic  pamphlet  printed 
in  1687,  and  entitled  Good  Advice  to  the  Pulpits. 
The  Protestant  divines  did  their  cause  no  good  by 
misrepresentation  of  their  adversaries,  and  by  their 
propensitj'  to  rudeness  and  scurrility.    The  former 


Cha.  II.— 1673-85.]  FROM  HENRY  VII.  TO  GEORGE  II. 


473 


Though  the  Duke  of  York  was  not  charg- 
ed with  participation  in  the  darkest  schemes 
of  the  popish  conspiratoi-s,  it  was  evident 
that  his  succession  was  the  great  aim  of 
their  endeavors,  and  evident,  also,  thtit  he 
liad  been  engaged  in  the  more  real  and  un- 
deniable intrigues  of  Coleman.  His  acces- 
sion to  the  throne,  long  viewed  with  just 
apprehension,  now  seemed  to  threaten  such 
perils  to  eveiy  pai-t  of  the  Constitution  as 
ought  not  supinely  to  be  waited  for,  if  any 
means  could  be  devised  to  obviate  them. 
„  .  .     ,  This  gave  rise  to  the  bold  meas- 

Exclusion  of  »  ,     •       T>-ii  » 

Duke  of  York  ure  of  the  Exclusion  Bill — too 
proposed.  ^^^^  indeed,  for  the  spirit  of  the 
country,  and  the  rock  on  which  English 
liberty  was  nearly  shipwrecked.  In  the 
Long  Parliament,  full  as  it  was  of  pension- 
ers and  creatures  of  court  influence,  noth- 
ing so  vigorous  would  have  been  successful. 
Even  in  the  bill  which  excluded  Catholic 
peers  from  sitting  in  the  House  of  Lords,  a 
proviso,  exempting  the  Duke  of  York  from 
its  operation,  having  been  sent  down  from 
the  other  House,  passed  by  a  majority  of 
Parliament  two  Voices.*  But  the  zeal  they 
dissolved,  ghowed  against  Danby  induced 
the  king  to  put  an  end  to  this  Parliament  of 
seventeen  years'  duration ;  an  event  long 
ardently  desired  by  the  popular  party,  who 
foresaw  their  ascendency  in  the  new  elec- 
tions.f    The  next  House  of  Commons  ac- 


fault,  indeed,  existed  iu  a  much  greater  degree  on 
the  opposite  side,  but  by  no  means  the  latter.  See, 
also,  a  treatise  by  Barlow,  published  in  1G79,  en- 
titled. Popish  Principles  pernicious  to  Protestant 
Princes.  *  Pari.  Hist.,  i040. 

t  See  Marvell's  "  Seasonable  Argument  to  per- 
suade all  the  Grand-juries  in  England  to  petition 
for  a  new  Parliament."  He  gives  very  bad  char- 
acters of  the  principal  members  on  the  court  side 
but  we  can  not  take  for  granted  all  that  comes 
from  go  unscrupulous  a  Ubeler.  Sir  Harbottle 
Grimston  had  first  thrown  out,  in  the  session  of 
1675,  that  a  standing  Parliament  was  as  great  a 
grievance  as  a  standing  army,  and  that  an  appli- 
cation ought  to  be  made  to  the  kin^'  for  a  dissolu- 
tion. This  was  not  seconded,  and  met  with  much 
disapprobation  from  both  sides  of  the  House. — 
Pari.  Hist.,  vii.,  Gi.  But  the  country  party,  in  two 
years'  time,  had  changed  their  views,  and  were 
become  eager  for  a  dissolution.  An  address  to  that 
effect  was  moved  in  the  House  of  Lords,  and  lost 
by  only  two  voices,  the  Duke  of  York  voting  for 
it. — Id.,  800.  This  is  explained  by  a  passage  in 
Coleman's  letters,  where  that  intriguer  expresses 
his  desire  to  see  Parliament  dissolved,  in  the  hope 
that  another  would  be  more  favorable  to  the  toler- 
ation of  Catholics.    This  must  mean  that  the  Dis- 


cordingly  came  together  with  an  ardor  not 
yet  quenched  by  coiTuption ;  and  after  re- 
viving the  impeachments  commenced  by 
their  predecessors,  and  carrying  a  measure 
long  in  agitation,  a  test*  which  shut  the 
Catholic  peers  out  of  Parliament,  went 
senters  might  gain  an  advantage  over  the  rigorous 
Church  of  England  men,  and  be  induced  to  coma 
into  a  general  indulgence. 

*  This  test,  30  Car.  II.,  stat.  2,  is  the  declaration 
subscribed  by  members  of  both  houses  of  Parlia- 
ment on  taking  their  seats,  that  there  is  no  tran- 
substantiation  of  the  elements  in  the  Lord's  Sup- 
per ;  and  that  the  invocation  of  saints,  as  practiced 
iu  the  Church  of  Rome,  is  idolatrous.  The  oath  of 
supremacy  was  already  taken  by  the  Commons, 
though  not  by  the  Lords  ;  and  it  is  a  great  mistake 
to  imagine  that  Catholics  were  legally  capable  of 
sitting  in  the  Lower  House  before  the  act  of  1679. 
But  it  had  been  the  aim  of  the  Long  Parliament 
in  1642  to  exclude  them  from  the  House  of  Lords ; 
and  this  was  of  course  revived  with  greater  eager- 
ness, as  the  danger  from  their  influence  gi-ew  more 
apparent.  A  bill  for  this  purpose  passed  the  Com- 
mons in  1675,  but  was  thrown  out  by  the  peers. — 
Journals,  May  \4,  Nov.  8.  It  was  brought  in  again 
in  the  spring  of  1678.— Pari.  Hist,  990.  In  the  au- 
tumn of  the  same  year  it  was  renewed,  when  the 
Lords  agi'eed  to  the  oath  of  supremacy,  but  omit- 
ted the  declaration  against  transubstantiation,  so 
far  as  their  own  House  was  affected  by  it. — Lords' 
Journals,  Nov.  20,  1678.  They  also  excepted  the 
Duke  of  York  from  the  operation  of  the  bill,  which 
exception  was  carried  in  the  Commons  by  two 
voices. — Pari.  Hist,  1040.  The  Duke  of  York  and 
seven  more  lords  protested. 

The  violence  of  those  times  on  all  sides  will  ac- 
count for  this  theological  declaration ;  but  it  is 
more  difficult  to  justify  its  retention  at  present. 
'Whatever  influence  a  belief  in  the  pope's  suprem- 
acy may  exercise  upon  men's  politics,  it  is  hard  to 
see  how  the  doctrine  of  transubstantiation  can  di- 
rectly affect  them ;  and  surely  he  who  renounces 
the  former,  can  not  be  very  dangerous  on  account 
1  of  his  adherence  to  the  latter.  Nor  is  it  less  ex- 
I  traordinary  to  demand,  from  any  of  those  who  usu- 
I  ally  compose  a  House  of  Commons,  the  assertion 
that  the  practice  of  the  Church  of  Rome  in  the  in- 
vocation of  saints  is  idolatrous  ;  since,  even  on  the 
hypothesis  that  a  country  gentleman  has  a  clear 
notion  of  what  is  meant  bj'  idolatry,  he  is,  in  many 
cases,  wholly  out  of  the  way  of  knowing  wliat  the 
Church  of  Rome,  or  any  of  its  members,  believe  or 
practice.  The  invocation  of  saints,  as  held  and  ex- 
plained by  that  Church  in  the  Council  of  Trent,  is 
surely  not  idolatrous,  with  whatever  error  it  may 
be  charged ;  but  the  practice,  at  least  of  unedu- 
cated Roman  Catholics  seems  fully  to  justify  the 
declaration,  understanding  it  to  refer  to  certain  su- 
perstitions, countenanced  or  not  eradicated  by 
their  clergy.  I  have  sometimes  thought  that  the 
legislator  of  a  great  nation  sets  off  oddly  by  sol- 
emnly professing  theological  positions  about  which 
he  knows  nothing,  and  swearing  to  the  possession 
of  property  which  he  does  not  enjoy. — [1827.] 


474 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIL 


upon  the  Exclusion  Bill.  Their  dissolution 
put  a  stop  to  this;  and  in  the  next  Parlia- 
ment the  Lords  rejected  it.* 

The  right  of  excluding  an  unworthy  heir 
from  the  succession  was  supported  not  only 
by  the  plain  and  fundamental  principles  of 
civil  society,  which  establish  the  interest  of 
the  people  to  bo  the  paramount  object  of  po- 
litical institutions,  but  by  those  of  the  En- 
glish Constitution.  It  had  always  been  the 
better  opinion  among  lawyers,  that  the  reign- 
ing king,  with  consent  of  Parliament,  was 
competent  to  make  any  changes  in  the  in- 
heritance of  the  crown  ;  and  this,  besides 
the  acts  passed  under  Heniy  VIII.  em- 
powering him  to  name  his  successor,  was 
expressly  enacted,  with  heavy  penalties 
against  such  as  should  conti'adict  it,  in  the 
thirteenth  year  of  Elizabeth.  The  contra- 
ry doctrine,  indeed,  if  pressed  to  its  legiti- 
mate consequences,  would  have  shaken  all 
the  statutes  that  limit  the  prerogative ;  since, 
if  the  analogy  of  entails  in  private  inheritan- 
ces were  to  be  resorted  to,  and  the  existing 
Legislature  should  be  supposed  incompetent 
to  alter  the  line  of  succession,  they  could  as 
little  impair  as  they  could  ahenate  the  inde- 
feasible rights  of  the  heir ;  nor  could  he  be 
bound  by  restrictions  to  which  he  had  nev- 
er given  his  assent.  It  seemed  strange  to 
maintain  that  the  Parliament  could  reduce 
a  future  King  of  England  to  the  condition 
of  a  Doge  of  Venice,  by  shackling  and  tak- 
ing away  his  authority,  and  j-et  could  not 
divest  him  of  a  title  which  they  could  ren- 
der little  better  than  a  mockeiy.  Those, 
accordingly,  who  disputed  the  legislative 
omnipotence  of  Parliament,  did  not  hesitate 
to  assert  that  statutes  infringing  the  prerog- 
ative were  null  of  themselves.  With  the 
court  la%vyers  conspired  the  clergy,  who 
pretended  these  matters  of  high  policy  and 
constitutional  law  to  be  within  theii"  prov- 
ince, and,  with  hardly  an  exception,  took  a 
zealous  part  against  the  Exclusion.  It  w^as, 
indeed,  a  measure  repugnant  to  the  com- 
mon prejudices  of  mankind,  who,  without 


*  The  second  reading  of  the  Exclusion  Bill  was 
carried,  May  21,  1679,  by  207  to  128.  The  debates 
are  iu  Pailiameutary  History,  1125,  et  post.  In 
the  next  Parliament  it  was  carried  without  a  di- 
i-ision.  Sir  Leoline  Jenkins  alone  seems  to  have 
taken  the  high  ground  that  "  Parliament  can  not 
disinherit  the  heir  of  the  crown  ;  and  that,  if  such 
an  act  should  pass,  it  would  be  invalid  in  itself." 
—Id.,  iiai. 


entering  on  the  abstract  competency  of  Par- 
liament, are  naturally  accustomed,  in  an  he- 
reditary monarchy,  to  consider  the  next  heir 
as  possessed  of  a  right,  which,  except  through 
necessity  or  notorious  criminality,  can  not 
be  justly  divested.  The  mere  profession 
of  a  religion  dift'erent  from  the  established 
does  not  seem,  abstractly  considered,  an 
adequate  gi-ound  for  unsettling  the  regular 
order  of  inheritance.  Yet  such  was  the 
naiTow  bigotiy  of  the  sixteenth  and  seven- 
teenth centuries,  which  died  away  almost 
entirely  among  Protestants  in  the  next,  that 
even  the  ti'ifling  differences  between  Lu- 
therans and  Calvinists  had  frequently  led  to 

j  alternate  persecutions  in  the  German  states, 
as  a  prince  of  one  or  the  other  denomina- 
tion happened  to  assume  the  government ; 
and  the  Romish  religion,  in  particular,  was 

I  in  that  age  of  so  i-estless  and  malignant  a 

J  character,  that  unless  the  power  of  the 
crown  should  be  far  more  strictly  limited 
than  had  hitherto  been  the  case,  there  must 
be  a  very  serious  danger  fi'om  any  sovereign 
of  that  faith ;  and  the  letters  of  Coleman,  as 
well  as  other  evidences,  made  it  manifest 
that  the  Duke  of  York  was  engaged  in  a 
scheme  of  general  conversion,  which,  fi-om 
his  arbitrary  temper  and  the  impossibility 
of  succeeding  by  fair  means,  it  was  just  to 
apprehend,  must  involve  the  subversion  of 
all  civil  liberty.  Still  this  was  not  distinct- 
ly perceived  by  persons  at  a  distance  from 
the  scene,  imbued,  as  most  of  the  gentiy 
were,  with  the  principles  of  the  old  Cava- 
liers, and  those  which  the  Church  had  in- 
culcated. The  king,  though  hated  by  the 
Dissenters,  retained  much  of  the  affections 
of  that  party,  who  forgave  the  vices  they 
deplored,  to  his  father's  memory  and  his 
pei'sonal  affability.  It  appeared  harsh  and 
disloyal  to  force  his  consent  to  the  exclusion 
of  a  brother  in  whom  he  saw  no  crime,  and 
to  avoid  which  he  offered  every  possible 
expedient.*    There  wUl  always  be  found  in 

j  the  people  of  England  a  strong  unwilling- 
ness to  force  the  reluctance  of  their  sover- 
eign— a  latent  feeling,  of  which  pai-ties  in 
the  heat  of  their  ti'iumphs  are  seldom 

*  While  the  Exclusion  Bill  was  passing  the 
Commons,  the  king  took  the  pains  to  speak  himself 
to  almost  everj-  lord,  to  dissuade  him  from  assenting 
to  it  when  it  should  come  up  ;  telling  them,  at  the 
same  time,  let  what  would  happen,  he  would  nev- 
er suffer  such  a  villanous  bill  to  pass. — Life  of 
James,  553. 


Cha.  II.— 1673-85.] 


mOM  HENKY  VII.  TO  GEORGE  II. 


475 


aware,  because  it  does  not  display  itself  un- 
til the  moment  of  reaction.  And  although, 
in  the  less  settled  times  before  the  Revolu- 
tion, this  personal  loyalty  was  highly  dan- 
gerous, and  may  still,  no  doubt,  sometimes 
break  out  so  as  to  frustrate  objects  of  high  ^ 
import  to  tJio  public  weal,  it  is,  on  the  whole,  j 
a  salutaiy  temper  for  the  conservation  of  ! 
the  monarcliy,  which  may  require  such  a  1 
barrier  against  the  encroachments  of  fac- 1 
tions  and  the  fervid  passions  of  the  nmlti- ' 
tude.  I 
The  Bill  of  Exclusion  was  drawn  up  with  ' 
Schemes  of  as  much  regard  to  the  inheritance 
fnd  Moa"^  of  the  Duke  of  York's  daughters 
mouth.  as  they  could  reasonablj'  demand, 
oras  any  lawyer  engaged  forthem  could  have 
shown,  though  something  different  seems 
to  be  insinuated  by  Burnet.  It  pi'ovided 
that  the  imperial  crown  of  England  should 
descend  to  and  be  enjoyed  by  such  person 
or  persons  successively  during  the  life  of  the 
Duke  of  York  as  should  have  inherited  or 
enjoyed  the  same  in  case  he  were  naturally 
dead.  If  the  Princess  of  Orange  was  not 
expressly  named  (which,  the  bishop  tells  us, 
gave  a  jealousy,  as  though  it  were  intended 
to  keep  that  matter  still  undetermined),  this 
silence  was  evidentlj'  justified  by  the  pos- 
sible contingency  of  the  birth  of  a  son  to  the 
duke,  whose  right  there  was  no  intention  in 
the  framers  of  the  bill  to  defeat.  But  a 
la]-ge  part  of  the  opposition  had,  unfortunate- 
ly, other  objects  in  view.  It  had  been  the 
great  error  of  those  who  withstood  the  ar- 
bitraiy  counsels  of  Charles  II.  to  have  ad- 
mitted into  their  closest  confidence,  and  in 
a  considerable  degree  to  the  management 
of  their  party,  a  man  so  destitute  of  all  hon- 
est principle  as  the  Earl  of  Shaftesbury. 
Under  his  contaminating  influence,  their 
passions  became  more  intractable,  their  con- 
nections more  seditious  and  dcmocratical, 
their  schemes  more  i-evolutionary  ;  and  they 
broke  away  more  and  more  from  the  line 
of  national  opinion,  till  a  fatal  reaction  in- 
volved themselves  in  ruin,  and  exposed  the 
cause  of  public  liberty  to  its  most  imminent 
peril.  The  countenance  and  support  of 
Shaftesbury  brought  forward  that  unconsti- 
tutional and  most  impolitic  scheme  of  the 
Duke  of  Monmouth's  succession.  There 
could  hardly  be  a  greater  insult  to  a  nation 
used  to  respect  its  hereditary  line  of  kings, 
than  to  set  up  the  bastard  of  a  prostitute. 


without  the  least  pretense  of  personal  ex- 
cellence or  public  services,  against  a  princess 
of  known  virtue  and  attachment  to  the  Prot- 
estant religion ;  and  the  eflirontery  of  this 
attempt  was  aggravated  by  the  libels  eager- 
ly circulated  to  dui)e  the  credulous  popu- 
lace into  a  belief  of  Monmouth's  legitimacy. 
The  weak  young  man,  lured  on  to  destruc- 
tion by  the  arts  of  intriguers  and  the  ap- 
plause of  the  multitude,  gave  just  offense  to 
sober-minded  patriots,  who  knew  where  the 
true  hopes  of  public  liberty  were  anchored, 
by  a  kind  of  triumphal  procession  through 
parts  of  the  country,  and  by  other  indica- 
tions of  a  presumptuous  ambition.* 

*  Ralph,  J).  496.  The  atrocious  libel,  entitled, 
"  An  Appeal  from  the  Country  to  the  City,"  pub- 
lished in  1679,  and  usually  ascribed  to  Ferguson 
(though  said  in  Biogr.  Brit,  art.  L'Estrange,  to  be 
written  by  Charles  Blount),  was  almost  sufficient 
of  itself  to  excuse  the  return  of  public  opinion  to- 
ward the  throne. — State  Tracts,  temp.  Car.  II. 
Ralph,  i.,  476.  Pari.  Hist,  iv..  Appendix.  The 
king  is  personally  strack  at  in  this  ti'act  with  the 
utmost  fury ;  the  queen  is  called  Agrippina,  in  al- 
lusion to  the  infamous  charges  of  Oates;  Mon- 
mouth is  held  up  as  the  hope  of  the  couuti'y.  "  He 
will  stand  by  you,  therefore  you  ought  to  stand  by 
him.  Ho  who  hath  the  worst  title  always  makes 
the  best  king."  One  Hanis  was  tried  for  pub- 
lishing this  pamphlet  The  jury  at  first  found  hira 
guilty  of  selling ;  an  equivocal  verdict,  by  which 
they  probably  meant  to  deny,  or  at  least  to  dis- 
claim, any  assertion  of  the  libelous  character  of 
the  publication.  But  Scroggs  telling  them  it  was 
their  province  to  say  guilty  or  not  guilty,  thej'  re- 
turned a  verdict  of  guilty. — State  Trials,  vii.,  925. 

Another  arrow  dipped  in  the  same  poison  was  a 
"  Letter  to  a  Person  of  Honor  concerning  the  Black 
Box." — >Somei-s  Tracts,  viii.,  189.  The  stoi'y  of  a 
contract  of  marriage  between  the  king  and  Mrs. 
Waters,  Monmouth's  mother,  concealed  in  a  black 
box,  had  lately  been  cun-ent ;  and  the  former  had 
taken  pains  to  expose  its  falsehood  by  a  public  ex- 
amination of  the  gentleman  whose  name  had  been 
made  use  of  This  ai-tful  tract  is  hitended  to  keep 
up  the  belief  of  Monmouth's  legitimacy,  and  even 
to  graft  it  on  the  undeniable  falsehood  of  that  tale ; 
as  if  it  had  been  purposely  fabricated  to  delude 
the  people,  by  setting  them  on  a  wrong  scent. 
See,  also,  another  libel  of  the  same  class,  p.  197. 

Though  Monmouth's  illegitimacy  is  past  all 
question,  it  has  been  observed  by  Han-is,  that  the 
Princess  of  Orange,  in  writing  to  her  brother  about 
Mrs.  Waters  in  1655,  twice  names  her  as  his  wife. 
— Thurloe,  i.,  665,  quoted  in  Han-is's  Lives,  iv., 
168.  But  though  this  was  a  scandalous  indecen- 
cy on  her  part,  it  proves  no  more  than  that  Charles, 
like  other  young  men  in  the  heat  of  passion,  was 
foolish  enough  to  give  that  appellation  to  his  mis- 
tress, and  that  his  sister  humored  him  in  it. 

Sidney  mentions  a  strange  piece  of  Monmouth's 
presumption.    'When  he  went  to  dine  with  the 


476 


CONSTITUTIOXAL  HISTORY  OF  EXGLAXD 


[Chap.  XIL 


Tf  any  apology  can  be  made  for  the  en- 
courngement  given  by  some  of  the  Whig 
party  (for  it  was  by  no  means  general)  to 
the  pretensions  of  Monmouth,  it  must  be 
found  in  their  knowledge  of  the  king's  affec- 
tion for  him,  which  furnished  a  hope  that 
he  might  more  easily  be  brought  in  to  the 
exclusion  of  his  brother  for  the  sake  of  so 
beloved  a  child  than  for  the  Prince  of  Or- 
ange ;  and  doubtless  there  was  a  period 
when  Charles's  acquiescence  in  the  Exclu- 
sion did  not  appear  so  unattainable  as,  from 
his  subsequent  line  of  behavior,  we  are  apt 
to  consider  it.  It  appears  from  the  recent- 
ly published  life  of  James,  that  in  the  au- 
tumn of  1680  the  embarrassment  of  the 
king's  situation,  and  the  influence  of  the 
Duchess  of  Portsmouth,  who  had  gone 
over  to  the  Exclusionists,  made  him  serious- 
ly deliberate  on  abandoning  his  brother.* 
Unsteadiness  Whether  from  natural  instability 
of  the  king,  judgment,  from  the  steady  ad- 
herence of  France  to  the  Duke  of  York,  or 
from  observing  the  great  strength  of  the 
Tory  party  in  the  House  of  Lords,  where 
the  bill  was  rejected  by  a  majority  of  63  to 
30,  he  soon  returned  to  his  former  disposi- 
tion. It  was  long,  however,  before  he  ti-eat- 
ed  James  with  perfect  cordiality.  Conscious 
of  his  own  insincerity  in  religion,  which  the 
duke's  bold  avowal  of  an  obnoxious  creed 
seemed  to  reproach,  he  was  provoked  at 
bearing  so  much  of  the  odium,  and  incurring 
so  many  of  the  difficulties,  which  attended 
a  profession  that  he  had  not  ventured  to 
make.  He  told  Hyde,  before  the  dissolu- 
tion of  the  Parliament  of  1680,  that  it  would 
not  be  in  his  power  to  protect  his  brother 
any  longer,  if  he  did  not  conform  and  go  to 
church. f     Hyde  himself,  and  the  duke's 

city  in  October,  1680,  it  was  remarked  that  the 
bar.  by  which  the  heralds  denote  ille^timacy,  had 
been  taken  off  the  royal  arms  on  his  coach. — Let- 
ters to  Saville,  p.  54. 

*  Life  of  James,  592,  et  post.  Compare  Dal- 
rymple,  p.  265,  et  post.  Barillon  was  evidently  of 
opinion  that  the  kint?  would  finally  abandon  his 
brother.  Sunderland  joined  the  Duchess  of  Ports- 
mouth, and  was  one  of  the  thirty  peers  who  voted 
for  the  bill  in  November,  1680.  James  charges 
Godolphin,  also,  with  deserting  him,  p.  615.  But 
his  name  does  not  appear  in  the  protest  signed  by 
twentj'-five  peers,  though  that  of  the  pri\-y  seal, 
Lord  Anglesea,  does.  The  Duchess  of  Portsmouth 
sat  near  the  Commons  at  Stafford's  trial,  "  dispens- 
ing her  sweetmeats  and  gracious  looks  among 
them."— P.  638.  t  Life  of  James,  p.  657. 


other  friends,  had  never  ceased  to  urge  him 
on  this  subject.  Their  importunity  was 
renewed  by  the  king's  order,  even  after  the 
dissolution  of  the  Oxford  Parliament ;  and 
it  seems  to  have  been  the  firm  persuasion 
of  most  about  the  court  that  he  could  only 
be  preserved  by  conformity  to  the  Protes- 
tant religion.  He  justly  apprehended  the 
consequences  of  a  refusal ;  but,  inflexibly 
conscientious  on  this  point,  he  braved  what- 
ever might  arise  from  the  timidity  or  disaf- 
fection of  the  ministers  and  the  selfish  fickle- 
ness of  the  king. 

In  the  apprehensions  excited  by  the  king's 
unsteadiness  and  the  defection  of  the  Duch- 
ess of  Portsmouth,  he  deemed  his  fortunes 
so  much  in  jeopardy  as  to  have  resolved  on 
exciting  a  civil  war  rather  than  yield  to  the 
Exclusion.  Hehad  already  told  Barillon  that 
the  royal  authority  could  be  re-established 
by  no  other  means.*  The  Episcopal  party 
in  Scotland  had  gone  such  lengths  that  they 
could  hardly  be  safe  under  any  other  king- 
The  Catholics  of  England  were  of  course 
devoted  to  him.  With  the  help  of  these, 
he  hoped  to  show  himself  so  formidable  that 
Charles  w'ould  find  it  his  interest  to  quit  that 
cowardly  line  of  politics  to  which  he  was 
sacrificing  his  honor  and  affections.  Louis, 
never  insensible  to  any  occasion  of  render- 
ing England  weak  and  miserable,  directed 
his  ambassador  to  encourage  the  duke  in 
this  guilty  project  with  the  promise  of  as- 
sistance, f  It  seems  to  have  been  prevent- 
ed by  the  wisdom  or  public  spirit  of  Church- 
ill, who  pointed  out  to  Barillon  the  absurdity 
of  supposing  that  the  duke  could  stand  by 
himself  in  Scotland.  This  scheme  of  light- 
ing up  the  flames  of  civil  war  in  three  king- 
doms, for  James's  private  advantage,  de- 
serves to  be  more  remarked  than  it  has 
hitherto  been  at  a  time  when  his  apologists 
seem  to  have  become  numerous.  If  the 
designs  of  Russell  and  Sidney  for  the  pres- 
ervation of  their  country's  liberty  are  blamed 
ias  rash  and  unjustifiable,  what  name  shall 
we  give  to  the  project  of  maintaining  the 
pretensions  of  an  individual  by  means  of  re- 
bellion and  general  bloodshed  ? 

It  is  well  known  that  those  who  took  a 
concern  in  the  maintenance  of  religion  and 

*  n  est  persuade  que  I'autorite  royale  ne  se  pent 
retablir  en  Angleterre  que  par  une  guerre  civile, 
Aug.  19,  16S0.— Dalrj-mple,  265. 

t  Dalrj-mple,  277.    Nov.,  16S0. 


Cha.  11.-1673-85.] 


FKOM  HENRY  VII.  TO  GEORGE  11. 


477 


liberty  were  much  divided  as  to  the  best  ex- 
pedients for  securing  them ;  some,  who 
thought  the  Exchisiou  too  violent,  danger- 
ous, or  impracticable,  prefeiTing  the  enact- 
ment of  limitations  on  the  prerogatives  of  a 
Catholic  king.  This  had  begun,  in  fact, 
from  the  court,  who  passed  a  bill  through 
the  House  of  Lords  in  1677,  for  the  securi- 
ty, as  it  was  styled,  of  the  Protestant  relig- 
ion. This  provided  that  a  declaration  and 
oath  against  transubstantiation  should  be  ten- 
dered to  every  king  within  fourteen  days 
after  his  accession ;  that,  on  his  refusal  to 
take  it,  the  ecclesiastical  benefices  in  the 
gift  of  the  crown  should  vest  in  the  bishops, 
except  that  the  king  should  name  to  every 
vacant  see  one  out  of  three  persons  pro- 
posed to  him  by  the  bishops  of  the  province. 
It  enacted,  also,  that  the  children  of  a  king 
refusing  such  a  test  should  be  educated  by 
the  archbishop  and  two  or  three  more  pre- 
lates. This  bill  dropped  in  the  Commons ; 
and  Marvell  speaks  of  it  as  an  insidious  strat- 
agem of  the  ministiy.*  It  is  more  easy, 
however,  to  give  hard  names  to  a  measure 
originating  with  an  obnoxious  government, 
than  to  prove  that  it  did  not  afford  a  consid- 
erable security  to  the  Established  Church, 
and  impose  a  very  remarkable  limitation  on 
the  prerogative.  But  tlie  opposition  in  the 
House  of  Commons  had  probably  conceived 
their  scheme  of  exclusion,  and  would  not 
hearken  to  any  compromise.  As  soon  as 
the  Exclusion  became  the  topic  of  open  dis- 
cussion, the  king  repeatedly  ofiered  to  grant 
every  security  that  could  be  demanded  con- 
sistently with  the  lineal  succession.  Hollis, 
Halifax,  and,  for  a  time,  Essex,  as  well  as 
Expedients  s®^^''*'  eminent  men  in  the  Low- 
to  avoid  the  er  House,  were  in  favor  of  limita- 
^  tions;f  but  those  which  they  in- 

*  Marveir.s  Growth  of  Popery,  in  State  Tracts, 
temp.  Car.  II.,  p.  98.  Pari.  Hist.,  853.  The  sec- 
ond reading  was  carried  by  127  to  88.  Sergeant 
Maynard,  who  was  probably  not  in  the  secrets  of 
his  party,  seems  to  have  been  surprised  at  their 
opposition.  An  objection  with  Marvell,  and  not 
by  any  means  a  bad  one,  would  have  been,  that 
the  children  of  the  royal  family  were  to  be  con- 
signed for  education  to  tlie  sole  government  of 
bishops.  The  Duke  of  York,  and  thirteen  other 
peers,  protested  against  this  bill,  not  all  of  them 
from  the  same  motives,  as  may  be  collected  from 
their  names.— Lords'  Journals,  13th  and  15th  of 
March,  1679. 

t  Lords  Russell  and  Cavendish,  Sir  W.  Coven- 
try, and  Sir  Thomas  Littleton,  seem  to  have  been 


tended  to  insist  upon  were  such  encroach- 
ments on  the  constitutional  authority  of  the 
crown,  that,  except  a  title  and  revenue, 
which  Charles  thought  more  valuable  than 
all  the  rest,  a  popish  king  would  enjoy  no 
one  attribute  of  royalty.  The  king  himself, 
on  the  30th  of  April,  1C79,  before  the  heats 
on  the  subject  had  become  so  violent  as  they 
were  the  next  year,  offered  not  only  to  se- 
cure all  ecclesiastical  preferments  from  the 
control  of  a  popish  successor,  but  to  provide 
that  the  Parliament  in  being  at  a  demise  of 
the  crown,  or  the  last  that  had  been  dis- 
solved, should  immediately  sit  and  be  indis- 
soluble for  a  certain  time  ;  that  none  of  the 
privy  council,  nor  judges,  lord-lieutenant, 
deputy-lieutenant,  nor  officer  of  the  navy, 
should  be  appointed  during  the  reign  of  a 
Catholic  king,  without  consent  of  Parlia- 
ment. He  oflTered,  at  the  same  time,  most 
readily  to  consent  to  any  further  provision 
that  could  occur  to  the  wisdom  of  Parlia- 
ment, for  the  security  of  religion  and  liberty 
consistently  with  the  right  of  succession. 
Halifax,  the  eloquent  and  successful  oppo- 
nent of  the  E  xclusion,  was  the  .avowed  cham- 
pion of  limitations.  It  was  proposed,  in  ad- 
dition to  these  offers  of  the  king,  that  the 
duke,  in  case  of  his  accession,  should  have 
no  negative  voice  on  bills ;  that  he  should 
dispose  of  no  civil  or  military  posts  without 
the  consent  of  Parliament ;  that  a  council 
of  forty-one,  nominated  by  the  two  Houses, 
should  sit  permanently  during  the  recess  or 
interval  of  Parliament,  with  power  of  ap- 
pointing to  all  vacant  offices,  subject  to  the 
future  approbation  of  the  Lords  and  Com- 
mons.* These  extraordinary  innovations 
would,  at  least  for  the  time,  have  changed 
our  constitution  into  a  republic,  and  justly 
appeared  to  many  persons  more  revolution- 
ary than  an  alteration  in  tlie  course  of  suc- 
cession. The  Duke  of  York  looked  on  them 
with  dismay  ;  Charles,  indeed,  privately  de- 
clared that  he  would  never  consent  to  such 
infringements  of  the  prerogative. f  It  is  not, 
however,  easy  to  perceive  how  he  could 
have  escaped  from  the  necessity  of  adhering 

in  favor  of  limitations. — Lord  J.  Russell,  p.  42. 
Ralph,  446.  Sidney's  Letters,  p.  32.  Temple  and 
Shaftesbury,  for  opposite  reasons,  stood  alone  in 
the  council  against  the  scheme  of  limitations. — 
Temple's  Memoirs. 

*  Commons'  Journals,  23d  of  Nov.,  1630,  8th  of 
Jan.,  1681. 

t  Life  of  James,  634,  671.    Dalrymple,  p.  307. 


478 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIL 


to  his  own  propositions,  if  the  House  of 
Commons  would  have  relinquished  the  Bill 
of  Exclusion.  The  Prince  of  Orange,  who 
was  doubtless,  in  secret,  not  averse  to  the 
latter  measure,  declared  strongly  against  the 
plan  of  resh-ictions,  which  a  Protestant  suc- 
cessor might  not  find  it  practicable  to  shake 
off.  Another  expedient,  still  more  ruinous 
to  James  than  that  of  limitations,  was  what 
the  court  itself  suggested  in  the  Oxford  Par- 
liament, that,  the  duke  retaining  the  title  of 
king,  a  regent  should  be  appointed,  in  the 
person  of  the  Princess  of  Orange,  with  all 
the  royal  prerogatives  ;  nay,  that  the  duke, 
with  his  pageant  crown  on  his  head,  should 
be  banished  from  England  during  his  life.* 
This  proposition,  which  is  a  gi-eat  favorite 
with  Burnet,  appears  liable  to  the  same  ob- 
jections as  were  justly  urged  against  a  sim- 
ilar scheme  at  the  Revolution.  It  was  cer- 
tain that  in  either  case  .Tames  would  attempt 
to  obtain  possession  of  power  by  force  of 
arms ;  and  the  law  of  England  would  not 
treat  very  favorably  those  who  should  resist 
an  acknowledged  king  in  his  natural  capaci- 
ty, while  the  statute  of  Heniy  VII.  would, 
legally  speaking,  afford  a  security  to  the  ad- 
herents of  a  de  facto  sovereign. 

Upon  the  whole,  it  is  very  unlikely,  when 
we  look  at  the  general  spirit  and  temper  of 
the  nation,  its  predilection  for  the  ancient 
laws,  its  dread  of  commonwealth  and  fanat- 
ical principles,  the  tendency  of  the  upper 
ranks  to  intrigue  and  corruption,  the  influ- 
ence and  activity  of  the  Church,  the  bold 
counsels  and  haughtj'  disposition  of  James 
himself,  that  either  the  Exclusion,  or  such 
extensive  limitations  as  were  suggested  in 
lieu  of  it,  could  have  been  caiTied  into  ef- 
fect with  much  hope  of  a  durable  settlement. 
It  would,  I  should  conceive,  have  been  prac- 
ticable to  secure  the  independence  of  the 

"  Dalrymple,  p.  301.  Life  of  James,  G60,  671. 
The  duke  gave  himself  up  for  lost  when  he  heard 
of  the  clause  iu  the  king's  speech  declaring  his 
readiness  to  hearken  to  any  expedient  but  the  Ex- 
clusion. Birch  and  Hampden,  he  says,  were  in 
favor  of  this ;  but  Eitzlian-is's  business  set  the 
House  in  a  flame,  and  determined  them  to  persist 
in  their  former  scheme.  Reresby  says,  p.  1.9,  con- 
finned  by  Pari.  Hist.,  132,  it  was  supported  by  Sir 
Thomas  Littleton,  who  is  said  to  have  been  origi- 
nally against  the  Bill  of  Exclusion,  as  wellis  Sir 
WiUiam  Coventry. — Sidney's  Letters,  p.  32.  It 
■was  opposed  by  Jones,  Winnington,  Booth,  and,  if 
tlie  Parliamentary  History  be  right,  by  Hampden 
and  Birch. 


judges,  to  exclude  unnecessary  placemen 
and  notorious  pensioners  from  the  House  of 
Commons,  to  render  the  distribution  of 
money  among  its  members  penal,  to  remove 
from  the  Protestant  Dissenters,  by  a  full 
toleration,  all  temptation  to  favor  the  court, 
and,  above  all,  to  put  down  the  standing 
army.  Though  none,  perhaps,  of  these 
provisions  would  have  prevented  the  at- 
tempts of  this  and  the  next  reign  to  intro- 
duce arbitrary  power,  they  would  have  ren- 
dered them  still  more  grossly  illegal ;  and, 
above  all,  they  would  have  saved  that  un- 
happy revolution  of  popular  sentiment  which 
gave  the  court  encouragement  and  tempo- 
rary success. 

It  was  in  the  year  1679  that  the  words 
Whig  and  Toi-y  were  first  heard  in  „  , 

®  *'  Names  of 

their  application  to  English  factions ;  whig  and 
and,  though  as  senseless  as  any  cant 
terms  that  could  be  devised,  they  became  in- 
stantly as  familiar  in  use  as  they  have  since 
continued.  There  were  then,  indeed,  ques- 
tions in  agitation  which  rendered  the  distinc- 
tion more  broad  and  intelligible  than  it  has 
generally  been  in  later  times.  One  of  these, 
and  the  most  important,  was  the  Bill  of  Ex- 
clusion ;  in  which,  as  it  was  usually  debated, 
the  Republican  principle,  that  all  positive 
institutions  of  society  are  in  order  to  the 
general  good,  came  into  collision  with  that  of 
monarchy,  which  rests  on  the  maintenance 
of  a  royal  hne,  as  either  the  end,  or  at  least 
the  necessary  means,  of  lawful  government ; 
but,  as  the  Exclusion  was  confessedly  among 
those  extraordinaiy  measures  to  which  men 
of  Torj'  principles  are  sometimes  compelled 
to  resort  in  great  emergencies,  and  which 
no  rational  Whig  espouses  at  any  other  time, 
we  shall  better,  perhaps,  discern  the  foima- 
tion  of  these  grand  political  sects  in  the  pe- 
titions for  the  sitting  of  Parliament,  and  in 
the  counter  addresses  of  the  opposite  party. 

In  the  spring  of  1679,  Charles  established 
a  new  privy  council,  by  the  ad-  New  coun- 
vice  of  Sir  William  Temple,  con-  ^'^  |'™  viii- 
sisting,  in  gi-eat  i)art,  of  those  emi-  "am  Temple, 
nent  men  in  both  houses  of  Parliament  who 
had  been  most  prominent  in  their  opposition 
to  the  late  ministry.*    He  publicly  declared 

*  Temple's  Memoirs.  He  says  their  revenues 
in  land  or  offices  amounted  to  £300,000  per  annum, 
whereas  those  of  the  House  of  Commons  seldom 
exceeded  £400,000.  The  king  objected  much  to 
admitting  Halifax ;  but  himself  proposed  Shaftea- 


Cha.  II.— 1C73-S5.]  FROM  HENEY  V 


II.  TO  GEORGE  II. 


479 


his  resolution  to  govern  entirely  by  the  ad- 
vice of  this  council  and  that  of  Pailiament. 
The  Duke  of  York  was  kept  in  what  seemed 
a  sort  of  exile  at  Brussels.*  But  the  just 
suspicion  attached  to  the  king's  character 
prevented  the  Commons  from  placing  much 
confidence  in  this  new  ministry,  and,  as 
frequently  happens,  abated  their  esteem  for 
those  who,  with  the  purest  intentions,  had 
gone  into  the  council. f  They  had  soon 
cause  to  perceive  that  their  distrust  had  not 
been  excessive.  The  ministers  were  con- 
stantly beaten  in  the  House  of  Lords ;  an 
almost  certain  test,  in  our  government,  of 
the  court's  insincerity,  t  The  Parliament 
was  first  prorogued,  then  dissolved  ;  against 
the  advice,  in  the  latter  instance,  of  the  ma- 
jority of  that  council  by  whom  the  king  had 

bury,  much  against  Temple's  wishes.  The  fuuds 
in  Holland  rose  on  the  news.  Barillou  was  dis- 
pleased, and  said  it  was  making  "  des  etats,  et  non 
des  conseils ;"  which  was  not  witliout  weight,  for 
the  king  had  declared  he  would  take  no  measure, 
nor  even  choose  any  uew  counselor,  without  their 
consent.  But  the  extreme  disadvantage  of  the 
position  in  which  this  placed  the  crown  rendered 
it  absolutely  certain  that  it  was  not  submitted  to 
with  sincerity.  Lady  Portsmouth  told  Barillon  the 
new  ministry  was  formed  in  order  to  get  money 
from  Parliament.  Another  motive,  no  doubt,  was 
to  prevent  the  Exclusion  Bill. 

*  Life  of  James,  558.  On  the  king's  sudden  ill- 
ness, Aug.  22,  1679,  the  ruling  ministers,  Halifax, 
Sunderland,  and  Essex,  alarmed  at  the  anarchy 
which  might  come  on  his  death,  of  which  Shaftes- 
bury and  Monmouth  would  profit,  sent  over  for  the 
duke,  but  soon  endeavored  to  make  him  go  into 
Scotland ;  and,  after  a  straggle  against  the  king's 
tricks  to  outwit  them,  succeeded  in  this  object. — 
Id.,  p.  570,  et  post. 

t  Temple.  Reresby,  p.  89.  "  So  trae  it  is,"  he 
Bays,  "that  there  is  no  wearing  the  court  and  coun- 
try Uvery  together."  Thus,  also,  Algenion  Sidney, 
in  his  letters  to  Saville,  p.  16  :  "  The  king  certainly 
inclines  not  to  be  so  stiff  as  foi-merly  in  advancing 
only  those  that  exalt  prerogative ;  but  the  Earl  of 
Essex,  and  some  others  that  are  coming  into  play 
thereupon,  can  not  avoid  being  suspected  of  having 
intentions  different  from  what  they  have  hitherto 
professed."  He  ascribed  the  change  of  ministry 
at  this  time  to  Sunderland.  "If  he  and  two  more 
[Essex  and  Halifax]  can  well  agree  amoug  them- 
selves, I  believe  they  will  h  ave  the  management 
of  almost  all  business,  and  may  bring  much  honor 
to  themselves  and  good  to  our  nation,"  April  21, 
1679.  But  he  writes  afterward,  Sept.  8,  that  Hal- 
ifax and  Essex  were  become  very  unpopular,  p. 
50.  "The  bare  being  preferred,"  says  Secretary 
Coventry,  "raaketh  some  of  them  suspected,  though 
not  criminal."— Lord  J.  Russell's  Life  of  Lord  Rus- 
sell, p.  90. 

t  See  the  protests  in  1679,  passim. 


pledged  himself  to  be  directed.  A  new 
Parliament,  after  being  summoned  to  meet 
in  October,  1679,  was  prorogued  , 

'  '  I         o  Long  proro- 

for  a  twelvemonth  without  the  giuiim  of 
avowed  concurrence  oi  any  mem- 
ber of  the  council.  Lord  Russell,  and  oth- 
ers of  the  honester  party,  withdrew  from  a 
board  where  their  presence  was  only  asked 
in  mockery  or  deceit;  and  the  whole  spe- 
cious scheme  of  Temple  came  to  nothing 
before  the  conclusion  of  the  year  which  had 
seen  it  displayed.*  Its  author,  chagrined 
at  the  disappointment  of  his  patriotism  and 
his  vanity,  has  sought  the  causes  of  failure 
in  the  folly  of  Monmouth  and  perverseness 
of  Shaftesbury.  He  was  not  aware,  at  least 
in  their  full  extent,  of  the  king's  intrigues  at 
this  period.  Charles,  who  had  been  induced 
to  take  those  whom  he  most  disliked  into 
his  council,  with  the  hope  of  obtaining  mon- 
ey from  Parliament,  or  of  parrying  the  Ex- 
clusion Bill,  and  had  consented  to  the  Duke 
of  York's  quitting  England,  found  himself 
inthralled  by  ministers  whom  it  could  neither 
cori'upt  nor  deceive ;  Essex,  the  firm  and 
temperate  friend  of  constitutional  liberty  in 
power  as  he  had  been  out  of  it,  and  Halifax, 
not  yet  led  away  by  ambition  or  resentment 
from  the  cause  he  never  ceased  to  approve. 
He  had  recourse,  therefore,  to  his  accus- 
tomed refuge,  and  humbly  implored  the  aid 
of  Louis  against  his  own  council  and  Parlia- 
ment. He  conjured  his  patron  not  to  lose 
this  opportunity  of  making  England  forever 
dependent  upon  France.  These  are  his 
OAvn  words — such,  at  least,  as  Barillon  at- 
ti'ibutes  to  him.f  In  pursuance  of  this  over- 
ture, a  secret  treaty  was  negotiated  between 
the  two  kings,  whereby,  after  a  long  hag- 
gling, Charles,  for  a  pension  of  1,000,000 
livres  annually  during  three  years,  obliged 
himself  not  to  assemble  Parliament  during 
that  time.  This  negotiation  was  broken  off, 
through  the  apprehensions  of  Hyde  and 
Sunderland,  who  had  been  concerned  in  it, 
about  the  end  of  November,  1G79,  before 
the  long  prorogation  which  is  announced  in 
the  Gazette  by  a  proclamation  of  December 

*  Temple's  Memoirs.  Life  of  James,  5&1.  [An 
article  in  the  London  Gazette,  Jan.  30,  1C80.  is 
rather  amusing.  "  This  evening  the  Lord  Russell, 
the  Lord  Cavendish,  Sir  Henry  Capel,  and  Mr. 
Powle,  prayed  his  majesty  to  give  them  leave  to 
withdraw  from  the  council-board.  To  which  his 
majesty  was  pleased  to  answer,  '  With  all  his 
heart.'  "—1845.]  t  Dalrj  rople,  p.  230,  237. 


480 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIL 


11th  ;  but,  the  resolution  having  been  al- 
ready taken  not  to  permit  the  meeting  of 
Parliament,  Chai'les  persisted  in  it  as  the 
only  means  of  escaping  the  Bill  of  Exclusion, 
even  when  deprived  of  the  pecuniary  as- 
sistance to  which  he  had  trusted. 

Though  the  king's  behavioi-  on  this  occa- 
sion exposed  the  fallacy  of  all  projects  for 
reconciliation  with  the  House  of  Commons, 
it  was  very  well  calculated  for  liis  own  ends  ; 
nor  was  there  any  part  of  his  I'eign  where- 
in he  acted  with  so  much  prudence,  as  from 
this  time  to  the  dissolution  of  the  Oxford 
Parliament.  The  scheme  concerted  by  his 
adversaries,  and  ah'eady  put  in  operation, 
of  pouring  in  petitions  from  every  pait  of 
the  kingdom  for  the  meeting  of  Parliament, 
he  checked  in  the  outset  by  a  proclamation, 
artfully  drawn  up  by  Chief-justice  North, 
which,  while  it  kept  clear  of  any  thing  so 
palpably  unconstitutional  as  a  prohibition  of 
petitions,  sei-ved  the  purpose  of  manifesting 
the  king's  dislike  to  them,  and  encouraged 
the  magistrates  to  ti'eat  all  attempts  that 
way  as  seditious  and  illegal,  while  it  drew 
over  the  neutral  and  lukewarm  to  the  safer 
and  stronger  side.*  Then  were  first  ranged 
against  each  other  the  hosts  of  Whig  and 
Tory,  under  their  banners  of  libertj'  or  loy- 
alty ;  each  zealous,  at  least  in  profession, 
to  maintain  the  established  Constitution,  but 
the  one  seeking  its  security  by  new  maxims 
of  government,  the  other  by  an  adherence 
to  the  old.j  It  must  be  admitted  that  peti- 
Pctitions  and  tions  to  the  king  from  bodies  of 
addresses.  jjjg  subjects,  intended  to  advise 
or  influence  him  in  the  exercise  of  his  un- 
doubted prerogatives,  such  as  the  time  of 
calling  Pai-liament  together,  familiar  as  they 
may  now  have  become,  had  no  pi'ecedent, 
except  one  in  the  dark  year  1640,  and  were 
repugnant  to  the  ancient  principles  of  our 
monarchy.  The  cardinal  maxim  of  Tory- 
ism is,  that  the  king  ought  to  exercise  all  his 

*  See  Roger  North's  account  of  this  court  sti'at- 
agem.  Exameu  of  Kennet,  546.  The  proclama- 
tion itself,  however,  iu  the  Gazette,  12th  of  Dec, 
1679,  is  more  strongly  worded  than  we  should  ex- 
pect from  North's  account  of  it,  and  is  hy  no  means 
limited  to  tumultuous  petitions. 

t  [The  name  of  "V\'^hig,  meaning  sour  milk,  as  is 
well  known,  is  said  to  have  originated  iu  Scotland 
in  1648,  aud  was  given  to  those  violent  Covenant- 
ers who  opposed  the  Duke  of  Hamilton's  invasion 
of  England  in  order  to  restore  Charles  1. — Somers 
Tracts,  viii.,  349.  Tory  was  a  similar  nickname 
for  some  of  the  wild  Irish  in  Ulster.— 1845.] 


lawful  prerogatives,  without  the  interfer- 
ence, or  unsolicited  advice,  even  of  Parlia- 
ment, much  less  of  the  people.    These  nov- 
el efforts,  therefore,  were  met  by  addresses 
from  most  of  the  gi-and-juries,  from  the  ma- 
gistrates at  quarter  sessions,  and  from  many 
corporations,  expressing  not  merely  their 
\  entire  confidence  in  the  king,  but  their  abhor' 
'  rence  of  the  petitions  for  the  assembling  of 
]  Parliament ;  a  tenn  which,  having  been 
casually  used  in  one  address,  became  the 
j  watchword  of  the  whole  party.*  Some 
I  allowance  must  be  made  for  the  exertions 
I  made  by  the  court,  especially  through  the 
j  judges  of  assize,  whose  charges  to  gi-and-ju- 
ries  were  always  of  a  political  nature ;  yet 
I  there  can  be  no  doubt  that  the  strength  of 
'  the  Tories  manifested  itself  beyond  expect- 
I  ation.    Sluggish  and  silent  in  its  fields,  like 
j  the  animal  which  it  has  taken  for  its  type, 
the  deep-rooted  loyalty  of  the  English  gen- 
!  try  to  the  crown  may  escape  a  superficial 
observer,  till  some  circumstance  calls  forth 
an  indignant  and  furious  energy.    The  tem- 
per shown  in  1680  was  not  according  to 
what  the  late  elections  would  have  led  men 
to  expect,  not  even  to  that  of  the  next  elec- 
tions for  the  Parliament  at  Oxford.    A  large 
majority  returned  on  both  these  occasions, 
and  that  in  the  principal  counties  as  much 
as  in  corporate  towns,  w^ere  of  the  Whig 
principle.    It  appears  that  the  ardent  zeal 
against  popery  in  the  smaller  freeholders 
must  have  overpowered  the  natural  influence 
of  the  superior  classes.    The  middhng  and 
lower  orders,  particularly  in  towns,  were 
clamorous  against  the  Duke  of  York  and  the 
evil  counselors  of  the  crown.    But  with  the 
country  gentlemen,  popeiy  was  scarce  a 
more  odious  word  than  fanaticism ;  the  mem- 
oiy  of  the  late  reign  and  of  the  usurpation 
was  still  recent,  and  in  the  violence  of  the 
Commons,  in  the  insolence  of  Monmouth 
and  Shaftesbury,  in  the  bold  assaults  upon 
hereditaiy  right,  they  saw  a  faint  image  of 
that  confusion  which  had  once  impoverished 
find  humbled  them.    Meanwhile,  the  king's 
dissimulation  was  quite  sufl^cient  for  these 
simple  Loyalists;  the  very  delusion  of  the 
Popish  Plot  raised  his  name  for  religion  in 
their  eyes,  since  his  death  was  the  declared 
aim  of  the  conspirators ;  nor  did  he  fail  to 
keep  alive  this  favoi-able  prejudice  by  letting 
that  imposture  take  its  course,  and  by  en- 
*  London  Gazettes  of  1680,  passim. 


Cha.  II.— 1673-85.] 


FROM  HENRY  Vn.  TO  GEORGE  II. 


481 


forcing  the  execution  of  the  penal  laws 
against  some  unfortunate  priests.* 

It  is  among  the  great  advantages  of  a 
...  ,       ,  court  in  its  contention  with  the  as- 

Violence  of 

the  Com-  serters  of  popular  privileges,  that 
it  can  employ  a  circumspect  and 
dissembling  policy,  which  is  never  found  on 
the  opposite  side.  The  demagogues  of  fac- 
tion, or  the  aristocratic  leaders  of  a  numerous 
assembly,  even  if  they  do  not  feel  the  influ- 
ence of  the  passions  they  excite,  which  is 
rarely  the  case,  are  urged  onward  by  their 
headstrong  followers,  and  would  both  lay 
themselves  open  to  the  suspicion  of  unfaith- 
fulness, and  damp  the  spirit  of  their  party  by 
a  warj'  and  temperate  course  of  proceeding. 
Yet  that  incautious  violence,  to  which  ill- 
judging  men  are  tempted  by  the  possession 
of  power,  must  in  every  case,  and  especially 
where  the  power  itself  is  deemed  a  usurpa- 
tion, cast  them  headlong.  This  was  the  fatal 
error  of  the  House  of  Commons  which  met 
in  October,  1680  ;  and  to  this  the  king's 
triumph  may  chiefly  be  ascribed.  The  ad- 
di'esses  declaratory  of  abhon'ence  of  peti- 
tions for  the  meeting  of  Parliament  were 
doubtless  intemperate  with  respect  to  the 
petitioners ;  but  it  was  preposterous  to  treat 
them  as  violations  of  pi-ivilege.  A  few  prec- 
edents, and  those  in  times  of  much  heat  and 
irregularity,  could  not  justify  so  flagrant  an 
encroachment  on  the  rights  of  the  private 
subject,  as  the  commitments  of  men  for  a 
declaration  so  little  affecting  the  constitu- 
tional rights  and  functions  of  Parliament. f 
The  expulsion  of  Withens,  their  own  mem- 
ber, for  promoting  one  of  these  addresses, 
though  a  violent  measure,  came,  in  point  of 
law,  within  their  acknowledged  authority. t 
But  it  was  by  no  means  a  generally  received 
opinion  in  that  age,  that  the  House  of  Com- 
mons had  an  unbounded  jurisdiction,  direct- 
ly or  indirectly,  over  their  constituents. 
The  la\vyers,  being  chiefly  on  the  side  of 

•  David  Lewis  vras  executed  at  Usk  for  saying 
mass,  Aug.  27,  1G79.— State  Trials,  vii.,  256.  Other 
instaaces  occur  in  the  same  volume  ;  see  especially 
p.  811,  839,  849,  857.  Pemberton  was  more  severe 
and  unjust  toward  these  unfortunate  men  than 
Scroggs.  The  king,  as  his  brother  tells  us,  came 
unwillingly  into  these  severities  to  prevent  worse. 
— Life  of  James,  583. 

t  Journals,  passim.    North's  Examen,  377,  561. 

{  They  went  a  little  too  far,  however,  when  they 
actually  seated  Sir  WiUiam  Waller  in  Withens's 
place  for  W  estmiuster. — Ralph,  514. 

H  H 


prerogative,  inclined  at  least  to  limit  very 
greatly  this  alleged  power  of  commitment 
for  breach  of  privilege  or  contempt  of  the 
House.  It  had  very  rarely,  in  fact,  been 
exerted,  except  in  cases  of  serving  legal  pro- 
cess on  members  or  other  molestation,  be- 
fore the  Long  Parliament  of  Charles  I. ;  a 
time  absolutely  discredited  by  one  party,  and 
confessed  by  every  reasonable  man  to  be 
full  of  innovation  and  violence.  That  the 
Commons  had  no  right  of  judicature  was 
admitted  ;  was  it  compatible,  many  might 
urge,  to  principles  of  reason  and  justice, 
that  they  could,  merely  by  using  the  words 
contempt  or  breach  of  privilege  in  a  warrant, 
deprive  the  subject  of  that  liberty  which  the 
recent  statute  of  Habeas  Corpus  had  se- 
cured against  the  highest  ministers  of  the 
crown  ?  Yet  one  Thompson,  a  clergyman 
of  Bristol,  having  preached  some  virulent 
sermons,  wherein  he  had  traduced  the  mem- 
ory of  Hampden  for  refusing  the  payment 
of  ship-money,  and  spoken  disrespectfully 
of  Queen  Elizabeth,  as  well  as  insulted 
those  who  petitioned  for  the  sitting  of  Par- 
liament, was  sent  for  in  custody  of  the  ser- 
geant to  answer  at  the  bar  for  his  high 
misdemeanor  against  the  privileges  of  that 
House  ;  and  was  afterward  compelled  to 
find  security  for  his  forthcoming  to  answer 
to  an  impeachment  voted  against  him  on 
these  strange  chai-ges.*  Many  others  were 
brought  to  the  bar,  not  only  for  the  crime 
of  abhorrence,  but  for  alleged  misdemean- 
ors still  less  affecting  the  privileges  of  Par- 
liament, such  as  remissness  in  searching  for 
papists.  Sir  Robert  Cann,  of  Bristol,  was 
sent  for  in  custody  of  the  sergeant-at-arms, 
for  publicly  declaring  that  there  was  no 
popish,  but  only  a  Pi-esbyterian  plot.  A 
general  panic,  mingled  with  indignation,  was 
diffused  through  the  country,  till  one  S  taw- 
ell,  a  gentleman  of  Devonshire,  had  the 
courage  to  refuse  compliance  with  the  speak- 
er's warrant ;  and  the  Commons,  who  hes- 
itated at  such  a  time  to  risk  an  appeal  to 
the  ordinary  magistrates,  were  compelled 
to  jet  this  contumacy  go  unpunished.  If, 
indeed,  we  might  believe  the  Journals  of  the 
House,  Stawell  was  actually  in  custody  of 
the  sergeant,  though  allowed  a  month's  time 
on  account  of  sickness.  Tliis  was  most 
probably  a  subterfuge  to  conceal  the  truth 
of  the  case.f 


Jouiuals,  Dec.  24,  1680.      t  Pari.  Hist.,  i.,  174. 


482 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIL 


These  encroachments  under  the  name 
of  privilege  were  exactly  in  the  spirit  of  the 
Long  Parliament,  and  revived  too  forcibly 
the  recollection  of  that  awful  period.  It 
was  commonly  in  men's  mouths,  that  1641 
was  come  about  again.  There  appeared, 
indeed,  for  several  months,  a  very  imminent 
danger  of  civil  war.  I  have  already  men- 
tioned the  projects  of  the  Duke  of  York,  in 
case  his  brother  had  given  way  to  the  Ex- 
clusion Bill.  There  could  be  little  reason 
to  doubt  that  many  of  the  opposite  leaders 
were  ready  to  try  the  question  by  arras. 
Reresby  has  related  a  conversation  he  had 
with  Lord  Halifax  immediately  after  the 
rejection  of  the  bill,  which  shows  the  ex- 
pectation of  that  able  statesman,  that  the 
differences  about  the  succession  would  end 
in  civil  war.*  The  just  abhorrence  good 
men  entertain  for  such  a  calamity  excites 
their  indignation  against  those  who  conspic- 
uously bring  it  on  ;  and  however  desirous 
some  of  the  court  might  be  to  strengthen 
the  prerogative  by  quelling  a  premature  re- 
bellion, the  Commons  were,  in  the  ej^es  of 
the  nation,  far  more  prominent  in  accelera- 
ting so  terrible  a  crisis.  Their  votes  in  the 
session  of  November,  1680,  were  marked 
by  the  most  exti-avagant  factiousness. f 
Oxford  Par-  Their  conduct  in  the  short  Par- 
liament, liament  held  at  Oxford  in  March, 
1681,  served  stiU  more  to  alienate  the  peace- 
able part  of  the  community.  That  session 
of  eight  days  was  marked  by  the  rejection 
of  a  proposal  to  vest  all  effective  power  dur- 

*  Reresby 's  Memoirs,  106.  Lord  Halifax  and 
lie  agreed,  be  says,  on  consideration,  that  the  court 
-j)arty  were  not  only  the  most  numerons,  but  the 
most  active  and  wealthy  part  of  the  nation. 

t  It  was  carried  by  219  to  95  (17th  of  Nov.),  to 
address  the  king  to  remove  Lord  Halifax  from  his 
councils  and  presence  forever.  They  resolved, 
nem.  con.,  that  no  member  of  that  House  should 
accept  of  any  office  or  place  of  profit  from  the 
crown,  or  any  promise  of  one,  during  such  time  as 
he  should  continue  a  member ;  and  that  all  offend- 
ers herein  should  be  expelled,  30th  of  Dec.  They 
passed  resolutions  against  a  number  of  persons  by 
name,  whom  they  suspected  to  have  advised  the 
Iving  not  to  pass  the  Bill  of  Exclusion,  7th  of  Jan., 
1630.  They  resolved  unanimously  (10th  of  Jan.), 
that  it  is  the  opinion  of  this  House  that  the  city  of 
London  was  burned  in  the  year  1666  by  the  papists, 
designing  thereby  to  introduce  poperj-  and  arbi- 
trary power  into  this  kingdom.  They  were  going 
on  with  more  resolutions  in  the  same  spirit,  when 
the  usher  of  the  black  rod  appeared  to  prorogue 
them.— Pari.  Hist. 


ing  the  Duke  of  York's  life  ra  a  regent, 
which,  as  has  been  already  observed,  was 
by  no  means  a  secure  measure,  and  by  a 
much  less  justifiable  attempt  to  screen  the 
author  of  a  treasonable  libel  from  punish- 
ment under  the  pretext  of  impeaching  him 
at  the  bar  of  the  Upper  House.  It  seema 
difificult  not  to  suspect  that  the  secret  in- 
stigations of  Barillon,  and  even  his  gold,  had 
considerable  influence  on  some  of  those 
who  swayed  the  votes  of  this  Parliament. 

Though  the  impeachment  of  Fitzharris, 
to  which  I  have  just  alluded,  was  impeachment 
in  itself  a  mere  work  of  tempo-  ttZToT" 
rary  faction,  it  brought  into  dis-  constitutional, 
cussion  a  considerable  question  in  our  con- 
stitutional law,  which  deserves  notice,  both 
on  account  of  its  importance,  and  because  a 
popular  writer  has  advanced  an  untenable 
proposition  on  the  subject.  The  Fitzharris 
:  Commons  impeached  this  man  of  'mpeacbed. 
high  treason.  The  Lords  voted  that  he 
'  should  be  proceeded  against  at  common  law. 
I  It  was  resolved,  in  consequence,  by  the  Low- 
er House,  "  that  it  is  the  undoubted  right 
'  of  the  Commons,  in  Parliament  assembled, 
j  to  impeach  before  the  Lords  in  Parliament 
any  peer  or  commoner  for  treason,  or  any 
other  crime  or  misdemeanor ;  and  that  the 
-  refusal  of  the  Lords  to  proceed  in  Parlia- 
I  ment  upon  such  impeachment  is  a  denial 
j  of  justice,  and  a  violation  of  the  constitution 
of  Parliament."*  It  seems,  indeed,  difficult 
to  justify  the  determination  of  the  Lords. 
Certainly  the  declaration  in  the  case  of  Sir 
Simon  de  Bereford,  who,  having  been  ac- 
cused by  the  king,  in  the  fourth  year  of 
Edward  III.,  before  the  Lords,  of  partici- 
pating in  the  treason  of  Roger  Mortimer, 
that  noble  assembly  protested,  '•  with  thn 
assent  of  the  king  in  full  Parliament,  that 
albeit  they  had  taken  upon  them,  as  judges 
of  the  Parliament  in  the  presence  of  the 
king,  to  render  judgment,  yet  the  peers, 
who  tlien  were  or  should  be  in  time  to 
come,  were  not  bound  to  render  judgment 
upon  others  than  peers,  nor  had  power  to 
do. so  ;  and  that  the  said  judgment  thus  ren- 
dered should  never  be  drawn  to  example  or 
consequence  in  time  to  come,  whereby  the 
said  peers  of  the  land  might  be  charged  to 
judge  others  than  their  peers,  contrary  to 
the  laws  of  the  land ;"  ceitainly,  I  say,  this 
I  declaration,  even  if  it  amounted  to  a  stat- 
*  Commons'  Joamals,  March  26,  1681. 


Cha.  II.— 1673-85.] 


FROM  HENRY  VU.  TO  GEORGE  II. 


483 


ute,  concerning  which  there  has  been  some 
question,*  was  not  necessarily  to  be  inter- 
\  prcted  as  applicable  to  impeachments  at  the 
suit  of  the  Commons,  wherein  the  king  is 
no  ways  a  party.  There  were  several  prec- 
edents in  the  reign  of  Richard  II.  of  such 
impeachments  for  treason.  There  had  been 
more  than  one  in  that  of  Charles  I.  The 
objection,  indeed,  was  so  novel,  that  Chief- 
justice  Scroggs,  having  been  impeached  for 
ti'eason  in  the  last  Parliament,  though  he 
applied  to  be  admitted  to  bail,  had  never  in- 
sisted on  so  decisive  a  plea  to  the  jurisdic- 
tion. And  if  the  doctrine,  adopted  by  the 
Lords,  were  to  be  carried  to  its  just  conse- 
quences, all  impeachment  of  commoners 
must  be  at  an  end  ;  for  no  distinction  is  tak- 
en in  the  above  declaration  as  to  Bereford 
betvs-een  treason  and  misdemeanor.  The 
peers  had  indeed  lost,  except  during  the 
session  of  Parliament,  their  ancient  privi- 
lege in  cases  of  misdemeanor,  and  were 
subject  to  the  verdict  of  a  jury ;  but  the 
principle  was  exactly  the  same,  and  the 
right  of  judging  commoners  upon  impeach- 
ment for  corruption  and  embezzlement, 
which  no  one  called  in  question,  was  as 
much  an  exception  from  the  ordinary  rules 
of  law  as  in  the  more  rare  case  of  high 
treason.  It  is  hardly  necessaiy  to  observe, 
that  the  29th  section  of  Magna  Charta, 
which  establishes  the  right  of  trial  by  jury, 
is  by  its  express  language  solely  applicable 
to  the  suits  of  the  crown. 

This  very  dangerous  and  apparently  un- 
founded theoiy,  broached  upon  the  occasion 
of  Fitzharris's  impeachment  by  the  Earl  of 
Nottingham,  never  obtained  reception  ;  and 
was  rather  intimated  than  avowed  in  the 
vote  of  the  Lords,  that  he  should  be  pro- 
ceeded against  at  common  law.  But  after 
the  Revolution,  the  Commons  having  im- 
peached Sir  Adam  Blair  and  some  others 
of  high  ti'eason,  a  committee  was  appointed 
to  search  for  precedents  on  this  subject,  and 
after  full  deliberation,  the  House  of  Lords 
came  to  a  resolution  that  they  would  pro- 
ceed on  the  impeachments. f    The  inad- 

*  Pari  Hist.,  ii.,  54.  Lord  Hale  doubted  whether 
this  were  a  statute;  but  the  judges,  in  1689,  on 
being  consulted  by  the  Lords,  inclined  to  think 
that  it  was  one  ;  argnmg,  I  suppose,  from  the  words 
"  in  full  Parliament,"  which  have  been  heJd  to  im- 
ply the  presence  and  assent  of  the  Commons. 

t  Hatsell's  Precedents,  iv.,  54,  and  Appendix, 
347.    State  Trials,  viii.,  236,  and  xii.,  1216. 


vertent  position,  thei'efore,  of  Blackstone,* 
that  a  commoner  can  not  be  impeached  for 
high  treason,  is  not  only  difficult  to  be  sup- 
ported upon  ancient  authorities,  but  contra- 
ry to  the  latest  determination  of  the  su- 
preme tribunal. 

No  satisfactory  elucidation  of  the  strange 

libel  for  which  FitzhaiTis  suffer-  Proceedings 

ed  death  has  yet  been  afforded.  Selhury 
There  is  much  probability  in  the  ""d  College, 
supposition  that  it  was  written  at  the  desire 
of  some  in  the  court,  in  order  to  cast  odium 
on  their  adversaries  ;  a  very  coinmon  strat- 
agem of  unscrupulous  partisans. f  It  caus- 
ed an  impression  unfavorable  to  the  Whigs 
in  the  nation.  The  court  made  a  dextrous 
use  of  that  extreme  credulity,  which  has 
been  supposed  characteristic  of  the  English, 
though  it  belongs  at  least  equally  to  every 
other  people.  They  seized  into  their  hands 
the  very  engines  of  delusion  that  had  been 
turned  against  them.  Those  peijured  wit- 
nesses, whom  Shaftesbury  had  hallooed  on 
through  all  the  infamy  of  the  Popish  Plot, 
were  now  arrayed  in  the  same  court  to 
swear  treason  and  conspiracy  against  him. J 

*  Commentaries,  vol.  iv.,  c.  19. 

1  Ralph,  564,  et  post.  State  Trials,  223,  427. 
North's  Examen,  274.  Fitzharris  was  an  Irish 
papist,  who  had  evidently  had  interviews  with  the 
king  through  Lady  Portsmouth.  One  Hawkins, 
afterward  made  dean  of  Chichester  for  his  paii>s, 
published  a  narrative  of  this  case  full  of  falsehoods. 

t  State  Trials,  viii.,  759.  Roger  North's  remark 
on  this  is  worthy  of  him  :  "  Having  sworn  false,  as 
it  is  manifest  some  did  before  to  one  purpose,  it  is 
more  likely  they  swore  true  to  the  contrary." — 
Exameu,  p.  117.  And  Sir  Robert  Sawyer's  ob- 
servation to  the  same  effect  is  also  worthy  of  liim. 
On  College's  trial,  Oales,  in  his  examination  for 
the  prisoner,  said,  that  Turberville  had  changed 
sides.  Sawyer,  as  coansel  for  the  crown,  answer- 
ed, "Dr.  Gates,  Mr.  Turberville  has  not  changed 
sides  ;  you  have  ;  he  is  still  a  witness  for  the  king, 
you  are  against  him." — State  Trials,  viii.,  639. 

The  opposite  party  were  a  httle  perplexed  by 
the  necessity  of  refuting  testimony  they  had  relied 
upon.  In  a  dialogue,  entitled  Ignoramus  Vindi- 
cated, it  is  asked,  why  were  Dr.  Oates  and  others 
believed  against  the  papists  ?  and  the  best  answer 
the  case  admits  is  given:  "Because  his  and  their 
testimony  was  backed  by  that  undeniable  evidence 
of  Coleman's  papers,  Godfrey's  murder,  and  a 
thousand  other  pregnant  circumstances,  which 
makes  the  case  much  diflferent  from  that  when 
people  of  veiy  suspected  credit  swear  the  gross- 
est improbabilities."  But  the  same  witness,  it  is 
urged,  had  lately  been  believed  against  the  papists. 
"  What !  then,"  replies  the  advocate  of  Shaftes- 
bury, "  may  not  a  man  be  very  honest  and  credi- 


484 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XII. 


Though  he  escaped  by  the  resoluteness  of 
his  gi-and-jury,  who  refused  to  find  a  bill  of 
indictment  on  testimony  which  they  pro- 
fessed themselves  to  disbelieve,  and  which 
was  probably  false,  yet  this  extraordinary 
deviation  from  the  usual  practice  did  hann 
rather  than  otherwise  to  the  general  cause 
of  his  faction.  The  judges  had  taken  care 
that  the  witnesses  should  be  examined  in 
open  court,  so  that  the  jury's  partiality, 
should  they  reject  such  positive  testimony, 
might  become  glaring.  Doubtless  it  is,  in 
ordinaiy  cases,  the  duty  of  a  gi-and-juror  to 
find  a  bill  upon  the  direct  testimony  of  wit- 
nesses, where  they  do  not  contradict  them- 
selves or  each  other,  and  where  their  evi- 
dence is  not  palpably  incredible  or  contrary 
to  his  own  knowledge.*  The  oath  of  that 
inquest  is  forgotten,  either  where  they  ren- 
der themselves,  as  seems  too  often  the  case, 
the  mere  conduit-pipes  of  accusation,  put- 
ting a  prisoner  in  jeopardy  upon  such  slen- 
der evidence  as  does  not  call  upon  him  for 
a  defense,  or  where,  as  we  have  sometimes 
known  in  political  causes,  they  frustrate  the 
ends  of  justice  by  rejecting  indictments 
which  are  fully  substantiated  by  testimony. 
Whether  the  grand-jury  of  London,  in  their 
celebrated  ignoramus  on  the  indictment  pre- 
feiTed  against  Shaftesbury,  had  sufficient 
grounds  for  their  incredulitj',  I  will  not  pre- 
tend to  determine.!    There  was  probably 

ble  at  one  time,  and  six  months  after,  by  necessi- 
ty, subornation,  malice,  or  twenty  ways,  become  a 

notorious  villain  ?" 

*  The  true  question  for  a  grand-juror  to  ask  him- 
self seems  to  be  this  :  Is  the  evidence  such  as  that, 
if  the  prisoner  can  prove  nothing  to  the  contrarj', 
he  ought  to  be  convicted  ?  However,  where  any 
considerable  doubt  exists  as  to  this,  as  a  petty 
juror  ought  to  acquit,  so  a  grand-juror  ought  to  find 
the  indictment. 

t  Roger  North  and  the  prerogative  writers  in 
general  speak  of  this  inquest  as  a  scandalous  piece 
of  perjurj-,  enough  to  justify  the  measures  soon  af- 
terward taken  against  the  citj' ;  but  Ralph,  who, 
at  this  period  of  historj-,  is  very  impartial,  seems 
to  think  the  jury  warranted  by  the  absurditj-  of  the 
depositions.  It  is  to  be  remembered  that  the  petty 
jnries  had  shown  themselves  liable  to  intimidation, 
and  that  the  bench  was  sold  to  the  court.  In  mod- 
em times,  such  an  ignoramus  could  hardly  ever  be 
justified.  There  is  strong  reason  to  believe  that 
the  court  had  recourse  to  subornation  of  evidence 
against  Shaftesbury. — Ralph,  140,  et  post.  And 
the  witnesses  were  chiefly  low  Irishmen,  in  whom 
be  was  not  likely  to  have  placed  confidence.  As 
to  the  association  found  among  Shaftesburj-'s  pa- 
pel's,  it  was  not  signed  by  liimself,  nor,  as  I  con- 


no  one  man  among  them  who  had  not  im- 
plicitly swallowed  the  tales  of  the  same 
witnesses  in  the  trials  for  the  Plot.  The 
nation,  however,  in  general  less  bigoted,  or 
at  least  more  honest  in  tlieir  bigotrj',  than 
those  London  citizens,  was  staggered  by  so 
many  depositions  to  a  traitorous  conspiracy, 
in  those  who  had  pretended  an  excessive 
loyalty  to  the  king's  person.*  Men  unac- 
customed to  courts  of  justice  are  naturally 
prone  to  give  credit  to  the  positive  oaths  of 
witnesses.  They  were  still  more  persuad- 
ed when,  as  in  the  trial  of  College  at  Ox- 
ford, they  saw  this  testimony  sustained  by 
the  approbation  of  a  judge  (and  that  judge 
a  decent  person  who  gave  no  scandal),  and 
confirmed  by  the  verdict  of  a  jury.  The 
gross  iniquity  practiced  toward  the  prisoner 
in  that  trial  was  not  so  generally  bruited  as 
his  conviction. f  There  is  in  England  a  re- 
markable confidence  in  our  judicial  proceed- 
ings, in  part  derived  firom  their  publicity,  and 
partly  from  the  indiscriminate  manner  in 
which  jurors  are  usually  summoned.  It 
must  be  owned  that  the  administration  of 
the  last  two  Stuarts  was  calculated  to  show 
how  easily  this  confiding  temper  might  be 
the  dupe  of  an  insidious  ambition. 

The  king's  declaration  of  the  reasons  that 
induced  him  to  dissolve  the  last  Parlia- 


ceive,  treasonable,  only  binding  the  associatora  to 
oppose  the  Duke  of  York  in  case  of  his  coming  to 
the  crown. — State  Trials,  viii.,  786.  See,  also,  827 
and  835. 

*  If  we  may  believe  James  II.,  the  populace 
hooted  Shaftesbury  when  he  was  sent  to  the  Tow- 
er.— Macpherson,  124.  Life  of  James,  683.  This 
was  an  improvement  on  the  odit  damnatos.  They 
rejoiced,  however,  much  more,  as  he  owns,  at  the 
ignoramus,  p.  714. 

t  See  College's  case  in  State  Trials,  viii..  549 ; 
and  Hawles's  remarks  on  it,  723.  Ralph,  626.  It 
is  one  of  the  worst  pieces  of  judicial  iniquity  that 
we  find  in  the  whole  collection.  The  written  in- 
stiuctions  he  bad  given  to  his  counsel  before  the 
trial  were  taken  away  from  him,  in  order  to  learn 
the  grounds  of  his  defense.  North  and  Jones,  the 
judges  before  whom  he  was  tried,  afforded  him  no 
protection  ;  but  besides  this,  even  if  the  witnesses 
had  been  credible,  it  does  not  appear  to  me  that 
the  facts  amounted  to  treason.  Roger  North  out- 
does himself  in  his  justification  of  the  proceedings 
on  this  trial. — Examen,  p.  587.  What  would  this 
man  have  been  in  power,  when  he  writes  thus  in 
a  sort  of  proscription  twenty  years  after  the  Rev 
olution  !  But  in  justice  it  should  be  observed,  thai 
his  portraits  of  North  and  Jones — Id.,  512,  and  517 
— are  excellent  specimens  of  his  inimitable  talent 
for  Dutch  painting. 


Cha.  II.— 1073-83.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


485 


Triumph  of  ment,  being  a  manifesto  against  | 
the  court,  ^^e  late  majority  of  the  House  of 
Commons,  was  read  in  all  cburches.  The 
clergy  scarcely  waited  for  this  pretext  to 
take  a  zealous  part  for  the  crown.  Eveiy 
one  knows  their  influence  over  the  nation 
in  any  cause  which  they  make  their  own. 
They  seemed  to  change  the  war  against 
liberty  into  a  crusade.  They  i-e-echoed 
from  every  pulpit  the  strain  of  passive  obe- 
dience, of  indefeasible  hereditary  right,  of 
the  divine  origin  and  pati-iarchal  descent  of 
monarchy.  Now  began  again  the  loyal  ad- 
dresses, more  numerous  and  ardent  than  in 
the  last  year,  which  overspread  the  pages 
of  the  London  Gazette  for  many  months. 
These  effusions  stigmatize  the  measures  of 
the  three  last  Parliaments,  dwelling  espe- 
cially on  their  arbitrarj'  illegal  votes  against 
the  personal  liberty  of  the  subject.  Their 
language  is  of  course  not  alike ;  5'et  amid 
all  the  ebullitions  of  triumphant  loyalty,  it 
is  easy  in  many  of  tliem  to  perceive  a  lurk- 
ing distrust  of  the  majesty  to  which  they 
did  homage,  insinuated  to  the  reader  in  the 
marked  satisfaction  with  which  they  allude 
to  the  king's  promise  of  calling  frequent 
Parliaments  and  of  governing  by  the  laws.* 
The  Whigs,  meantime,  so  late  in  the  hey- 
day of  their  pride,  lay,  like  the  fallen  angels, 
prostrate  upon  the  fiery  lake.  The  scofts 
and  gibes  of  libelers,  who  had  trembled  be- 
fore the  resolutions  of  the  Commons,  were 
showered  upon  their  heads.  They  had  to 
fear,  what  was  much  worse  than  the  insults 
of  these  vermin,  the  perjuries  of  mercena- 
ly  informers  suborned  by  their  enemies  to 
charge  false  conspiracies  against  them,  and 
sure  of  countenance  from  the  contaminated 
benches  of  justice.  The  court,  with  an  art- 
ful policy,  though  with  detestable  wicked- 
ness, secured  itself  against  its  only  gi-eat 
danger,  the  suspicion  of  popery,  by  the  sac- 
rifice of  Plunket,  the  titular  archbishop  of 
Dublin. t    The  execution  of  this  worthy 

*  London  Gazette,  1681,  passim.  Ralph,  592, 
has  spoken  too  strongly  of  their  servility,  as  if  they 
showed  a  disposition  to  give  up  altogether  every 
right  and  privilege  to  tlie  crown.  This  may  be 
true  in  a  verj-  few  instances,  but  is  by  no  means 
their  general  tenor.  They  are  exactly  high  Tory 
addresses,  and  nothing  more. 

t  State  Trials,  viii.,  447.  Chief-justice  Pember- 
ton,  by  whom  lie  was  tried,  had  strong  prejudices 
against  the  papists,  though  well  enough  disposed 
to  serve  the  court  in  some  respects. 


and  innocent  person  can  not  be  said  to  have 
been  extorted  from  the  king  in  a  time  of 
great  difficulty,  like  that  of  Lord  Straffoid. 
He  was  coolly  and  deliberately  permitted  to 
suffer  death,  lest  the  current  of  loyalty,  still 
sensitive  and  suspicious  upon  the  account 
of  religion,  might  be  somewhat  checked  in' 
its  course.  Yet  those  who  heap  the  epi- 
thets of  merciless,  inhuman,  sanguinary,  oa 
the  Whig  party  for  the  impeachment  of 
Lord  Strafford,  in  whose  guilt  they  fully 
believed,  seldom  mention,  without  the  char- 
acteristic distinction  of  "good-natured,"  that 
sovereign  who  permitted  the  execution  of 
Plunket,  of  whose  innocence  he  was  as- 
sured.* 

The  hostility  of  the  city  of  London,  and 

*  The  king,  James  says  in  1679,  was  convinced 
of  the  falsehood  of  the  Plot,  "while  the  seeming 
necessity  of  his  affairs  made  this  unfortunate  prince, 
for  so  he  may  well  be  tenned  in  this  conjuncture, 
think  he  could  not  be  safe  but  by  consenting  every 
day  to  the  execution  of  those  he  knew  in  his  heart 
to  be  most  innocent ;  and  as  for  that  notion  of  let- 
ting the  law  take  its  course,  it  was  such  a  piece 
of  casuistry  as  had  been  fatal  to  the  king  his  fa- 
ther," &c.,  562.  If  this  was  blamable  in  1679,  how 
much  more  in  1681  ? 

Temple  relates,  that,  having  objected  to  leaving 
some  priests  to  the  law,  as  the  House  of  Commons 
had  desired  in  1679,  Halifax  said  he  would  tell  ev- 
eiy one  he  was  a  papist,  if  he  did  not  concur;  and 
that  the  Plot  must  be  treated  as  if  it  were  true, 
whether  it  was  so  or  not,  p.  339  (folio  edit.).  A 
vile  maxim  indeed  !  But  as  Halifax  had  never 
showed  any  want  of  candor  or  humanity,  and  vot- 
ed Lord  Strafford  not  guilty  next  year,  we  may 
doubt  whether  Temple  has  represented  this  quite 
exactly. 

In  reference  to  Lord  Strafford,  I  will  here  notice 
that  Lord  John  Russell,  iii  a  passage  deserting 
very  high  praise,  has  shown  rather  too  much  can- 
dor in  censuring  his  ancestor  (p.  140)  on  account 
of  the  support  he  gave  (if  in  fact  he  did  so,  for  the 
evidence  seems  weak)  to  the  objection  raised  by 
the  sheriffs.  Bethell  and  Cornish,  with  respect  to 
the  mode  of  Strafford's  execution.  The  king  having 
remitted  all  the  sentence  except  the  beheading, 
these  magistrates  thought  fit  to  consult  the  House 
of  Commons.  Hume  talks  of  Russell's  seconding 
this  "  barbarous  scruple,"  as  he  calls  it,  and  imputes 
it  to  faction  ;  but,  notwithstanding  the  epithet,  it  is 
certain  that  the  only  question  was  between  death 
by  the  cord  and  the  ax ;  and  if  Strafford  had  beea 
guilty,  as  Lord  Russell  was  convinced,  of  a  most 
atrocious  treason,  he  could  not  desei-ve  to  be 
spared  the  more  ignominious  punishment.  The 
truth  is,  which  seems  to  have  escaped  both  these 
writers,  that  if  the  king  could  remit  a  part  of  the 
sentence  upon  a  Parliamentarj-  impeachment,  it 
might  considerably  affect  the  question  whether 
he  could  not  grant  a  pardon,  which  the  Commons 
had  denied. 


486 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIL 


Forfeiture  of  °^  Several  other  towns,  toward 
the  charter   the  court,  degenerating,  no  doubt, 

of  London,      .   .        r  i   •   j         ^  • 

and  of  other  iDto  a  lactious  and  indecent  vio- 
plares.  lence,  gave  a  pretext  for  the  most 
dangerous  aggi'ession  on  public  liberty  that 
occurred  in  the  present  reign.  The  power 
of  the  democracy  in  that  age  resided  chief- 
ly in  the  corporations.  These  returned, 
exclusively  or  principally,  a  majority  of  the 
representatives  of  the  Commons.  So  long 
as  they  should  be  actuated  by  that  ardent 
spirit  of  Protestantism  and  liberty  which 
prevailed  in  the  middling  classes,  there  was 
little  prospect  of  obtaining  a  Parliament  that 
would  co-operate  with  the  Stuart  scheme 
of  government.  The  administration  of  jus- 
tice was  very  much  in  the  hands  of  their 
magisti'ates,  especially  in  Middlesex,  where 
all  juries  are  returned  by  the  city  sheriffs. 
It  was  suggested,  therefore,  by  some  crafty 
lawyers,  that  a  judgment  of  forfeiture  ob- 
tained against  the  corporation  of  London 
would  not  only  demolish  that  citadel  of  in- 
solent rebels,  but  intimidate  the  rest  of  Eng- 
land by  so  striking  an  example.  True  it 
was,  that  no  precedent  could  be  found  for 
the  forfeiture  of  corporate  privileges.  But 
general  reasoning  was  to  sei"ve  instead  of 
precedents ;  and  there  was  a  considerable 
analogy  in  the  surrenders  of  the  abbeys  un- 
der Henry  VIII.,  if  much  authority  could 
be  allowed  to  that  transaction.  An  infor- 
mation, as  it  is  called,  quo  warranto,  was 
accordingly  brought  into  the  Court  of  King's 
Bench  against  the  corporation.  Two  acts 
of  the  common  council  were  alleged  as  suf- 
ficient misdemeanors  to  warrant  a  judgment 
of  forfeiture  ;  one,  the  imposition  of  certain 
tolls  on  goods  brought  into  the  city  markets, 
by  an  ordinance  or  by-law  of  their  own ; 
the  other,  theii-  petition  to  the  king  in  De- 
cember, 1679,  for  the  sitting  of  Parliament, 
and  its  publication  throughout  the  countiy.* 
It  would  be  foreign  to  the  purpose  of  this 
work  to  inquire  whether  a  corporation  be  in 
any  case  subject  to  forfeiture,  the  affirma- 
tive of  which  seems  to  have  been  held  by 
courts  of  justice  since  the  Revolution;  or 
whether  the  exaction  of  tolls  in  their  mar- 
kets, in  consideration  of  their  erecting  stalls 
and  standings,  were  within  the  competence 
of  the  city  of  London  ;  or,  if  not  so,  wheth- 
er it  were  such  an  offense  as  could  legally 


*  See  this  petition,  Somers  Tracts,  viii.,  144. 


incur  the  penalty  of  a  total  forfeiture  and 
disfranchisement;  since  it  was  manifest  that 
the  crown  made  use  only  of  this  additional 
pretext  in  order  to  punish  the  corporation 
for  its  address  to  the  king.  The  language, 
indeed,  of  their  petition  had  been  uncourtly, 
and  what  the  adherents  of  prerogative  would 
call  insolent;  but  it  was  at  the  worst  rather 
a  misdemeanor  for  which  the  persons  con- 
cerned might  be  responsible,  than  a  breach 
of  the  trust  reposed  in  the  coi-poration. 
We  are  not,  however,  so  much  concerned 
to  argue  the  matter  of  law  in  this  question, 
as  to  I'emark  the  spirit  in  which  the  attack 
on  this  strong-hold  of  popular  liberty  was 
conceived.  The  Court  of  King's  Bench 
pronounced  judgment  of  forfeiture  against 
the  coi-poration ;  but  this  judgment,  at  the 
request  of  the  attorney -general,  was  only 
recorded ;  the  city  continued,  in  appearance, 
to  possess  its  corporate  franchises,  but  upon 
submission  to  certain  regulations,  namely, 
that  no  mayor,  sheriff,  recorder,  or  other 
chief  officer  should  be  admitted  until  ap- 
proved by  the  king;  that  in  the  event  of  his 
twice  disapproving  their  choice  of  a  mayor, 
he  should  himself  nominate  a  fit  person,  and 
the  same  in  case  of  sheriffs,  without  waiting 
for  a  second  election  ;  that  the  court  of  al- 
dermen, with  the  king's  permission,  might 
remove  any  one  of  their  body  ;  that  they 
should  have  a  negative  on  the  elections  of 
common  councilmen,  and  in  case  of  disap- 
proving a  second  choice,  have  themselves 
the  nomination.  The  corporation  submitted 
thus  to  purchase  the  continued  enjoyment 
of  its  estates,  at  the  expense  of  its  munici- 
pal independence ;  yet,  even  in  the  prostrate 
condition  of  the  Whig  party,  the  question  to 
admit  these  regulations  was  carried  by  no 
great  majority  in  the  common  councils.* 
The  city  was  of  course  absolutely  subsei-y- 
ient  to  the  court  from  this  time  to  the  Rev- 
olution. 

After  the  fall  of  the  capital,  it  was  not  to 
be  expected  that  towns  less  capable  of  de- 
fense should  stand  out.  Informations  quo 
warranto  were  brought  against  several  cor- 
porations ;  and  a  far  greater  number  has- 
tened to  anticipate  the  assault  by  voluntary 
surrenders.  It  seemed  to  be  recognized  as 
law  by  the  judgment  against  London,  that 

*  State  Trials,  viii.,  1039-1340.  Ralph,  717. 
The  majoritj'  was  but  104  to  86  ;  a  division  honor- 
able to  the  spirit  of  the  citizens. 


Cha.  II.— 1673-85.J  FROM  HENRY  VII.  TO  GEORGE  II. 


487 


any  irregularity  or  misuse  of  power  in  a  cor- 
poration might  incur  a  sentence  of  forfeit- 
ure ;  and  few  could  boast  that  they  were 
invulnerable  at  eveiy  point.  The  judges 
of  assize  in  their  circuits  prostituted  their 
influence  and  authority  to  forward  this  and 
every  other  encroachment  of  the  crown. 
Jefferies,  on  the  northern  circuit  in  1684, 
to  use  the  language  of  Charles  II. 's  most 
unblushing  advocate,  "  made  all  the  char- 
ters, like  the  walls  of  Jericho,  fall  down  be- 
fore him,  and  returned  laden  with  surren- 
ders, the  spoils  of  towns."*  They  received, 
instead,  new  charters,  framing  the  constitu- 
tion of  these  municipalities  on  a  more  oli- 
garchical model,  and  reseiTing  to  the  crown 
the  first  appointment  of  those  who  were  to 
form  the  governing  part  of  the  corporation. 
These  changes  were  gradually  brought 
about  in  the  last  three  years  of  Charles's 
reign,  and  in  the  beginning  of  the  next. 

There  can  be  nothing  so  destructive  to 
Projects  of  *®  English  Constitution,  not 
LotdRusscU  even  the  introduction  of  a  mili- 
anU  Sidney.  ^^^^  force,  as  the  exclusion  of  the 
electoral  body  from  their  franchises.  The 
people  of  this  country  are,  by  our  laws  and 
Constitution,  bound  only  to  obey  a  Parlia- 
ment duly  chosen ;  and  this  violation  of  char- 
teVs,  in  the  reigns  of  Charles  and  James, 
appeai-s  to  be  the  great  and  leading  justifi- 
cation of  that  event  which  drove  the  latter 
from  the  throne.  It  can,  therefore,  be  no 
matter  of  censure,  in  a  moral  sense,  that 
some  men  of  pure  and  patriotic  virtue,  min- 
gled, it  must  be  owned,  with  others  of  a  far 
inferior  temper,  began  to  hold  consultations 
as  to  the  best  means  of  resisting  a  govern- 
ment which,  whether  to  judge  from  these 
proceedings,  or  from  the  language  of  its  par- 
tisans, was  aiming  without  disguise  at  an  ar- 
bitrary power.  But  as  resistance  to  estab- 
lished authority  can  never  be  warrantable 
until  it  is  expedient,  we  could  by  no  means 
approve  any  schemes  of  insurrection  that 
might  be  projected  in  1682,  unless  we  could 
perceive  that  there  was  a  fair  chance  of  their 
success ;  and  this  we  are  not  led,  by  what  we 
read  of  the  spirit  of  those  times,  to  believe. 
The  tide  i-an  violently  in  another  direction ; 
the  courage  of  the  Whigs  was  broken ; 
their  adversaries  were  strong  in  numbers 
and  in  zeal ;  but  from  hence  it  is  reasonable 
to  infer  that  men  like  Lord  Essex  and  Lord 
*  North's  Examen,  626. 


Russell,  with  so  much  to  lose  by  failure, 
with  such  good  sense,  and  such  abhorrence 
of  civil  calamity,  would  not  ultimately  have 
resolved  on  the  desperate  issue  of  arms, 
though  they  might  deem  it  prudent  to  form 
estimates  of  their  strength,  and  to  knit  to- 
gether a  confederacy  which  absolute  ne- 
cessity might  call  into  action.  It  is  beyond 
doubt  that  the  supposed  conspirators  had  de- 
bated among  themselves  the  subject  of  an 
insurrection,  and  poised  the  chances  of  civil 
war.  Thus  much  the  most  jealous  lawyer, 
I  presume,  will  allow  might  be  done,  with- 
out risking  the  penalties  of  treason.  They 
had,  however,  gone  further;  and  by  con- 
certing measures  in  different  places  as  well 
as  in  Scotland,  for  a  rising,  though  contin- 
gently, and  without  any  fixed  determination 
to  cany  it  into  effect,  most  probably  (if  the 
whole  business  had  been  disclosed  in  testi- 
mony) laid  themselves  open  to  the  law,  ac- 
cording to  the  construction  it  has  frequently 
received.  There  is  a  considerable  difficulty, 
after  all  that  has  been  written,  in  stating  the 
extent  of  their  designs ;  but  I  think  we  may 
assume  that  a  wide-spreading  and  formi- 
dable insurrection  was  for  several  months  in 
agitation.*  But  the  difficulties  and  hazards 
of  the  enterprise  had  already  caused  Lord 
Russell  and  Lord  Essex  to  recede  from  the 
desperate  counsels  of  Shaftesbuiy ;  and  but 
for  the  unhappy  detection  of  the  conspiracy 
and  the  perfidy  of  Lord  Howard,  these  two 
noble  persons,  whose  lives  were  untimely 
lost  to  their  country,  might  have  survived 
to  join  the  banner  and  support  the  throne 
of  William.  It  is  needless  to  obseiTe  that 
the  minor  plot,  if  we  may  use  that  epithet 
in  reference  to  the  relative  dignity  of  the 
conspirators,  for  assassinating  the  king  and 
the  Duke  of  York,  had  no  immediate  con- 
nection with  the  schemes  of  Russell,  Essex, 
and  Sidney. f 

*  Lady  Russell's  opinion  was,  that  "it  was  no 
more  than  what  her  lord  confessed,  talk — and  it  is 
possible  that  talk  going  so  far  as  to  consider,  if  a 
remedy  for  supposed  evils  might  be  sought,  how  it 
could  be  formed." — Life  of  Lord  Russell,  p.  266. 
It  is  not  easy,  however,  to  talk  long  in  this  man- 
ner about  the  how  of  treason,  without  incun-ing  the 
penalties  of  it. 

t  See  this  business  well  discussed  by  the  acuto 
and  indefatigable  Ralph,  p.  722,  and  by  Lord  John 
Russell,  p.  253.  See,  also.  State  Trials,  ix.,  358, 
et  post.  There  appears  no  cause  for  doubting  the 
reality  of  what  is  called  the  Rye-house  Plot.  The 
case  against  Walcot— Id.,  519— was  pretty  well 


488 


COXSTITUTIOXAL  HISTOEY  OF  ENGLAND 


[Chap.  XU. 


But  it  is  by  no  mecins  a  consequence  from  I 
Th  ■  t  al    '■^^  admission  we  have  made,  that 
the  evidence  adduced  on  Lord 
Russell's  trial  was  sufficient  to  justify  his  ' 
conviction.*    It  appears  to  me  that  Lord 
Howard,  and  perhaps  Rumsej',  were  un- 
willing witnesses  ;  and  that  the  former,  as  is  ' 
frequently  the  case  with  those  who  betray 
their  fi'iends  in  order  to  save  their  own  lives, 
divulged  no  more  than  was  extracted  by  his 
own  danger.    The  testimony  of  neither  I 

proved  ;  but  his  own  confession  completely  hanged  [ 
him  and  his  friends  too.    His  attainder  was  re- 
versed after  the  Revolotion,  but  only  on  account  of 
some  technical  errors,  not  essential  to  the  merits 
of  the  case. 

*  State  Trials,  ix.,  577.  Lord  Essex  cut  his 
throat  in  the  Tower.  He  was  a  man  of  the  most 
excellent  qualities,  but  subject  to  constitutional 
melaucholy  which  overcame  his  fortitude  ;  an  event 
the  more  to  be  deplored,  as  there  seems  to  have 
been  no  possibility  of  his  being  convicted.  A  sus- 
picion, as  is  w^ell  known,  obtained  credit  with  the 
enemies  of  the  court  that  Lord  Essex  was  murder- 
ed, and  some  evidence  was  brought  forward  by  the 
zeal  of  one  Braddon.  The  late  editor  of  the  State 
Trials  seems  a  little  inclined  to  revive  this  report, 
which  even  Harris  (Life  of  Charles,  p.  352J  does 
.  not  venture  to  accredit ;  and  I  am  surprised  to  find 
Lord  John  Russell  observe,  "  It  would  be  idle,  at 
the  present  time,  to  pretend  to  give  any  opinion 
on  the  subject." — P.  182.  This  I  can  by  no  means 
admit.  VVe  have,  on  the  one  side,  some  testimo- 
nies by  children,  who  frequently  invent  and  per- 
sist in  falsehoods  with  no  conceivable  motive  ;  but, 
on  the  other  hand,  we  are  to  suppose  that  Charles 
II.  and  the  Duke  of  York  caused  a  detestable  mur- 
der to  be  perpetrated  on  one  toward  whom  they 
had  never  shown  any  hostility,  and  iji  whose  death 
they  had  no  interest.  Each  of  these  princes  had 
faults  enough;  but  I  may  venture  to  say  that  they 
were  totally  incapable  of  such  a  crime.  One  of  the 
presumptive  arguments  of  Braddon,  in  a  pamphlet 
published  long  afterward,  is,  that  the  king  and  bis 
brother  were  in  the  Tower  on  the  morning  of  Lord 
Essex's  death.  If  this  leads  to  any  thing,  we  are 
to  believe  that  Charles  the  Second,  like  the  tyrant 
in  a  Grub-street  tragedy,  came  to  kill  his  prisoner 
with  his  own  hands.  Any  man  of  ordinary  under- 
standing (which  seems  not  to  have  been  the  case 
with  Mr.  Braddon)  must  perceive  that  the  circum- 
stance tends  to  repel  suspicion  rather  than  the  con- 
trary. See  the  whole  of  this,  including  Braddon's 
pamphlet,  in  State  Trials,  ix.,  1127.  [I  am  sorry 
to  read  in  an  article  of  the  Edinburgh  Re^^ew  by 
an  eloquent  friend,  "  Essex  added  a  yet  sadder  and 
more  fearful  story  to  the  bloody  chronicles  of  the 
Tower." — Macaulay's  Essays,  iii.,  93,  and  Edin- 
buTirh  Review,  1838.  For  though  this  may  imply 
no  more  than  his  suicide,  it  will  generally  be  con- 
strued in  another  sense ;  and  surely  the  critical 
judgment  can  not  be  satisfied  with  evidence  which 
mizht  wei:;h,  as  I  have  heard  it  did,  with  the  par- 
donable prejudices  of  a  descendant. — 1845.]  [ 


witness,  especially  Howard,  was  given  with 
any  degree  of  that  precision  which  is  exact- 
ed in  modern  times ;  and,  as  we  now  read 
the  trial,  it  is  not  probable  that  a  jury  in  lat- 
er ages  would  have  found  a  verdict  of  guilty, 
or  would  have  been  advised  to  it  by  the 
court :  but,  on  the  other  hand,  if  Lord  How- 
ard were  really  able  to  prove  more  than  he 
did,  which  I  much  suspect,  a  better-con- 
ducted examination  would  probably  have 
elicited  facts  unfavorable  to  the  prisoner, 
which  at  present  do  not  appear.  It  may  be 
doubtful  whether  any  overt  act  of  treason  is 
distinctly  proved  against  Lord  Russell,  ex- 
cept his  concurrence  in  the  project  of  a  ris- 
ing at  Taunton,  to  which  Rumsey  deposes. 
But  this,  depending  on  the  oath  of  a  single 
witness,  could  not  be  sufficient  for  a  convic- 
tion. 

Pemberton,  chief-justice  of  the  Common 
Pleas,  tried  this  illustrious  prisoner  with 
more  humanity  than  was  usually  displayed 
on  the  bench  ;  but,  aware  of  his  precaiious 
tenure  in  office,  he  did  not  venture  to  check 
the  counsel  for  the  crown.  Sawyer  and  Jef- 
feries,  permitting  them  to  give  a  great  body 
of  hearsay  evidence,  with  only  the  feeble 
and  useless  remark  that  it  did  not  affect  the 
prisoner  :*  yet  he  checked  Lord  Anglesea 
when  he  offered  similar  evidence  for  the 
defense.  In  his  direction  to  the  jury,  it 
deserves  to  be  remarked  that  he  by  no 
means  advanced  the  general  proposition, 
which  better  men  have  held,  that  a  conspir- 
acy to  levy  w.ir  is  in  itself  an  overt  act  of 
compassing  the  king's  death ;  Hmiting  it  to 
cases  where  the  king's  person  might  be  put 
in  danger,  in  the  immediate  instance,  by  th© 
alleged  scheme  of  seizing  his  guai'ds.f  His 
language,  indeed,  as  recorded  in  the  printed. 


*  State  Trials,  615.  Sawyer  told  Lord  Russell, 
when  he  applied  to  have  his  trial  put  off,  that  he 
would  not  have  given  the  king  an  hour's  notice  to 
save  his  life. — Id.,  583.  Yet  he  could  not  pretend 
that  the  prisoner  had  any  concern  in  the  Assassin- 
ation Plot. 

f  The  act  annulling  Lord  Russell's  attainder  re- 
cites him  to  have  been  "  wrongfully  convicted  by 
paitial  and  unjust  constructions  of  law." — State 
Trials,  ix.,  695.  Several  pamphlets  were  publish- 
ed after  the  Revolution  by  Sir  Robert  Atkins  and 
Sir  Jolm  Hawles  against  the  conduct  of  the  court 
in  this  trial,  and  by  Sir  Bartholomew  Shower  in 
behalf  of  it.  These  are  in  the  State  Trials.  But 
Holt,  by  laj-Lng  down  the  principle  of  constructive 
treason  in  Ashton's  case,  established  forever  the 
legality  of  Pemberton's  doctrine,  and,  indeed,  car- 
ried it  a  sood  deal  farther. 


Cha.  II.— 1673-85.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


489 


trial,  was  such  as  might  have  produced  a 
verdict  of  acquittal  from  a  juiy  tolerably  dis- 
posed toward  the  prisoner;  but  the  sher- 
irts,  North  and  Rich,  who  liad  been  illegally 
thrust  into  office,  being  men  wholly  devoted 
to  the  prerogative,  had  taken  care  to  return 
a  panel  in  whom  they  could  confide.* 

The  trial  of  Algernon  Sidney,  at  which 
Jefteries,  now  raised  to  the  post  of  chief 
justice  of  the  King's  Bench,  presided,  is  as 
familiar  to  all  my  readers  as  that  of  Lord 
Russell. t  Their  names  have  been  always 
united  in  gi'ateful  veneration  and  sympathy. 
It  is  notorious  that  Sidney's  conviction  was 
obtained  by  a  most  illegal  distortion  of  the 
evidence.  Besides  Lord  Howard,  no  living 
witness  could  be  produced  to  the  conspiracy 
for  an  insurrection ;  and  though  Jefi'eries 
permitted  two  others  to  prepossess  the  jury 
by  a  second-hand  story,  he  was  compelled 
to  admit  that  their  testimony  could  not  di- 
rectly affect  the  prisoner.!  The  attorney- 
general,  therefore,  had  recourse  to  a  paper 
found  in  his  house,  which  was  given  in  evi- 
dence, either  as  an  overt  act  of  treason  by 
its  own  nature,  or  as  connected  with  the 
alleged  conspiracy  ;  for  though  it  was  only 
in  the  latter  sense  that  it  could  be  admissi- 
ble at  all,  yet  Jefferies  took  cai-e  to  insinu- 
ate, in  his  charge  to  the  jury,  that  the  doc- 
trines it  contained  were  ti-easonable  in  them- 
selves, and  without  reference  to  other  evi- 
dence. In  regard  to  truth,  and  to  that  jus- 
tice which  can  not  be  denied  to  the  worst 
men  in  their  worst  actions,  I  must  observe, 
that  the  common  accusation  against  the 
court  in  this  ti'ial,  of  having  admitted  insuf- 
ficient proof  by  the  mere  comparison  of 
hand-writing,  though  alleged,  not  only  in 
most  of  our  historians,  but  in  the  act  of  Par- 

*  Tfiere  seems  little  doubt  that  the  juries  were 
packed  throush  a  conspiracy  of  the  sheriffs  with 
Biytou  and  Graham,  solicitors  for  the  crowo. — 
State  Trials,  ix.,  932.  These  two  men  ran  awaj' 
at  the  Revolution ;  but  Roger  North  vhidicates 
their  characters,  and  those  who  trast  in  liim  may 
think  them  honest.  t  State  Trials,  ix.,  818. 

t  Id.,  846.  Yet  in  summing  up  the  evidence  he 
repeated  all  West  and  Keeling  had  thus  said  at 
second-hand,  without  reminding  the  jurj'  that  it 
was  not  legal  testimony. — Id.,  899.  It  would  be 
said  by  his  advocates,  if  any  are  left,  that  these 
witnesses  must  have  been  left  out  of  the  question, 
since  there  could  otherwise  have  been  no  dispute 
about  the  written  paper.  But  they  were  undoubt- 
edly intended  to  prop  up  Howard's  evidence,  which 
had  been  so  much  shaken  by  his  previous  declara- 
tion, that  he  knew  of  no  conspiracy.  | 


liament  reversing  Sidney's  attainder,  does 
not  appear  to  bo  well  founded ;  the  testi- 
mony to  that  fact,  unless  the  printed  trial  is 
falsified  in  an  extraordinary  degi'ee,  being 
such  as  would  be  received  at  present.*  We 
may  allow,  also,  that  the  passages  from  this 
paper,  as  laid  in  the  indictment,  containing 
veiy  strong  assertions  of  the  right  of  the 
people  to  depose  an  unworthy  king,  might 
by  possibility,  if  connected  by  other  evidence 
with  the  consi)iracy  itself,  have  been  ad- 
missible as  presumptions  for  the  jury  to 
consider  whether  they  had  been  written  in 
furtherance  of  that  design  ;  but  when  they 
came  to  be  read  on  the  trial  with  their  con- 
text, though  only  with  such  parts  of  that  as 
the  attorney-general  chose  to  produce  out 
of  a  voluminous  manuscript,  it  was  clear 
that  they  belonged  to  a  theoretical  work  on 
government,  long  since,  perhaps,  written, 
and  incapable  of  any  bearing  upon  the  other 
evidence. f 

The  manifest  iniquity  of  this  sentence 
upon  Algernon  Sidney,  as  well  as  the  high 
courage  he  displayed  throughout  these  last 


*  This  is  pointed  out,  perhaps  for  the  first  time, 
in  an  excellent  modem  law-book,  Phillipps's  Law 
of  Evidence.  Yet  the  act  for  the  reversal  of  Sid- 
ney's attainder  declares  in  the  preamble,  that  "  the 
paper,  supposed  to  be  his  hand-writing,  was  not 
proved  by  the  testimony  of  any  one  witness  to  be 
written  by  him,  but  the  jury  was  directed  to  be- 
lieve it  by  comparing  it  with  other  writings  of  the 
said  Algernon." — State  Trials,  997.  This  does  not 
appear  to  have  been  the  case  ;  and  though  Jeffe- 
ries is  said  to  have  garbled  the  manuscript  trial 
before  it  was  printed  (for  all  the  trials,  at  tliis  time, 
were  published  by  authority,  which  makes  them 
much  better  evidence  against  the  judges  than  for 
them),  yet  he  can  hardly  have  substituted  so  much 
testimony  without  its  attracting  the  notice  of  At- 
kins and  Hawles,  who  wrote  after  the  Revolution. 
However,  in  Hayes's  case,  State  Trials,  x.,  312, 
though  the  prisoner's  hand  writing  to  a  letter  was 
proved  in  the  usual  way  by  persons  who  had  seen 
him  write,  yet  this  letter  was  also  shown  to  the 
jury,  along  with  some  of  his  acknowledged  writing, 
for  the  purpose  of  their  comparison.  [See,  also, 
the  ti-ial  of  the  seven  bishops. — Id.,  xii.,  295.]  It 
is  possible,  therefore,  that  the  same  may  have  been 
done  on  Sidney's  trial,  though  the  circumstance 
does  not  appear.  Jefi'eries  indeed  says,  "  Compar- 
ison of  hands  was  allowed  for  good  proof  in  Sid- 
ney's case."— Id.,  313.  But  I  do  not  believe  that 
the  expression  was  used  in  that  age  so  precisely 
as  it  is  at  present ;  and  it  is  well  known  to  law- 
yers that  the  rules  of  evidence  on  this  subject  have 
only  been  distinctly  laid  down  within  the  memory 
of  the  present  generation. 

t  See  Han-is's  Lives,  v.,  347. 


490 


COXSTITUTIOXAL  HISTOaY  OF  ENGLAND 


[Chap.  XIL 


scenes  of  his  life,  have  inspired  a  sort  of  en- 
thusiasm for  his  name,  which  neither  what 
we  know  of  his  stoiy,  nor  the  opinion  of  his 
cotemporaries,  seem  altogether  to  warrant. 
The  crown  of  martyrdom  should  be  suf- 
fered, perhaps,  to  exalt  eveiy  virtue,  and 
efface  every  defect  in  patriots,  as  it  has  oft- 
en done  in  saints.  In  the  faithful  miiTor 
of  history,  Sidney  may  lose  something  of 
this  luster.  He  possessed,  no  doubt,  a  pow- 
erful, active,  and  undaunted  mind,  stored 
with  extensive  reading  on  the  topics  in 
which  he  delighted ;  but  having  proposed 
one  only  object  for  his  political  conduct,  the 
establishment  of  a  republic  in  England,  his 
pride  and  inflexibility,  though  they  gave  a 
dignity  to  his  character,  rendered  his  views 
narrow  and  his  temper  unaccommodating. 
It  was  evident  to  every  reasonable  man  that 
a  Republican  government,  being  adverse  to 
the  prepossessions  of  a  great  majority  of 
the  people,  could  only  be  brought  about  and 
maintained  by  the  force  of  usurpation.  Yet 
for  this  idol  of  his  speculative  hours,  he  was  | 
content  to  sacrifice  the  liberties  of  Europe, 
to  plunge  the  countiy  in  civil  wai',  and  even 
to  stand  indebted  to  France  for  protection. 
He  may  justly  be  suspected  of  having  been 
the  chief  promoter  of  tlie  dangerous  cabals 
withBarillon;  nor  could  any  tool  of  Charles's 
court  be  more  sedulous  in  representing  the 
aggressions  of  Louis  XIV.  in  the  Nether- 
lands as  indifferent  to  our  honor  and  safety. 

Sir  Thomas  Armstrong,  who  had  fled  to 
Holland  on  the  detection  of  the  Plot,  was 
given  up  by  the  States.  A  sentence  of  out- 
lawry, which  had  passed  against  him  in  his 
absence,  is  equivalent,  in  cases  of  treason, 
to  a  conviction  of  the  crime ;  but  the  law  i 
allows  the  space  of  one  year,  during  which 
the  party  may  surrender  himself  to  take  his 
trial.  Armstrong,  when  brought  before  the 
court,  insisted  on  this  right,  and  demanded 
a  trial.  Nothing  could  be  more  evident,  in 
point  of  law,  than  that  he  was  entitled  to  it; 
but  Jefferies,  with  inhuman  rudeness,  treat-  j 
ed  his  claim  as  wholly  unfounded,  and  would 
not  even  suffer  counsel  to  be  heard  in  his 
behalf.  He  was  executed,  accordingly, 
without  trial.*  But  it  would  be  too  prolix 
to  recapitulate  all  the  instances  of  brutal  in- 
justice, or  of  cowardly  subsei-viencj',  which 
degi'aded  the  English  la\\-yers  of  the  Stuart 
period,  and  never  so  infamously  as  in  these 
»  State  Trials,  x.,  305. 


last  years  of  Charles  II.  From  this  pros- 
titution of  the  tribunals,  from  the  intermis- 
sion of  Parliaments,  and  the  steps  taken  to 
render  them,  in  future,  mere  puppets  of  the 
crown,  it  was  plain  that  all  constitutional 
securities  were  at  least  in  abeyance;  and 
those  who  felt  themselves  most  obnoxious, 
or  whose  spirit  was  too  high  to  live  in  an 
enslaved  counti-y,  retired  to  Holland  as  an 
asylum  in  which  they  might  wait  the  oc- 
casion of  better  prospects,  or,  at  the  worst, 
breathe  an  air  of  liberty. 

Meanwhile,  the  prejudice  agamst  the 
Whig  party,  which  had  reached  so  great  a 
height  in  1681,  was  still  further  enhanced 
by  the  detection  of  the  late  conspiracy.  The 
atrocious  scheme  of  assassination,  alleged 
against  Walcot  and  some  others  who  had 
suffered,  was  blended  by  the  arts  of  the 
court  and  clergy,  and  by  the  blundering  cre- 
dulity of  the  gentry,  with  those  less  heinous 
projects  ascribed  to  Lord  Russell  and  his 
associates.*  These  projects,  if  true  in  their 
I  full  extent,  were  indeed  such  as  men  hon- 
estly attached  to  the  government  of  their 
countiy  could  not  fail  to  disapprove.  For 
this  purpose,  a  declaration  fuU  of  malicious 
insinuations  was  ordered  to  be  read  in  all 
churches. f  It  was  generally  commented 
upon,  we  may  make  no  question,  in  one  of 
those  loyal  discourses,  which,  trampling  on 
all  truth,  charity,  and  moderation,  had  no 
other  scope  than  to  inflame  the  hearers 
against  non-conforming  Protestants,  and  to 
throw  obloquy  on  the  constitutional  privi- 
leges of  the  subject. 

It  is  not  my  intention  to  censure,  in  any 
strong  sense  of  the  word,  the  An-  „.  ,  _ 

"  High  Tory 

i  glican  clergy  at  this  time  for  their  pnuciples  of 
assertion  of  absolute  non-resist-  ^^'^'Si  ■ 
ance,  so  far  as  it  was  done  without  calumny 
and  insolence  toward  those  of  another  way 
of  thinking,  and  without  self-interested  ad- 
ulation of  the  ruling  power.  Their  error 
was  very  dangerous,  and  had  nearly  proved 
I  destructive  of  the  whole  Constitution ;  but 
it  was  one  which  had  come  down  with  high 
recommendation,  and  of  which  they  could 

*  The  grand  jury  of  XorthamptoDshire,  in  1683, 
"  present  it  as  verj-  expedient  and  necessarj-  for 
securing  the  peace  of  this  coantry,  that  all  ill-af- 
fected persons  may  give  security  for  the  peace ;" 
specifj-ing  a  number  of  gentlemen  of  the  first  fam- 
ilies, as  the  names  of  Montagu,  Langham,  4c, 
show. — Somers  Tracts,  yiii.,  409. 

t  Kalph,  p.  763.    Harris's  Lives,  v.,  321. 


Cka.  II.— 1673-85.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


491 


oiily,  perhaps,  be  undeceived,  as  men  are 
best  undeceived  of  most  errors,  by  experi- 
ence that  it  might  hurt  themselves.  It  was 
the  tenet  of  their  homilies,  their  canons, 
their  most  distinguished  divines  and  casu- 
ists ;  it  had  the  apparent  sanction  of  the 
Legislature  in  a  statute  of  the  present  reign. 
Many  excellent  men,  as  was  shown  after 
the  Revolution,  who  had  never  made  use 
of  this  doctrine  as  an  engine  of  faction  or 
private  interest,  could  not  disentangle  their 
minds  fi'om  the  arguments  or  the  authority 
on  which  it  rested ;  but  by  too  great  a  num- 
ber it  was  eagerly  brought  forward  to  serve 
the  purposes  of  arbitrary  power,  or  at  best 
to  fix  the  wavering  Protestantism  of  the 
court  by  professions  of  unimpeachable  loy- 
alty. To  this  motive,  in  fact,  we  may  trace 
a  good  deal  of  the  vehemence  with  which 
the  non-resisting  principle  had  been  origi- 
nally advanced  by  the  Church  of  England 
under  the  Tudors,  and  was  continually 
urged  under  the  Stuarts.  If  we  look  at  the 
tracts  and  sermons  published  by  both  par- 
ties after  the  Restoration,  it  will  appear 
manifest  that  the  Romish  and  Anglican 
churches  bade,  as  it  were,  against  each 
other  for  the  favor  of  the  two  royal  broth- 
ers. The  one  appealed  to  its  acknowl- 
edged principles,  while  it  denounced  the 
pretensions  of  the  Holy  See  to  release  sub- 
jects from  their  allegiance,  and  the  bold  the- 
ories of  popular  government  which  Mariana 
and  some  other  Jesuits  had  promulgated. 
The  others  retaliated  on  the  first  movers 
of  the  Reformation,  and  expatiated  on  the 
usurpation  of  Lady  Jane  Grey,  not  to  say 
Elizabeth,  and  the  Republicanism  of  Knox 
or  Calvin. 

From  the  era  of  the  Exclusion  Bill  espe- 
Passive  cially  to  the  deatli  of  Charles  II., 
obedience,  g,  number  of  books  were  published 
in  favor  of  an  indefeasible  hereditary  right 
of  the  crown,  and  of  absolute  non-resistance. 
These  were,  however,  of  two  very  different 
classes.  The  authors  of  the  first,  who  were 
perhaps  the  more  numerous,  did  not  deny 
tlie  legal  limitations  of  monarchy.  They 
admitted  that  no  one  was  bound  to  concur 
in  the  execution  of  unlawful  commands. 
Hence  the  obedience  they  deemed  indis- 
pensable was  denominated  passive  ;  an  epi- 
thet which  in  modern  usage  is  little  more 
than  redundant,  but  at  that  time  made  a 
sensible  distinction.    If  all  men  should  con- 


fine themselves  to  this  line  of  duty,  and 
merely  refuse  to  become  the  instruments 
of  such  unlawful  commands,  it  was  evident 
that  no  tyranny  could  be  carried  into  effect. 
If  some  should  be  wicked  enough  to  co-op- 
erate against  the  liberties  of  their  country, 
it  would  still  be  the  bounden  obligation  of 
Christians  to  submit.  Of  this,  which  may 
be  reckoned  the  moderate  party,  the  most 
eminent  were  Hickes  in  a  treatise  called 
Jovian,  and  Sherlock  in  his  case  of  resist- 
ance to  the  supreme  powers.*    To  this, 

*  This  book  of  Sherlock,  printed  iu  1684,  is  the 
most  able  treatise  ou  that  side.  His  proposition 
is,  that  "  sovereigTi  princes,  or  the  supreme  power 
iu  any  nation,  in  whomsoever  placed,  is  in  all  cases 
irresistible."  He  infers  from  the  statute  13  Car. 
II.,  declaring  it  unlawful,  under  any  pretense,  to 
wage  war,  even  defensive,  against  the  king,  that 
the  supreme  power  is  in  him  ;  for  he  who  is  unac- 
countable and  irresistible  is  supreme.  There  are 
some,  he  owns,  who  contend  that  the  higher  pow- 
ers mentioned  by  St.  Paul  meant  the  law,  and  that 
when  princes  violate  the  laws  we  may  defend  their 
legal  authority  against  their  personal  usurpations. 
He  answers  this  very  feebly.  "  No  law  can  come 
into  the  notion  and  definition  of  supreme  and  sov- 
ereign powers ;  such  a  prince  is  under  the  direc- 
tion, but  can  not  possibly  be  said  to  be  under  the 
govenunent  of  the  law,  because  there  is  no  supe- 
rior power  to  take  cognizance  of  his  breach  of  it, 
and  a  law  has  no  authority  to  govern  where  there 
is  no  power  to  punish." — P.  114.  "These  men 
think,"  he  says,  p.  126,  "that  all  civil  authority  is 
founded  in  consent,  as  if  there  were  no  natural  lord 
of  the  world,  or  all  mankind  came  free  and  inde- 
pendent into  the  world.  This  is  a  contradiction  to 
what  at  other  times  they  will  grant,  that  the  insti- 
tution of  civil  power  and  authority  is  from  God ; 
and,  indeed,  if  it  be  not,  I  know  not  how  any  prince 
can  justify  the  taking  away  the  life  of  any  man, 
whatever  crime  he  has  been  guilty  of;  for  no  man 
has  power  of  his  own  life,  and  therefore  can  not 
give  this  power  to  another ;  which  proves  that  the 
power  of  capital  punishments  can  not  result  from 
mere  consent,  but  from  a  superior  authority,  which 
is  lord  of  life  and  death."  This  is  plausibly  urged, 
and  is  not  refuted  in  a  moment.  He  next  comes 
to  an  objection,  which  eventually  he  was  compell- 
ed to  admit,  with  some  discredit  to  his  consistency 
and  disinterestedness.  "  '  Is  the  power  of  victo- 
rious rebels  and  usurpers  from  God?  Did  Oliver 
Cromwell  receive  his  power  from  God  ?  then,  it 
seems,  it  was  unlawful  to  resist  him  too,  or  to  con- 
spire against  bim ;  then  all  those  loyal  subjects 
who  refused  to  submit  to  him  when  he  had  got  the 
power  in  his  hands  were  rebels  and  traitors.'  To 
this  I  answer,  that  the  most  prosperous  rebel  is 
not  the  higher  x)owers,  while  our  natural  prince, 
to  whom  we  owe  obedience  and  subjection,  is  in 
being ;  and,  therefore,  though  such  men  may  get 
the  power  into  their  hands  by  God's  permission, 
yet  not  by  God's  ordinance ;  and  he  who  resists 


492 


CONSTITUTIONAL  HISTORY  OF  ENGLANT) 


[Chap.  XIL 


also,  must  have  belonged  Archbishop  San- 
croft,  and  the  great  body  of  non-juring 
clergy  who  had  refused  to  read  the  Decla- 
ration of  Indulgence  under  James  II.,  and 
whose  conduct  in  that  respect  would  be  ut- 
terly absurd,  except  on  the  supposition  that 
there  existed  some  lawful  boundaries  of  the 
royal  authority. 

But  besides  these  men,  who  kept  some 
Some  cun-  measures  with  the  Constitution, 
absolu'te  while,  by  their  slavish  tenets, 

power.  they  laid  it  open  to  the  assaults  of 
more  intrepid  enemies,  another  and  a  pret- 
ty considerable  class  of  writers  did  not  hesi- 
tate to  avow  their  abhorrence  of  all  limita- 
tions upon  arbitrary  power.  Brady  went 
back  to  the  primary  sources  of  our  histoiy, 
and  endeavored  to  show  that  Magna  Charta, 
as  well  as  eveiy  other  constitutional  law, 
were  but  rebellious  encroachments  on  the 
ancient  uncontrollable,  imprescriptible  pre- 
rogatives of  the  monarchy.  His  writings, 
replete  with  learning  and  acuteness,  and  in 
some  respects  with  just  remarks,  though 
often  unfair  and  always  partial,  naturally 
produced  an  effect  on  those  who  had  been 
accustomed  to  value  the  Constitution  rather 
for  its  presumed  antiquity  than  its  real  ex- 
cellence. But  the  author  most  in  vogue 
with  the  partisans  of  despotism  was  Sir 
Sir  Robert  Robert  Filmer.    He  had  lived  be- 

Filmer.  f(jj.g  (}jg  gjyij  -^yg^j.^  ljuj  IjJs  posthu- 
mous writings  came  to  light  about  this  pe- 
riod. They  contain  an  elaboi'ate  vindica- 
tion of  what  was  called  the  patriarchal 
scheme  of  government,  which,  rejecting 
with  scorn  that  original  conti-act  whence 
human  society  had  been  supposed  to  spring, 
derives  all  legitimate  authority  from  that 
of  primogeniture,  the  next  heir  being  king 


them  does  not  resist  the  ordinance  of  God,  but  the 
usurpatioua  of  men.  In  hereditary  kingdoms,  the 
king  never  dies ;  but  the  same  minute  that  the 
natural  person  of  one  king  dies,  the  crown  descends 
upon  the  next  of  blood ;  and  therefore  he  who  re- 
belleth  against  the  father  and  murders  him,  con- 
tinues a  rebel  in  the  reign  of  the  son,  which  com- 
mences with  his  father's  death.  It  is  otherwise, 
indeed,  where  none  can  pretend  a  greater  title  to 
tlie  crown  than  tlie  usurper,  for  there  possession 
of  power  seems  to  give  a  right." — P.  127. 

Slierlock  began  to  preach  in  a  very  different 
manner  as  soon  as  James  showed  a  disposition  to 
set  up  his  own  church.  "  It  is  no  act  of  loj  alty," 
he  told  the  House  of  Commons,  May  29,  1685,  "  lo 
accommodate  or  comphment  away  our  religion  and 
its  legal  securities. " — Good  Advice  to  the  Pulpits. 


by  divine  right,  and  as  incapable  of  being 
restrained  in  his  sovereignty  as  of  being 
excluded  from  it.  "As  kingly  power,"  he 
says,  "  is  by  the  law  of  God,  so  hath  it  no 
inferior  power  to  limit  it.  The  father  of  a 
family  governs  by  no  other  law  than  his 
own  will,  not  by  the  laws  and  wills  of  his 
sons  and  servants."*  ''  The  direction  of 
the  law  is  but  like  the  advice  and  direction 
which  the  king's  council  gives  the  king, 
which  no  man  says  is  a  law  to  the  king."t 
"  General  laws,"  he  observes,  "  made  in 
Parliament,  may,  upon  known  respects  to 
the  king,  by  his  authority  be  mitigated  or 
suspended  upon  causes  only  known  to  him ; 
and  by  the  coronation  oath,  he  is  only  bound 
to  observe  good  laws,  of  which  he  is  the 
judge. "t  "  A  man  is  bound  to  obey  the 
king's  command  against  law  ;  nay,  in  some 
cases,  against  divine  laws."§  In  another 
treatise,  entitled  the  Anarchy  of  a  Mixed 
or  Limited  Monarchy,  he  inveighs,  with 
no  kind  of  reserve  or  exception,  against  the 
regular  Constitution;  setting  off  with  an  as- 
sumption that  the  Parliament  of  England 
was  originally  but  an  imitation  of  the  States 
General  of  France,  which  had  no  further 
power  than  to  present  requests  to  the  king.|| 
These  treatises  of  Filmer  obtained  a 
very  favorable  reception.  We  find  the  pa- 
triarchal origin  of  government  frequently 
mentioned  in  the  publications  of  this  time 
as  an  undoubted  truth.  Considered  with 
respect  to  his  celebrity  rather  than  his  tal- 
ents, he  was  not,  as  some  might  imagine, 
too  ignoble  an  adversary  for  Locke  to  have 
combated.  Another  person,  far  superior  to 
Filmer  in  political  eminence,  undertook  at 
the  same  time  an  unequivocal  defense  of 
absolute  monarchy.  This  was  Su-  George 
Mackenzie,  the  famous  lord-advo-  sir  George 
cate  of  Scotland.  In  his  Jus  Re-  Mackenzie, 
glum,  published  in  1664,  and  dedicated  to 
the  Universitj'  of  Oxford,  he  maintains  that 
"  monarchy  in  its  nature  is  absolute,  and 
consequently  these  pretended  limitations 
are  against  the  nature  of  monarchy." H 
'•  Whatever  proves  monarchy  to  be  an  ex- 
cellent government,  does  by  the  same  reas- 
on prove  absolute  monarchy  to  be  the  best 

*  P.  81.      t  P.  95.     t  P-  9S,  100.     §  P.  100. 

II  This  treatise,  subjoined  to  one  of  greater  length, 
entitled  the  Freeholder's  Grand  Inquest,  was  pub- 
lished in  IfiTO,  but  the  Patriarcha  not  till  16S5. 

t  P.  39. 


Cha.  II.— 1G73-85.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


493 


government ;  for  if  monarchy  be  to  be  com- 
mended because  it  prevents  divisions,  then 
a  limited  monarchy,  which  allows  the  peo- 
ple a  share,  is  not  to  be  commended,  be- 
cause it  occasions  them ;  if  monarchy  be 
commended  because  there  is  more  expedi- 
tion, secrecy,  and  other  excellent  qualities 
to  be  found  in  it,  then  absolute  monarchy  is 
to  be  commended  above  a  limited  one,  be- 
cause a  limited  monachy  must  impart  his 
secrets  to  the  people,  and  must  delay  the 
noblest  designs,  until  malicious  and  factious 
spirits  be  either  gained  or  overcome ;  and 
the  same  analogy  of  reason  will  hold  in  re- 
flecting upon  all  other  advantages  of  mon- 
archy, the  examination  whereof  I  dare  trust 
to  every  man's  own  bosom."*  We  can 
hardly,  after  this,  avoid  being  astonished  at 
the  effrontery,  even  of  a  Scots  crown  law- 
yer, when  we  read  in  the  preface  to  this 
very  treatise  of  Mackenzie,  "  Under  whom 
can  we  expect  to  be  free  from  arbitraiy  gov- 
ernment, when  we  were  and  are  afraid  of 
it  under  King  Charles  I.  and  King  Charles 
11.?" 

It  was  at  this  time  that  the  University  of 
_        ,  ,    Oxford  published  their  celebrated 

Decree  of  the  ' 

University  of  decree  against  pernicious  books 
Oxfoid.  damnable  doctrines,  enumer- 

ating as  such  above  twenty  propositions, 
which  they  anathematized  as  false,  sedi- 
tious, and  impious.  The  first  of  these  is, 
that  all  civil  authority  is  derived  originally 
from  the  people  ;  the  second,  that  there  is  a 
compact,  tacit  or  express,  between  the  king 
and  his  subjects ;  and  others  follow  of  the 
same  description.  They  do  not  explicitly 
condemn  a  limited  monarchy,  like  Filiner, 
but  evidentlj'  adopt  his  scheme  of  primo- 
genitary  right,  which  is,  perhaps,  almost  in- 
compatible with  it ;  nor  is  there  the  slight- 
est intimation  that  the  University  extended 
their  censure  to  such  praises  of  despotic 
power  as  have  been  quoted  in  the  last 
pages. t  This  decree  was  publicly  burned 
by  an  order  of  the  House  of  Lords  in  1709 ; 
nor  does  there  seem  to  have  been  a  single 
dissent  in  that  body  to  a  step  that  cast  such 
a  stigma  on  the  University.  But  the  dis- 
grace of  the  offense  was  greater  than  that 
of  the  punishment. 

We  can  frame  no  adequate  conception 
of  the  jeopardy  in  which  our  liberties  stood 
*  pTTe! 

t  Collier,  902.    Soniers  Tracts,  420. 


under  the  Stuarts,  especially  iii  this  partic- 
ular period,  without  attending  to  this  spirit 
of  seiTility  which  had  been  so  sedulously 
excited.  It  seemed  as  if  England  was 
about  to  play  the  scene  which  Denmark 
had  not  long  since  exhibited,  by  a  spontane- 
ous surrender  of  its  Constitution  ;  and  al- 
though this  loyalty  were  much  more  on  the 
tongue  than  in  the  heart,  as  the  next  reign 
very  amply  disclosed,  it  served,  at  least,  to 
deceive  the  court  into  a  belief  that  its  future 
steps  would  be  almost  without  difficulty. 
It  is  uncertain  whether  Charles  would  have 
summoned  another  Parliament.  He  either 
had  the  intention,  or  professed  it  in  order 
to  obtain  money  from  France,  of  convoking 
one  at  Cambridge  in  the  autumn  of  1681  ;* 
but  after  the  scheme  of  new-modeling  cor- 
porations began  to  be  tried,  it  was  his  policy 
to  wait  the  effects  of  this  regeneration.  It 
was  better  still,  in  his  judgment,  to  dispense 
with  the  Commons  altogether.  The  peri- 
od fixed  by  law  had  elapsed  nearlj'  twelve 
months  before  his  death,  and  we  have  no 
evidence  that  a  new  Parliament  was  in  con- 
templation. But  Louis,  on  the  other  hand, 
having  discontinued  his  annual  subsidy  to 
the  king  in  1684,  after  gaining  Strasburg 
and  Luxemburg  by  his  conniv-  _ 

,  .  Connection 

ance,  or,  rather,  co-operation, f  it  with  Louis 
would  not  have  been  easy  to  avoid 
a  recurrence  to  the  only  lawful  source  of 
revenue.  The  King  of  France,  it  should 
be  observed,  behaved  toward  Charles  as 
men  usually  ti-eat  the  low  tools  by  whose 
corinption  they  have  obtained  any  end. 
During  the  whole  course  of  their  long  ne- 
gotiations, Louis,  though  never  the  dupe  of 
our  wretched  monarch,  was  compelled  to 

*  Dalrymple,  Appendix,  8.  Life  of  James,  691. 
He  pretended  to  come  into  a  proposal  of  the  Dutch 
for  an  alliance  with  Spain  and  the  empire  against 
the  fresh  encroachments  of  France,  and  to  call  a 
Parliament  for  that  purpose,  hut  with  no  sincere 
intention,  as  he  assured  Barillon.  "  Je  n'ai  aucune 
intention  d'assembler  le  Parlement;  ces  sont  des 
diables  qui  veulent  ma  ruiue." — Dalrymple,  15. 

t  He  took  100,000  livres  for  allowing  the  French 
to  seize  Luxemburg  ;  after  this  he  offered  his  arbi- 
tration, and  on  Spain's  refusal,  laid  the  fault  on 
her,  though  already  bribed  to  decide  in  favor  of 
France.  Lord  Rochester  was  a  party  in  all  these 
base  transactions.  The  acquisition  of  Luxemburg 
and  Sti-asburg  was  of  the  utmost  importance  to 
Louis,  as  they  gave  him  a  predominating  influence 
over  the  four  Rhenish  electors,  through  whom  he 
hoped  to  procure  the  election  of  the  dauphin  as 
king  of  the  Romans. — Id.,  3C. 


494 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIIL 


endure  his  shuffling  evasions,  and  pay  dear- 
ly for  his  base  compliances ;  but  when  he 
saw  himself  no  longer  in  need  of  them,  it 
seems  to  have  been  in  revenge  that  he  per- 
mitted the  publication  of  the  secret  treaty 
of  1670,  and  withdrew  his  pecuniary  aid. 
Charles  deeply  resented  both  these  marks 
of  desertion  in  his  ally.  In  addition  to 
them,  he  discovered  the  intrigues  of  the 
French  ambassadors  with  his  malcontent 
Commons.  He  perceived,  also,  that  by 
bringing  home  the  Duke  of  York  from  Scot- 
land, and  restoring  him,  in  defiance  of  the 
Test  Act,  to  the  privy  coimcil,  he  had  made 
the  presumptive  heir  of  the  throne,  pos- 


sessed as  he  was  of  superior  steadiness  and 
attention,  too  near  a  rival  to  himself  These 
reflections  appear  to  have  depressed  his 
mind  in  the  latter  months  of  his  life,  and  to 
have  produced  that  remarkable  private  rec- 
onciliation with  the  Duke  of  Monmouth, 
through  the  influence  of  Lord  Halifax, 
which,  had  he  lived,  would  very  probably 
have  displayed  one  more  revolu- 
tion  m  the  uncertam  pobcy  of 
this  reign.*  But  a  death,  so  sudden  and 
inopportune  as  to  excite  suspicions  of  poison 
in  some  most  nearly  connected  with  him, 
gave  a  more  decisive  character  to  the  sys- 
I  tem  of  government.t 


CHAPTER  Xin. 
ON  THE  STATE  OP  THE  CONSTITUTION  UNDER  CHARLES  H. 


Effect  of  tlie  Press. — Restrictions  upon  it  before 
and  after  the  Restoration. — Licensing  Acts. — 
Political  Writings  checked  by  the  Judges. — 
Instances  of  illegal  Proclamations  not  numer- 
ous.—  Juries  fined  for  Verdicts. —  Question  of 
their  Right  to  return  a  general  Verdict. — Habe- 
as Corpus  Act  passed.  —  Differences  between 
Lords  and  Commons. — Judicial  Powers  of  the 
Lords  historically  traced.  —  Their  Pretensions 
about  the  Time  of  the  Restoration. — Resistance 
made  by  the  Commons. — Dispute  about  their 
orisrinal  Jurisdiction,  and  that  in  Appeals  from 
Courts  of  Equity.  —  duestion  of  the  exclusive 
Right  of  the  Commons  as  to  Money  BiUs. — Its 
History. — The  Right  extended  further. — State 
of  the  Upper  House  under  the  Tudors  and  Stu- 
arts.— Augmentation  of  tlie  Temporal  Lords. — 
State  of  the  Commons. — Increase  of  their  Mem- 
bers.— duestion  as  to  Rights  of  Election. — Four 
different  Theories  as  to  the  original  Principle. — 
Their  ProbabUity  considered. 

It  may  seem  rather  an  extraordinary 
position,  after  the  last  chapters,  yet  is  strict- 
ly true,  that  the  fundamental  privileges  of 
the  subject  were  less  invaded,  the  preroga- 
tive swened  into  fewer  excesses,  during 
the  reign  of  Charles  II.  than  in  any  foiTner 
pei'iod  of  equal  length.  Thanks  to  the  pa- 
triotic energies  of  Selden  and  Eliot,  of  Pym 
and  Hampden,  the  constitutional  boundaries 
of  I'oyal  power  had  been  so  well  established 
that  no  minister  was  daring  enough  to  at- 
tempt any  flagi-ant  and  general  violation  of 
them.  The  frequent  session  of  Parlia- 
ment, and  its  high  estimation  of  its  own 
privileges,  furnished  a  security  against  ille- 
gal taxation.  Nothing  of  this  sort  has  been 
imputed  to  the  government  of  Charles,  the 


first  King  of  England,  perhaps,  whose  reign 
was  wholly  fi'ee  from  such  a  charge :  and 
as  the  nation  happily  escaped  the  attempts 
that  were  made  aft:er  the  Restoration  to  re- 
vive the  Star  Chamber  and  High  Commis- 
sion courts,  there  were  no  means  of  chastis- 

*  Dalrjmple,  Appendix,  74.  Burnet.  Mazure, 
Hist,  de  la  Revolution  de  1688,  i.,  340,  372.  This 
is  confirmed  by,  or  rather  confirms,  the  very  curions 
notes  found  in  the  Duke  of  Monmouth's  pocket- 
book  when  he  was  taken  after  the  battle  of  Sedge- 
moor,  and  published  in  the  appendix  to  Welwood's 
Memoirs.  Tbousrh  we  should  rather  see  more  ex- 
ternal evidence  of  their  authenticity  than,  so  far  as 
I  know,  has  been  produced,  they  have  great  marks 
of  it  in  themselves  ;  and  it  is  not  impossible  that, 
after  the  Revolution,  Welwood  may  have  obtained 
them  from  the  secretary  of  state's  ofiice. 

t  It  is  mentioned  by  Mr.  Fox,  as  a  tradition  in 
the  Duke  of  Richmond's  familj",  that  the  Duchess 
of  Portsmouth  beUeved  Charles  II.  to  have  been 
poisoned.  This  I  find  confirmed  in  a  letter  read  on 
the  trial  of  Francis  Francia,  indicted  for  treason  in 
1715.  "The  Duchess  of  Portsmouth,  who  is  at 
present  here,  gives  a  great  deal  of  offense,  as  I  am 
informed,  by  pretending  to  prove  that  the  late 
King  James  had  poisoned  his  brother  Charles ;  it 
was  not  expected,  that  after  so  many  years'  retire- 
ment in  France,  she  should  come  hither  to  revive 
that  vulgar  report,  which  at  so  critical  a  time  can 
not  be  for  any  good  purpose." — State  Trials,  xv., 
948.  It  is  almost  needless  to  say  that  the  suspi- 
cion was  wholly  unwarrantable. 

I  have  since  been  informed,  on  the  best  authority, 
that  Mr.  Fox  did  not  derive  his  authority  from  a 
tradition  in  the  Duke  of  Richmond's  family,  that 
of  his  own  mother,  as  bis  editor  had  very  naturally 
conjectured,  but  from  his  father,  the  first  Lord 
Holland,  who,  wliile  a  young  man  traveling  in 
France,  had  become  acquainted  with  the  Duchess 
of  Portsmouth. 


Cha.  II.- Constitution.]        FROM  HENRY  VII.  TO  GEORGE  II. 


495 


ing  political  delinquencies  except  through 
the  regular  tribunals  of  justice  and  through 
the  verdict  of  a  jury.  Ill  as  the  one  were 
often  constituted,  and  submissive  as  the 
other  might  often  be  found,  they  afforded 
something  more  of  a  guarantee,  were  it 
only  by  the  publicitj'  of  their  proceedings, 
than  the  dark  and  silent  divan  of  courtiers 
and  prelates,  who  sat  in  judgment  under 
the  two  former  kings  of  the  house  of  Stuart. 
Though  the  bench  was  frequently  subservi- 
ent, the  bar  contained  high-spirited  advo- 
cates, whose  firm  defense  of  their  clients 
the  judges  often  reproved,  but  tio  longer 
affected  to  punish.  The  press,  above  all, 
was  in  continual  service.  An  eagerness  to 
peruse  cheap  and  ephemeral  tracts  on  all 
subjects  of  passing  interest  had  prevailed 
ever  since  the  Reformation.  These  had 
been  exti-aordinarily  multiplied  from  the 
meeting  of  the  Long  ParliaTuent.  Some 
thousand  pami)hlets  of  different  descrip- 
tions, written  between  that  time  and  the 
Restoration,  may  be  foimd  in  the  British 
Museum  ;  and  no  collection  can  be  suppos- 
ed to  be  perfect.  It  would  have  required 
the  summary  process  and  stern  severity  of 
the  Court  of  Star  Chamber  to  repress  this 
ton'ent,  or  reduce  it  to  those  bounds  which 
a  government  is  apt  to  consider  as  secure. 
But  the  measures  taken  with  this  view 
under  Charles  II.  require  to  be  distinctly 
noticed. 

In  the  reign  of  Heni-y  VIII.,  when  the 
Effect  of  the  political  importance  of  the  art  of 
press.  Re-  printing,  especially  in  the  great 

stnctions       '  ^  ,      t,  i- 

upon  it  be-  question  01  the  Reformation,  be- 
ter^he  Res-  S^"  f°  apprehended,  it  was 
toration.  thought  necessaiy  to  assume  an 
absolute  conti'ol  over  it,  partly  by  the  king's 
general  prerogative,  and  still  more  by  virtue 
of  his  ecclesiastical  supremacy.*    Thus  it 

*  It  was  said  iu  18  Car.  II.  (1666),  that  "the 
king  by  the  common  lavs'  hath  a  general  preroga- 
tive over  the  printing-press,  so  that  none  ought  to 
print  a  book  for  public  use  without  his  license." 
This  seems,  however,  to  have  been  in  the  argu- 
ment of  counsel ;  but  the  court  held  that  a  patent 
to  print  law-books  exclusively  was  no  monopoly. — 
Carter's  Reports,  89.  "  Matters  of  state  and  things 
that  concern  the  government,"  it  is  said  in  another 
case,  "  were  never  left  to  any  man's  liberty  to 
print  that  would." — 1  Mod.  Rep.,  258.  Kennet  in- 
forms us  that  several  complaints  having  been  made 
of  Lilly's  Grammar,  the  use  of  which  had  been 
prescribed  by  the  roj  al  ecclesiastical  supremacy, 
it  was  thought  proper  in  1664  that  a  new  public 


became  usual  to  grant  by  letters  patent  the 
exclusive  right  of  printing  the  Bible  or 
religious  books,  and  afterward  all  others. 
The  privilege  of  keeping  presses  was  limit- 
ed to  the  members  of  the  Stationers'  Com- 
pany, who  were  bound  by  regulations  es- 
tablished in  the  reign  of  Mary  by  the  Star 
Chamber,  for  the  contravention  of  which 
they  incurred  the  speedy  chastisement  of 
that  vigilant  tribunal.  These  regulations 
not  only  limited  the  number  of  presses,  and 
of  men  who  should  be  employed  on  them, 
but  subjected  new  publications  to  the  pre- 
vious inspection  of  a  licenser.  The  Long 
Parliament  did  not  hesitate  to  copy  this 
precedent  of  a  tyranny  they  had  over- 
thrown; and  by  repeated  ordinances  against 
unlicensed  printing,  hindered,  as  far  as  in 
them  lay,  this  gi-eat  instiatment  of  political 
power  from  serving  the  purposes  of  their 
adversaries.  Every  government,  however 
popular  in  name  or  origin,  must  have  some 
uneasiness  from  the  great  mass  of  the  mul- 
titude, some  vicissitudes  of  public  opinion  to 
apprehend  ;  and  experience  shows  that  re- 
publics, especially  in  a  revolutionary  season, 
shrink  as  instinctively,  and  sometimes  as 
reasonably,  from  an  open  license  of  the 
tongue  and  pen,  as  the  most  jealous  court. 
We  read  the  noble  apology  of  Milton  for 
the  freedom  of  the  press  with  admiration  ; 
but  it  had  little  influence  on  the  Parliament 
to  whom  it  was  addressed. 

It  might  easily  be  anticipated,  from  the 
general  spirit  of  Lord  Clarendon's  Urensing 
administration,  that  he  would  not 
suffer  the  press  to  emancipate  itself  from 
these  established  shackles.*  A  bill  for  the 
regulation  of  printing  failed  in  1661,  from 
the  Commons'  jealousy  of  the  peers,  who 
had  inserted  a  clause  exempting  their  own 
houses  from  search. f  But  next  year  a 
statute  was  enacted,  which,  reciting  "  the 
well-government  and  regulating  of  printers 

form  of  grammar  should  be  drawn  np  and  approved, 
in,  convocation,  to  be  enjoined  by  the  royal  author- 
ity. One  was  accordingly  brought  in  by  Bishop 
Peai'son,  but  the  matter  dropped. — Life  of  Charles 
IL,  274. 

*  We  find  an  order  of  council,  June  7, 1660,  that 
the  Stationers'  Company  do  seize  and  deliver  to 
the  secretary  of  state  all  copies  of  Buchanan's  His- 
tory of  Scotland,  and  De  Jure  Regni  apud  Scotos, 
"  which  are  very  pernicious  to  monarchy,  and  inju- 
rious to  his  majesty's  blessed  progenitors." — Ken- 
net's  Register,  176.    This  was  beginning  eariy. 

t  Commons'  Journals,  July  29,  1661. 


496 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIII. 


and  printing-pi'esses  to  be  matter  of  public 
care  and  concernment,  and  tbat  by  the  gen- 
eral licentiousness  of  the  late  times  many 
evil-disposed  persons  had  been  encouraged 
to  print  and  sell  heretical  and  seditious 
boolis,"  prohibits  every  private  person  from 
printing  any  book  or  pamphlet,  unless  en- 
tered with  the  Stationers'  Company,  and 
duly  licensed  in  the  following  manner:  to 
wit,  books  of  law  by  the  chancellor  or  one 
of  the  chief  justices,  of  history  and  politics 
by  the  secretaiy  of  state,  of  heraldry  by 
the  kings  at  arms,  of  divinity,  phj'sic,  or 
philosophy,  by  the  Bishops  of  Canterbury 
or  London,  or,  if  printed  at  either  Univers- 
ity, by  its  chancellor.  The  numijer  of  mas- 
ter printers  was  limited  to  twenty :  they 
were  to  give  security,  to  affix  their  names, 
and  to  declare  the  author,  if  required  by  the 
licenser.  The  king's  messengers,  by  war- 
rant from  a  secretary  of  state,  or  the  mas- 
ter and  wardens  of  the  Stationers'  Compa- 
ny, were  empowered  to  seize  unlicensed 
copies  wherever  they  should  think  fit  to 
search  for  them,  and,  in  case  they  should 
find  any  unlicensed  book  suspected  to  con- 
tain matters  contrary  to  the  Church  or 
State,  they  were  to  bring  them  to  tlie  two 
bishops  before  mentioned,  or  one  of  the  sec- 
retaries. No  books  were  allowed  to  be 
printed  out  of  London,  except  in  York  and 
in  the  Universities.  The  penalties  for 
printing  without  license  were  of  course 
heavy.*  This  act  was  only  to  last  three 
years  ;  and  after  being  twice  renewed  (the 
last  time  until  the  conclusion  of  the  first 
session  of  the  next  Parliament),  expired 
consequently  in  1679;  an  era  when  the 
House  of  Commons  were  happily  in  so  dif- 
ferent a  temper  that  any  attempt  to  revive 
it  must  have  proved  abortive.  During  its 
continuance,  the  business  of  licensing  books 
was  intrusted  to  Sir  Roger  L'Estrange,  a 
well-known  pamphleteer  of  that  age,  and 
himself  a  most  scun'ilous  libeler  in  behalf 
of  the  party  he  espoused,  that  of  popery 
and  despotic  power.  It  is  hardly  necessa- 
ry to  remind  the  reader  of  the  objections 
that  were  raised  to  one  or  two  lines  in  Par- 
adise Lost. 

Though  a  previous  license  ceased  to  be 
Poiiiicai  wri-  necessaiy,  it  was  held  by  all  the 
ed  by'the''''  J^'^S^^'  li^^i^g  ™Gt  for  this  pur- 
judges.        pose  (if  we  believe  Chief-justice 
*  14  Car.  II.,  c.  33. 


I  Scroggs)  by  the  king's  command,  that  all 
I  books  scandalous  to  the  government  or  to 
private  persons  may  be  seized,  and  the  au- 
thors or  those  exposing  them  punished ; 
and  that  all  writers  of  false  news,  though 
not  scandalous  or  seditious,  are  indictable 
on  that  account.*  But  in  a  subsequent  trial 
he  informs  the  jury  that  "  when,  by  the 
king's  command,  we  were  to  give  in  our 
opinion  what  was  to  be  done  in  point  of  reg- 
ulation of  the  press,  we  did  all  subscribe 
that  to  print  or  publish  any  news,  books,  or 
pamphlets  of  news  whatsoever,  is  illegal ; 
that  it  is  a  manifest  intent  to  the  breach  of 
the  peace,  and  they  may  be  proceeded 
against  by  law  as  an  illegal  thing.f  Sup- 
pose, now,  that  this  thing  is  not  scandalous, 
what  then  ]  If  there  had  been  no  reflec- 
tion in  this  book  at  all,  yet  it  is  illicite,  and 
the  author  ought  to  be  convicted  for  it ;  and 
that  is  for  a  public  notice  to  all  people,  and 
especially  printers  and  booksellers,  that  they 
ought  to  print  no  book  or  pamphlet  of  news 
whatsoever  without  authority."  The  pre- 
tended libel  in  this  case  was  a  periodical 
pamphlet,  entitled  the  Weekly  Pacquet  of 
Advice  from  Rome  ;  being  rather  a  virulent 
attack  on  popeiy  than  serving  the  purpose  of 
a  newspaper.  These  extraordinary  propo- 
sitions were  so  fiir  from  being  loosely  ad- 
vanced, that  the  Court  of  King's  Bench 
pi-oceeded  to  make  an  order  that  the  book 
should  no  longer  be  printed  or  published  by 
any  person  whatsoever.t  Such  an  order 
was  evidently  be3-ond  the  competence  of 
that  couit,  were  even  the  prerogative  of  the 
king  in  council  as  high  as  its  warmest  ad- 
vocates could  sti'ain  it.  It  formed,  accord- 
ingly, one  article  of  the  impeachment  voted 
*  State  Trials,  vii.,  929. 

t  This  declaration  of  the  judges  is  recorded  in 
tlie  following  passage  of  the  London  Gazette,  Maj- 
5,  1G80 :  "  This  day  the  judges  made  their  report 
to  his  majesty  in  council,  in  pursuance  of  an  order 
of  this  board,  by  which  they  unanimously  declare 
that  liis  majesty  may  hy  law  prohibit  the  printing 
and  publishing  of  all  news-books  and  pamphlets  of 
news  wliatsoever  not  licensed  by  his  majesty's  au- 
thority, as  manifestly  tending  to  the  breach  of  the 
peace  and  disturbance  of  the  kingdom :  where- 
upon his  majesty  was  pleased  to  direct  a  procla- 
mation to  be  prepared  for  the  restraining  the  print- 
ing of  news-books  and  pamphlets  of  news  without 
leave."  Accordingly,  such  a  proclamation  t^pears 
in  the  Gazette  of  May  17.  ' 

t  State  Trials,  vii.,  1127;  viii.,  184,  197.  Even 
North  seems  to  admit  that  this  was  a  stretch  of 
power. — Examen,  564. 


Cha.  ir.— Constitution.]        FROM  HENRY  VII.  TO  GEORGE  II. 


497 


against  Scroggs  in  the  next  session.*  An- 
other was  for  issuing  general  warrants  (that 
is,  waiTauts  wherein  no  names  are  men- 
tioned) to  seize  seditious  libels  and  appre- 
hend their  authors. f  But  this  impeach- 
ment having  fallen  to  the  ground,  no  check 
was  put  to  general  wairants,  at  least  from 
the  secretaiy  of  state,  till  the  famous  judg- 
ment of  the  Court  of  Common  Pleas  in 
1763. 

Those  encroachments  on  the  legislative 
Instances  of   Supremacy  of  Parliament,  and 

iamirtions''not  ^^^^  personal  rights  of  the  sub- 
numerous,  ject,  by  means  of  ])roclamations 
issued  from  the  privy  council,  which  had 
rendered  former  princes  of  both  the  Tudor 
and  Stuart  families  almost  arbitrary  mas- 
ters of  their  people,  had  fallen  with  the  odi- 
ous tribunal  by  which  they  were  enforced. 
The  king  was  restored  to  nothing  but  what 
the  law  had  preserved  to  him.  Few  in- 
stances appear  of  illegal  proclamation  in  his 
reign.  One  of  these,  in  1665,  required  all 
officers  and  soldiers  who  had  served  in  the 
wmies  of  the  late  usurped  powers  to  depart 
the  cities  of  London  and  Westminster, 
and  not  to  return  within  twenty  miles  of 
them  before  the  November  following.  This 
seems  connected  with  the  well-gi-ounded 
apprehension  of  a  Republican  conspiracy. t 
Another,  immediately  after  the  fire  of  Lon- 
don, directed  the  mode  in  which  houses 
should  be  rebuilt,  and  enjoined  the  loi'd- 
mayor  and  other  city  magistrates  to  pull 
down  whatsoever  obstinate  and  refractory 
persons  might  presume  to  erect  upon  pre- 
tense that  the  ground  was  their  own ;  and 
especially  that  no  houses  of  timber  should  be 
erected  for  the  future. §  Though  the  pub- 
He  benefit  of  this  last  restriction,  and  of  some 
regulations  as  to  the  rebuilding  of  a  city 
which  had  been  desti-oyed  in  great  measure 
through  the  want  of  them,  was  sufficiently 
manifest,  it  is  impossible  to  justify  the  tone 
and  tenor  of  this  proclamation ;  and  more 
particularly  as  the  meeting  of  Parliament 
was  veiy  near  at  hand.    But  an  act  having 

*  State  Trials,  viii.,  163. 

t  It  seems  that  these  warrants,  though  usual, 
were  known  to  be  against  the  law. — State  Trials, 
vii.,  949,  93G.  Possibly  they  might  have  been  jus- 
tified under  the  words  of  the  Licensing  Act,  while 
that  was  in  force  ;  and  having  been  thus  introduced, 
were  not  laid  aside. 

t  Rennet's  Charles  II.,  277 

j  State  Trials,  vi.,  837. 

I  I 


passed  therein  for  the  same  purpose,  the 
proclamation  must  be  considered  as  having 
had  little  effect.  Another  instance,  and  far 
less  capable  of  extenuation,  is  a  proclama- 
tion for  shutting  up  coffee-houses,  in  De- 
cember, 1675.  I  have  already  mentioned 
this  as  an  intended  measure  of  Loi'd  Clar- 
endon. Coffee-houses  were  all,  at  that 
time,  subject  to  a  license,  granted  by  the 
magistrates  at  quarter  sessions ;  but,  the 
licenses  having  been  gi-anted  for  a  certain 
time,  it  was  justly  questioned  whether  they 
could  in  any  manner  be  revoked.  This 
proclamation  being  of  such  disputable  legal- 
ity, the  judges,  according  to  North,  were 
consulted,  and  intimating  to  the  council  that 
they  were  not  agreed  in  opinion  upon  the 
most  material  questions  submitted  to  them, 
it  seemed  advisable  to  recall  it.*  In  this 
essential  matter  of  proclamations,  therefore, 
the  administration  of  Charles  IL  is  very 
advantageously  compared  with  that  of  his 
father ;  and  considering,  at  the  same  time, 
the  entire  cessation  of  impositions  of  money 
without  consent  of  Parliament,  we  must 
admit  that,  however  dark  might  be  his  de- 
signs, there  were  no  such  general  infringe- 
ments of  public  liberty  in  his  reign  as  had 
continually  occurred  before  the  Long  Par- 
liament. 

One  undeniable  fundamental  privilege 
had  sm-vived  the  shocks  of  every  revolution ; 
and  in  the  worst  times,  except  those  of  the 
late  usurpation,  had  been  the  standing  rec- 
ord of  primeval  liberty — the  trial  by  jury  : 
whatever  infringement  had  been  made  on 
this,  in  many  cases  of  misdemeanor,  by  the 
present  jurisdiction  of  the  Star  Chamber, 
it  was  impossible,  after  the  bold  reformers 
of  1641  had  lopped  off  that  unsightly  ex- 
crescence from  the  Constitution,  to  prevent 
a  criminal  charge  fi'om  passing  the  legal 
course  of  investigation  through  the  inquest 
of  a  grand  jury,  and  the  verdict  in  open 
court  of  a  potty  jury.  But  the  judges,  and 
other  ministers  of  justice,  for  the  sake  of 
their  own  authority  or  that  of  the  crown, 
devised  various  means  of  subjecting  juries  to 
their  own  direction,  by  intimidation,  by  un- 
fair returns  of  the  panel,  or  by  narrowing 
the  boundaries  of  their  lawful  function.  It 

*  Ralph,  297.  North's  Examen,  139.  Keimet, 
337.  Hume  of  course  pretends  that  this  proclama- 
tion would  have  been  reckoned  legal  in  former 
times. 


498 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIH 


is  said  to  have  been  the  practice  in  early 
Juries  finnd  times,  as  I  have  mentioned  from 
for  verdicts,  gij-  Thomas  Smith  in  another 
place,  to  fine  juries  for  returning  verdicts 
against  the  direction  of  the  court,  even  as 
to  matter  of  evidence,  or  to  summon  them 
before  the  Star  Chamber.  It  seems  that 
instances  of  this  kind  were  not  very  nu- 
merous after  the  accession  of  Elizabeth ; 
yet  a  small  number  occur  in  our  books  of 
reports.  They  were  probably  sufficient  to 
keep  juries  in  much  awe.  But  after  the 
Restoration,  two  judges,  Hyde  and  Keeling, 
successively  chief  justices  of  the  King's 
Bench,  took  on  them  to  exercise  a  pretend- 
ed power,  which  had  at  least  been  inter- 
mitted in  the  time  of  the  Commonweailth. 
The  grand  jury  of  Somerset  having  found 
a  bill  for  manslaughter  instead  of  murder, 
against  the  advice  of  the  latter  judge,  were 
summoned  before  the  Court  of  King's 
Bench,  and  dismissed  with  a  reprimand  in- 
stead of  a  fine.*  In  other  cases  fines  were 
set  on  petty  juries  for  acquittals  against  the 
judge's  direction.  This  unusual  and  dan- 
gerous inroad  on  so  important  a  right  at- 
tracted the  notice  of  the  House  of  Com- 
mons :  and  a  committee  was  appointed,  who 
reported  some  sti'ong  resolutions  against 
Keeling  for  illegal  and  arbitrarj'  proceedings 
in  his  office,  the  last  of  which  was,  that  he 
be  brought  to  tiial,  in  order  to  condign  pun- 

*  "  Sir  Hugh  Wyndliam  and  others  of  the  grand 
jury  of  Somerset  were  at  the  last  assizes  bound 
over,  by  Lord-chief-justice  Keeling,  to  appear  at 
the  King's  Bench  the  first  day  of  this  term,  to 
answer  a  misdemeanor  for  finding  upon  a  bill  of 
murder,  'billa  vera  quoad  manslaughter,'  against 
the  directions  of  the  judge.  Upon  their  appear- 
ance, they  were  told  by  the  court,  being  full,  that 
it  was  a  misdemeanor  in  them,  for  they  are  not  to 
distinguish  betwixt  murder  and  manslaughter;  for 
it  is  only  the  circumstance  of  malice  which  makes 
the  difference,  and  that  may  be  implied  by  the  law, 
■without  any  fact  at  all,  and  so  it  lies  not  in  the 
judgment  of  a  jury,  but  of  the  judge  ;  that  the  in- 
tention of  their  finding  indictments  is,  that  there 
might  be  no  malicious  prosecution  ;  and,  therefore, 
if  the  matter  of  the  indictment  be  not  framed  of 
malice,  but  is  verisimilis,  though  it  be  not  vera,  yet 
it  answers  their  oatlis  to  present  it.  Twisden  said 
he  had  known  petty  juries  punished  in  my  Lord- 
chief  justice  Hyde's  time  for  disobeying  of  the 
judge's  directions  in  point  of  law  ;  but,  because  it 
was  a  mistake  in  their  judgments  rather  than  an 
obstinacy,  the  court  discharged  them  without  any 
fine  or  other  attendance." — Pasch.  19  Car.  II.  Keel- 
ing, Ch.  J.  Twisden,  Wyndham,  Morton,  justices. 
Hargrave  MSS.,  vol.  339. 


I  ishment,  in  such  manner  as  the  House 
should  deem  expedient;  but  the  chief-jus- 
tice, having  requested  to  be  heard  at  the 
bar,  so  far  extenuated  his  offense,  that  the 
House,  after  resolving  that  the  practice  of 
fining  or  imprisoning  jurors  is  illegal,  came 
to  a  second  resolution  to  proceed  no  further 
against  him.* 

I  The  precedents,  however,  which  these 
judges  endeavored  to  establish,  Question  of 
were  repelled  in  a  more  decisive     "■  f 'ght  to 

*  return  agen- 

manner  than  by  a  resolution  of  erai  verdict, 
the  House  of  Commons ;  for  in  two  cases 
where  the  fines  thus  imposed  upon  jurors 
had  been  estreated  into  the  Exchequer, 
Hale,  then  chief  baron,  with  the  advice  of 
most  of  the  judges  of  England,  as  he  informs 
us,  stayed  process ;  and  in  a  subsequent 
case,  it  was  resolved  by  all  the  judges  ex- 
cept one  that  it  was  against  law  to  fine  a 
jury  for  giving  a  verdict  contrary  to  the 
court's  direction  ;  yet,  notwithstanding  this 
veiy  recent  determination,  the  recorder  of 
London,  in  1670,  upon  the  acquittal  of  the 

i  Quakers,  Penn  and  Mead,  on  an  indictment 
for  an  unla^vful  assembly,  imposed  a  fine  of 

'  forty  marks  on  each  of  the  jury.f  Bush- 
ell,  one  of  their  number,  being  committed 
for  non-payment  of  this  fine,  sued  his  writ 

!  of  habeas  corpus  from  the  Court  of  Com- 

1  mon  Pleas ;  and,  on  the  return  made,  that 
he  had  been  committed  for  finding  a  verdict 
against  full  and  manifest  evidence,  and 
against  the  direction  of  the  court.  Chief- 
justice  Vaughan  held  the  ground  to  be  in- 
sufficient, and  discharged  the  party.  In  hig 
reported  judgment  on  this  occasion,  he 
maintains  the  practice  of  fining  jurors,  mere- 
ly on  this  account,  to  be  comparatively  re- 
cent, and  clearly  against  law.J  No  later 
instance  of  it  is  recorded ;  and  perhaps  it 
can  only  be  ascribed  to  the  violence  that 
still  prevailed  in  the  House  of  Commons 
against  Non-conformists,  that  the  recorder 
escaped  its  animadversion. 

In  this  judgment  of  the  Chief-justice 
Vaughan,  he  was  led  to  enter  on  a  question 
much  controverted  in  later  times,  the  legal 
right  of  the  jiuy,  without  the  du-ection  of 
the  judge,  to  find  a  general  verdict  in  crim- 
inal cases,  where  it  determines  not  only  the 
truth  of  the  facts  as  deposed,  but  their  qual- 

*  Journals,  16th  of  Oct.,  1667. 

t  State  Trials,  vi.,  967. 

t  Vaughan's  Reports.    State  Trials,  v.,  999. 


Cha.  II.— Constitution.]         FROM  HENRY  VII.  TO  GEORGE  II. 


49d 


ity  of  guilt  or  innocence ;  or,  as  it  is  com- 
monly, though  not,  perhaps,  quite  accurate- 
ly worded,  to  judge  of  the  law  as  well  as 
the  fact.  It  is  a  received  maxim  with  us, 
that  the  judge  can  not  decide  on  questions 
of  fact,  nor  the  j  ury  on  those  of  law.  When- 
ever the  general  principle,  or  what  may  be 
termed  the  major  proposition  of  the  syllo- 
gism, which  every  litigated  case  contains, 
can  be  extracted  from  the  particular  cir- 
cumstances to  which  it  is  supposed  to  ap- 
ply, the  court  pronounce  their  own  determ- 
ination, without  reference  to  a  jury.  The 
province  of  the  latter,  however,  though  it 
properly  extend  not  to  any  general  decision 
of  the  law,  is  certainly  not  bounded,  at  least 
in  modern  times,  to  a  mere  estimate  of  the 
truth  of  testimony.  The  intention  of  the 
litigant  parties  in  civil  matters,  of  the  ac- 
cused in  crimes,  is  in  every  case  a  matter 
of  inference  from  the  testimony  or  from  the 
acknowledged  facts  of  the  case  ;  and  wher- 
ever that  intention  is  material  to  the  issue, 
is  constantly  left  for  the  jury's  deliberation. 
There  are,  indeed,  rules  in  criminal  proceed- 
ings which  supersede  this  consideration,  and 
where,  as  it  is  expressed,  the  law  presumes 
the  intention  in  determining  the  offense. 
Thus,  in  the  common  instance  of  murder  or 
manslaughter,  the  juiy  can  not  legally  de- 
termine that  provocation  to  bo  sufficient 
which  by  the  settled  rules  of  law  is  other- 
wise ;  nor  can  they,  in  any  casef  set  up  nov- 
el and  arbitrary  consti'uctions  of  their  own 
witliout  a  disregard  of  their  duty.  Unfor- 
tunately, it  has  been  sometimes  the  dispo- 
sition of  judges  to  claim  to  themselves  the 
absolute  interpretation  of  facts,  and  the  ex- 
clusive right  of  drawing  inferences  from 
them,  as  it  has  occasionally,  though  not, 
perhaps,  with  so  much  danger,  been  the 
failing  of  juries  to  make  their  right  of  re- 
turning a  general  verdict  subservient  to  fac- 
tion or  prejudice.  Vaughan  did  not,  of 
course,  mean  to  encoiirage  any  petulance  in 
juries  that  should  lead  them  to  pronounce  on 
the  law,  nor  does  he  expatiate  so  largely  on 
their  power  as  has  sometimes  since  been 
usual ;  but  confines  himself  to  a  narrow, 
though  conclusive  line  of  argument,  that  as 
every  issue  of  fact  must  be  supported  by 
testimony,  upon  the  truth  of  which  the  jury 
are  exclusively  to  decide,  they  can  not  be 
guilty  of  any  legal  misdemeanor  in  returning 
their  verdict,  though  apparently  against  the  j 


I  direction  of  the  court  in  point  of  law,  since 
it  can  not  ever  be  proved  that  they  believed 
the  evidence  upon  which  that  direction  must 
have  rested.* 

I  have  already  pointed  out  to  the  read- 
er's notice  that  article  of  Claren-  „  , 

Habeas 

don's  impeachment  which  charges  Corpus  Act 
him  with  having  caused  many  per-  P**^'"'' 
sons  to  bo  imprisoned  against  law.f  These 
were  released  by  the  Duke  of  Bucking- 
ham's administration,  which  in  several  re- 
spects acted  on  a  more  liberal  principle  than 
any  other  in  this  reign.  The  practice  was 
not,  however,  wholly  discontinued.  Jenkes, 
a  citizen  of  London  on  the  popular  or  fac- 
tious side,  having  been  committed  by  the 
king  in  council  for  a  mutinous  speech  in 
(juildhall,  the  justices  at  quarter  sessions 
refused  to  admit  him  to  bail,  on  pretense 
that  he  had  been  conuuitted  by  a  superior 
court;  or  to  try  him,  because  he  was  not 
entered  in  the  calendar  of  prisoners.  The 
chancellor,  on  application  for  a  habeas  cor- 
pus, declined  to  issue  it  during  the  vacation  ; 
and  the  chief-justice  of  the  King's  Bench, 
to  whom,  in  the  next  place,  the  friends  of 
Jenkes  had  recourse,  made  so  many  diffi- 
culties that  he  lay  in  prison  for  seVeral 
weeks. t  This  has  been  commonly  said  to 
have  produced  the  famous  Act  of  Habeas 
Corpus.  But  this  is  not  ti"uly  stated.  The 
ai'bitraiy  proceedings  of  Lord  Clarendon 
were  what  really  gave  rise  to  it.  A  bill  to 
prevent  the  refusal  of  the  writ  of  habeas 
corpus  was  brought  into  the  House  on  April 
10,  1668,  but  did  not  pass  the  committee  in 
that  session  ;§  but  another  to  the  same  pur- 
pose, probably  more  remedial,  was  sent  up 
to  the  Lords  in  March,  1669-70.  ||  It  failed 
of  success  in  the  Upper  House ;  but  the 
Commons  continued  to  repeat  their  strag- 
gle for  this  important  measure,  and  in  the 

*  See  Hargrave's  judicious  observations  on  the 
province  of  juries. — State  Trials,  vi.,  1013. 

t  Those  who  were  confined  by  wan-ants  were 
forced  to  buy  their  liberty  of  the  courtiers ;  "which," 
says  Pepys  (July  7,  1G67),  "is  a  most  lamentable 
thing  that  we  do  professedly  own  that  we  do  these 
things,  not  for  right  and  justice'  sake,  but  only  to 
gratify  this  or  that  person  about  the  king." 

t  State  Trials,  vi.,  1189. 

§  Commons'  Journals.  As  the  titles  only  of 
these  bills  are  entered  in  the  Journals,  their  pur- 
port can  not  be  stated  with  absolute  certainty. 
They  might,  however,  I  suppose,  be  found  in  some 
of  the  offices. 

11  Pari.  Hist.,  661.    It  was  opposed  by  the  couit 


500 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XIII 


session  of  1673-4  passed  two  bills,  one  to 
prevent  the  imprisoument  of  the  subject  in 
jails  beyond  the  seas,  another  to  give  a  more 
expeditious  use  of  the  writ  of  habeas  corpus 
in  criminal  matters.*  The  same  or  similar 
bills  appear  to  have  gone  up  to  the  Lords  in 
1C75.  It  was  not  till  1676  that  the  delay 
of  Jenkes's  habeas  corpus  took  place ;  and 
this  affair  seems  to  have  had  so  trifling  an 
influence,  that  these  bills  were  not  revived 
for  the  next  two  years,  notwithstanding  the 
tempests  that  agitated  the  House  during 
that  period  ;f  but  in  the  short  Parliament 
of  1679,  they  appear  to  have  been  consoli- 
dated into  one,  that  having  met  with  better 
success  among  the  Lords,  passed  into  a 
statute,  and  is  generally  denominated  the 
Habeas  Corpus  Act.f 

It  is  a  veiy  common  mistake,  and  that  not 
only  among  foi-eigners,  but  many  from  whom 
some  knowledge  of  oar  constitutional  laws 
might  be  expected,  to  suppose  that  this  stat- 
ute of  Charles  II.  enlarged  in  a  great  de- 
gi'ee  our  liberties,  and  forms  a  sort  of  epoch 
in  their  histoiy ;  but  though  a  very  benefi- 
cial enactment,  and  eminently  remedial  in 
many  cases  of  illegal  imprisonment,  it  intro- 
duced no  new  principle,  nor  conferred  any 

*  In  this  session,  Feb.  14,  a  committee  was  ap- 
pointed to  inspect  the  laws,  and  consider  how  the 
king  may  commit  any  subject  by  his  immediate 
warrant,  as  the  law  now  stands,  and  report  the 
same  to  the  House,  and  also  how  the  law  now 
stands  touchingr  commitments  of  persons  by  the 
council-table.  Ralph  supposes  fp.  25.5)  that  this 
gave  rise  to  the  Habeas  Corpus  Act,  which  is  cer- 
tainly not  the  case.  The  statute  16  Car.  I.,  c.  10, 
seems  to  recognize  the  legality  of  commitments  by 
the  king's  special  waiTant,  or  by  the  privy  council, 
or  some,  at  least,  of  its  members  singly  ;  and  prob- 
ably this,  with  long  usage,  is  sufficient  to  support 
the  controverted  authority  of  the  secretary  of  state. 
As  to  the  privy  council,  it  is  not  doubted,  1  believe, 
that  they  may  commit.  But  it  has  been  held,  even 
in  the  worst  of  times,  that  a  warrant  of  commit- 
ment under  the  king's  own  hand,  without  seal,  or 
the  hand  of  any  secretary,  or  officer  of  state,  or  jus- 
tice, is  bad.— 2  Jac.  II.,  B.  R.    2  Shower,  484. 

t  In  the  Parliamentary  History,  845,  we  find  a 
debate  on  the  petition  of  one  Harrington  to  the 
Commons,  in  1677,  who  had  been  committed  to  close 
custody  by  the  council.  But  as  his  demeanor  was 
alleged  to  have  been  disrespectful,  and  the  right 
of  the  council  to  commit  was  not  disputed,  and  es- 
pecially as  he  seems  to  have  been  at  liberty  when 
tlie  debate  took  place,  no  jjroceedings  ensued, 
though  the  commitment  had  not  been  altogether 
regular.  Ralph  {p.  314)  comments  more  severely 
on  the  behavior  of  the  House  than  was  necessarj'. 

t  31  Car.  II.,  c.  2. 


right  upon  the  subject.  From  the  earliest 
records  of  the  English  law,  no  freemaa 
could  be  detained  in  prison  except  upon  a 
criminal  charge  or  conviction,  or  for  a  civil 
debt.  In  the  former  case,  it  was  always  m 
his  power  to  demand  of  the  Court  of  King's 
Bench  a  writ  of  habeas  coi-pus  ad  subjicien- 
dum, directed  to  the  person  detaining  him 
in  custody,  by  which  he  was  enjoined  to 
bring  up  the  body  of  the  prisoner,  with  the 
wan-ant  of  commitment,  that  the  court  might 
judge  of  its  sufficiency,  and  remand  the 
party,  admit  him  to  bail,  or  discharge  him, 
according  to  the  nature  of  the  charge.  This 
writ  issued  of  right,  and  could  not  be  re- 
fused by  the  court.  It  was  not  to  bestow 
an  immunity  from  arbitrary  imprisonment, 
which  is  abundantly  provided  in  Magna 
Charta  (if,  indeed,  it  were  not  much  more 
ancient),  that  the  statute  of  Charles  II.  was 
enacted  ;  but  to  cut  off  the  abuses,  by  which 
the  government's  lust  of  power,  and  the 
servile  subtlety  of  crown  lawyers,  had  im- 
paired so  fundamental  a  privilege. 

There  had  been  some  doubts  whether  the 
Court  of  Common  Pleas  could  issue  this 
writ ;  and  the  Court  of  Exchequer  seems 
never  to  have  done  so.*  It  was  also  a  ques- 
tion, and  one  of  more  impoitance,  as  we 
have  seen  in  the  case  of  .lenkes,  whether  a 
single  judge  of  the  Court  of  King's  Bench 
could  issue  it  during  the  vacation.  The 
statute  therefore  enacts,  that  where  any 
person,  other  than  persons  convicted  or  in 
execution  upon  legal  process,  stands  com- 
mitted for  any  crime,  except  for  treason  or 
felony  plainly  expressed  in  the  warrant  of 
commitment,  he  may,  during  the  vacation, 
complain  to  the  chancellor,  or  any  of  the 
twelve  judges,  who,  upon  sight  of  a  copy  of 
the  waiTant,  or  an  affidavit  that  a  copy  is 
denied,  shall  award  a  habeas  corpus  directed 
to  the  officer  in  whose  custody  the  party 
shall  be,  commanding  him  to  bring  up  the 
body  of  his  prisoner  within  a  time  limited, 
according  to  the  distance,  but  in  no  case  ex- 
ceeding twenty  days,  who  shall  discharge 
the  party  from  imprisonment,  taking  surety 
for  his  appearance  in  the  court  wherein  his 
offense  is  cognizable.  A  jailer  refusing  a 
copy  of  the  warrant  of  commitment,  or  not 

*  The  puisne  judges  of  the  Common  Pleas  grant- 
ed a  habeas  corpus,  against  the  opinion  of  Chief- 
justice  Vaughan,  who  denied  the  court  to  have 
that  power. — Carter's  Reports,  221. 


Cha  n.— Constitution.]       FROM  HENRY  VII.  TO  GEORGE  H. 


501 


obeying  the  writ,  is  subjected  to  a  penalty 
of  d£]  00  ;  and  oven  the  judge  denying  a  ha- 
beas corpus,  when  required  according  to 
this  act,  is  made  liable  to  a  penalty  of  c£500, 
at  the  suit  of  the  injured  party.  The 
Court  of  King's  Bench  had  already  been 
accustomed  to  send  out  their  writ  of  habeas 
corpus  into  all  places  of  peculiar  and  privi- 
leged jurisdiction,  where  this  ordinary  pro- 
cess does  not  run,  and  even  to  the  island  of 
Jersey,  beyond  the  strict  limits  of  the  king- 
dom of  England;*  and  this  power,  which 
might  admit  of  some  question,  is  sanctioned 
by  a  declaratory  clause  of  the  present  stat- 
ute. Another  section  enacts  that  "  no  sub- 
ject of  this  realm  that  now  is,  or  hereafter 
shall  be,  an  inhabitant  or  resiant  of  this  king- 
dom of  England,  dominion  of  Wales,  or  town 
of  Berwick-upon-Tweed,  shall  be  sent  pris- 
oner into  Scotland,  Ireland,  Jersey,  Guern- 
sey, Tangier,  or  into  parts,  garrisons,  isl- 
ands, or  places  beyond  the  seas,  which  are, 
or  at  any  time  hereafter  .shall  be,  within  or 
without  the  dominions  of  his  majesty,  his 
heirs,  or  successors,"  under  penalties  of  the 
heaviest  nature  short  of  death  which  the  law 
then  knew,  and  an  incapacity  of  receiving 
the  king's  pardon.  The  gr-eat  rank  of  those 
who  were  likely  to  offend  against  this  part 
of  the  statute  was,  doubtless,  the  cause  of 
this  unusual  severity. 

But  as  it  might  still  be  practicable  to  evade 
these  remedial  provisions  by  expressing 
some  matter  of  treason  or  felony  in  the  war- 
rant of  commitment,  the  judges  not  being 
empowered  to  inquire  into  the  truth  of  the 
facts  contained  in  it,  a  further  security 
against  any  protracted  detention  of  an  in- 
nocent man  is  afforded  by  a  provision  of 
great  importance ;  that  every  person  com- 
mitted for  treason  or  felony,  plainly  and 
specially  expressed  in  the  warrant,  may, 
unless  he  shall  be  indicted  in  the  next  term, 
or  at  the  next  sessions  of  general  jail  deliv- 
ery after  his  commitment,  be,  on  prayer  to 
the  court,  released  upon  bail,  unless  it  shall 
appear  that  the  crown's  witnesses  could  not 
be  produced  at  that  time ;  and  if  he  shall 
not  be  indicted  and  ti-ied  in  the  second  term 

*  The  Court  of  King's  Bench  directed  a  habeas 
corpus  to  the  governor  of  Jersey,  to  bring  up  the 
body  of  Overton,  a  well-known  officer  of  tlie  com- 
monwealth, wlio  had  been  confined  there  several 
years. — Siderfin's  Reports,  386.  This  was  in  16G8, 
after  the  fall  of  Clarendon,  when  a  less  despotic 
system  was  introduced. 


or  sessions  of  jail  delivery,  he  shall  be  dis- 
charged. 

The  remedies  of  the  Habeas  Corpus  Act 
are  so  effectual  that  no  man  can  possibly  en- 
dure any  long  imprisonment  on  a  criminal 
charge,  nor  would  any  minister  venture  to 
exercise  a  sort  of  oppression  so  dangerous 
to  himself;  but  it  should  be  observed  that, 
as  the  statute  is  only  applicable  to  cases  of 
commitment  on  such  a  charge,  eveiy  other 
species  of  restraint  on  personal  liberty  is  left 
to  the  ordinary  remedy  as  it  subsisted  be- 
fore this  enactment.  Thus  a  party  detained 
without  any  warrant  must  sue  out  his  ha- 
beas corpus  at  common  law ;  and  this  is  at 
present  the  more  usual  occurrence  ;  but  the 
judges  of  the  King's  Bench,  since  the  stat- 
ute, have  been  accustomed  to  issue  this 
writ  during  the  vacation  in  all  cases  what- 
soever. A  sensible  difficulty  has,  however, 
been  sometimes  felt,  from  their  incompe- 
tency to  judge  of  the  ti'Utli  of  a  return  made 
to  the  writ ;  for  though,  in  cases  within  the 
statute,  the  prisoner  may  always  look  to  his 
legal  discharge  at  the  next  sessions  of  jail 
deliveiy,  the  same  redress  might  not  always 
be  obtained  when  he  is  not  in  custody  of  a 
common  jailer.  If  the  person,  therefore, 
who  detains  any  one  in  custody  should  think 
fit  to  make  a  return  to  the  writ  of  habeas 
corpus,  alleging  matter  sufficient  to  justify 
the  party's  resti-aint,  yet  false  in  fact,  there 
would  be  no  means,  at  least  by  this  summa- 
ry process,  of  obtaining  relief.  An  attempt 
was  made  in  1757,  after  an  examination  of 
the  judges  by  the  House  of  Lords  as  to  the 
extent  and  efficiency  of  the  habeas  corpus 
at  common  law,  to  render  their  jurisdiction 
more  remedial.*  It  failed,  however,  for  the 
time,  of  success  ;  but  a  statute  has  recently 
been  enacted, f  which  not  only  extends  the 
power  of  issuing  the  writ  during  the  vaca- 
tion, in  cases  not  within  the  act  of  Charles 
II.,  to  all  the  judges,  but  enables  the  judge, 
before  whom  the  writ  is  returned,  to  in- 
quire into  the  truth  of  the  facts  alleged 
therein,  and  in  case  they  shall  seem  to  him 
doui)tful,  to  release  the  party  in  custody,  on 
giving  surety  to  appear  in  the  court  to  which 

*  See  the  Lords'  questions  and  answers  of  tho 
judges  in  Pari.  Hist.,  xv.,  898  ;  or  Bacon's  Abridg- 
ment, tit.  Habeas  Corpus ;  also,  Wilmot's  Judg- 
ments, 81.  This  arose  out  of  a  case  of  impress- 
ment, where  the  expeditious  remedy  of  habeas 
corpus  is  eminently  necessary. 

t  56  Geo.  III.,  c.  100. 


502 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[CHiP.  xin. 


such  judge  shall  belong,  on  some  day  in  the 
ensuing  term,  when  the  court  may  examine 
bj'  affidavit  into  the  tiuth  of  the  facts  alleged 
in  the  return,  and  either  remand  or  dis- 
charge the  party,  according  to  their  discre- 
tion. It  is  also  declared  that  a  writ  of  ha- 
beas corpus  shall  ma  to  any  harbor  or  road 
on  the  coast  of  England,  tliough  out  of  the 
body  of  any  county  ;  in  order,  I  presume,  to 
obviate  doubts  as  to  the  effects  of  this  rem- 
edy in  a  kind  of  illegal  detention,  more  like- 
ly, perhaps,  than  any  other  to  occur  in  mod- 
ern times,  on  board  of  vessels  upon  the 
coast.  Except  a  few  of  this  description",  it 
is  very  rare  for  a  habeas  corpus  to  be  re- 
quired in  any  case  where  the  government 
can  be  presumed  to  have  an  interest. 

The  reign  of  Charles  II.  was  hardly  more 
Differences  remarkable  by  the  vigilance  of  the 
Lordrand  House  of  Commons  against  arbitra- 
Coninions.  ry  prerogative  than  by  the  warfare 
it  waged  against  whatever  seemed  an  en- 
croachment or  usurpation  in  the  other  house 
of  Parliament.  It  has  been  a  peculiar  hap- 
piness of  our  Constitution  that  such  dissen- 
sions have  so  rarely  occurred.  I  can  not 
recollect  any  Republican  government,  an- 
cient or  modern  (except,  perhaps,  some  of 
the  Dutch  provinces),  where  hereditary 
and  democratical  authority  have  been  amal- 
gamated so  as  to  preseiTe  both  in  effect  and 
influence,  without  continual  dissatisfaction 
and  reciprocal  encroachments ;  for  though, 
in  the  most  ti-anquil  and  prosperous  season 
of  the  Roman  state,  one  consul,  and  some 
magistrates  of  less  importance,  were  inva- 
riably elected  from  the  patrician  families, 
these  latter  did  not  form  a  corporation,  nor 
bad  any  collective  authority  in  the  govern- 
ment. The  history  of  monarchies,  including, 
of  course,  all  states  where  tlie  principality 
is  lodged  in  a  single  person,  that  have  ad- 
mitted the  ainstocratical  and  popular  tem- 
peraments at  the  same  time,  bears  frequent 
witness  to  the  same  jealous  or  usurping 
spirit.  Yet  monarchy  is  unquestionably 
more  favorable  to  the  coexistence  of  an  he- 
reditary body  of  nobles  with  a  representa- ; 
tion  of  the  commons  than  any  other  form  [ 
of  commonwealth  ;  and  it  is  to  the  high  pre- 
rogative of  the  English  crown,  its  exclu- 
sive disposal  of  offices  of  trust,  which  are  the 
ordinaiy  subjects  of  contention,  its  power 
of  putting  a  stop  to  Parliamentary  disputes 
by  a  dissolution,  and,  above  aU,  to  the  ne- 


cessity which  both  the  Peers  and  the  Com- 
mons have  often  felt,  of  a  mutual  good  un- 
derstanding for  the  maintenance  of  their 
privileges,  that  we  must  in  a  gi'eat  measure 
attribute  the  general  harmony,  or  at  least 
the  absence  of  open  schism,  between  the 
two  houses  of  Parliament.  This  is,  howev- 
er, still  more  owing  to  the  happy  graduation 
of  ranks,  which  renders  the  elder  and  the 
younger  sons  of  our  nobility  two  links  in  the 
unsevered  chain  of  society  ;  the  one  trained 
in  the  school  of  popular  rights,  and  accus- 
tomed, for  a  long  portion  of  their  lives,  to 
regard  the  privileges  of  the  House  whereof 
they  form  a  part,  full  as  much  as  those  of 
their  ancestors  ;*  the  other  falling  without 
hereditaiy  distinction  into  the  class  of  other 
commoners,  and  mingling  the  sentiments 
natural  to  their  birth  and  family  affections 
with  those  that  are  more  congenial  to  the 
whole  community.  It  is  owing,  also,  to  the 
wealth  and  dignity  of  those  ancient  families, 
who  would  be  styled  noble  in  any  other 
country,  and  who  give  an  aristocratical  char- 
acter to  the  popular  part  of  our  Legislature, 
and  to  the  influence  which  the  peers  them- 
selves, through  the  representation  of  small 
boroughs,  are  enabled  to  exercise  over  the 
Lower  House. 

The  original  Constitution  of  England  was 
highly  aristocratical.  The  peei-s  judicial  pow- 
of  this  realm,  when  summoned  lo^js 'hi^tor- 
to  Parliament  (and  on  such  oc-  '"Hy  traced, 
casions  eveiy  peer  was  entitled  to  his  writ), 
were  the  necessaiy  counselors  and  coadju- 
tors of  the  king  in  all  the  functions  that  ap- 
pertain to  a  government.  In  granting  mon- 
ey for  the  public  service,  in  changing  by 
permanent  statutes  the  course  of  the  com- 

*  It  was  ordered,  21st  of  Jan.,  1549,  that  the  eld- 
est son  of  the  Earl  of  Bedford  should  continue  in 
the  House  after  his  father  had  succeeded  to  the 
peerage  ;  and  9th  of  Feb.,  1575.  that  his  son  should 
do  so,  "  according  to  the  precedent  in  the  Uke  case 
of  the  now  earl  his  father."  It  is  worth}-  of  notice, 
that  this  determination,  which,  at  the  time,  seems 
to  have  been  thought  doubtful,  though  very  un- 
reasonably (Journals,  10th  of  Feb.),  but  which  has 
had  an  influence  which  no  one  can  fail  to  acknowl- 
I  edge,  in  binding  together  the  two  branches  of  the 
I  Legislature,  and  in  keeping  alive  the  sympathy 
for  public  and  popular  rights  in  the  English  nobil- 
ity (that  sensus  communis,  which  the  poet  thought 
so  rare  in  high  rank),  is  first  recorded,  and  that 
twice  over,  in  behalf  of  a  family,  iu  whom  the  love 
of  constitutional  freedom  has  become  hereditary, 
and  who  may  be  justly  said  to  have  deser%-ed,  like 
the  Valerii  at  Rome,  the  surname  of  Publicolje. 


Cha.  n— Constitution.]      FROM  HENBY  Vn.  TO  GEORGE  n. 


503 


nion  Inw,  they  could  only  act  in  conjunction 
with  the  knights,  citizens,  and  bm-gesses  of 
the  Lower  House  of  Parliament.  In  re- 
dress of  grievances,  whether  of  so  private 
a  nature  as  to  affect  only  single  persons  or 
extending  to  a  county  or  hundred,  whether 
proceeding  from  the  injustice  of  public  offi- 
cers or  of  powerful  individuals,  whether  de- 
manding punishment  as  crimes  against  the 
state,  or  merely  restitution  and  damages  to 
the  injured  party,  the  lords  assembled  in 
Parliament  were  competent,  as  we  find  in 
our  records,  to  exercise  the  same  high  pow- 
ers, if  they  were  not  even  more  extensive 
and  remedial,  as  the  king's  ordinary  coun- 
cil, composed  of  his  great  officers,  his  judg- 
es, and  perhaps  some  peei-s,  was  wont  to 
do  in  the  intervals  of  Parliament.  These 
two,  the  Lords  and  the  privy  council,  seem 
to  have  formed,  in  the  session,  one  body  or 
gi-eat  council,  wherein  the  latter  had  orig- 
inally right  of  suffi-age  along  with  the  for- 
mer. In  this  judicial  and  executive  author- 
ity, the  Commons  had  at  no  time  any  more 
pretense  to  interfere,  than  tlie  council  or 
the  Loi-ds  by  themselves  had  to  make  ordi- 
nances, at  least  of  a  general  and  permanent 
nature,  which  should  bind  the  subject  to 
obedience.  At  the  beginning  of  every  Par- 
liament numerous  petitions  were  presented 
to  the  Lords,  or  to  the  king  and  Lords 
(since  he  was  frequently  there  in  person, 
and  always  presumed  to  be  so),  complaining 
of  civil  injuries  and  abuse  of  power.  These 
were  generally  indorsed  by  appointed  re- 
ceivers of  petitions,  and  returned  by  them 
to  the  proper  court  whence  relief  was  to 
be  sought  ;*  for  an  immediate  inquiry  and 
remedy  seem  to  have  been  rarely  granted, 
except  in  cases  of  an  extraordinaiy  nature, 
when  the  law  was  defective,  or  could  not 
easily  be  enforced  by  the  ordinaiy  tribunals, 
the  shortness  of  sessions  and  multiplicity  of 
affairs  preventing  the  Upper  House  of  Par- 
liament from  entering  so  fully  into  these 
matters  as  the  king's  council  had  leisure  to 
do. 

It  might,  perhaps,  be  well  questioned,  not- 
withstanding the  respectable  opinion  of  Sir 
M.  Hale,  whether  the  statutes  directed 

*  The  form  of  appointing  receivers  and  tryers  of 
petitions,  though  intennitted  daring  the  reign  of 
William  III.,  was  revived  afterward,  and  finally 
not  discontinued  without  a  debate  in  the  House  of 
Lords,  and  a  division,  ia  1740. — Pari.  Hist.,  si., 
.1013. 


against  the  prosecution  of  civil  and  criminal 
suits  before  the  council  are  so  worded  as  to 
exclude  the  original  jurisdiction  of  the 
House  of  Lords,  though  their  principle  is 
very  adverse  to  it ;  but  it  is  remarkable  that, 
so  far  as  the  Lords  themselves  could  allege 
from  the  rolls  of  Parliament,  one  only  in- 
stance occurs  between  4  Hen.  IV".  (1403) 
and  43  Eliz.  (1602)  where  their  House  had 
entered  upon  any  petition  in  the  nature  of 
an  original  suit,  though  in  that  (1  Ed.  IV., 
1461)  they  had  certainly  taken  on  them  to 
determine  a  question  cognizable  in  the 
common  courts  of  justice  ;  for  a  distinction 
seems  to  have  been  generally  made  between 
cases  where  relief  might  be  had  in  the 
courts  below,  as  to  which  it  is  contended 
by  Hale  that  the  Lords  could  not  have  ju- 
risdiction, and  those  where  the  injured  par- 
ty was  without  remedy,  either  through  de- 
fect of  the  law,  or  such  excessive  power  of 
the  aggressor  as  could  defy  the  ordinary 
process.  During  the  latter  part,  at  least, 
of  this  long  interval,  the  council  and  Court 
of  Star  Chamber  were  in  all  their  vigor,  to 
which  the  intermission  of  Parliamentary 
judicature  may  in  a  great  measure  be  as- 
cribed. It  was  owing,  also,  to  the  longer 
intervals  between  Parliaments  from  the 
time  of  Henry  VI.,  extending  sometimes 
to  five  or  six  years,  which  rendered  the  re- 
dress of  private  wrongs  by  their  means  in- 
convenient and  uncertain.  In  1621  and 
1624,  the  Lords,  grown  bold  by  the  general 
disposition  in  favor  of  Parliamentary  rights, 
made  orders  without  hesitation  on  private 
petitions  of  an  original  nature.  They  con- 
tinued to  exercise  this  juiisdiction  in  the 
first  Parliaments  of  Charles  I. ;  and  in  one 
instance,  that  of  a  riot  at  Banbury,  even  as- 
sumed the  power  of  punishing  a  misdemean- 
or unconnected  with  privilege.  In  the  Long 
Parliament,  it  may  be  supposed  that  they 
did  not  abandon  this  encroachment,  as  it 
seems  to  have  been,  on  the  royal  authority, 
extending  their  orders  both  to  the  punish- 
ment of  misdemeanors  and  to  the  awarding 
of  damages.* 

The  ultimate  jurisdiction  of  the  House 
of  Lords,  either  by  removing  into  it  causes 
commenced  in  the  lower  courts,  or  by  writ 
of  error  complaining  of  a  judgment  given 
therein,  seems  to  have  been  as  ancient,  and 

*  Hargrave,  p.  60.  The  proofs  are  in  the  Lords' 
Journals. 


504 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  Xin. 


founded  on  the  same  principle  of  a  para- 
mount judicial  authority  delegated  by  the 
crown,  as  that  which  they  exercised  upon 
original  petitions.  It  is  to  be  observed,  that 
the  council  or  Star  Chamber  did  not  pretend 
to  any  direct  jurisdiction  of  this  nature  ;  no 
record  was  ever  removed  thither  upon  as- 
signment of  eiTors  in  an  inferior  court.  But 
after  the  first  part  of  the  fifteenth  centuiy, 
there  was  a  considerable  interval,  during 
which  this  appellant  jurisdiction  of  the 
Lords  seems  to  have  gone  into  disuse, 
though  probably  known  to  be  legal.*  They 
began  again,  about  1580,  to  receive  writs 
of  error  from  the  Court  of  King's  Bench, 
though  for  foity  years  more  the  instances 
were  by  no  means  numerous  ;  but  the  stat- 
ute passed  in  1585,  constituting  the  Court 
of  Exchequer  Chamber  as  an  intermediate 
tribunal  of  appeal  between  the  King's  Bench 
and  the  Parliament,  recognizes  the  jurisdic- 
tion of  the  latter,  that  is,  of  the  House  of 
Lords,  in  the  strongest  terms. f  To  this 
power,  therefore,  of  determining,  in  the  last 
resort,  upon  writs  of  error  from  the  couits 
of  common  law,  no  objection  could  possibly 
be  maintained. 

The  revolutionary  spirit  of  the  Long 
Their  preten-  Parliament  brought  forward  still 
sions  about    higher  pretensions,  and  obscured 

the  time  of         °       '  ,       ^  .  . 

the  Restora-  all  the  landmarks  or  constitution- 
al  privilege.  As  the  Commons 
took  on  themselves  to  direct  the  execution 
of  their  own  orders,  the  Lords,  afraid  to  be 
jostled  out  of  that  equality  to  which  they 
were  now  content  to  be  reduced,  asserted 
a  similar  claim  at  the  expense  of  the  king's 
prerogative.  They  returned  to  their  own 
House  on  the  Restoration  with  confused 
notions  of  their  high  jurisdiction,  rather  en- 
hanced than  abated  by  the  humiliation  they 
had  undergone.  Thus,  before  the  king's 
arrival,  the  Commons  having  sent  up  for 
their  concuiTcnce  a  resolution  that  the  per- 
sons and  estates  of  the  regicides  should  be 
seized,  the  Upper  House  deemed  it  an  en- 

*  They  were  very  rare  after  tlie  accession  of 
Henry  V. ;  but  one  occurs  in  10th  Hen.  VI.,  1432, 
vpith  which  Hale's  list  concludes. — Hargrave's 
Preface  to  Hale,  p.  7.  This  editor  justly  observes, 
that  the  incomplete  state  of  the  votes  and  early 
journals  renders  the  negative  proof  inconclusive  ; 
though  we  may  be  fully  warranted  in  asserting 
that  from  Henry  V.  to  James  I.  there  was  very 
little  exercise  of  judicial  power  in  Parliament,  ei- 
ther civilly  or  crimiually.  t  27th  Eliz.,  c.  8. 


croachment  on  their  exclusive  judicature, 
and  changed  the  resolution  into  "  an  order 
of  the  Lords  on  complaint  of  the  Com- 
mons."* In  a  conference  on  this  subject 
between  the  two  Houses,  the  Commons  de- 
nied their  lordships  to  possess  an  exclusive 
jurisdiction,  but  did  not  press  that  matter.f 
But,  in  fact,  this  order  was  rather  of  a 
legislative  than  judicial  nature  :  nor  could 
the  Lords  pretend  to  any  jurisdiction  in 
cases  of  treason.  They  artfully,  however, 
overlooked  these  distinctions,  and  made  or- 
ders almost  daily  in  the  session  of  1660, 
trenching  on  the  executive  power  and  that 
of  the  inferior  courts.  Not  content  with 
ordering  the  estates  of  all  peers  to  be  re- 
stored, free  from  seizure  by  sequestration, 
and  with  all  arrears  of  rent,  we  find  in  their 
Journals  that  they  did  not  hesitate,  on  peti- 
tion, to  stay  waste  on  the  estates  of  private 
persons,  and  to  secure  the  tithes  of  livings, 
from  which  ministers  had  been  ejected,  in 
the  hands  of  the  churchwardens  till  their 
title  could  be  tried. t  They  acted,  in  short, 
as  if  they  had  a  plenary  authority  in  mat- 
ters of  fi'eehold  right,  where  any  member 
of  their  own  House  was  a  party,  and  ia 
eveiy  case  as  full  and  eqpiitable  jurisdiction 
as  the  Court  of  Chancery.  Though  in  the 
more  settled  state  of  tilings  which  ensued, 
these  anomalous  orders  do  not  so  frequently 
occur,  we  find  several  assumptions  of  pow- 
er which  show  a  disposition  to  claim  as 
much  as  the  circumstances  of  any  particular 
case  should  lead  them  to  think  expedient 
for  the  parties,  or  honorable  to  themselves.§ 

*  Lords'  Journals,  May  18,  1660. 

t  Commons'  Jounials,  May  22. 

t  Lords'  Journals,  June  4,  6,  14,  20,  22,  et  alibi 
soepe.  "Upon  information  given  that  some  person 
in  the  late  times  had  carried  away  goods  from  the 
house  of  the  Earl  of  Northampton,  leave  was  giv- 
en to  the  said  earl,  by  his  servants  and  agents,  to 
make  diligent  and  narrow  search  in  the  dwelling- 
houses  of  certain  persons,  and  to  break  open  any 
door  or  trunk  that  shall  not  be  opened  in  obedience 
to  the  order,"  June  26.  The  like  order  was  made 
next  day  for  the  Marquis  of  Winchester,  the  Earls 
of  Derby  and  Newport,  &c.  A  still  more  extraor- 
dinary vote  was  passed  August  16.  Lord  Mohun 
having  complained  of  one  Keigwin,  and  his  attor- 
ney Danby,  for  suing  him  by  common  process  in 
Michaelmas  tenn,  1651,  in  breach  of  privilege  of 
peerage,  the  House  voted  that  he  should  have 
damages  :  nothing  could  be  more  scandalously  un- 
just, and  against  the  spirit  of  the  Bill  of  Indemni- 
ty.   Three  Presbyterian  peers  protested. 

§  They  resolved  in  the  case  of  the  Earl  of  Pem- 


Cha.  II.— Constitution.]       FROM  HENRY  VII.  TO  GEORGE  II. 


505 


The  Lower  House  of  Parliament,  which 
_  hardly  reckoned  itself  lower  in 

Resistance  *' 

made  by  the  dignity,  and  was  something  more 
Commons,  ^.j^,^^^  equal  in  substantial  power, 
did  not  look  without  jealousy  on  these  pre- 
tensions. They  demurred  to  a  privilege 
asserted  by  the  Lords  of  asses.sing  them- 
selves in  bills  of  direct  taxation  ;  and  having 
on  one  occasion  reluctantly  permitted  an 
amendment  of  that  nature  to  pass,  took  care 
to  record  their  dissent  from  the  principle 
by  a  special  entry  in  the  journal.*  An 
amendment  liaving  been  introduced  into  a 
bill  for  regulating  the  press,  sent  up  by  the 
Commons  in  the  session  of  1661,  which 
exempted  the  houses  of  peers  from  search 
for  unlicensed  books,  it  was  resolved  not  to 
agree  to  it;  and  the  bill  dropped  for  that 
time.f  Even  in  far  more  urgent  circum- 
stances, while  the  Parliament  sat  at  Oxford 
in  the  year  of  the  plague,  a  bill  to  prevent 
the  progress  of  infection  was  lost,  because 
the  Lords  insisted  that  their  houses  should 
not  be  subjected  to  the  general  provisions 
for  security. t  These  ill-judged  demonstra- 
tions of  a  design  to  exempt  themselves  from 
that  equal  submission  to  the  law  which  is 
required  in  all  well-governed  states,  and  had 
ever  been  remarkable  in  our  Constitution, 
naturally  raised  a  prejudice  against  the 
Lords,  both  in  the  other  house  of  Parlia- 
ment, and  among  the  common  lawyers. 

This  half-suppressed  jealousy  soon  dis- 
Dispute  closed  itself  in  the  famous  contro- 
orig'inai'fu-  versy  between  the  two  Houses 
risdiciion,  about  the  case  of  Skinner  and  the 
East  Ladia  Company.  This  began  by  a  pe- 
tition of  the  former  to  the  king,  wherein  he 
complained  that,  liaving  gone  as  a  merchant 
to  the  Indian  Seas,  at  a  time  when  there 
was  no  restriction  upon  that  trade,  the  East 
India  Company's  agents  had  plundered  his 
property,  taken  away  his  ships,  and  dispos- 
sessed him  of  an  island  which  he  had  pur- 
chased from  a  native  prince.  Conceiving 
that  he  could  have  no  sufficient  redress  in 
the  ordinary  courts  of  justice,  he  besought 
his  sovereign  to  enforce  reparation  by  some 
other  means.  After  several  ineffectual  at- 
tempts by  a  committee  of  the  privy  council 
to  bring  about  a  compromise  between  the 

broke,  Jan.  30, 1678,  that  the  single  testimony  of  a 
commoner  is  not  sufficient  against  a  peer. 

*  Journals,  Aug.  2  and  15,  1660. 

t  Id.,  July  29,  16G1.  t  Id.,  Oct.  31,  1665. 


parties,  the  king  transmitted  the  documents 
to  the  House  of  Lords,  with  a  recommen- 
dation to  do  justice  to  the  petitioner.  They 
proceeded,  accordingly,  to  call  on  the  East 
India  Company  for  an  answer  to  Skinner's 
allegations.  The  Company  gave  in  what  is 
technically  called  a  plea  to  the  jurisdiction, 
which  the  House  overruled.  The  defend- 
ants then  pleaded  in  bar,  and  contrived  to 
delay  the  inquiry  into  the  facts  till  the  next 
session  ;  when  the  proceedings  having  been 
renewed,  and  the  plea  to  the  Lords'  juris- 
diction again  oft'ered,  and  overruled,  judg- 
ment was  finally  given  that  the  East  India 
Company  should  pay  e£bOOO  damages  to 
Skinner. 

Meantime,  the  Company  had  presented 
a  petition  to  the  House  of  Com-  and  that  in 
mens  against  the  proceedings  of  »PP«f'^  1'°°^ 

to  r  a  courts  of 

the  Lords  in  this  business.  It  equity, 
was  refeiTed  to  a  committee,  who  had  al- 
ready been  appointed  to  consider  some  oth- 
er cases  of  a  like  nature.  They  made  a  re- 
port, which  produced  resolutions  to  this  ef- 
fect :  that  the  Lords,  in  taking  cognizance 
of  an  original  complaint,  and  that  relievable 
in  the  ordinai-y  course  of  law,  had  acted  il- 
legally, and  in  a  manner  to  deprive  the  sub- 
ject of  the  benefit  of  the  law.  The  Lords, 
in  return,  voted,  "  That  the  House  of  Com- 
mons entertaining  the  scandalous  petition 
of  the  East  India  Company  against  the 
Lords'  house  of  Parliament,  and  their  pro- 
ceedings, examinations,  and  votes  thereupon 
had  and  made,  are  a  breach  of  the  privile- 
ges of  the  House  of  Peers,  and  contrary  to 
the  fair  correspondency  which  ought  to  be 
between  the  two  houses  of  Parliament,  and 
unexampled  in  former  times ;  and  that  the 
House  of  Peers,  taking  cognizance  of  the 
cause  of  Thomas  Skinner,  merchant,  a  per- 
son highly  oppressed  and  injured  in  East 
India  by  the  governor  and  company  of  mer- 
chants trading  thither,  and  overruling  the 
plea  of  the  said  company,  and  adjudging 
6£5000  damages  thereupon  against  the  said 
governor  and  company,  is  agreeable  to  the 
laws  of  the  land,  and  well  wairanted  by  the 
law  and  custom  of  Parliament,  and  justified 
by  many  Parliamentary  precedents  ancient 
and  modern." 

Two  conferences  between  the  Houses, 
according  to  the  usage  of  Parliament,  en- 
sued, in  order  to  reconcile  this  dispute. 
But  it  was  too  material  in  itself,  and  aggi'a- 


506 


CONSTITUTIONAL  HISTOEY  OP  ENGLAND 


(Chap.  XIII. 


vated  by  too  much  previous  jealousy,  for 
any  voluntaiy  compromise.  The  prece- 
dents alleged  to  prove  an  original  jurisdic- 
tion in  the  peers  were  so  thinly  scattered 
over  the  records  of  centuries,  and  so  con- 
traiy  to  the  received  piinciple  of  our  Con- 
stitution, that  questions  of  fact  are  cogniza- 
ble only  by  a  jury,  that  their  managers  in 
the  conferences  seemed  less  to  insist  on  the 
general  right  than  on  a  supposed  inability  of 
the  courts  of  law  to  give  adequate  redress 
to  the  present  plaintiff ;  for  which  the  judges 
had  furnisned  some  pretext  on  a  reference 
as  to  their  own  competence  to  afford  relief, 
by  an  answer  more  naiTow,  no  doubt,  than 
would  have  been  rendered  at  the  present 
day  ;  and  there  was  really  more  to  be  said, 
both  in  reason  and  law,  for  this  limited  right 
of  judicature,  than  for  the  absolute  cogni- 
zance of  civil  suits  by  the  Lords ;  but  the 
Commons  were  not  inchned  to  allow  even 
of  such  a  special  exception  from  the  princi- 
ple for  which  they  contended,  and  intimated 
that  the  power  of  affording  a  remedy  in  a 
defect  of  the  ordinaiy  tribunals  could  only 
reside  in  the  whole  body  of  the  Parliament. 

The  proceedings  that  followed  were  in- 
temperate on  both  sides.  The  Commons 
voted  Skinner  into  custody  for  a  breach  of 
privilege,  and  resolved  that  whoever  should 
be  aiding  in  execution  of  the  order  of  the 
Lords  against  the  East  India  Company 
should  be  deemed  a  betrayer  of  the  hberties 
of  the  Commons  of  England,  and  an  infring- 
er of  the  privileges  of  the  House.  The 
Lords,  in  return,  committed  Sir  Samuel 
Barnardiston,  chairman  of  the  Company,  and 
a  member  of  the  House  of  Commons,  to 
prison,  and  imposed  on  him  a  fine  of  c£500. 
It  became  necessaiy  for  the  king  to  stop  the 
course  of  this  quarrel,  which  was  done  by 
successive  adjournments  and  pi-orogations 
for  fifteen  months ;  but  on  their  meeting 
again  in  October,  1669,  the  Commons  pro- 
ceeded instantly  to  renew  the  dispute.  It 
appeared  that  Barnardiston,  on  the  day  of 
the  adjournment,  had  been  released  from 
custody,  without  demand  of  his  fine,  which, 
by  a  trick  rather  unworthy  of  those  who 
had  resorted  to  it,  was  entered  as  paid  on 
the  records  of  the  Exchequer.  This  was  a 
kind  of  victory  on  the  side  of  the  Commons  ; 
but  it  was  still  more  material  that  no  steps 
had  been  taken  to  enforce  the  order  of  the 
Lords  against  the  East  India  Company.  I 


The  latter  sent  down  a  bill  concerning  priv- 
ilege and  judicature  in  Parliament,  which 
the  other  House  rejected  on  a  second  read- 
ing. They,  in  return,  passed  a  bill  vacating 
the  proceedings  against  Barnardiston,  which 
met  with  a  like  fate.  In  conclusion,  the 
king  recommended  an  erasure  from  the 
Journals  of  all  that  had  passed  on  the  sub- 
ject, and  an  entire  cessation ;  an  expedient 
which  both  Houses  willingly  embraced,  the 
one  to  secure  its  victory,  the  other  to  save 
its  honor.  From  this  time  the  Lords  have 
tacitly  abandoned  all  pretensions  to  an  orig- 
inal jurisdiction  in  civil  suits.* 

They  have,  however,  been  more  success- 
ful in  establishing  a  branch  of  their  ultimate 
jurisdiction,  which  had  less  to  be  urged  for 
it  in  respect  of  precedent,  that  of  hearing 
appeals  from  courts  of  equity.  It  is  proved 
by  Sir  Matthew  Hale  and  his  editor,  Mr. 
Hargrave,  that  the  Lords  did  not  entertain 
petitions  of  appeal  before  the  reign  of  Charles 
I.,  and  not,  perhaps,  unequivocally  before 
the  Long  Parliament.!  They  became  very 
common  from  that  time,  though  hardly  more 
so  than  original  suits ;  and,  as  they  bore  no 
analogy,  except  at  first  glance,  to  writs  of 
error,  which  come  to  the  House  of  Lords 
by  the  king's  express  commission  under  the 
gi-eat  seal,  could  not  well  be  defended  on  le- 
gal grounds  ;  but,  on  the  other  hand,  it  was 
reasonable  that  the  vast  power  of  the  Court 
of  Chancery  should  be  subject  to  some  con- 
trol ;  and  though  a  commission  of  review, 
somewhat  in  the  nature  of  the  Court  of 
Delegates  in  ecclesiastical  appeals,  might 
have  been  and  had  been  occasionally  ordered 
by  the  crown, t  yet,  if  the  ultimate  jmisdic- 
tion  of  the  peerage  were  convenient  and  sal- 
utary in  cases  of  common  law,  it  was  diffi- 
cult to  assign  any  satisfactory  reason  why 
it  should  be  less  so  in  those  which  are  tect- 
nically  denominated  equitable. §    Nor  is  it 

*  For  the  whole  of  tliis  business,  wliich  is  erased 
from  the  Journals  of  both  Houses,  see  State  Trials, 
v.,  711.  Pai-1.  Hist.,  iv.,  431,  443.  Hatsell's  Prece- 
dents, iii.,  336,  and  Hargrave's  Preface  to  Hale's 
Jurisdiction  of  the  Lords,  101.  [A  slight  attempt 
to  reWve  the  original  jurisdiction  was  made  by  the 
Lords  in  1702.— Id.,  196.] 

t  Hale  says,  "I  could  never  get  to  any  prece- 
dent of  greater  antiquity  than  3  Car.  I.,  nay,  scarce 
before  16  Car.  I.,  of  aoy  such  proceeding  in  the 
Lords'  House.  ' — C.  33 ;  and  see  Hargrave's  Pref- 
I  ace,  53.  "  t       c  31. 

I  §  It  was  ordered  in  a  petition  of  Robert  Roberts, 
I  Esq.,  that  directions  be  given  to  the  lonl-cbancellor 


QHi.  II.— Constitution.]        FROM  HENRY  VII.  TO  GEORGE  11. 


507 


likely  that  the  Commons  would  have  disput- 
ed this  usurpation,  in  which  the  crown  had 
acquiesced,  if  the  Lords  had  not  received 
appeals  against  inenil)ors  of  the  other  House. 
Three  instances  of  this  took  |)lacc  aliout  the 
year  1675;  but  that  of  Shirley  against  Sir 
John  Fagg  is  the  most  celebrated,  as  having 
given  rise  to  a  conllict  between  the  two 
Houses  as  violent  as  that  which  had  occiu'- 
red  in  the  business  of  Skinner.  It  began 
altogether  on  the  score  of  privilege.  As 
members  of  the  House  of  Commons  were 
exempted  from  legal  process  during  the  ses- 
sion by  the  genei-al  privilege  of  Parliament, 
they  justly  resented  the  pretensions  of  the 
peers  to  disregard  this  immunity,  and  com- 
pel them  to  appear  as  respondents  in  cases 
of  appeal.  In  these  contentions  neither 
party  could  evince  its  superiority  but  at  the 
expense  of  innocent  persons.  It  was  a  con- 
tempt of  the  one  House  to  disobey  its  or- 
der, of  the  other  to  obey  it.  Four  counsel, 
who  had  pleaded  at  the  bar  of  the  Lords  in 
one  of  the  cases  where  a  member  of  the 
other  House  was  concerned,  were  taken 
into  custody  of  tlie  sergeant-at-arms  by  the 
speaker's  warrant.  The  gentleman  usher 
of  the  black  rod,  by  warrant  of  the  Lords, 
empowering  him  to  call  all  pei'sons  neces- 
saiy  to  his  assistance,  set  them  at  liberty. 
The  Commons  apprehended  them  again  ; 
and,  to  prevent  another  rescue,  sent  them 
to  the  Tower.  The  Lords  disjiatched  their 
usher  of  the  black  rod  to  the  lieutenant  of 
the  Tower,  commanding  him  to  deliver  up 
the  said  persons.  He  replied  that  they 
were  committed  by  order  of  the  Commons, 
and  he  could  not  release  them  without  their 
order ;  just  as,  if  the  Lords  were  to  commit 
any  persons,  he  could  not  release  them  with- 
out their  lordships'  order.  They  addressed 
the  king  to  remove  the  lieutenant ;  but,  af- 

tliat  he  proceed  to  make  a  speedy  decree  in  tlie 
Court  of  Chancery,  according  to  efiuity  and  justice, 
notwithstanding  there  he  not  any  precedent  in  tlie 
case.  Against  this  Lords  Mohun  and  Lincoln 
severally  protested ;  the  latter  very  sensibly  ob- 
een'inp,  that  wliereas  it  hath  been  tlic  prudence 
and  care  of  foniier  ParUamcnts  to  set  hraits  and 
bounds  to  tlie  jurisdiction  of  Chancery,  now  this  or- 
der of  directions,  which  implies  a  command,  opens 
a  gap  to  set  op  an  arbitrary  power  in  the  Chan- 
cery, which  is  hereby  countenanced  by  the  House 
of  Lords  to  act,  not  according  to  the  accustomed 
rules  or  former  precedents  of  that  court,  but  ac- 
fcording  to  his  own  will. — Lords'  Journals,  29th  of 
Nov.,  1C64. 


tor  some  hesitation,  ho  declined  to  comply 
with  their  desire.  In  this  difficulty,  they 
liad  recourse,  instead  of  the  warrant  of  the 
Lords'  speaker,  to  a  writ  of  habeas  corpus 
returnable  in  Parliament ;  a  proceeding  not 
usual,  but  the  legality  of  which  seems  to  be 
now  admitted.  The  lieutenant  of  the  Tow- 
er, who,  rather  unluckily  for  the  Lords,  had 
taken  the  other  side,  eitlu^r  out  of  convic- 
tion, or  from  a  sense  that  the  Lower  House 
were  the  stronger  and  more  formidable,  in- 
stead of  obeying  the  writ,  came  to  the  bar 
of  the  Commons  for  directions.  They  vot- 
ed, as  might  be  expected,  that  the  writ  was 
contrary  to  law  and  the  privileges  of  their 
House  ;  but  in  tliis  ferment  of  two  jealous 
and  exasperated  assemblies,  it  was  highly 
necessaiy,  as  on  the  former  occasion,  for 
the  king  to  interpose  by  a  prorogation  for 
three  months.  This  [leriod,  however,  not 
being  sufficient  to  allay  their  animosity,  the 
House  of  Peers  took  up  again  the  appeal 
of  Shirley  in  their  next  session.  Fresh 
votes  and  orders  of  equal  intemperance  on 
both  sides  ensued,  till  the  king,  by  the  long 
prorogation,  from  November,  1G75,  to  Fob- 
ruaiy,  1C77,  put  an  end  to  the  dispute. 
The  particular  appeal  of  Shirley  was  never 
revived ;  but  the  Lords  continued  without 
objection  to  exercise  their  general  jurisdic- 
tion over  appeals  from  courts  of  equity.* 
The  learned  editor  of  Hale's  Treatise  on  the 
Jurisdiction  of  the  Lords  expresses  some  de- 
gree of  surprise  at  the  Commons'  acquies- 
cence in  what  they  had  treated  as  a  usurpa- 
tion ;  but  it  is  evident  from  the  whole  course 
of  proceeding  that  it  was  the  breach  of  privi- 
lege in  citing  their  own  members  to  appear, 
which  excited  their  indignation.  It  was  but 
incidentally  that  they  observed  in  a  confer- 
ence "  that  the  Commons  can  not  find,  by 
Magna  Charta,  or  by  any  other  law  or  an- 
cient custom  of  Parliament,  that  your  lord- 
ships have  any  jurisdiction  in  cases  of  appeal 
from  courts  of  equity."  They  afterward,  in- 
deed, resolved  that  there  lies  no  np])eal  to  the 
judicature  of  the  Lords  in  Parliament  from 
courts  of  equity  ;f  and  came  ultimately,  as 
their  wrath  increased,  to  a  vote,  "  That 
whosoever  shall  solicit,  plead,  or  prose- 

*  It  was  tlirown  out  against  them  by  the  Com- 
mons in  their  angry  conferences  about  the  husiness 
of  Ashby  and  White,  in  1704,  but  not  with  any  se- 
rious intention  of  opposition. 

t  Commons'  Journals,  May  30, 


508 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XITL 


Question  of 
the  exclusive 
right  of  the 
Commons  as 
to  money- 
biUs. 


cute  any  appeal  against  any  commoner  of 
England,  from  any  court  of  equity,  before 
the  House  of  Lords,  shall  be  deemed  and 
taken  a  betrayer  of  the  rights  and  liberties 
of  the  Commons  of  England,  and  shall  be 
proceeded  against  accordingly  ;"*  which 
vote  the  Lords  resolved  next  day  to  be  "  il- 
legal, unpai-liamentary,  and  tending  to  a  dis- 
solution of  the  government."t  But  this  was 
evidently  rather  an  act  of  hostility  arising 
out  of  the  immediate  quarrel  than  the  calm 
assertion  of  a  legal  principle. t 

During  the  interval  between  these  two 
dissensions,  which  the  suits  of 
Skinner  and  Shirley  engendered, 
another  difference  had  arisen, 
somewhat  less  violently  conduct- 
ed, but  wherein  both  Houses 
considered  their  essential  privileges  at  stake. 
This  concerned  the  long-agitated  question 
of  the  right  of  the  Lords  to  make  alterations 
in  money-bills.  Though  I  can  not  but  think 
the  importance  of  their  exclusive  privilege 
has  been  rather  exaggerated  by  the  House 
of  Commons,  it  deserves  attention,  more  es- 
pecially as  the  embers  of  that  fire  may  not 
be  so  wholly  extinguished  as  never  again  to 
show  some  ti'aces  of  its  heat. 

In  our  earliest  Parliamentary  records,  the 
Lords  and  Commons,  summoned 

Its  history.  .  r  i  r 

m  a  great  mesisui-e  lor  the  sake  oi 
relieving  the  king's  necessities,  appear  to 
have  made  their  several  gi-ants  of  supply 
without  mutual  communication,  and  the  lat- 
ter generally  in  a  higher  proportion  than  the 
former.    These  were  not  in  the  form  of 


*  Id.,  Nov.  19.  Several  divisions  took  place  in 
the  course  of  this  business,  and  some  rather  close ; 
the  court  endeavoring  to  allay  the  fire.  The  vote 
to  take  Sergeant  Pemberton  into  custody  for  ap- 
pearing as  counsel  at  the  Lords'  bar  was  only  car- 
ried by  154  to  146,  on  June  1. 

t  Lords'  Journals,  Nov.  20. 

X  Lords'  and  Commons'  Journals,  May  and  No- 
vember, 1675.  Pari.  Hist.,  721,  791.  State  Trials, 
vi.,  1121.  Hargrave'a  Preface  to  Hale,  135 ;  and 
Hale's  Treatise,  c.  33. 

It  may  be  observed,  that  the  Lords  learned  a  ht- 
tle  caution  in  this  affair.  An  appeal  of  one  Cot- 
tington  from  the  Court  of  Delegates  to  their  House 
was  rejected,  by  a  vote  that  it  did  not  properly  be- 
long to  them,  Shaftesbury  alone  dissentient,  June 
17,  1678.  Yet  they  had  asserted  their  right  to  re- 
ceive appeals  from  inferior  courts,  that  there  might 
be  no  failure  of  justice,  in  terms  large  enough  to 
embrace  the  ecclesiastical  jurisdiction.  May  6, 
1675.  And  it  is  said  that  they  actually  had  done 
so  in  1628. — Hargrave,  53. 


laws,  nor  did  they  obtain  any  formal  assent 
from  the  king,  to  whom  they  were  tendered 
in  written  indentures,  entered  afterward  on 
the  roll  of  Parliament.  The  latest  instance 
of  such  distinct  grants  from  the  two  Houses, 
as  far  as  I  can  judge  from  the  rolls,  is  in  the 
18th  year  of  Edward  IH  ;*  but  in  the  22d 
year  of  that  reign  the  Commons  alone  grant- 
ed three  fifteenths  of  their  goods,  in  such  a 
manner  as  to  show  beyond  a  doubt  that  the 
tax  was  to  be  levied  solely  upon  themselves. f 
After  this  time,  the  Lords  and  Commons 
are  jointly  recited  in  the  roUs  to  have  grant- 
ed them,  sometimes,  as  it  is  expressed,  upon 
deliberation  had  together.  In  one  case  it  is 
said  that  the  Lords,  with  one  assent,  and 
aftenvard  the  Commons,  granted  a  subsidy 
on  exported  wool.J  A  change  of  latiguage 
is  observable  in  Richard  II. 's  reign,  when 
the  Commons  are  recited  to  grant  with  the 
assent  of  the  Lords ;  and  this  seems  to  in- 
dicate, not  only  that  in  practice  the  vote  used 
to  originate  with  the  Commons,  but  that 
their  proportion,  at  least,  of  the  tax  being 
far  greater  than  that  of  the  Lords  (espe- 
cially in  the  usual  impositions  on  wool  and 
skins,  which  ostensibly  fell  on  the  exporting 
merchant),  the  gi-ant  was  to  be  deemed 
mainly  theirs,  subject  only  to  the  assent  of 
the  other  hoase  of  Parliament.  This  is, 
however,  so  explicitly  asserted  in  a  remark- 
able passage  on  the  roll  of  9  Hen.  IV., 
without  any  apparent  denial,  that  it  can  not 
be  called  in  question  by  any  one.§  The 
language  of  the  rolls  continues  to  be  the 
same  in  the  following  reigns ;  the  Commons 
are  the  granting,  the  Lords  the  consenting 
power.  It  is  even  said  by  the  Court  of 
King's  Bench,  in  a  year-book  of  Edward 
IV.,  that  a  grant  of  money  by  the  Com- 
mons would  be  binding  without  assent  of 
the  Lords ;  meaning,  of  course,  as  to  com- 
moners alone.  I  have  been  almost  led  to 
suspect,  by  considering  this  remarkable  ex- 
clusive privilege  of  originating  grants  of 
money  to  the  cj'own,  as  well  as  by  the  lan- 
guage of  some  passages  in  the  rolls  of  Par- 
liament relating  to  them,  that  no  part  of  the 
direct  taxes,  the  tenths  or  fifteenths  of 
goods,  were  assessed  upon  the  lords  tempo- 
ral and  spiritual,  except  where  they  are  pos- 


'  Rot.  Pari.,  ii.,  148.  t  Id.,  200. 

i  Id..  300  (43  Edw.  IH.). 

§  Rot.  Pari.,  iii.,  611.  View  of  Middle  Ages,  IL, 
310. 


Cha.  n. — Oonstitutiou.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


509 


itively  mentioned,  which  is  frequently  the 
case.  But,  as  I  do  not  remember  to  have 
seen  this  any  where  asserted  by  those  who 
have  turned  their  attention  to  the  antiqui- 
ties of  our  Constitution,  it  may  possibly  be 
au  unfounded  surmise,  or,  at  least,  only  ap- 
plicable to  the  earlier  period  of  our  Parlia- 
mentary records. 

These  grants  continued  to  be  made  as 
before,  bj-  the  consent,  indeed,  of  the  houses 
of  Parliament,  but  not  as  legislative  enact- 
ments. Most  of  the  few  instances  where 
tliey  appear  among  the  statutes  are  where 
some  condition  is  annexed,  or  some  relief 
of  grievances  so  interwoven  with  tliem  that 
they  make  part  of  a  new  law.*  In  the  reign 
of  Henry  VII.  they  are  occasionally  insert- 
ed among  the  statutes,  though  still  without 
any  enacting  words,  f  In  that  of  Henry 
VIII.  the  form  is  rather  more  legislative, 
and  they  are  said  to  be  enacted  by  the  au- 
thority of  Parliament,  though  the  king's 
name  is  not  often  mentioned  till  about  the 
conclusion  of  his  reign  ;t  after  which,  a  sense 
of  the  necessity  of  expressing  his  legislative 
authority  seems  to  have  led  to  its  introduc- 
tion in  some  part  or  other  of  the  bill.§  The 

*  14  Edw.  III.,  Stat.  1,  c.  21 :  this  statute  is  re- 
markable for  a  promise  of  the  Lords  uot  to  assent 
in  future  to  any  charge  beyond  the  old  custom, 
without  assent  of  the  Commons  in  full  Parliament. 
Stat.  2  same  year :  the  king  promises  to  lay  on  no 
charge  but  by  assent  of  the  Lords  and  Commons. 
18  Edw.  III.,  Stat.  2,  c.  1 :  the  Commons  grant  two 
fifteenths  of  the  commonaltj  ,  and  two  tenths  of  the 
cities  and  boroughs.  "  Et  en  cas  que  notie  signeur 
le  roi  passe  la  mer,  de  paier  a  mesmes  les  tems 
les  quinzisme  et  disme  del  second  an,  et  nemy  en 
autre  mauiere.  Issint  que  les  deniers  de  ce  levez 
eoient  despenduB,  en  les  besoignes  a  eux  monstez 
a  cest  parlement,  par  avis  des  grauntz  a  ce  as- 
signez,  et  que  les  aides  de  la  Trent  soient  mys  en 
defense  de  north."  Tliis  is  a  remarkable  prece- 
dent for  the  usage  of  appropriation,  which  had  es- 
caped me,  though  I  have  elsewhere  quoted  that  in 
5  Rich,  n.,  Stat.  2,  c.  2  and  3.  In  two  or  three  in- 
stances we  iind  grants  of  tenths  and  fifteenths  in 
the  statutes,  without  anj-  other  matter,  as  14  Edw. 
III.,  Stat.  1,  c.  20 ;  27  Edw.  IIL,  stat.  1,  c.  4. 

t  7  Hen.  VII.,  c.  11 ;  12  Hen.  VII.,  c.  12. 

t  I  find  only  one  exception,  5  Hen.  VIII.,  c.  17, 
which  was  in  the  now  common  fomi:  Be  it  enact- 
ed by  the  king  our  sovereign  lord,  and  by  the  as- 
sent, &c. 

$  In  37  Hen.  VIH.,  c.  25,  both  Lords  and  Com- 
mons are  said  to  grant,  and  they  pray  that  their 
grant  "  may  be  ratified  and  confirmed  by  his  maj- 
esty's royal  assent,  so  to  be  enacted  and  author- 
ized by  virtue  of  this  present  Parliament  as  in 
such  cases  heretofore  has  been  accustomed-" 


Lords  and  Commons  are  sometimes  both 
said  to  gi'ant,  but  more  frequently  the  latter 
with  the  former's  assent,  as  continued  to  be 
the  case  through  the  reigns  of  Elizabeth  and 
James  I.  In  the  first  Parliament  of  Charles 
I.  the  Commons  began  to  omit  the  name  of 
the  Lords  in  the  preamble  of  bills  of  supply, 
reciting  the  grant  as  if  wholly  their  own, 
but  in  the  enacting  words  adopted  the  cus- 
tomary form  of  statutes.  This,  though 
once  remonstrated  against  by  the  Upper 
House,  has  continued  ever  since  to  be  the 
practice. 

The  originating  power  as  to  taxation  was 
thus  indubitably  placed  in  the  House  of 
Commons  ;  nor  did  any  controversy  arise 
upon  that  ground  ;  but  they  maintained, 
also,  that  the  Lords  could  not  make  any 
amendment  whatever  in  bills  sent  up  to 
them  for  imposing,  directly  or  indu'ecUy,  a 
charge  upon  the  people.  There  seems  no 
proof  that  any  difference  between  the  two 
Houses  on  this  score  had  arisen  before  the 
Restoration ;  and  in  the  Convention  Parlia- 
ment, the  Lords  made  several  alterations  ia 
undoubted  money-bills,  to  which  the  Com- 
mons did  not  object ;  but  in  16C1,  the  Lords 
having  sent  down  a  bill  for  paving  the  streets 
of  Westminster,  to  which  they  desired  the 
concurrence  of  the  Commons,  the  latter,  on 
reading  the  bill  a  first  time,  "  observing  that 
it  went  to  lay  a  charge  upon  the  people,  and 
conceiving  that  it  was  a  privilege  inherent 
in  their  House  that  bills  of  that  nature  should 
be  first  considered  there,"  laid  it  aside,  and 
caused  another  to  be  brought  in.*  When 
this  was  sent  up  to  the  Lords,  they  insert- 
ed a  clause,  to  which  the  Commons  disa- 
greed, as  contrary  to  their  privileges,  be- 
cause the  people  can  not  have  any  tax  or 
charge  imposed  upon  them,  but  originally 
by  the  House  of  Commons.  The  Lords 
resolved  this  assertion  of  the  Commons  to 
be  against  the  inherent  privileges  of  the 
House  of  Peers;  and  mentioned  one  prec- 
edent of  a  similar  bill  iu  the  reign  of  Mary, 
and  two  in  that  of  Elizabeth,  which  had  be- 
gun with  them.  The  present  bill  was  de- 
feated by  the  imwillingness  of  either  party 
to  recede  ;  but  for  a  few  years  after,  though 
the  point  in  question  was  still  agitated,  in- 
stances occur  where  the  Commons  suffered 


*  Commons'  Journals,  24th  and  29th  of  July ; 
Lords'  Journals,  30th  of  July.  See,  also,  Hatsell's 
Precedents,  iii.,  100,  for  tliis  subject  of  supply. 


510 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  Xlil. 


amendments  in  -what  were  now  considered 
as  money-bills  to  pass,  and  others  where 
the  Lords  receded  from  them  rather  than 
defeat  the  proposed  measure.  In  April, 
1671,  however,  the  Lords  having  reduced 
the  amount  of  an  imposition  on  sugar,  it 
was  resolved  by  the  other  House,  "  That  in 
all  aids  given  to  the  king  by  the  Commons, 
the  rate  or  tax  ought  not  to  be  altered  by 
the  Lords."*  This  brought  on  several  con- 
ferences between  the  Houses,  wherein  the 
limits  of  the  exclusive  privilege  claimed  by 
the  Commons  were  discussed  with  consid- 
erable ability,  and  less  heat  than  in  the  dis- 
putes concerning  judicature ;  but,  as  I  can 
not  help  thinking,  with  a  decided  advantage 
both  as  to  precedent  and  constitutional  anal- 
ogy on  the  side  of  the  peers,  f  If  the  Com- 
mons, as  in  early  times,  had  merely  gi'anted 
their  own  money,  it  would  be  reasonable 
that  their  House  should  have,  as  it  claimed 
to  have,  "  a  fundamental  right  as  to  the  mat- 
ter, the  measure,  and  the  time."  But  that 
the  peers,  subject  to  the  same  burdens  as 
the  rest  of  the  community,  and  possessing 
no  trifling  proportion  of  the  general  wealth, 
should  have  no  other  alternative  than  to  re- 
fuse the  necessaiy  supplies  of  the  revenue, 
or  to  have  their  exact  proportion,  with  all 
qualifications  and  circumstances  attending 
their  grant,  presented  to  them  unalterably 
by  the  other  house  of  Parliament,  was  an 
anomaly  that  could  hardly  rest  on  any  other 
ground  of  defense  than  such  a  series  of  prec- 
edents as  establish  a  constitutional  usage ; 

*  They  expressed  this  with  sti'ange  latitude  in  a 
resolution  some  years  after,  that  all  aids  and  sup- 
plies to  his  majesty  in  Parliam'ent  are  the  sole  gift 
of  the  Commons. — Pari.  Hist.,  1005.  As  they  did 
not  mean  to  deny  that  the  Lords  must  concur  in 
tlie  bill,  much  less  that  they  must  pay  their  quota, 
this  language  seems  indefensible. 

t  Lords'  and  Commons'  Journals,  April  17th  and 
22d,  1679.  Pari.  Hist.,  iv.,  480.  HatseU's  Prece- 
dents, iii.,  109,  368,  409. 

In  a  pamphlet  by  Lord  Anglesea,  if  I  mistake 
not,  entitled,  "  Case  stated  of  the  Jurisdiction  of 
the  House  of  Lords  in  point  of  Impositions,"  1696, 
a  vigorous  and  learned  defense  of  the  right  of  the 
Lords  to  make  alterations  in  money-bills,  it  is  ad- 
mitted that  they  can  not  increase  the  rates  ;  since 
that  would  be  to  originate  a  charge  on  the  people, 
which  they  can  not  do.  But  it  is  even  said  in  the 
Year-book,  33  Hen.  VI.,  that  if  the  Commons  grant 
tonnage  for  four  years,  and  the  Lords  reduce  the  | 
terms  to  two  years,  they  need  not  send  the  bill 
down  again.  This,  of  course,  could  not  be  support- 
ed in  modem  times. 


while,  in  fact,*  it  could  not  be  made  out  that 
such  a  pretension  was  ever  advanced  by  the 
Commons  before  the  present  Parliament. 
In  the  short  Parliament  of  April,  1640,  the 
Lords  having  sent  down  a  message,  re- 
questing the  other  House  to  give  precedency 
in  the  business  they  were  about  to  matter 
of  supply,  it  had  been  highly  resented,  as  an 
infringement  of  their  privilege  ;  and  Mr. 
Pym  was  appointed  to  represent  their  com- 
plaint at  a  conference.  Yet  even  then,  in 
the  fervor  of  that  critical  period,  the  boldest 
advocate  of  popular  privileges  who  could 
have  been  selected  was  content  to  assert 
that  the  matter  of  subsidy  and  supply  ought 
to  begin  in  the  House  of  Commons.* 

There  seems  to  be  still  less  pretext  for 
the  great  extension  given  by  the  _    .  ^ 

,    ■         ,         ,    ,     ,  The  right 

Commons  to  their  acknowledged  extended 
privilege  of  originating  biUs  of  sup- 
ply.  The  principle  was  well  adapted  to 
that  earlier  period  w^hen  security  against 
misgovernment  could  only  be  obtained  by 
the  vigilant  jealousy  and  uncompromising 
firmness  of  the  Commons.  They  came  to 
the  gi-ant  of  subsidy  with  real  or  feigned  re- 
luctance, as  the  stipulated  price  of  redress 
of  grievances.  They  considered  the  Lords, 
generally  speaking,  as  too  intimately  united 
with  the  king's  ordinary  council,  which  in- 
deed sat  with  them,  and  had,  pei'haps,  as  late 
as  Edward  III.'s  time,  a  deliberative  voice. 
They  knew  the  influence  or  intimidating  as- 
cendency of  the  Peers  over  many  of  their 
own  members.  It  may  be  doubted,  in  fact, 
whether  the  Lower  House  shook  oft",  ab- 
solutely and  permanently,  all  sense  of  sub- 
ordination, or  at  least  deference,  to  the  Up- 
per, till  about  the  close  of  the  reign  of  Eliz- 
abeth. But  I  must  confess,  that  when  the 
wise  and  ancient  maxim  that  the  Commons 
alone  can  empower  the  king  to  levy  the 
people's  money  was  applied  to  a  private  bill 
for  lighting  and  cleansing  a  certain  town,  or 
cutting  dikes  in  a  fen,  to  local  and  limited 
assessments  for  local  benefit  (as  to  which 
the  crown  has  no  manner  of  interest,  nor 
has  any  thing  to  do  with  the  collection), 
there  was  more  disposition  shown  to  make 
encroachments  than  to  guard  against  those 
of  others.  They  began  soon  after  the  Rev- 
olution to  introduce  a  ^tiU  more  extraordi- 
nary construction  of  their  privilege,  not  re- 
ceiving from  the  House  of  Lords  any  bill 
*  Pari.  Hist.,  ii.,  563. 


Cha.  n.— Constitntion.]       FROM  HENRY  VII.  TO  GEORGE  n. 


511 


which  imposes  a  pecuniary  penalty  on  of- 
fenders, nor  permitting  them  to  alter  the 
application  of  such  as  had  been  imposed  be- 
low.* 

These  resti'ictions  upon  the  other  house 
of  Parliament,  however,  are  now  become, 
in  their  own  estimation,  the  standing  privi- 
leges of  the  Commons.  Several  instances 
have  occun-ed  during  the  last  century, 
though  not,  I  believe,  very  lately,  when  bills, 
chiefly  of  a  private  nature,  have  been  unan- 
imously rejected,  and  even  thrown  over  the 
table  by  the  speaker,  because  they  contained 
some  provision  in  which  the  Lords  had  tres- 
passed upon  these  alleged  rights. f  They 
are,  as  may  be  supposed,  very  differently 
regai'ded  in  the  neighboring  chamber.  The 
Lords  have  never  acknowledged  any  further 
privilege  than  that  of  originating  bills  of  sup- 
ply ;  but  the  good  sense  of  both  parties,  and 
of  an  enlightened  nation,  who  must  witness 
and  judge  of  their  disputes,  as  well  as  the 
natural  desire  of  the  government  to  prevent 
in  the  outset  any  altercation  that  must  im- 
pede the  course  of  its  measures,  have  ren- 
dered this  little  jealousy  unproductive  of 
those  animosities  which  it  seemed  so  happily 
contrived  to  excite.  The  one  House,  with- 
out admitting  the  alleged  privilege,  has  gen- 
erally been  cautious  not  to  give  a  pretext  for 
eagerly  asserting  it;  and  the  other,  on  the 
trifling  occasions  where  it  has  seemed,  per- 

*  The  principles  laid  down  by  Hatsell  are:  1. 
That  in  bills  of  supply,  the  Lords  can  make  no  al- 
teration but  to  correct  verbal  mistakes.  2.  That 
in  bills,  not  of  absolute  supply,  yet  imposing  bur- 
dens, as  turnpike  acts,  &c.,  the  Lords  can  not  al- 
ter the  quantum  of  the  toll,  the  persons  to  manage 
it,  &c. ;  but  in  other  clauses  they  may  make 
amendments.  3.  That,  where  a  charge  may  indi- 
rectly be  thrown  on  the  people  by  a  bill,  the  Com- 
mons object  to  the  Lords  making  amendments.  4. 
That  the  Lords  can  not  insert  pecuniai-y  penalties 
in  a  bill,  or  alter  those  inserted  by  the  Commons, 
iii.,  137.  He  seems  to  boast  that  the  Lords  during 
the  last  century  have  very  faintly  opposed  the 
claim  of  the  Commons.  But  surely  they  have 
sometimes  done  so  in  practice,  by  returning  a  mon- 
ey-bill, or  what  the  Lower  House  call  one,  amend- 
ed ;  and  the  Commons  have  had  recourse  to  the 
evasion  of  thi-owing  out  such  bill,  and  bringing  in 
another  with  the  amendments  inserted  in  it,  which 
does  not  look  very  triumphant. 

t  The  lagt  instance  mentioned  by  Hatsell  is  in 
1790,  when  the  Lords  had  amended  a  bill  for  reg- 
ulating Warwick  jail  by  changing  the  rate  to  be 
imposed  from  the  landowners  to  the  occupiers,  iii., 
131.  I  am  not  at  present  aware  of  any  subsequent 
case,  but  rather  suspect  that  such  might  be  found. 


haps  unintentionally,  to  be  infringed,  has 
commonly  resorted  to  the  moderate  course 
of  passing  a  fi'esh  bill  to  the  same  effect, 
after  satisfying  its  dignity  by  rejecting  the 
first. 

It  may  not  be  improper  to  choose  the 
present  occasion  for  a  summary  state  of  the 

view  of  the  constitution  of  both  Upper  House 
1  >•  11      under  the 

houses  01  Parliament  under  the  Tudors  and 
lines  of  Tudor  and  Stuart.  Of 
their  earlier  history  the  I'eader  may  find  a 
brief,  and  not,  I  believe,  very  incorrect  ac- 
count, in  a  work  to  which  this  is  a  kind  of 
sequel. 

The  number  of  temporal  lords  summoned 
by  writ  to  the  Parliaments  of  the  Augmenta- 
house  of  Plantagenet  was  exceed-  Ji,™p°ra?* 
ingly  various;  nor  was  any  thing  lords, 
more  common  in  the  fourteenth  centuiy 
than  to  omit  those  who  had  previously  sat 
in  person,  and  still  more  their  descendants. 
They  were  rather  less  numerous  for  this 
reason,  under  the  line  of  Lancaster,  when 
the  practice  of  summoning  those  who  were 
not  hereditary  peers  did  not  so  much  pre- 
vail as  in  the  preceding  reigns.  Fifty-three 
names,  however,  appear  in  the  Parliament 
of  1454,  the  last  held  before  the  commence- 
ment of  the  great  contest  between  Yoi'k  and 
Lancaster.  In  this  troublous  period  of 
above  thirty  years,  if  the  whole  reign  of  Ed- 
ward IV.  is  to  be  included,  the  chiefs  of 
many  powerful  families  lost  their  lives  in 
the  field  or  on  the  scaffold,  and  their  hon- 
ors perished  with  them  by  attainder.  New 
families,  adherents  of  the  victorious  party, 
rose  in  their  place ;  and  sometimes  an  at- 
tainder was  revei'sed  by  favor;  so  that  the 
peers  of  Edward's  reign  were  not  much 
fewer  than  the  number  I  have  mentioned. 
Henry  VII.  summoned  but  twenty-nine  to 
his  first  Parliament,  including  some  whose 
attainder  had  never  been  judicially  reversed ; 
a  plain  act  of  violence,  like  his  previous 
usurpation  of  the  crown.  In  his  subsequent 
Parliaments  the  peerage  was  increased  by 
fresh  creations,  but  never  much  exceeded 
forty.  The  greatest  number  summoned  by 
Henry  VIII.  was  fifty-one,  which  continued 
to  be  nearly  the  average  in  the  nest  two 
reigns,  and  was  veiy  little  augmented  by 
Elizabeth.  James,  in  his  thoughtless  pro- 
fusion of  favor,  made  so  many  new  crea- 
tions, that  eighty-two  peers  sat  in  his  first 
Parliament,  and  ninety-six  in  his  latest. 


512 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIH. 


From  a  similar  facility  in  granting  so  cheap 
a  i-eward  of  service,  and  in  some  measure, 
perhaps,  from  the  policy  of  counteracting  a 
spirit  of  o))position  to  the  court,  which  many 
of  the  lords  had  begun  to  manifest,  Charles 
called  no  less  than  one  hundred  and  seven- 
teen peers  to  the  Parliament  of  1628,  and 
one  hundred  and  nineteen  to  that  of  No- 
vember, 1640.  Many  of  these  honors  were 
sold  by  both  these  princes  ;  a  disgraceful  and 
dangerous  practice,  unheard  of  in  earlier 
times,  by  which  the  princely  peerage  of 
England  might  have  been  gradually  leveled 
with  the  herd  of  foreign  nobility.  This  has 
occasionally,  though  rarely,  been  suspected 
since  the  Restoration.  In  the  Parliament 
of  1661,  we  find  one  hundred  and  thirty- 
nine  lords  summoned. 

The  spiritual  lords,  who,  though  forming 
another  estate  in  Parliament,  have  always 
been  so  united  with  the  temporality  that 
the  suffrages  of  both  upon  every  question 
are  told  indistinctly  and  numerically,  com- 
posed in  general,  before  the  Reformation, 
a  majority  of  the  Upper  House,  though 
there  was  far  more  iiTegularity  in  the  sum- 
monses of  the  mitred  abbots  and  priors  than 
those  of  the  barons.  But  by  the  surrender 
and  dissolution  of  the  monasteries,  about 
thirty-six  votes  of  the  clergy,  on  an  average, 
were  withdrawn  from  the  Parliament ;  a 
loss  ill  compensated  to  them  by  the  creation 
of  five  new  bishoprics.  Thus,  the  number 
of  the  temporal  peers  being  continually  aug- 
mented, while  that  of  the  prelates  was  con- 
fined to  twenty-six,  the  direct  influence  of 
the  Church  on  the  Legislature  has  become 
comparatively  smaD  ;  and  that  of  the  crown, 
which,  by  the  pernicious  system  of  transla- 
tions and  other  means,  is  generally  powerful 
with  the  Episcopal  bench,  has,  in  this  re- 
spect at  least,  undergone  some  diminution. 
It  is  easy  to  perceive,  from  this  view  of  the 
case,  that  the  destruction  of  the  monasteries, 
as  they  then  stood,  was  looked  upon  as  an 
indispensable  preliminaiy  to  the  Reforma- 
tion, no  peaceable  efforts  toward  which 
could  have  been  effectual  without  altering 
the  relative  propoitions  of  the  spiritual  and 
temporal  aristocracy. 

The  House  of  Lords,  during  this  period 
of  the  sixteenth  and  seventeenth  centuries, 
were  not  supine  in  rendering  their  collective 
and  individual  rights  independent  of  the 
crown.    It  became  a  fundamental  princi- 


ple, according,  indeed,  to  ancient  authority, 
though  not  strictly  observed  in  nider  times, 
that  every  peer  of  full  age  is  entitled  to  his 
writ  of  summons  at  the  beginning  of  a  Par- 
liament, and  that  the  House  will  not  proceed 
on  business  if  any  one  has  denied  it.*  The 
privilege  of  voting  by  proxy,  which  was  origi- 
nally by  special  permission  of  the  king,  be- 
came absolute,  though  subject  to  such  lim- 
itations as  the  House  itself  may  impose. 
The  wi'it  of  summons,  which,  as  I  have  ob- 
served, had  in  earUer  ages  (if  usage  is  to  de- 
termine that  which  can  rest  on  nothing  but 
usage)  given  only  a  right  of  sitting  in  the 
Parliament  for  which  it  issued,  was  held, 
about  the  end  of  Elizabeth's  reign,  by  a 
consti'uction  founded  on  later  usage,  to  con- 
vey an  inheritable  peerage,  which  was  after- 
ward adjudged  to  descend  upon  heirs  gen- 
eral, female  as  well  as  male ;  an  extension 
which  sometimes  raises  intricate  questions 
of  descent,  and  though  no  materially  bad 
consequences  have  flowed  from  it,  is  per- 
haps one  of  the  blemishes  in  the  constitution 
of  Parliament.  Doubts  whether  a  peerage 
could  be  surrendered  to  the  king,  and  wheth- 
er a  territorial  honor,  of  which  hardly  any 
remain,  could  be  alienated  along  with  the 
land  on  which  it  depended,  were  determined 
in  the  manner  most  favorable  to  the  dignity 
of  the  aristocracy.  They  obtained,  also,  an 
important  privilege  ;  first,  of  recording  their 
dissent  in  the  Journals  of  the  House,  and 
aftei-ward  of  inserting  the  grounds  of  it.  In- 
stances of  the  former  occur  "not  unfi-equently 
at  the  period  of  the  Reformation ;  but  the 
latter  practice  was  little  known  before  the 
Long  Parliament :  a  right  that  Cato  or  Pho- 
cion  would  have  prized,  though  it  may  some- 
times have  been  frivolously  or  factiously  ex- 
ercised ! 

The  House  of  Commons,  from  the  earli- 
est records  of  its  regular  exist-  st^te  of  the 
ence  in  the  23d  year  of  Edward  Commons. 
I.,  consisted  of  seventy-four  knights,  or  rep- 
resentatives from  all  the  counties  of  Eng- 
land, except  Chester,  Durham,  and  Mon- 


*  See  the  case  of  the  Earl  of  Arundel  in  Parlia- 
ment of  1626.  In  one  instance  the  House  took  no- 
tice that  a  vrrit  of  summons  had  heen  issued  to  the 
Earl  of  Mulgrave,  he  beiug  under  age,  and  ad- 
dressed the  king  that  he  would  be  pleased  to  be 
sparing  of  writs  of  this  nature  for  the  future,  20th 
of  Oct.,  1667.  The  king  made  an  excuse  that  he 
did  not  know  the  earl  was  much  under  age,  and 
would  be  careful  for  the  future.— 29th  of  Oct. 


Cha.  II.— Constitution.] 


FROM  HENKY  VII.  TO  GEORGE  II. 


513 


mouth,  and  of  a  varying  number  of  deputies 
from  the  cities  and  boroughs ;  sometimes, 
in  the  earliest  period  of  representation, 
amounting  to  as  many  as  two  hundred  and 
sixty,  sometimes,  by  the  negligence  or  par- 
tiality of  the  sherills  in  omitting  places  that 
had  formerly  returned  members,  to  not 
more  than  two  thirds  of  that  number.  New 
Increase  of  lJoro"ghs,  however,  as  being  grown 
their  mem-  into  impoitance,  or  from  some  pri- 
vate motive,  acquired  the  franchise 
of  election  ;  and  at  the  accession  of  Henry 
VIII.  we  find  two  hundred  and  twenty-four 
citizens  and  burgesses  from  one  hundred  and 
eleven  towns  (London  sending  four),  none  of 
which  have  since  intermitted  their  privilege. 

I  must  so  far  concur  with  those  whose 
„    ..       general  principles  as  to  the  the- 

Questionas  ^  r  i 

to  rights  of  ory  of  Parliamentary  reform  leave 
election.  profess  my 

opinion  that  the  change  which  appears  to 
have  taken  place  in  the  English  government 
toward  the  end  of  the  thirteenth  century, 
was  founded  upon  the  maxim  that  all  who 
possessed  landed  or  movable  property  ought, 
as  freemen,  to  be  bound  by  no  laws,  and 
especially  by  no  taxation,  to  which  they  had 
not  consented  through  their  representatives. 
If  we  look  at  the  constituents  of  a  House  of 
Commons  under  Edward  I.  or  Edward  III., 
and  consider  the  state  of  landed  tenures  and 
of  commerce  at  that  period,  we  shall  per- 
ceive that,  excepting  women,  who  have  gen- 
erally been  supposed  capable  of  no  political 
right  but  that  of  reigning,  almost  every  one 
who  contributed  toward  the  tenths  of  fif- 
teenths granted  by  the  Parliament,  might 
have  exercised  the  franchise  of  voting  for 
those  who  sat  in  it.  Were  we  even  to  ad- 
mit that  in  corporate  boroughs  the  franchise 
may  have  been  usually  vested  in  the  free- 
men rather  than  the  inhabitants,  yet  this 
distinction,  so  important  in  later  ages,  was 
of  little  consequence  at  a  time  when  all 
traders,  that  is,  all  who  possessed  any  mov- 
able property  worth  assessing,  belonged  to 
the  former  class.  I  do  not  pretend  that  no 
one  was  contributory  to  a  subsidy  who  did 
not  possess  a  vote,  but  that  the  far  greater 
portion  was  levied  on  those  who,  as  free- 
holders or  burgesses,  were  reckoned  in  law 
to  have  been  consenting  to  its  imposition. 
It  would  be  difficult,  probably,  to  name  any 
town  of  the  least  consideration  in  the  four- 
teenth and  fifteenth  centuries,  which  did  not, 
K  K 


at  some  time  or  other,  return  members  to 
Parliament.  This  is  so  much  the  case,  that 
if,  in  running  our  eyes  along  the  map,  we 
find  any  sca-port,  as  Sunderland  or  Fal- 
mouth, or  any  inland  town,  as  Leeds  or  Bir- 
mingham, which  has  never  enjoyed  the 
elective  franchise,  we  may  conclude  at  once 
that  it  has  emerged  from  obscurity  since  the 
reign  of  Henry  VIII.* 

Though  scarce  any  considerable  town, 
probably,  was  intentionally  left  out,  except 
by  the  slieriffs'  partiality,  it  is  not  to  be  sup- 
posed that  all  boroughs  that  made  returns 
were  considerable.  Several  that  are  cur- 
rently said  to  be  decayed,  were  never  much 
better  than  at  present.  Some  of  these  were 
the  ancient  demesne  of  the  crown ;  the  ten- 
ants of  which,  not  being  suitors  to  the  coun- 
ty courts,  nor  voting  in  the  election  of 
knights  for  the  shire,  were,  still  on  the  same 
principle  of  consent  to  public  burdens,  called 
upon  to  send  their  own  representatives. 
Others  received  the  privilege  along  with 
their  charter  of  incorporation,  in  the  Ijope 
that  they  would  thrive  more  than  proved  to 
be  the  event ;  and  possibly,  even  in  such 
early  times,  the  idea  of  obtaining  influence 
in  the  Commons  through  the  votes  of  their 
burgesses  might  sometimes  suggest  itself. 

That,  amid  all  this  care  to  secure  the 
positive  right  of  representation,  so  little  pro- 
vision should  have  been  made  as  to  its  rel- 
ative efficiency,  tliat  the  high-born  and  op- 
ulent gentry  should  have  been  so  vastly  out- 
numbered by  peddling  traders,  that  the  same 
munber  of  two  should  have  been  deemed 
sufficient  for  the  counties  of  York  and  Rut- 
land, for  Bristol  and  Gatton,  are  facts  more 
easy  to  wonder  at  than  to  explain ;  for  though 
the  total  ignorance  of  the  government  as  to 
the  relative  population  might  be,  pei'haps,  a 
sufficient  reason  for  not  making  an  attempt 
at  equalization,  yet,  if  the  representation  had 
been  founded  on  any  thing  like  a  numerical 
principle,  there  would  have  been  no  diffi- 
culty in  reducing  it  to  the  proportion  fur- 
nished by  the  books  of  subsidy  for  each 
county  and  borough,  or  at  least  in  a  rude 
approximation  toward  a  more  rational  dis- 
tribution. 

*  Though  the  proposition  in  the  text  is,  I  be- 
lieve, generally  true,  it  has  occurred  to  me  since, 
that  there  are  some  exceptions  in  the  northern 
parts  of  England  ■,  and  that  both  Sheffield  and 
Manchester  are  among  them. 


514 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIIL 


Heniy  VIII.  gave  a  remarkable  proof  that 
no  pait  of  the  kingdom,  subject  to  the  En- 
glish laws  and  Parliamentary  burdens,  ought 
to  want  its  representation,  by  extending  the 
right  of  election  to  the  whole  of  Wales,  the 
counties  of  Chester  and  Monmouth,  and 
even  the  towns  of  Berwick  and  Calais.  It 
might  be  possible  to  trace  the  reason  why 
the  county  of  Durham  was  passed  over. 
The  attachment  of  those  northern  parts  to 
popeiy  seems  as  likely  as  any  other.  Thir- 
ty-three were  thus  added  to  the  Commons. 
Edward  VI.  cre.ited  fourteen  boroughs,  and 
restored  ten  that  had  disused  their  privilege. 
Mary  added  twenty-one,  Elizabeth  sixty, 
and  James  twenty-seven  members. 

These  accessions  to  the  popular  chamber 
of  Parliament  after  the  reign  of  Henry  VIII. 
were  by  no  means  derived  from  a  popular 
principle,  such  as  had  influenced  its  earlier 
constitution.  We  may  account,  perhaps, 
on  this  ground  for  the  writs  addressed  to  a 
veiy  few  towns,  such  as  Westminster.  But 
the  design  of  that  gi-eat  influx  of  new  mem- 
bers from  petty  boroughs,  which  began  in 
the  short  reigns  of  Edward  and  Maiy,  and 
continued  under  Elizabeth,  must  have  been 
to  secure  the  authority  of  government,  es- 
pecially in  the  successive  revolutions  of  re- 
ligion. Five  towns  only  in  Cornwall  made 
returns  at  the  accession  of  Edward  VI.; 
twenty-one  at  the  death  of  Elizabeth.  It 
will  not  be  pretended  that  the  wretched  vil- 
lages, which  corruption  and  peijury  still 
hai'dly  keep  from  famine,  were  seats  of  com- 
merce and  industry  in  the  sixteenth  cen- 
tury ;  but  the  county  of  Cornwall  was  more 
immediately  subject  to  a  coercive  influence, 
through  the  indefinite  and  oppressive  juris- 
diction of  the  stannary  court.  Similar  mo- 
tives, if*we  could  discover  the  secrets  of 
those  governments,  doubtless  operated  in 
most  other  cases.  A  slight  difficulty  seems 
to  have  been  raised  in  15G3  about  the  inti'o- 
duction  of  representatives  from  eight  new 
boroughs  at  once  by  charters  from  the  crown, 
but  was  soon  waved  with  the  complaisance 
usual  in  those  times.  Many  of  the  towns 
which  had  abandoned  their  privilege  at  a 
time  when  they  were  compelled  to  the  pay- 
ment of  daily  wages  to  their  members  during 
the  session,  were  now  desirous  of  recover- 
ering  it,  when  that  burden  had  ceased  and 
the  franchise  had  become  valuable  ;  and  the 
House,  out  of  favor  to  popular  rights,  laid  it 


down  in  the  reign  of  James  I.  as  a  principle, 
that  every  town  which  has  at  any  time  re- 
turned members  to  Parliament,  is  entitled  to 
a  writ  as  a  matter  of  course.  The  speaker 
accordingly  issued  writs  to  Hertford,  Pom- 
fret,  Ilchester,  and  some  other  places,  on 
their  petition.  The  restorations  of  bor- 
oughs in  this  manner,  down  to  1641,  are 
fifteen  in  number ;  but  though  the  doctrine 
that  an  elective  right  can  not  be  lost  by  dis- 
use is  still  current  in  Parliament,  none  of 
the  veiy  numerous  boroughs  which  have 
ceased  to  enjoy  that  franchise  since  the  days 
of  the  first  three  Edwards  have,  from  the 
Restoration  downward,  made  any  attempt 
at  retrieving  it ;  nor  is  it  by  any  means  likely 
that  they  would  be  successful  in  the  appli- 
cation. Charles  I.,  whose  temper  inspired 
him  rather  with  a  systematic  abhorrence  of 
Parliaments  than  with  any  notion  of  mana- 
ging them  by  influence,  created  no  new  bor- 
oughs. The  right,  indeed,  would  certainly 
have  been  disputed,  however  frequently  ex- 
ercised. In  1673,  the  county  and  city  of 
Durham,  which  had  strangely  been  unrep- 
resented to  so  late  an  era,  were  raised  by 
act  of  Parliament  to  the  privileges  of  their 
fellow-subjects.*  About  the  same  time  a 
charter  was  gi-anted  to  the  town  of  Newark, 
enabling  it  to  return  two  burgesses.  It 
passed  with  some  little  objection  at  the 
time  ;  but  four  years  afterward,  after  two 
debates,  it  was  carried  on  the  question,  by 
125  to  73,  that  by  viitue  of  the  charter  grant- 
ed to  the  town  of  Newark,  it  hath  )-ight  to 
send  burgesses  to  sei-ve  in  Parliament.f 
Notwithstanding  this  apparent  recognition 
of  the  king's  prerogative  to  summon  burgess- 
es fi-om  a  town  not  previously  represented, 
no  later  instance  of  its  exercise  has  occur- 
red ;  and  it  would  unquestionably  have  been 
resisted  by  the  Commons,  not,  as  is  vulgai-ly 
supposed,  because  the  act  of  union  with 
Scotland  has  limited  the  English  members 
to  513  (which  is  not  the  case),  but  upon  the 
broad  maxims  of  exclusive  privilege  in  mat- 
ters relating  to  their  own  body,  w'hich  the 
House  was  become  powerful  enough  to  as- 
sert against  the  crown. 

It  is  doubtless  a  problem  of  no  inconsid- 

*  25  Car.  II.,  c.  9.  A  bill  had  passed  the  Com- 
mons in  1624  for  the  same  effect,  but  failed  through 
the  dissolution. 

t  Journals,  26th  of  Feb.  and  20th  of  March, 
167C-7. 


Cha.  n.— Constitution.]       FROM  HENRY  Vn.  TO  GEORGE  II. 


515 


eiable  difficulty  to  determine  with  perfect 
exactness  by  what  class  of  persons  the  elect- 
ive franchise  in  ancient  boroughs  was  orig- 
inally possessed  ;  yet  not,  perhaps,  so  much 
so  as  the  carelessness  of  some,  and  the  artifi- 
ces of  others,  have  caused  it  to  appear. 
The  difi'erent  opinions  on  this  controverted 
Four  differ-  question  may  be  reduced  to  the 
ent  theories  four  following  theses :  1.  The 
original  Original  right,  as  enjoyed  by  bor- 
principle.  oughs  represented  in  the  Parlia- 
ments of  Edward  I.,  and  all  of  later  crea- 
tion, where  one  of  a  different  nature  has  not 
been  expressed  in  the  charter  from  which 
they  derive  the  privilege,  was  in  the  inhab- 
itant householders  resident  in  the  borough, 
and  paying  scot  and  lot ;  under  those  words 
including  local  rates,  and  probably  general 
taxes.  2.  The  right  sprang  from  the  tenure 
of  certain  freehold  lands  or  burgages  within 
the  borough,  and  did  not  belong  to  any  but 
Buch  tenants.  3.  It  was  derived  from  char- 
ters of  incorporation,  and  belonged  to  the 
community  or  freemen  of  the  corporate 
body.  4.  It  did  not  extend  to  the  generality 
of  freemen,  but  was  limited  to  the  govern- 
ing part  or  municipal  magistracy.  The  act- 
ual right  of  election,  as  fixed  by  determina- 
tions of  the  House  of  Commons  before  1772, 
and  by  committees  under  the  Grenville  Act 
since,  is  variously  grounded  upon  some  of 
these  four  principal  rules,  each  of  which  has 
been  subject  to  subordinate  modifications 
which  produce  still  more  complication  and 
irregularity. 

Of  these  propositions,  the  first  was  laid 
„,  .     ,     down  by  a  celebrated  committee 

Their  proba-    ^    .     •'^  ^  „ 

biiityconsid-  01  the  HousB  01  Commons  m 
ered.  1624,  the  chau-man  whereof  was 

Sergeant  Glanville,  and  the  members,  as  ap- 
pears by  the  list  in  the  Journals,  the  most 
eminent  men,  in  respect  of  legal  and  consti- 
tutional knowledge,  that  were  ever  united 
in  such  a  body.  It  is  called  by  them  the 
common-law  right,  and  that  which  ought  al- 
ways to  obtain,  where  prescriptive  usage  to 
the  contrary  can  not  be  shown.  But  it  has 
met  with  very  Uttle  favor  fi-om  the  House 
of  Commons  since  the  Restoration.  The 
second  has  the  authority  of  Lord  Holt  in  the 
case  of  Ashby  and  White,  and  of  some  other 
lawyers  who  have  turned  their  attention  to 
the  subject.  It  countenances  what  is  called 
the  right  of  burgage  tenure  ;  the  electors  in 
boroughs  of  this  description  being  such  as 


hold  burgages  or  ancient  tenements  within 
the  borough,  '.'^he  next  theory,  which  at- 
taches the  primary  franchise  to  the  freemen 
of  corporations,  has,  on  the  whole,  been 
most  received  in  modern  times,  if  we  look 
either  at  the  decisions  of  the  proper  tribunal, 
or  the  current  doctrine  of  lawyers.  The 
last  proposition  is  that  of  Dr.  Brady,  who 
in  a  treatise  of  boroughs,  written  to  serve  the 
purposes  of  James  II.,  though  not  published 
till  after  the  Revolution,  endeavored  to  settle 
all  elective  rights  on  the  narrowest  and  least 
popular  basis.  This  work  gained  some 
credit,  which  its  perspicuity  and  acutenes3 
would  deserve,  if  these  were  not  disgraced 
by  a  perverse  sophistry  and  suppression  of 
truth. 

It  does  not  appear  at  all  probable  that 
such  varying  and  indefinite  usages  as  we 
find  in  our  present  representation  of  bor- 
oughs, could  have  begun  simultaneously, 
when  they  were  first  called  to  Parliament 
by  Edward  I.  and  his  next  two  descendants. 
There  would  have  been  what  may  be  fairly 
called  a  common-law  right,  even  weie  we  to 
admit  that  some  variation  from  it  may,  at 
the  veiy  commencement,  have  occurred  in 
particular  places.  The  earliest  writ  of  sum- 
mons directed  the  sheriff  to  make  a  return 
from  every  borough  within  his  jurisdiction, 
without  any  limitation  to  such  as  had  ob- 
tained charters,  or  any  rule  as  to  the  elect- 
oral body.  Charters,  in  fact,  incorporating 
towns,  seem  to  have  been  by  no  means  com- 
mon in  the  thirteenth  and  fourteenth  centu- 
ries ;  and  though  they  grew  more  frequent 
aftemard,  yet  the  first  that  gave  expressly 
a  right  of  returning  members  to  Parliament 
was  that  of  Wenlock  under  Edward  IV. 
These  charters,  it  has  been  contended,  were 
incorporations  of  the  inhabitants,  and  gave 
no  power  either  to  exclude  any  of  them, 
or  to  admit  non-resident  sti-angers,  accord- 
ing to  the  practice  of  later  ages.  But,  how- 
ever this  may  be,  it  is  highly  probable  that 
the  word  burgess  (burgensis),  long  before 
the  elective  franchise  or  the  charter  of 
a  corporation  existed,  meant  literally  the 
free  inhabitant  householder  of  a  borough, 
a  member  of  its  court-leet,  and  subject  to 
its  jui-isdiction.  We  may,  I  believe,  reject 
with  confidence  what  I  have  reckoned  as 
the  third  proposition,  namely,  that  the  elect- 
ive franchise  belonged,  as  of  common  right, 
to  the  freemen  of  corporations;  and  still 


516 

more  tbat  of  Brady,  which  few  would  be 
found  to  support  at  the  present  day. 

There  can,  I  should  conceive,  be  little  pre- 
tense for  affecting  to  doubt  that  the  burgess- 
es of  Domesday-Book,  of  the  various  early 
records  cited  by  Madox  and  others,  and  of 
the  writs  of  summons  to  Edward's  Parlia- 
ment, were  inhabitants  of  tenements  within 
the  borough ;  but  it  may  remain  to  be  proved 
that  any  were  entitled  to  the  privileges  or 
rank  of  burgesses,  who  held  less  than  an 
estate  of  freehold  in  their  possessions.  The 
burgage  tenure,  of  which  we  read  in  Little- 
ton, was  evidently  freehold  ;  and  it  might  be 
doubtful  whether  the  lessees  of  dwellings 
for  a  term  of  years,  whose  interest,  in  con- 
templation of  law,  is  far  inferior  to  a  free- 
hold, were  looked  upon  as  sufificiently  domi- 
ciled within  the  borough  to  obtaiu  the  ap- 
pellation of  burgesses.  It  appears  from 
Domesday  that  the  burgesses,  long  before 
any  incorporation,  held  lands  in  common  be- 
longing to  their  town ;  they  had  also  their 
guild  or  market-house,  and  were  entitled  in 
some  places  to  tolls  and  customs.  These 
permanent  rights  seem  naturally  restrained 
to  those  who  possessed  an  absolute  propei-ty 
in  the  soil.  There  can  surely  be  no  ques- 
tion as  to  mere  tenants  at  will,  liable  to  be 
removed  from  their  occupation  at  the  pleas- 
ure of  the  lord ;  and  it  is  perhaps  unneces- 
saiy  to  mention  that  the  tenancy  from  year 
to  year,  so  usual  at  present,  is  of  veiy  re- 
cent introduction.  As  to  estates  for  a  term 
of  years,  even  of  considerable  dui'ation,  they 
were  probably  not  uncommon  in  the  time 
of  Edward  I. ;  yet  far  outniunbered,  as  I 
should  conceive,  by  those  of  a  freehold  na- 
ture. Whether  these  lessees  were  contrib- 
utory to  the  ancient  local  burdens  of  scot 
and  lot,  as  well  as  to  the  tallages  exacted  by 
the  king,  and  tenths  aftenvard  imposed  by 
Parliament  in  respect  of  movable  estate,  it 
seems  not  easy  to  determine ;  but  if  they 
were  so,  as  appears  more  probable,  it  was 
not  only  consonant  to  the  principle  that  no 
freeman  should  be  liable  to  taxation  without 
the  consent  of  his  representatives,  to  give 
them  a  share  in  the  general  privilege  of  the 
borough,  but  it  may  be  inferred  with  suffi- 
cient evidence  from  several  records,  that 
the  privilege  and  the  burden  were  absolute- 
ly commensurate ;  men  having  been  spe- 
cially discharged  from  contributing  to  talla- 
ges because  they  did  not  participate  iu  the 


[Chap.  XIIL 

liberties  of  the  borough,  and  others  being 
expressly  declared  subject  to  those  imposi- 
tions, as  the  condition  of  their  being  admit- 
ted to  the  rights  of  burgesses.*  It  might, 
however,  be  conjectured,  that  a  difference 
of  usage  between  those  boroughs,  where 
the  ancient  exclusive  rights  of  burgage  ten- 
ants were  maintained,  and  those  where 
the  equitable  claim  of  taxable  inhabitants 
possessing  only  a  chattel  interest  received 
attention,  might  ultimately  produce  those 
very  opposite  species  of  franchise,  which 
we  find  in  the  scot  and  lot  borough,  and  in 
those  of  burgage  tenure.  If  the  franchise, 
as  we  now  denominate  it,  passed  in  the 
thirteenth  centuiy  for  a  burden,  subjecting 
the  elector  to  bear  his  part  in  the  payment 
of  wages  to  the  representative,  the  above 
conjecture  will  be  equally  applicable,  by 
changing  the  words  right  and  claim  into  lia- 
bility.f 

It  was  according  to  the  natural  coui'se  of 
things  that  the  mayors  or  bailiffs,  as  return- 
ing officers,  with  some  of  the  principal  bur- 
gesses (especially  where  incorporating  char- 
ters had  given  them  a  pre-eminence),  would 
take  to  themselves  the  advantage  of  serving 

*  Madox  Firma,  Burgi,  p.  270,  et  post. 

t  The  popular  character  of  the  elective  franchise 
in  early  times  has  been  maintained  by  two  writers 
of  considerable  research  and  ability :  Mr.  Luders, 
Reports  of  Election  Cases,  and  Mr.  Merewether, 
in  his  Sketch  of  the  History  of  Boronghs  and  Re- 
port of  the  West  Looe  Case.  The  former  writer 
has  the  following  observations,  vol.  i.,  p.  99  :  "  The 
ancient  history  of  boroughs  does  not  confirm  the 
opinion  above  referred  to,  which  Lord-chief-justice 
Holt  deUvered  in  the  case  of  Ashby  v.  White,  viz., 
that  inhabitants  not  incorporated  can  not  send 
members  to  Parliament  but  by  prescription ;  for 
there  is  good  reason  to  beUeve  that  the  elections 
in  boroughs  were  in  the  beginning  of  representa- 
tion popular ;  yet  in  the  reign  of  Edward  1.  there 
were  not.  perhaps,  thirty  corporations  in  the  king- 
dom. Who  then  elected  the  members  of  boroughs 
not  incorporated  ?  Plainly,  the  inhabitants  or  burgh- 
ers [according  to  their  tenure  or  situation]  ;  for 
at  that  time  every  inhabitant  of  a  borough  was 
called  a  burgess  ;  and  Hobart  refers  to  this  usage 
in  support  of  his  opinion  in  the  case  of  Dungannon. 
The  manner  in  which  they  exercised  this  right 
was  the  same  as  that  in  which  the  inhabitants  of 
a  town,  at  this  day,  hold  a  right  of  common,  or 
other  such  privilege,  which  many  possess  who  are 
not  incorporated."  The  words  in  brackets,  which 
are  not  in  the  printed  edition,  are  inserted  by  the 
author  himself  in  a  copy  bequeathed  to  the  Inner 
Temple  Library.  The  remainder  of  Mr.  Luder's 
note,  though  too  long  for  this  place,  is  very  good, 
and  successfully  repels  the  corporate  theory. 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


Cha.  n.— Constitution.]        FROM  HENRY         TO  GEORGE  II. 


517 


a  courtier  or  neigliboiing  gentleman,  by  re- 
turning him  to  Parliament,  and  virtually  ex- 
clude the  general  class  of  electors,  indiffer- 
ent to  public  matters,  and  without  a  suspi- 
cion that  their  individual  suffrages  could 
ever  be  worth  purchase.  It  is  certain  that 
a  seat  in  the  Commons  was  an  object  of  am- 
bition in  tho  time  of  Edward  IV.,  and  I  have 
little  doubt  that  it  was  so  in  many  instances 
much  sooner ;  but  there  existed  not  the 
means  of  that  splendid  corruption  which  has 
emulated  the  Crassi  and  LucuUi  of  Rome. 
Even  so  late  as  1571,  Thomas  Long,  a  mem- 
ber for  Westbury,  confessed  that  he  had 
given  four  pounds  to  the  mayor  and  another 
person  for  his  return.  The  elections  were 
thus  generally  managed,  not  often,  perhaps, 
by  absolute  bribery,  but  through  the  influ- 
ence of  the  government  and  of  the  neigh- 
boring aristocracy  ;  and  while  the  freemen 
of  the  corporation,  or  resident  household- 
ers, were  frequently  permitted,  for  the  sake 
of  form,  to  concur  in  the  election,  there 
were  many  places  where  the  smaller  part 
of  the  municipal  body,  by  whatever  names 
distinguished,  acquired  a  sort  of  prescriptive 
right  through  a  usage  of  which  it  was  too 
late  to  show  the  commencement.* 

*  The  foUowiug  passage  from  Vowell's  treatise 
on  the  order  of  the  Pai-liament,  published  in  1571, 
and  reprinted  in  Holingshed's  Chronicles  of  Ire- 
land (vi.,  345),  seems  to  indicate  that,  at  least  in 
practice,  the  election  was  in  the  principal  or  gov- 
eniing  body  of  the  corporation.  "  The  sheriff  of  ev- 
ery county,  having  received  his  writ,  ought  forth- 
with to  send  his  precepts  and  summons  to  the 
mayors,  bailiffs,  and  head  officers  of  evorj'  city, 
town  corporate,  borough,  and  sach  places  as  have 
been  accustomed  to  send  burgesses  within  his 
county,  that  they  do  choose  and  elect  among  them- 
selves two  citizens  for  every  city,  and  two  burgess- 
es for  every  borough,  according  to  their  old  cus- 
tom and  usage ;  and  these  head  ofHceis  ought  then 
to  assemble  themselves,  and  the  aldermen  and 
common  council  of  every  city  or  tcncn,  and  to 
make  choice  among  themselves  of  two  able  and 
sufficient  men  of  every  city  or  town,  to  serve  for 
and  in  the  said  Parliament." 

Now,  if  these  expressions  are  accurate,  it  cer- 
tainly seems  that,  at  this  period,  the  great  body  of 
freemen  or  inhabitants  were  not  partakers  in  the 
exercise  of  their  franchise  ;  and  the  foUovfing  pass- 
age, if  the  reader  will  turn  to  it,  wherein  Vowell 
adverts  to  the  form  of  a  county  election,  is  so  dif- 
ferently worded  in  respect  to  the  election  by  the  free- 
holders at  large,  that  we  may  fairly  put  a  literal 
construction  upon  the  former.  In  point  of  fact,  I 
have  little  doubt  that  elections  in  boroughs  were 
for  the  most  part  verj-  closely  managed  in  the  six- 
teenth century,  and  probably  much  earlier.  This, 


It  was  perceived,  however,  by  the  as- 
serters  of  the  popular  cause  under  James 
I.,  that  by  this  narrowing  of  the  elective 
franchise  many  boroughs  were  subjected  to 
the  influence  of  the  privy  council,  which, 
by  restoring  the  householders  to  their  legit- 
imate rights,  would  strengthen  the  interests 
of  the  country.  Hence  Lord  Coke  lays  it 
down  in  his  fourth  Institute,  that  "  if  the 
king  newly  incorporate  an  ancient  borough, 
which  before  sent  burgesses  to  Parliament, 
and  granteth  that  certain  selected  burgesses 
shall  make  election  of  the  burgesses  of  Par- 
liament, where  all  the  burgesses  elected  be- 
fore, this  charter  taketh  not  away  the  elec- 
tion of  the  other  burgesses ;  and  so,  if  a  city 
or  borough  hath  power  to  make  ordinances, 
they  can  not  make  an  ordinance  that  a  less 
number  shall  elect  burgesses  for  the  Parlia- 
ment than  made  the  election  before ;  for 
free  elections  of  members  of  the  high  court 
of  Parliament  are  pro  bono  publico,  and  not 
to  be  compared  to  other  cases  of  election  of 
mayois,  bailiffs,  &c.,  of  corporations."*  He 
adds,  however,  "  By  original  grant  or  by 
custom,  a  selected  number  of  burgesses  may 
elect  and  bind  the  residue."  This  restric- 
tion was  admitted  by  the  committee  over 
which  Glanville  presided  in  lG-'4  ;f  but  both 
they  and  Lord  Coke  believed  the  represent- 
ation of  boroughs  to  be  from  a  date  before 
what  is  called  legal  memory,  that  is,  the  ac- 
cession of  Richard  I.    It  is  not  easy  to  rec- 

however,  will  not  by  any  means  decide  the  ques- 
tion of  right ;  for  we  know  that  in  the  reigns  of 
Henry  IV.  and  Hem-y  V.,  returns  for  the  great 
county  of  York  were  made  by  the  proxies  of  a 
few  peers  and  a  few  knights ;  and  there  is  a  still 
more  anomalous  case  in  the  reign  of  Elizabeth, 
when  a  Lady  Packington  sealed  the  indenture  for 
the  county  of  Worcester. — Carcw's  Hist,  of  Elec- 
tions, part  ii.,  p.  282.  But  uo  one  would  pretend 
that  the  right  of  election  was  in  these  persons,  or 
supposed  by  any  human  being  to  be  so. 

The  difficulty  to  be  got  over  by  those  who  defend 
the  modern  decisions  of  committees  is  Jhis.  We 
know  that  in  the  reign  of  Edward  I.  more  than 
one  hundred  boroughs  made  returns  to  the  writ. 
If  most  of  these  were  not  incorporated,  nor  had  any 
aldenneu,  capital  burgesses,  and  so  forth,  by  whom 
were  the  elections  made  ?  Surely  by  the  free- 
holders, or  by  the  inhabitants.  And  if  they  were 
so  made  in  the  reign  of  Edward  I.,  how  has  the 
franchise  been  restrained  afterward  ? 

*  4  lust.,  48.  Glanville,  p.  53,  66.  That  no 
private  agreement,  or  by-law  of  the  borough,  can 
restrain  the  right  of  election,  is  laid  down  in  the 
same  book,  p.  17. 

t  Glanville's  case  of  Bletchingly,  p.  33. 


518 


COXSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XUI 


oDcile  their  principle,  that  an  elective  right 
once  sabsisting  could  not  be  limited  by  any 
thing  short  of  immemorial  prescription,  with 
some  of  their  own  determinations,  and  still 
less  with  those  which  have  subsequently 
occurred,  in  favor  of  a  restrained  right  of 
suffrage.  There  seems,  on  the  whole,  great 
reason  to  be  of  opinion,  that  where  a  bor- 
ough is  so  ancient  as  to  have  sent  members 
to  Parliament  before  any  charter  of  incorpo- 
ration proved,  or  reasonably  presumed  to 
have  been  granted,  or  where  the  word  bur- 
gensb  is  used  without  any  thing  to  restrain 
its  meaning  in  an  ancient  charter,  the  right 
of  election  ought  to  have  been  acknowledged 
either  in  the  resident  householders  paying 
general  and  local  taxes,  or  in  such  of  them 
as  possessed  an  estate  of  freehold  within 
the  borough ;  and  whatever  may  have  been 
the  primary  meaning  of  the  word  burgess, 
it  appears  consonant  to  the  popular  spirit 
of  the  English  Constitution,  that  after  the 
possessors  of  leasehold  interest  became  so 
numerous  and  opulent  as  to  bear  a  very 
large  share  in  the  public  burdens,  they 
should  have  enjoyed  commensurate  privi- 
leges ;  and  that  the  resolution  of  Mr.  Glan- 
vilJe's  committee  in  favor  of  what  they  called 
the  common-law  right  should  have  been  far 
more  uniformly  received,  and  more  consist- 
ently acted  upon,  not  merely  as  agreeable 
to  modem  theories  of  liberty,  from  which 
some  have  intimated  it  to  have  sprung,  but 
as  grounded  on  the  primitive  .spirit  and  in- 
tention of  the  law  of  Parliament. 

In  the  reign  of  Charles  II.  the  House  of 
Commons  seems  to  have  become  less  favor- 
able to  this  species  of  franchise :  but  after 
the  Revolution,  when  the  struggle  of  parties 
was  renewed  every  three  years  throughout 
the  kingdom,  the  right  of  election  came 
more  continually  into  question,  and  was 
treated  with  the  grossest  partiality  by  the 
HoTXse,  as  subordinate-  to  the  main  interests 
of  the  rival  factions.  Contrary  determina- 
tions for  the  sole  purpose  of  serving  these 
interests,  as  each  grew  in  its  turn  more 
powerful,  frequently  occurred :  and  at  this 
time  the  ancient  right  of  resident  house- 
holders seems  to  have  grown  into  disreptite, 
and  given  way  to  that  of  corporations,  some- 
times at  large,  sometimes  only  in  a  limited 
and  very  smaD  number.*    A  slight  check  | 

*  [I  incUne  to  soapect  tfa&t  it  woold  be  ffjotul  on  j 
tesearcii  that,  in  a  plurality  of  tz^aocea,  the  To- 1 


was  imposed  on  this  scandalous  and  syste- 
matic injustice  by  the  act  2  Geo.  II.,  c.  2, 
which  renders  the  last  determination  of  the 
House  of  Commons  conclusive  as  to  the 
right  of  election.*  But  this  enactment  con- 
firmed many  decisions  that  can  not  be  rec- 
onciled with  any  sensible  rule.  The  same 
iniquity  continued  to  prevail  in  cases  beyond 
its  pale;  the  fall  of  Sir  Piobert  Walpole 
from  power  was  reckoned  to  be  settled 
when  there  appeared  a  small  majority 
against  him  on  the  right  of  election  at  Chip- 
penham, a  question  not  very  logically  con- 
nected with  the  merits  of  his  administra- 
tion ;  and  the  House  would  to  this  day  have 
gone  on  trampling  on  the  franchises  of  their 
constituents,  if  a  statute  had  not  been  pass- 
ed through  the  authority  and  eloquence  of 
Mr.  GrenviDe,  which  has  justly  been  known 
by  his  name.  I  shall  not  enumerate  the 
particular  provisions  of  this  excellent  law, 
which,  in  point  of  time,  does  not  fall  within 
the  period  of  my  present  work  ;  it  is  gener- 
ally acknowledged  that,  by  transferring  the 
judicature  in  all  cases  of  controverted  elec- 
tions from  the  House  to  a  sworn  committee 
of  fifteen  members,  the  reproach  of  partial- 
ity has  been  a  good  deal  lightened,  though 
not,  perhaps,  effaced,  f 

riei  favored  the  right  of  reaidenta,  either  booje- 
boldera  or  bargage  temmts,  to  the  czclojioD  of 
freemen,  who.  being  in  a  cTeat  measare  outvoteri, 
were  less  Kkely  to  hf.  influenced  by  the  neighbor- 
ing gentry.  In  le^-l  a  bill  was  brought  in  to  dis- 
franchise the  boroxigh  of  Stoclibridge  for  bribery ; 
bat  the  burgesses  petitioned  against  it,  declaring 
themselves  resolved,  for  the  fatore,  in  ail  difficult 
cases,  to  consnlt  the  gentlemen  of  the  county. — 
Jonmals,  7th  of  Feb.  They  by  no  means  kept  their 
word  in  the  next  centory,  no  place  having  been 
more  not/jriously  venal  The  bill  was  thrown  oat 
by  a  small  majoritj- ;  but  the  Whigs  seem  to  have 
SQpported  it,  as  far  as  we  can  judge  by  the  tellets. 
—Id.,  March  30.— 1«45.] 

*  This  clause,  in  an  act  imposing  severe  penal- 
ties on  bribery,  was  inserted  by  the  House  rf 
Lords  with  the  insidious  design  of  causing  the  re- 
jection of  the  whole  biH,  if  the  Commons,  as  might 
be  expected,  should  resent  such  an  interference 
with  tbeir  privileges.  The  ministry  accordingly 
endeavored  to  exdte  this  sentiment :  but  those 
who  had  introduced  the  bill  very  wisely  thought 
it  better  to  sacrifice  a  point  of  dignity  rather  than 
lose  so  important  a  statute.  It  was,  however,  only 
carried  by  two  voices  to  agree  with  the  amend- 
ment.—Pari.  Hist.,  viii.,  7'A. 

t  These  pages  were  first  published  in  1327.  The 
Reform  BiH  of  has  of  course  rendered  a  dis- 
fjnisition  on  the  ancient  rights  of  election  in  bor- 
oughs a  matter  of  merely  historical  interest 


Jakes  II.] 


FROM  HEN'RY  VU.  TO  GEORGE  IL 


519 


CIL^PTER  XIV. 
THE  HEIGX  OP  JAMES  II. 


Designs  of  the  King. — Parliament  of  Ib'^o. — King's 
Intention  to  repeal  the  Test  Act. — Deceived  as 
to  the  Dispositions  of  his  Subjects. — Proivgariou 
of  ParUameut. — Dispensing  Power  confirmed  by 
the  Judges.  —  Ecclesiastical  Commission.  — 
King's  Scheme  of  establishing  Poperj-.  —  Dis- 
missal of  Lord  Rochester.  —  Prince  of  Orange 
alarmed. — Plan  of  setting  the  Princess  aside. — 
Rejected  by  tlie  King. — Overtures  of  the  Mal- 
contents to  Prince  of  Orange. — Declaration  for 
Liberty  of  Conscience. — Addresses  in  Favor  of 
it. — New-modeling  of  the  Corporations. — Affair 
of  Masdaleu  CoUege. — InJ'atuation  of  the  King. 
— His  Coldness  toward  Louis. — Invitation  sign- 
ed to  the  Prince  of  Orange. — Birth  of  Prince  of 
Wales. — Justice  and  Necessitj-  of  the  Revolu- 
tion.— Favorable  Circumstances  attending  it. — 
Its  salutarj-  Consequences.— Proceeilings  of  the 
Convention. — Ended  by  the  Elevation  of  Will- 
iam and  Mary  to  the  Thiuae. 

The  great  question  that  has  been  brought 
forward  at  the  end  of  the  last  chapter,  con- 
cerning the  right  and  usage  of  election  in 
boroughs,  was  perhaps  of  less  practical  im- 
portance in  the  reign  of  Charles  the  Second 
than  we  might  at  first  imagine,  or  than  it 
might  become  in  the  present  age.  Whoev- 
er might  be  the  legal  electors,  it  is  undoubt- 
ed that  a  great  prejwnderauce  was  vLrtually 
lodged  in  the  select  body  of  corporations. 
It  was  the  knowledge  of  this  that  produced 
the  Corporation  Act  soon  after  the  Resto- 
ration, to  exclude  the  Presbyterians,  and  the 
more  violent  measures  of  quo  wan-anto  at 
the  end  of  Charles's  reign.  If  by  placing 
creatiu-es  of  the  court  in  municipal  offices, 
or  by  intimidating  the  former  corporators 
through  apprehensions  of  forfeiting  their 
common  property  and  lucrative  privileges, 
what  was  called  a  loyal  Parliament  could  be 
prociu^d,  the  business  of  government,  both 
as  to  supply  and  enactment  or  repeal  of 
laws,  would  be  carried  on  far  more  smootli- 
ly,  and  with  less  scandal  than  by  their  entire 
disuse.  Few  of  those  who  assumed  the 
Dame  of  Tories  were  prepared  to  sacrifice 
the  ancient  fundamental  forms  of  the  Con- 
stitntion.  They  thought  it  equally  neces- 
saiy  that  a  Parliament  should  exist,  and 
tliat  it  should  have  no  will  of  its  own,  or 
Done,  at  least,  e.xcept  for  the  preservation  of 
that  ascendency  of  the  established  religion 


which  even  their  loyalty  would  not  consent 
to  surrender. 

It  is  not  easy  to  determine  whether 
James  II.  had  resolved  to  com-  Deigns  of 
plete  his  schemes  of  arbitrary  gov- 
erument  by  setting  aside  even  the  nominal 
concurrence  of  the  two  houses  of  Parlia- 
ment in  legislative  enactments,  and  espe- 
ciidly  in  le>"ying  money  on  his  subjects. 
Lonl  Halifax  had  given  him  much  oti'ense 
toward  the  close  of  the  late  reign,  and  was 
considered  from  thenceforth  as  a  man  imfit 
to  be  employed,  because  in  the  cabinet,  on 
a  question  whether  the  people  of  New  En- 
gland should  be  niled  in  future  by  an  as- 
semblj-  or  by  the  absolute  pleasure  of  the 
crown,  he  had  spoken  very  freely  agtunst  un- 
limited monarchy.*  James,  indeed,  could 
hanlly  avoid  perceiving  that  the  constant  ac- 
quiescence of  an  Englisli  House  of  Com- 
mons in  the  measures  proposed  to  it,  a  re- 
spectful abstinence  from  all  intermeddling 
with  the  administration  of  atlairs,  could 
never  be  relied  upon  or  obtained  at  all, 
without  much  of  that  dextrous  uumage- 
ment  and  intluence  which  he  thought  it 
both  unworthy  and  impolitic  to  exert.  It 
seems  clearly  that  he  had  determined  on 
trying  their  obedience  merely  as  an  exper- 
iment, and  by  no  means  to  put  his  authority 
in  any  mamier  within  their  control.  Hence 
he  took  the  bold  step  of  issuing  a  procla- 
mation for  the  payment  of  customs,  which 
by  law  expired  at  the  late  king's  death  ;f 

'  Fox,  Appendix,  p.  8. 

I  "The  legal  method,"  says  Bamet,  "was  to 
have  made  entries,  and  to  have  taken  bonds  for 
those  duties  to  be  paid  when  the  Parliament  should 
meet  and  renew  the  grant."  Mr.  Onslow  remarks 
on  this,  that  he  sliould  have  said  the  least  illegal 
and  the  only  justifiable  method.  To  which  the 
Oxford  editor  subjoins  that  it  was  the  proposal  of 
Lord-keeper  Xorth.  while  the  other,  which  was 
adopted,  was  suggested  by  Jefferies.  This  is  a 
mistake.  North's  proi>o8al  was  to  collect  the  du 
ties  nnder  the  proclamation,  bat  to  keep  them 
apart  from  the  other  revenues  in  the  Esche<iuer 
until  the  nest  session  of  Parliament.  There  was 
surely  little  difference  in  point  of  illegality  between 
this  and  the  course  adopted.  It  was  alleged  that 
the  merchants,  who  had  paid  duty,  would  be  ii»- 
jured  by  a  temporary  importation  duty  free ;  and 


520 


COXSTITUTIONAL  HISTORY  OF  EXGLAXD 


[Chap.  XIV. 


and  Barillon  mentions  several  times,  that  he 
was  resolved  to  continue  in  the  possession 
of  the  revenue,  whether  the  Parliament 
should  grant  it  or  no.  He  was  equally  de- 
cided not  to  accept  it  for  a  limited  time. 
This,  as  his  principle  ministers  told  the  am- 
bassador, would  be  to  establish  the  necessi- 
ty of  convoking  Parliament  from  time  to 
time,  and  thus  to  change  the  form  of  govern- 
ment by  rendering  the  king  dependent  upon 
it ;  rather  than  which  it  would  be  better  to 
come  at  once  to  the  extremity  of  a  dissolu- 
tion, and  maintain  the  possession  of  the  late 
king's  revenues  by  open  force.*  But  the  ex- 
traordinary conduct  of  this  House  of  Com- 
mons, so  unlike  any  that  had  met  in  England 
for  the  last  centuiy,  rendered  any  exertion 
of  violence  on  this  score  quite  unnecessary. 

The  behavior  of  that  unhonored  Parlia- 
Parliament  ment,  which  held  its  two  short 
of  1685.  sessions  in  1685,  though  in  a  great 
measure  owing  to  the  fickleness  of  the  pub- 
lic mind  and  rapid  ascendency  of  Tory  prin- 
ciples during  the  late  years,  as  well  as  to  a 
knowledge  of  the  king's  severe  and  vindic- 
tive temper,  seems  to  confirm  the  assertion 
strongly  made  at  the  time  within  its  walls, 
that  many  of  the  members  had  been  unduly 
returned. -f  The  notorious  facts,  indeed,  as 
to  the  forfeiture  of  corporations  throughout 

certainly  it  was  inconvenient  to  make  the  revenue 
dependent  on  sach  a  contingency  as  the  demise  of 
the  crown.  But  this  neither  justifies  the  procla- 
mation, nor  the  disgraceful  acquiescence  of  the 
next  Parliament  in  it. 

The  king  was  thanked  in  several  addresses  for 
directing  the  customs  to  be  levied,  particularly  in 
one  from  the  benchers  and  barristers  of  the  Middle 
Temple. — London  Gazette,  March  11.  This  was 
drawn  by  Sir  Bartholomew  Shower,  and  presented 
by  Sir  Humphrey  Mackworth. — Life  of  James,  vol. 
ii.,  p.  17.  The  former  was  active  as  a  lawyer  in 
all  the  worst  measures  of  these  two  reigns ;  yet, 
after  the  Revolution,  they  both  became  Tory  pat- 
riots, and  jealous  assertors  of  freedom  against  the 
government  of  William  III.  Barillon,  however, 
takes  notice  that  this  illegal  continuance  of  the 
revenue  produced  much  discontent. — Fox's  Ap- 
pendix, 39.  And  Rochester  told  him  that  North 
and  HaUfax  would  have  urged  the  king  to  call  a 
Parliament,  in  order  to  settle  the  revenue  on  a 
lawful  basis,  if  that  resolution  had  not  been  taken 
by  himself — Id.,  p.  20.  The  king  thought  it  nec- 
essary to  apologize  to  Barillon  for  convoking  Par- 
liament.— Id.,  p.  18.    Dalrymple,  p.  100. 

*  Dalrj-mple,  p.  142.  The  king  alludes  to  this  pos- 
sibility of  a  limited  grant  with  much  resentment  and 
threatening,  in  his  speech  on  opening  the  session. 

t  Fox,  Appendix,  p.  93.  Lonsdale,  p.  5.  [Ralph, 
860.   Evelyn,  i.,  561.] 


j  the  kingdom,  and  their  re-grant  under  such 
I  restrictions  as  might  serve  the  purpose  of 
the  crown,  stand  in  need  of  no  confinnation. 
I  Those  who  look  at  the  debates  and  votes  of 
'  this  assembly  ;  their  large  giant  of  a  per- 
manent revenue  to  the  annual  amount  of 
two  millions,  rendering  a  frugal  prince,  in 
time  of  peace,  entirely  out  of  all  dependence 
on  his  people ;  their  timid  departure  from 
I  a  resolution  taken  to  address  the  king  on 
'  the  only  matter  for  which  they  were  really 
solicitous,  the  enforcement  of  the  penal 
laws,  on  a  suggestion  of  his  displeasure  ;* 
their  bill,  entitled,  for  the  preservation  of 
his  majesty's  person,  full  of  dangerous  inno- 
vations in  the  law  of  ti-eason,  especially  one 
most  unconstitutional  clause,  that  any  one 
moving  in  either  house  of  Parliament  to 
change  the  descent  of  the  crown  should  in- 
cur the  penalties  of  that  offense;!  their 

*  For  this  curious  piece  of  ParKamentary  incon- 
sistency, see  Reresby's  Memoirs,  p.  113 ;  and  Ba- 
rillon in  the  Appendix  to  Fox,  p.  9.3 :  "  II  s'est  passe 
avant  hier  nne  cbose  de  grande  cooseqaence  dans 
la  chambre  basse :  il  fat  propose  le  matin  que  la 
chambre  se  mettoit  en  comite  l  apres  diner  poor 
considerer  la  harangue  du  roy  sur  I'affaire  de  la  re- 
ligion, et  savoir  ce  qui  devoit  ctre  entendu  par  le 
terme  dc  religion  Protestante.  La  resolution  fbt 
prise  unanimement,  et  sans  contradiction,  de  faire 
une  adresse  au  roy  pour  le  prier  de  faire  une 
proclamation  pour  I'execntion  des  loix  centre  tooa 
les  non-conformistes  generalement,  c'est-a-dire, 
contre  tons  ceux  qui  ne  sont  pas  ouvertement  de 
I'eglise  Anglicane  ;  cela  enferme  les  Presbiteriens 
et  tons  les  sectaries,  aassi  bien  que  les  Catboliqoes 
Remains.  La  malice  de  cette  resolntion  fut  aus- 
sitot  reconnu  da  roy  d'Angleterre,  et  de  &es  minis- 
tres ;  les  principaux  de  la  chambre  basse  fhrent 
mandes,  et  ceux  que  sa  majeste  Britannique  croit 
etre  dans  ses  interets  ;  il  leur  fit  une  reprimands 
severe  de  s"etre  laisses  seduire  et  entra/ner  a  uno 
resolution  si  dangerease  et  si  pen  admissible.  II 
leur  declara  que,  si  I  on  persisteit  a  lui  faire  une 
pareiUe  adresse,  il  repondroit  a  la  chambre  basse 
en  termes  si  decisifs  et  si  fennes  qu'on  ne  retour- 
neroit  pas  a  Ini  faire  une  pareille  adresse.  La 
maniere  dent  sa  majeste  Britannique  E'expliqae 
produisit  son  effet  hier  matin ;  et  le  chambre  basse 
rejeta  tout  d'une  voix  ce  que  avoit  ete  resela  en 
comite  le  jour  auparavant." 

The  only  man  who  behaved  with  distingnisbed 
spirit  in  this  wretched  Parliament  was  one  in 
whose  political  Ufe  there  is  little  else  to  praise.  Sir 
Edward  SejTnour.  He  opposed  the  grant  of  the 
revenues  for  life,  and  spoke  strongly  against  the 
illegal  practices  in  the  elections. — Fox,  90,  93. 

t  Fox,  Appendix,  p.  156.  "Provided  always, 
and  be  it  further  enacted,  that  if  any  peer  of  this 
realm,  or  member  of  the  House  of  Commons,  shall 
move  or  propose  in  either  house  of  Parliament  the 
disherison  of  the  rightful  and  true  heir  of  the  crown, 


James  II.] 


FROM  HENKY  \^I.  TO  GEORGE  U. 


521 


supply  of  d£700,000,  after  the  suppression 
of  Monmouth's  rebellion,  for  the  support  of 
a  standing  army,*  will  be  inclined  to  believe 
that,  had  James  been  as  zealous  for  the 
Church  of  E  ngland  as  his  father,  he  would 
have  succeeded  in  establishing  a  power  so 
nearly  despotic,  that  neither  the  privileges 
of  Parliament,  nor  much  less  those  of  pri- 
vate men,  would  have  stood  in  his  way. 
The  prejudice  which  the  last  two  Stuarts 
had  accquired  in  favor  of  the  Roman  relig- 
ion, so  often  deplored  by  thoughtless  or  in- 
sidious writers  as  one  of  the  worst  conse- 
quences of  their  father's  ill  fortune,  is  to  be 
accounted  rather  among  the  most  signal 
links  in  the  chain  of  causes  through  which 
a  gracious  Providence  has  favored  the  con- 
solidation of  oiu'  liberties  and  welfare. 
Nothing  less  than  a  motive  more  imiversal- 
ly  operating  than  the  interests  of  civil  free- 
dom would  have  stayed  the  compliant  spirit 
of  this  unworthy  Parliament,  or  rallied,  for 
a  time  at  least,  the  supporters  of  indefinite 
King'sinten-  prerogative  Under  a  banner  they 
tion  to  repeal  abhorred.    We  know  that  the 

the  Habeas 

Corpus  Act.  king's  intention  was  to  obtain 
the  repeal  of  the  Habeas  Corpus  Act,  a  law 
which  he  reckoned  as  destructive  of  mon- 
archy as  the  Test  was  of  the  Catholic  relig- 
ion.f  And  I  see  no  reason  to  suppose  that 
he  would  have  failed  of  this,  had  he  not 
given  alarm  to  his  High-Church  Parliament, 
by  a  premature  manifestation  of  his  design 
to  fill  the  civil  and  military  employments 
with  the  professors  of  his  own  mode  of 
faith. 

It  has  been  doubted  by  Mr.  Fox  whether 
.Tames  had,  in  this  part  of  his  reign,  Con- 
or to  alter  or  change  the  descent  or  succession  of 
the  crown  in  the  right  line,  such  offense  shall  be 
deemed  and  adjudged  high  ti'easou,  and  every  per- 
son being  indicted  and  convicted  of  such  treason, 
shall  be  proceeded  against,  and  shall  suffer  and  for- 
feit as  in  other  cases  of  high  treason  mentioned  in 
this  act." 

See  what  Lord  Lonsdale  says,  p.  8,  of  this  bill, 
which  he,  among  others,  contrived  to  weaken  by 
provisoes,  so  that  it  was  given  up. 

•  Pari.  Hist.,  1372.  The  king's  speech  had  evi- 
dently shown  that  the  supply  was  only  demanded 
for  this  purpose.  The  speaker,  on  presenting  the 
bill  for  settling  the  revenue  in  the  former  session, 
claimed  it  as  a  merit  that  they  had  not  inserted 
any  appropriating  clauses. — Pari.  Hist.,  13-59. 

t  Reresby,  p.  110.  Barillon,  in  Fox's  Appendix, 
p.  93,  127,  fee. :  "  Le  feu  roi  d'Angleterre  et  celui- 
ci  m'ont  souvent  dit,  qu'un  gouvemement  ne  pent 
subsister  avec  une  telle  loi." — Dalrymple,  p.  171. 


I  ceived  the  projects  commonly  imputed  to 
him,  of  overthrowing,  or  injuring  by  any  di- 
rect acts  of  power,  the  Protestant  estab- 
lishment of  this  kingdom.  Neitlier  the  co* 
pious  extracts  from  Barillon's  con-espond- 
ence  with  his  own  court,  published  by  Sir 
John  Dalrymple  and  himself,  nor  the  king's 
own  memoirs,  seem,  in  his  opinion,  to  war- 
rant a  conclusion  that  any  thing  further  was 
intended  than  to  emancipate  the  Roman 
Catholics  from  the  severe  restrictions  of  the 
penal  laws,  securing  the  public  exercise  of 
their  worship  from  molestation,  and  to  re- 
place them  upon  an  equality  as  to  civil  of- 
fices, by  abrogating  the  Test  Act  of  the  late 
reign.*  We  find,  nevertheless,  a  remarka- 
ble conversation  of  the  king  himself  with 
the  French  ambassador.  Avhich  leaves  an 
impression  on  the  mind  that  his  projects 
were  ah-eady  irreconcilable  with  that  pledge 
of  support  he  had  rather  unadvisedly  given 
to  the  Anglican  Church  at  his  accession. 
This  interpretation  of  his  language  is  con- 
firmed by  the  expressions  used  at  the  same 
time  by  Sunderland,  which  are  more  une- 
quivocal, and  point  at  the  complete  estab- 
lishment of  the  Catholic  religion. f  The 

*  This  opinion  has  been  weU  supported  b\'  Mr. 
Sergeant  Hej-wood  (Vindication  of  Mr.  Fox's  His- 
torj-,  p.  154).  In  some  few  of  Barillon's  letters  to 
the  King  of  France,  he  speaks  of  James's  intention 
etablir  la  religion  Catholique  ;  but  these,  perhaps, 
might  be  explained  by  a  far  greater  number  of 
passages  where  he  says  only  etablir  le  libre  exer- 
cice  de  la  religion  Catholique,  and  by  the  general 
tenor  of  his  correspondence.  But,  though  the  pri- 
mary object  was  toleration,  I  have  no  doubt  but 
that  they  conceived  this  was  to  end  in  establish- 
ment. See  what  Barillon  says,  p.  84 ;  though  the 
legal  reasoning  is  false,  as  might  be  expected  from 
a  foreigner.  It  must,  at  all  events,  be  admitted 
that  the  conduct  of  the  king  after  the  formation  of 
the  Catholic  junto  in  1686,  demonstrates  an  inten- 
tion of  overthrowing  the  Anglican  establishment. 

t  "  II  [le  ro}-]  me  repondit  a  ce  que  je  venois  de 
dire,  que  je  connoissois  le  fond  de  ses  intentions 
pour  I'ctablissementde  la  religion  Catholique  ;  qn'il 
n'esperoit  en  venir  a  bout  que  par  1' assistance  de 
V.  M. ;  que  je  voyois  qn'il  venoit  de  donner  des 
emplois  dans  ses  troupes  aux  Cathohques  anssi 
bien  qu'aux  protestans ;  que  cette  egalite  fachoit 
beaucoup  de  gens,  mais  qu'il  n'avoit  pas  laisse 
passer  une  occasion  si  importante  sans  s'en  preva- 
loir ;  qu'il  feroit  de  meme  a  I'egard  des  choses 
practicables,  et  que  je  voyois  plus  clair  sur  cela 
dans  ses  desseins  que  ses  propres  ministres,  s'en 
etaut  souvent  ouvert  avec  moi  sans  reserve,"  p. 
104.  In  a  second  conversation  immediately  after- 
ward, the  king  repeated,  •'  que  je  connoissois  le 
fond  de  ses  desseins,  et  que  je  pouvois  repondre 


522 


CONSTITUTIONAL  HISTOHY  OF  ENGLAND 


[Chap.  xrv. 


particular  care  displayed  by  James  ia  this 
conversation,  and,  indeed,  in  so  many  noto- 
rious instances,  to  place  the  army,  as  far  as 
possible,  in  the  command  of  Catholic  officers, 

que  tout  son  but  etoit  d'etablir  la  religion  Catho- 
lique  ;  qu'il  ne  perdroit  aucune  occasion  de  la  faire 
.  .  .  que  peu  a.  peu  11  va  a  son  but,  et  que  ce  qu'il 
fait  presentement  emporte  necessairement  I'exer- 
cice  libre  de  la  religion  Catholique,  qui  se  trouvera 
etabli  avant  qu'un  acte  de  Parlemeut  I'autorise  ; 
que  je  conuoissois  assez  I'Angleterre  pour  savoir 
que  la  possibilite  d'avoir  des  emplois  et  des  charges 
fera  plus  de  Catlioliques  que  la  permission  de  dire 
des  messes  publiques  ;  que  cependant  il  s'attendoit 
que  V.  M.  ne  I'abaudonneroit  pas,"  iScc,  p.  IOC. 
Sunderland  entered  on  the  same  subject,  saying, 
"  Je  ne  sais  pas  si  Ton  voit  en  France  les  choses 
comme  elles  sont  ici ;  mais  je  defie  ceux  qui  les 
voyent  de  pres  de  ne  pas  connoitre  que  le  roy  mon 
maitre  n'a  rieu  dans  le  coeur  si  avant  que  I'envie 
d'etablir  la  religion  Catholique  ;  qu'il  no  peut 
meme,  selon  le  bon  sens  et  la  droite  raison,  avoir 
d' autre  but ;  que  sans  cela  il  ne  sera  jamais  en 
Biirete,  et  sera  toujours  expose  au  zele  indiscret 
de  ceux  qui  echaufferont  les  peuples  centre  la 
Catholicite,  tant  qu'elle  ne  sera  pas  plus  pleine- 
ment  etablie  ;  il  y  a  une  autre  chose  certaine,  c'est 
que  ce  plan  la  ne  peut  r^ussir  que  par  uu  concert 
et  une  liaison  etroite  avec  le  roi  votre  maitre ; 
c'est  un  projet  qui  ne  peut  conveuir  qu'd  lui,  ni 
rtussir  que  par  lui.  Toutes  les  autres  puissances 
s'y  opposeront  ouvertement,  ou  le  traverseront 
sous  main.  On  salt  bieu  que  cela  ne  convient  point 
au  Prince  d'Orange  ;  mais  s'il  ne  sera  pas  en  etat 
de  I'empecher  si  ou  veut  se  conduire  en  France 
comme  U  est  uecessaire,  c'est-a-dire  menager  I'am- 
itie  du  roy  d'Angleterre,  et  le  contenir  dans  son 
projet.  Je  vols  clairement  1' apprehension  que 
beaucoup  de  gens  ont  d'une  liaison  avec  la  France, 
et  les  efforts  qu'on  fait  pour  I'afFoiblir;  mais  cela 
ne  sera  au  pouvoir  de  personne,  si  on  n'en  a  pas 
envie  ce  France;  c'est  sur  quoi  il  faut  que  vous 
vouz  expliqniez  nettement,  que  vous  fassiez  con- 
noitre que  le  roi  voti"e  maitre  veut  aider  de  bonne 
foi  le  roi  d'Angleterre  a  etablir  fermement  la  reli- 
gion Catholique." 

The  vFord  plus  in  the  above  passage  is  not  in 
Dalrymple's  extract  from  this  letter,  vol.  ii.,  part 
ii.,  p.  174, 187.  Yet  for  omitting  this  word  Sergeant 
Heywood  (not  having  attended  to  Dalrj-mple)  cen- 
sures Mr.  Rose  as  if  it  had  been  done  purposely. — 
Vindic.  of  Fox,  p.  154.  But  this  is  not  quite  judi- 
cious or  equitable,  since  another  critic  might  sug- 
gest that  it  was  purposely  interpolated.  No  one 
of  common  candor  would  suspect  this  of  Mr.  Fox  ; 
but  his  copyist,  I  presume,  was  not  infallible.  The 
word  plus  is  evidently  incorrect.  The  Cathohc 
religion  was  not  established  at  all  in  any  possible 
sense ;  what  room  could  there  be  for  the  compara- 
tive ?  M.  Mazure,  who  has  more  lately  perused 
the  letters  of  BariUon  at  Paris,  prints  the  passage 
without  plus. — Hist,  de  la  Revol.,  ii.,  36.  Certain- 
ly the  whole  conversation  here  ascribed  to  Sunder- 
land points  at  something  far  beyond  the  fi-ee  ex- 
ercise of  the  Roman  Catholic  religion. 


has  very  much  the  appearance  of  his  look 
ing  toward  the  employment  of  force  in  over- 
throwing the  Protestant  Church,  as  well  as 
the  civil  pfivileges  of  his  subjects ;  yet  he 
probably  entertained  confident  hopes,  in  the 
outset  of  his  reign,  that  he  might  not  be 
driven  to  this  necessity,  or  at  least  should 
only  have  occasion  to  restrain  a  fanatical 
populace.  He  would  rely  on  the  intrinsic 
excellence  of  his  own  religion,  and  still  more 
on  the  temptations  that  his  favor  would  hold 
out ;  for  the  repeal  of  the  test  would  not 
have  placed  the  two  religions  on  a  fair  level. 
Catholics,  however  little  qualified,  would 
have  filled,  as  in  fact  they  did  under  the  dis- 
pensing power,  most  of  the  principal  sta- 
tions in  the  court,  law,  and  army.  The 
king  told  Barillon,  he  was  well  enough  ac- 
quainted with  England  to  be  assui-ed  that  the 
admissibility  to  office  would  make  more 
Catholics  than  the  right  of  saying  mass  pub- 
licly. There  was,  on  the  one  hand,  a  pre- 
vailing laxity  of  principle  in  the  higher  ranks, 
and  a  con-upt  devotedness  to  power  for  the 
sake  of  the  emoluments  it  could  dispense, 
which  encouraged  the  expectation  of  such 
a  nominal  change  in  religion  as  had  hap- 
pened in  the  sixteenth  century  ;  and,  on  the 
other,  much  was  hoped  by  the  king  from 
the  Church  itself.  He  had  separated  from 
her  communion  in  consequence  of  the  argu- 
ments which  her  own  divines  had  furnished; 
he  had  conversed  with  men  bred  in  the 
school  of  Laud,  and  was  slow  to  believe  that 
the  conclusions  which  he  had — not,  perhaps, 
unreasonably — derived  from  the  semi-Prot- 
estant theology  of  his  father's  reign,  would 
not  appear  equally  iiTesistible  to  all  minds, 
when  free  from  the  danger  and  obloquy 
that  had  attended  them.  Thus,  by  a  vol- 
mitary  return  of  the  clergy  and  nation  to  the 
bosom  of  the  Catholic  Church,  he  might 
both  obtain  an  immortal  renown,  and  se- 
cure his  prerogative  against  that  religious 
jealousy  which  had  always  been  the  aliment 
of  political  factions.*    Till  this  revolution, 

*  It  is  curious  to  remark  that  both  James  and 
Louis  considered  the  re-establishment  of  the  Cath- 
olic religion  and  of  the  royal  authority  as  closely 
connected,  and  parts  of  one  great  system. — Baril- 
lon in  Fox,  Append.,  19,  57.  Mazure,  i.,  346.  Mr. 
Fox  maintains  (Hist.,  p.  102)  that  the  great  object 
of  the  former  was  absolute  power  rather  than  the 
interests  of  popery.  Doubtless,  if  James  had  been 
a  Protestant,  his  encroachments  on  the  rights  of 
his  subjects  would  not  have  been  less  than  they 


James  II.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


523 


however,  could  be  brought  about,  he  de- 
termined to  court  the  Church  of  England, 
whose  boast  of  exclusive  and  unlimited  loy- 
alty could  hardly  be  supposed  entirely  hol- 
low, in  order  to  obtain  the  repeal  of  the  pe- 
nal laws  and  disqualifications  which  affected 
that  of  Rome  ;  and  though  the  maxims  of 
religious  toleration  had  been  always  in  his 
mouth,  he  did  not  hesitate  to  projiitiate  her 
with  the  most  acceptable  sacrifice,  the  per- 
secution of  non-conforming  ministers.  He 
looked  upon  the  Dissenters  as  men  of  Re- 
publican principles  ;  and  if  he  could  have 
made  his  bargain  for  the  free  exercise  of  the 
Catholic  worship,  I  see  no  reason  to  doubt 
that  he  would  never  have  announced  his 
general  indulgence  to  tender  consciences.* 
But  James  had  taken  too  narrow  a  view 
of  the  mighty  people  whom  he  governed. 

were,  though  not  exactly  of  the  same  nature  ;  but 
the  main  object  of  his  reign  can  hardly  be  denied 
to  have  been  either  the  full  toleration,  or  the  na- 
tional establishment  of  the  Church  of  Home.  Mr. 
Fox's  remark  must,  at  all  events,  be  limited  to  the 
year  1C85. 

*  Fox,  Appendix,  p.  33.  Ralph,  869.  The  pros- 
ecution of  Baxter,  for  what  was  called  reflecting 
on  the  bishops,  is  an  instance  of  this. — State  Tri- 
als, ii.,  494.  Notwithstanding  James's  affected 
zeal  for  toleration,  he  did  not  scruple  to  congratu- 
late Louis  on  the  success  of  his  very  different  mode 
of  converting  heretics  ;  yet  I  rather  believe  him  to 
have  been  really  averse  to  persecution ;  though, 
with  true  Stuart  insincerity,  he  chose  to  flatter  his 
patron. — Dahymple,  p.  177.  A  book  by  Claude, 
published  in  Holland,  entitled  "  Plaintes  des  Pro- 
testans  cruellement  opprimes  dans  le  royaurae  de 
France,"  was  ordered  to  be  burned  by  the  hang- 
man, on  the  complaint  of  the  French  ambassador, 
and  the  translator  and  printer  to  be  inquired  after 
and  prosecuted. — Lend.  Gazette,  May  8,  1686. 
Jefi'eries  objected  to  this  in  council  as  unusual ;  but 
the  king  was  determined  to  gratify  his  most  Christ- 
ian brother. — Mazure,  ii ,  122.  It  is  said,  also,  that 
one  of  the  reasons  for  the  disgrace  of  Lord  Halifax 
was  his  speaking  warmly  about  the  revocation  of 
the  Edict  of  Nantes. — Id.,  p.  55.  Yet  James  some- 
times blamed  this  himself,  so  as  to  displease  Louis. 
— Id.,  p.  56.  In  fact,  it  very  much  tended  to  obstruct 
his  own  views  for  the  establishment  of  a  religion 
which  had  just  shown  itself  in  so  odious  a  form. 
For  this  reason,  though  a  brief  was  read  in  churches 
for  the  sufferers,  special  directions  were  given  that 
there  should  be  no  sermon.  It  is  even  said  that  he 
took  on  himself  the  distribution  of  the  money  col- 
lected for  the  refugees,  in  order  to  stop  the  sub- 
scription; or,  at  least,  that  his  interference  had 
that  effect.  The  enthusiasm  for  the  French  Prot- 
estants was  such  that  single  persons  subscribed 
500  or  1000  pounds;  which,  relatively  to  the  opu- 
lence of  the  kingdom,  almost  equals  any  munifi- 
cence of  this  age. — Id.,  p.  123. 


The  laity  of  every  class,  the  Tory  j^^^^^  j^. 
gentlemen  almost  •equally  with  ceived  as  to 

,  ,         .  .  the  disposi- 

the  rresbyterian  artisan,  enter-  tions  of  his 
tained  an  inveterate  abhorrence  ^"''J^"^'^- 
of  the  Romish  superstition.  Their  first 
education,  the  usual  tenor  of  preaching,  far 
more  polemical  than  at  present,  the  books 
most  current,  the  tradition  of  ancient  cruel- 
ties and  conspiracies,  rendered  this  a  cardi- 
nal point  of  religion,  even  with  those  who 
had  little  beside.  Many  still  gave  credit  to 
the  Popish  Plot;  and  with  those  who  had 
been  compelled  to  admit  its  general  false- 
hood, there  remained,  as  is  frequently  the 
case,  an  indefinite  sense  of  dislike  and  suspi- 
cion, like  the  swell  of  waves  after  a  storm, 
which  attached  itself  to  all  the  objects  of 
that  calumny.*  This  was,  of  course,  en- 
hanced by  the  insolent  and  injudicious  con- 
fidence of  the  Romish  faction,  especially 
the  priests,  in  their  demeanor,  their  lan- 
guage, and  their  publications.  Meanwhile, 
a  considerable  change  had  been  wrought 
in  the  doctrinal  sjstem  of  the  Anglican 
Church  since  the  Restoration.  The  men 
most  conspicuous  in  the  reign  of  Charles 
II.  for  their  writings,  and  for  their  argu- 
mentative eloquence  in  the  pulpit,  were  of 
the  class  who  had  been  denominated  Lati- 
tudinarian  divines ;  and  while  they  main- 
tained the  principles  of  the  Remonstrants  in 
opposition  to  the  school  of  Calvin,  were  pow- 
erful and  unequivocal  supportei-s  of  the 
Protestant  cause  against  Rome.  They 
made  none  of  the  dangerous  concessions 
which  had  shaken  the  faith  of  the  Duke  and 
Duchess  of  York ;  they  regretted  the  dis- 

*  It  is  well  known  that  the  House  of  Commons, 
in  168.5,  would  not  pass  the  bill  for  reversing  Lord 
Strafford's  attainder,  against  which  a  few  peers 
had  entered  a  very  spirited  protest. — Pari.  Hist., 
13C1.  Barillou  says,  this  was  "  parce  que  dans  le 
pr^ambule  il  y  a  des  mots  inseres  qui  semblent 
favoriser  la  religion  Catholique  ;  cela  seul  a  retarde 
la  rehabilitation  du  Comte  de  Straflbrd  dont  tous 
sent  d'accord  a  I'egard  du  fond." — Fox,  App.,  p. 
110.  But  there  was  another  reason  which  might 
have  weight.  Straflbrd  had  been  convicted  on  the 
evidence,  not  only  of  Gates,  who  had  been  lately 
found  guilty  of  perjury,  but  of  several  other  wit- 
nesses, especially  Dugdale  and  Turberville ;  and 
these  men  had  been  brought  forward  by  the  gov- 
erimient  against  Lord  Shaftesbuiy  and  College,  the 
latter  of  whom  had  been  banged  on  their  testimony. 
The  reversal  of  Lord  Strattbrd's  attainder,  just  as 
we  now  think  it,  would  have  been  a  disgrace  to 
these  crown  prosecutions;  and  a  conscientious 
Tory  would  be  loth  to  vote  for  it. 


524 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  Xrv. 


use  of  no  superstitious  ceremony ;  they  de- 
nied not  the  one  essenbial  characteristic  of 
the  Reformation,  the  right  of  private  judg- 
ment ;  they  avoided  tlie  mysterious  jargon 
of  a  real  presence  in  the  Lord's  Supper. 
Thus  such  an  agreement  between  the  two 
churclies  as  had  been  projected  at  different 
times  was  become  far  more  evidently  im- 
practicable, and  the  separation  more  broad 
and  defined.*  These  men,  as  well  as  oth- 
ers who  do  not  properly  belong  to  the  same 
class,  were  now  distinguished  by  their  cour- 
ageous and  able  defenses  of  the  Reforma- 
tion. The  victoi-y,  in  the  judgment  of  the 
nation,  was  wholly  theirs.  Rome  had,  in- 
deed, her  proselytes,  but  such  as  it  would 
have  been  more  honorable  to  have  wanted. 
The  people  heard  sometimes  with  indigna- 
tion, or,  rather,  with  contempt,  that  an  un- 
principled minister,  a  temporizing  bishop,  or 
a  licentious  poet,  had  gone  over  to  the  side 
of  a  monarch  who  made  conformity  with  his 
religion  the  only  certain  path  to  his  favor. 

The  short  period  of  a  four  years'  reign 
_  may  be  divided  by  several  distin- 

Prorog^ation 

ofPariia-  guislung  points  of  time,  which 
""^"'^  mark  so  many  changes  in  the  pos- 
ture of  government.  From  the  king's  ac- 
cession to  Uie  prorogation  of  Parliament  on 
November  30, 1685,  he  had  acted  apparent- 
ly in  concurrence  with  the  same  party  that 
had  supported  him  in  his  brother's  reign,  of 
which  his  own  seemed  the  natural  and  al- 
most undistinguisliable  continuation.  This 
party,  which  had  become  incomparably 
sti'onger  than  the  opposite,  had  greeted  him 
with  such  unbounded  professions,!  the  tem- 

*  "  In  all  the  disputes  relating  to  that  mj'stery 
before  the  civil  wars,  the  Church  of  England  Prot- 
estant writers  owned  the  real  presence,  ajid  only 
abstracted  from  the  modus  or  manner  of  Christ's 
body  being  present  in  the  Eucharist,  and  therefore 
durst  not  say  bat  it  might  he  there  by  trausubstan- 
tiation  as  well  as  by  any  other  way.  ...  It  was 
only  of  late  years  that  such  principles  had  crept 
into  the  Church  of  England  ;  which,  having  been 
blown  into  the  Parliament  House,  had  raised  con- 
tinual tumults  about  religion  ever  since.  Those 
unlearned  and  fanatical  notions  were  never  heard 
of  till  Dr.  Stillingfleet's  late  invention  of  them,  by 
which  he  exposed  himself  to  the  lash,  not  only  of 
the  Roman  Catholics,  but  to  that  of  many  of  the 
Church  of  England  controvertists  too." — Life  of 
James,  ii.,  146. 

t  See  London  Gazettes,  1685,  passim ;  the  most 
remarkable  are  inserted  by  Ralph  and  Kennet.  I 
am  sure  the  addresses  which  we  have  witnessed 
in  this  age  among  a  neighboring  people  are  not,  on 


per  of  its  representatives  had  been  such 
in  the  first  session  of  Parliament,  that  a 
prince  less  obstinate  than  James  might  have 
expected  to  succeed  in  attaining  an  au- 
thority which  the  nation  seemed  to  offer. 
A  rebellion  speedily  and  decisively  quelled 
confirms  every  government ;  it  seemed  to 
place  his  own  beyond  hazard.  Could  he 
have  been  induced  to  change  the  order  of 
his  designs,  and  accustom  the  people  to  a 
military  force,  and  to  a  prerogative  of  dis- 
pensing with  statutes  of  temporal  concern, 
before  he  meddled  too  ostensibly  with  their 
religion,  he  would  possibly  have  gained  both 
the  objects  of  his  desire.  Even  conversions 
to  i)opei-y  might  have  been  more  frequent, 
if  the  gross  solicitations  of  the  court  had  not 
made  them  dishonorable  ;  but,  neglecting 
the  hint  of  a  prudent  adviser,  that  the  death 
of  Monmouth  left  a  far  more  dangerous  en- 
emy behind,  he  suffered  a  victory  that  might 
have  insured  him  success  to  inspire  an  aiTO- 
gant  confidence  that  led  on  to  destruction. 
Master  of  an  army,  and  determined  to  keep 
it  on  foot,  he  naturally  thought  less  of  a  good 
understanding  with  Parliament.*  He  had 
the  whole,  more  fulsome  and  disgraceful.  Ad- 
dresses, however,  of  all  descriptions,  as  we  well 
know,  are  generally  the  composition  of  some  zeal- 
ous individual,  whose  expressions  are  not  to  bo 
taken  as  entirely  those  of  the  sabscribers.  Still, 
these  are  sufficient  to  manifest  the  general  spirit 
of  the  times. 

The  king's  popularity  at  his  accession,  which  all 
cotemporary  writers  attest,  is  strongly  expressed 
by  Lord  Lonsdale.  "The  great  interest  he  liad  in 
liis  brother,  so  that  all  apphcations  to  the  king 
seemed  to  succeed  only  as  he  favored  them,  and 
the  general  opinion  of  him  to  be  a  prince  steady 
above  all  others  to  his  word,  made  him  at  that  time 
the  most  popular  prince  that  had  been  known  in 
England  for  a  long  time.  And  from  men's  attempt- 
ing to  exclude  him,  they,  at  this  juncture  of  time, 
made  him  their  darling;  no  more  was  bis  religion 
teiTihle ;  his  magnanimous  courage,  and  the  hard- 
ships he  had  undergone,  were  the  discourse  of  all 
men.  And  some  reports  of  a  misunderstanding 
betwixt  the  French  king  and  him,  occasioned  orig- 
inally by  the  man-iage  of  the  Lady  Mary  to  the 
Prince  of  Orange,  industriously  spread  abroad  to 
amuse  the  ignorant,  put  men  in  hopes  of  wliat  they 
had  long  wished  ;  that,  by  a  conjunction  of  Holland 
and  Spain.  &c.,  we  might  have  been  able  to  reduce 
France  to  the  teiTns  of  the  Pyrenean  treaty,  which 
was  now  become  the  terror  of  Christendom,  we 
never  having  had  a  prince  for  many  ages  that  had 
.so  great  a  reputation  for  experience  and  a  martial 
spirit." — P.  3.  This  last  sentence  is  a  truly  amus- 
ing contrast  to  the  real  truth. 

*  "  On  voit  qu'insensiblement  les  Catholiqnes 
auront  les  armes  li  la  main  i  c'est  un  i'tat  bien  dif- 


J^ES  II.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


525 


already  rejected  the  proposition  of  employ-  j 
ing  bribery  among  the  members,  an  expe- 
dient veiy  little  congenial  to  his  presump- 
tuous temper  and  notions  of  government.* 
They  were  assembled,  m  his  opinion,  to 
testify  the  nation's  loyalty,  and  thankfulness 
to  tlieir  giacious  prince  for  not  taking  away 
their  laws  and  liberties  ;  but  if  a  factious 
spirit  of  opposition  should  once  prevail,  it 
could  not  be  his  fault  if  he  dismissed  them 
till  more  becoming  sentiments  should  again 
gain  ground. .f  Hence  he  did  not  hesitate  to 
prorogue,  and  eventually  to  dissolve,  the 
most  compliant  House  of  Commons  that  had 
been  returned  since  his  family  had  sat  on  the 
throne,  at  the  cost  of  ^£700, 000,  a  gi-ant  of 

fererent  de  I'oppression  ou  lis  etoient,  et  dont  les 
Protestaiis  zeles  recoivent  one  grande  mortifica- 
tion ;  ils  voyent  bien  quo  le  roy  d' AngleteiTe  fera 
le  reste  quand  il  le  pourra.  La  lev^e  des  troupes, 
qui  seront  bientot  complettes,  fait  juger  que  le  roy 
d'Angleterre  veut  etre  en  etat  de  se  faire  obeir,  et 
de  D'etre  pas  gene  par  les  loix  qui  se  trouveront 
contraires  a.  ce  qu'il  veut  ^tablir." — Barillon,  in 
Fox's  Appendix,  111.  "II  me  paroit  (he  says, 
June  25),  que  le  roy  d'Angleten'e  a  ete  fort  aise 
d'avoir  une  pr^texte  de  lever  des  troupes,  et  qu'il 
croit  que  I'entreprise  de  M.  le  Due  de  Monmouth 
ne  servifa  qu'a  le  rendre  plus  maitre  de  sons  pays.'' 
And  on  July  30  :  "  Le  projet  du  roy  d'Angleten-e 
est  d'abolir  entidremeut  les  milices,  dont  il  a  recou- 
nu  I'inutilite  et  le  danger  en  cette  demiere  occa- 
sion ;  et  de  faire,  s'il  est  possible,  que  le  Parle- 
ment  etablisse  le  fond  destine  pour  les  milices  a 
I'enti'etien  des  troupes  reglees.  Tout  cela  change 
entierement  I'etat  de  ce  pays  ici.  et  met  les  An- 
glois  dans  une  condition  bien  differente  de  celle  ou 
ils  out  tte  jusques  a  present.  lis  le  connoissent, 
et  voyent  bien  qu'un  roy  de  differente  religion  que 
celle  du  pays,  et  qui  se  trouve  arme,  ne  reuoucera 
pas  aisement  aux  avantages  que  lui  donne  la  de- 
faite  des  rebelles,  et  les  troupes  qu'il  a  sur  pied." 
And  afterward  :  "  Le  roi  d'Angleterre  m  a  dit  que 
quoiqu'il  arrive,  il  conservera  les  troupes  sur  pied, 
quand  meme  le  Parlement  ne  lui  douneroit  pour 
les  entretenir.  II  cotmoit  bien  que  le  Parlemeut 
verra  mal  volontiers  cet  ^tablissement ;  mais  il 
veut  etre  assure  du  dedans  de  son  pays,  et  il  croit 
ne  le  pouvoir  etre  sans  cela."— Dalrymple,  169, 
170.  •  Fox's  App.,  69.    Dalrj  mple,  153. 

f  It  had  been  the  intention  of  Sunderland  and 
the  others  to  dissolve  Parliament,  as  soon  as  the 
revenue  for  life  should  be  settled,  and  to  rely  in  fu- 
ture on  the  assistance  of  France. — Fox's  App.,  59, 
60.  Mazure,  i.,  432.  But  this  was  prevented, 
partly  by  the  sudden  invasion  of  Monmouth,  which 
made  a  new  session  necessaiy,  and  gave  hopes  of 
a  large  supply  for  the  army,  and  partly  by  the  un- 
willingness of  the  King  of  France  to  advance  as 
much  money  as  the  English  government  wanted. 
In  fact,  the  plan  of  continual  prorogations  answer- 
ed as  well. 


supply  which  thus  fell  to  the  ground,  rather 
than  endure  any  opposition  on  the  subject 
of  the  test  and  penal  laws ;  yet,  from  the 
strength  of  the  court  in  all  divisions,  it  must 
seem  not  improbable  to  us  that  he  might, 
by  the  usual  means  of  management,  have 
carried  both  of  those  favorite  measures,  at 
least  through  the  Lower  House  of  Parlia- 
ment ;  for  the  crown  lost  the  most  import- 
ant division  only  by  one  vote,  and  had,  in 
general,  a  majoritj'.  The  veiy  address 
about  unqualified  officers,  which  gave  the 
king  such  offense  as  to  bring  on  a  proroga- 
tion, was  worded  in  the  most  timid  manner ; 
the  House  having  rejected  unanimously  the 
words  first  inserted  by  their  committee,  re- 
questing that  his  majesty  would  be  pleased 
not  to  continue  them  in  their  employments, 
for  a  vague  petition  that  "  he  would  be  gra- 
ciously pleased  to  give  such  directions  that 
no  apprehensions  or  jealousies  may  remain 
in  the  hearts  of  his  majesty's  good  and  faith- 
ful subjects."* 

The  second  period  of  this  reign  extends 
from  the  prorogation  of  Parliament  to  the 
dismissal  of  the  Earl  of  Rochester  from  the 
treasury  in  I68G.  During  this  time,  James, 
exasperated  at  the  reluctance  of  the  Com- 
mons to  acquiesce  in  his  measures,  and  the 
decisive  opposition  of  the  Church,  threw 
off"  the  half  restraint  he  had  imposed  on 
himself,  and  showed  plainly  that,  with  a 
bench  of  judges  to  pronounce  his  commands, 
and  an  army  to  enforce  them,  he  would  not 
suflfer  the  mockery  of  constitutional  limita- 
tions to  stand  any  longer  in  his  way.  Two 
important  steps  were  made  this  year  toward 
the  accomplishment  of  his  designs,  by  the 
judgment  of  the  Court  of  King's  Bench  in 

*  Journals,  Nov.  14.  BariUon  says  that  the  king 
answered  this  humble  address,  "  avec  des  marques 
de  fierte  et  de  colere  sur  le  visage,  qui  faisoit  assez 
connoitre  ses  sentimens." — Dali-j'mple,  172.  See, 
too,  his  letter  in  Fox,  139. 

A  motion  was  made  to  ask  the  Lords'  concur- 
rence in  this  address,  which,  according  to  the 
Journals,  was  lost  by  212  to  138.  In  the  Life  of 
James,  ii.,  55,  it  is  said  that  it  was  carried  against 
the  motion  by  only  four  voices  ;  and  tliis  I  find  con- 
firmed by  a  manuscript  account  of  the  debates 
(Sloane  MSS.,  1470),  which  gives  the  numbers  212 
to  208.  The  Journal  probably  is  misprinted,  as  tho 
court  and  country  parties  were  verj-  equal.  It  is 
said  in  this  manuscript,  that  those  who  opposed 
the  address  opposed  also  the  motion  for  requesting 
the  Lords'  concurrence  in  it;  but  James  represents 
it  otherwise,  as  a  device  of  the  court  to  quash  the 
proceeding. 


526 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


the  case  of  Sir  Edward  Hales,  confirming 
tbe  right  of  the  crown  to  dispense  with  the 
Test  Act,  and  by  the  establishment  of  the 
new  ecclesiastical  commission. 

The  kings  of  England,  if  not  immemorial- 
Dispensing  ly,  yet  from  a  veiy  early  era  in 
fi?med  by"tiie  I'^cords,  have  exercised  a  pre- 
judges, rogative  unquestioned  by  Parlia- 
ment, and  recognized  by  courts  of  justice, 
that  of  granting  dispensations  from  the  pro- 
hibitions and  penalties  of  particular  laws. 
The  language  of  ancient  statutes  was  usu- 
ally brief  and  careless,  with  few  of  those 
attempts  to  regulate  prospective  contingen- 
cies, which,  even  with  our  pretended  mod- 
ern caution,  are  so  often  imperfect ;  and  as 
the  sessions  were  never  regular,  sometimes 
intenniptea  for  several  years,  there  was  a 
kind  of  necessity,  or  great  convenience,  in 
deviating  occasionally  fi'om  the  rigor  of  a 
general  prohibition  ;  more  often,  perhaps, 
some  motive  of  interest  or  partiality  would 
induce  the  crown  to  infringe  on  the  legal 
rule.  This  dispensing  poAver,  however, 
grew  up,  as  it  were,  collatei-ally  to  the  sov- 
ereignty of  the  Legislature,  which  it  some- 
times appeared  to  overshadow.  It  was,  of 
course,  assei'ted  in  large  terms  by  counsel- 
ors of  state,  and  too  frequently  by  the  in- 
terpreters of  law.  Lord  Coke,  before  he 
had  learned  the  bolder  tone  of  his  declining 
years,  lays  it  down,  that  no  act  of  Parlia- 
ment can  bind  the  king  from  any  prerogative 
which  is  inseparable  from  his  person,  so 
that  he  may  not  dispense  with  it  by  a  non- 
obtante  ;  such  is  his  sovereign  power  to  com- 
mand any  of  his  subjects  to  serve  him  for 
the  public  weal,  which  solely  and  insepara- 
bly is  annexed  to  his  person,  and  can  not  be 
restrained  by  any  act  of  P  arliament.  Thus, 
although  the  statute  23  Hen.  VL,  c.  8,  pro- 
vides that  all  patents  to  hold  the  office  of 
sheriff  for  more  than  one  year  shall  be  void, 
and  even  enacts  that  the  king  shall  not  dis- 
pense with  it,  yet  it  was  held  by  all  the 
judges  in  the  reign  of  Henry  VH.,  that  the 
Ling  may  grant  such  a  patent  for  a  longer 
term  on  good  grounds,  whereof  he  alone  is 
the  judge.  So,  also,  the  statutes  which 
restrain  the  king  from  granting  pardons  in 
case  of  murder  have  been  held  void ;  and, 
doubtless,  the  constant  practice  has  been  to 
disregard  them.* 

This  high  and  dangerous  prerogative, 
'  *  Coke,  12  Uep.,  18. 


nevertheless,  ^as  subject  to  several  limita- 
tions, which  none  but  the  grosser  flatterers 
of  monarchy  could  deny.  It  was  agreed 
among  lawyers  that  the  king  could  not  dis- 
pense with  the  common  law,  nor  with  any 
statute  prohibiting  that  which  was  malum 
in  se,  nor  with  any  right  or  interest  of  a 
private  person  or  corporation.*  The  rules, 
however,  were  still  rather  complicated,  the 
boundai-ies  indefinite,  and  therefore  vai-ying 
according  to  the  political  character  of  the 
judges.  For  many  years  dispensations  had 
been  confined  to  taking  away  such  incapac- 
ity as  either  the  statutes  of  a  college,  or 
some  law  of  little  consequence,  perhaps  al- 
most obsolete,  might  happen  to  have  creat- 
ed. But  when  a  collusive  action  was  brought 
against  Sir  Edward  Hales,  a  Roman  Catho- 
lic, in  the  name  of  his  sei-vant,  to  recover 
the  penalty  of  =£500  imposed  by  the  Test 
Act,  for  accepting  the  commission  of  colonel 
of  a  regiment,  without  the  previous  qualifi- 
cation of  receiving  the  sacrament  in  the 
Church  of  England,  the  whole  impoitance 
of  the  alleged  prerogative  became  visible, 
and  the  fate  of  the  established  Constitution 
seemed  to  hang  upon  the  decision.  The 
plaintiff's  advocate,  Northey,  was  known  to 
have  received  his  fee  from  the  other  side, 

*  Vaughan's  Reports,  Thomas  v.  SorreU,  333. 
[Lords'  Journals,  29th  of  Dec,  1666 :  "  The  Com- 
mons introduced  the  word  'nuisance'  into  the  Irish 
bill,  in  order  to  prevent  the  king's  dispensing  with 
it.  The  Lords  did  argue  that  it  was  an  ill  prece- 
dent, and  that  which  will  ever  hereafter  be  held 
as  a  way  of  preventing  the  king's  dispensation 
with  acts,  and  therefore  rather  advise  to  pass  the 
bill  without  that  word,  and  let  it  go  accompanied 
with  a  petition  to  the  king,  that  he  will  not  dis- 
pense with  it,  this  being  a  more  civil  way  to  the 
king.  They  answered  well  that  this  do  imply  that 
the  king  should  pass  their  bill,  and  yet  with  design 
to  dispense  with  it ;  which  is  to  suppose  the  king 
guilty  of  abusing  them.  And,  more,  they  produce 
precedents  for  it,  namely,  that  against  new  build- 
ings and  about  leather,  when  the  word  nuisance  is 
used  to  the  purpose  ;  and  farther,  that  they  do  not 
rob  the  king  of  any  right  he  ever  had ;  for  he  nev- 
er had  a  power  to  do  hurt  to  his  people,  nor  would 
exercise  it;  and,  therefore,  there  is  no  danger  in 
the  passing  this  bill  of  imposing  on  his  prerogative  ; 
and  concluded  that  they  think  they  ought  to  do 
this,  80  as  tbe  people  may  reall3'  have  the  benefit 
of  it  when  it  is  passed,  &c.  The  Lords  gave  way 
soon  afterward." — Pepys's  Diary,  Jan.  9,  1666-7. 
Clarendon  speaks  of  this  precaution  against  the 
dispensing  powers  as  derogatory  to  the  king's 
prerogative,  "  divesting  him  of  a  trust  that  was  in- 
herent in  him  from  all  antiquity." — Life  of  Claren- 
don, p.  380.] 


James  II.] 


FROM  HEXKY  VII.  TO  GEORGE  U. 


527 


and  was  thence  suspected,  perhaps  unfairly, 
of  betraj'ing  his  own  cause  ;*  but  the  Chief- 
justice  Herbert  showed  that  no  arguments 
against  this  prerogative  would  have  swayed 
his  determination.  Not  content  with  treat- 
ing the  question  as  one  of  no  difficulty,  he 
grounded  his  decision  in  favor  of  the  defend- 
ant upon  principles  that  would  extend  far 
beyond  the  immediate  case.  He  laid  it 
down  that  the  kings  of  England  were  sov- 
ereign princes ;  that  the  laws  of  England 
were  the  king's  laws ;  that  it  was  conse- 
quently an  inseparable  prerogative  of  the 
crown  to  dispense  with  penal  laws  in  partic- 
ular cases,  for  reasons  of  which  it  was  the 
sole  judge.  This  he  called  the  ancient  re- 
mains of  the  sovereign  power  and  preroga- 
tive of  the  kings  of  England,  which  never 
yet  was  taken  from  them,  nor  could  be. 
There  was  no  law,  he  said,  that  might  not 
be  dispensed  with  by  the  supreme  lawgiver 
(meaning  evidently  the  king,  since  the  prop- 
osition would  otherwise  be  impertinent), 
though  he  made  a  sort  of  distinction  as  to 
those  which  affected  the  subject's  private 
right;  but  the  general  maxims  of  slavish 
churchmen  and  la\vyers  were  asserted  so 
broad]}',  that  a  future  judge  would  find  little 
difficulty  in  making  use  of  this  precedent  to 
justify  any  stretch  of  ai-bin-ary  power.f 

It  is  by  no  means  evident  that  the  de- 
cision in  this  paiticular  case  of  Hales,  which 
had  the  approbation  of  eleven  judges  out  of 
twelve,  was  against  law. J  The  course  of 
former  precedents  seems  rather  to  furnish 
its  justification  ;  but  the  less  untenable  such 
a  judgment  in  favor  of  the  dispensing  power 
might  appear,  the  more  necessity  would 
men  of  reflection  perceive  of  making  some 
great  change  in  the  relations  of  the  people 
toward  their  sovereign.  A  prerogative  of 
setting  aside  the  enactments  of  Peirliament, 
which  in  trifling  matters,  and  for  the  sake 
of  conferring  a  benefit  on  individuals,  might 
be  suflfered  to  exist  with  little  mischief,  be- 
came intolerable  when  exercised  in  contra- 
ventionof  the  very  principle  of  those  statutes 
which  had  been  provided  for  the  security  of 

*  Bumet  and  others.  This  hardly  appears  by 
Northey's  argument. 

t  State  Trials,  xi.,  1165-1260.  2  Shower's  Re- 
ports, 475. 

t  The  dissentient  judge  was  Street ;  and  Pow- 
ell is  said  to  have  doubted.  The  king  had  private- 
ly secured  this  opinion  of  the  bench  in  his  favor  be- 
fore the  action  was  brought. — Life  of  James,  ii.,  97. 


fundamental  liberties  or  institutions.  Thus 
the  Test  Act,  the  great  achievement,  as  it 
had  been  reckoned,  of  the  Protestant  paity, 
for  the  sake  of  wliich  the  most  subservient 
of  Parliaments  had  just  then  ventured  to  lose 
the  king's  favor,  became  absolutely  nugatory 
and  ineffiective,  by  a  constructiou  which  the 
law  itself  did  not  reject.  Nor  was  it  easy 
to  provide  any  sufficient  remedy  by  means 
of  Parliament,  since  it  was  the  doctrine  of 
the  judges  that  the  king's  inseparable  and 
sovereign  prerogatives  in  matters  of  govern- 
ment could  not  be  taken  away  or  resti'ained 
by  statute.  The  unadvised  assertion  in  a 
court  of  justice  of  this  principle,  which, 
though  not  by  any  means  novel,  had  never 
been  advanced  in  a  business  of  such  univer- 
sal concern  and  interest,  may  be  said  to  have 
sealed  the  condemnation  of  the  house  of 
Stuart.  It  made  the  coexistence  of  an  he- 
reditary line,  claiming  a  sovereign  preroga- 
tive paramount  to  the  liberties  they  had 
vouchsafed  to  concede,  incompatible  with 
the  security  or  probable  duration  of  those 
liberties.  This  incompatibility  is  the  true 
basis  of  the  Revolution  of  1688. 

But,  whatever  pretext  the  custom  of  cen- 
turies or  the  authority  of  compliant  lawyers 
might  afford  for  these  dispensations  from 
the  Test,  no  legal  defense  could  be  made  for 

the  ecclesiastical  commission  of  Ecclesiastical 

1686.    The  High  Commission  commission. 
Court  of  Elizabeth  had  been  altogether 
taken  away  by  an  act  of  the  Long  Pai-Iia- 
ment,  which  went  on  to  provide  that  no  new 
court  should  be  erected  with  the  like  power, 
jurisdiction,  and  authority ;  yet  the  com- 
mission issued  by  James  II.  followed  very 
I  nearly  the  words  of  that  which  had  created 
1  the  original  court  under  Elizabeth,  omitting 
a  few  particulars  of  little  moment.*    It  is 
not  known,  I  believe,  at  whose  suggestion 
I  the  king  adopted  this  measure.    The  pre- 
I  eminence  reserved  by  the  commission  to 
Jefferies,  whose  presence  was  made  neces- 
sary to  all  their  meetings,  and  the  violence 
with  which  he  acted  in  all  their  ti'aosactions 
on  recoi'd,  seem  to  point  him  out  as  its  gi'eat 


*  State  Trials,  xi.,  1132,  et  seq.  The  members 
of  the  commission  were  the  primate  Sancroft  (who 
never  sat).  Crew  and  Sprat,  bishops  of  Durliam 
and  Rochester,  the  Chancellor  Jefferies,  the  Earls 
of  Rochester  and  Sunderland,  and  Cliief-justice 
Herbert.  Three  were  to  form  a  quorum,  but  the 
chancellor  necessarily  to  be  one.  —  Ralph,  929. 
The  Earl  of  Mulsrave  was  introduced  afterward. 


528 


CO.XSTITUXIOXAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


promoter :  though  it  is  true  that,  at  a  later 
period,  .JelTeries  seems  to  have  perceived  the 
destructive  iudiscretion  of  the  papish  coun- 
selors. It  displayed  the  king's  change  of 
policy  and  entii-e  separation  from  that  High- 
Church  party,  to  whom  he  was  indebted 
for  the  throne,  since  the  manifest  design  of 
the  ecclesiastical  commission  was  to  bridle 
the  clergy,  and  silence  the  voice  of  Protes- 
tant zeal.  The  proceedings  against  the 
Bishop  of  London,  and  other  instances  of 
hostility  to  the  established  i-eligion,  are  well 
known. 

Elated  by  success  and  general  submission, 
exasperated  by  the  reluctance  and  dissatis- 
faction of  those  on  whom  he  had  relied  for 
an  active  concurrence  with  his  desires,  the 
king  seems  at  least  by  this  time  to  have 
formed  the  scheme  of  subverting,  or  impair- 
Kmg's  ing  as  far  as  possible,  the  religious 
rs'tXshlg  establishment.  He  told  BariUon, 
popery.  alluding  to  the  ecclesiastical  com- 
mission, that  God  had  permitted  all  the  stat- 
utes which  had  been  enacted  against  the 
Catholic  religion  to  become  the  njeans  of 
its  re-establishment.*  But  the  most  re- 
markable evidence  of  this  design  was  the 
collation  of  Massey,  a  recent  convert,  to  the 
deanery  of  Christ  Church,  with  a  dispensa- 
tion from  all  the  statutes  of  uniformity  and 
other  ecclesiastical  laws,  so  ample  that  it 
made  a  precedent,  and  such  it  was  doubtless 
mtended  to  be,  for  bestowing  any  benefices 
upon  members  of  the  Church  of  Rome. 
This  dispensation  seems  to  have  been  not 
generally  known  at  the  time.  Burnet  has 
stated  the  circumstances  of  Massey's  pro- 
motion inaccurately  ;  and  no  historian,  I  be- 
lieve, till  the  publication  of  the  instrument 
after  the  middle  of  the  last  centuiy,  was 
fully  aware  of  the  degree  in  which  the  king 
had  trampled  upon  the  securities  of  the  Es- 
tablished Church  in  this  transaction. f 

*  Mazure,  ii.,  130. 

t  Henry  Earl  of  Claveiidou's  Papers,  ii.,  278.  In 
Gutoh's  Collectanea  Curiosa,  vol.  i.,  p.  287,  we 
find  not  only  this  license  to  Massey,  but  one  to 
Obadiah  Walker,  master  of  University  College, 
and  to  two  fellows  of  the  same,  and  one  of  Brazen- 
nose  College,  to  absent  themselves  from  church, 
and  not  to  take  the  oaths  of  supremacj-  and  alle- 
giance, or  do  any  other  thing  to  which,  by  the 
laws  and  statutes  of  the  realm,  or  those  of  the  col- 
lege, they  are  obliged.  There  is  also,  in  the  same 
book,  a  dispensation  for  one  Sclater,  curate  of  Put- 
ney, and  rector  of  Esher,  for  using  the  Common 
Prayer,  &c.,  &c.— Id.,  p.  290.    These  are  in  May, 


A  deeper  impression  was  made  by  the  dis- 
missal of  Rochester  from  his  post  .r>    •    ,  ^ 

_  '         Dismissal  of 

ot  lord-treasurer  ;  so  nearly  con-  J.ord  Ro- 
sequenton  his  positive  declaration 
of  adherence  to  the  Protestant  religion,  after 
the  dispute  held  in  his  ])resence  at  the  king's 
particular  command,  between  divines  of  both 
persuasions,  that  it  had  much  the  appear- 
ance of  a  resolution  taken  at  court  to  exclude 
from  the  high  offices  of  the  state  all  those 
who  gave  no  hope  of  conversion.*  Claren- 
don had  already  given  way  to  Tyrconnel 
in  the  government  of  Ireland  ;  the  privy  seal 
was  bestowed  on  a  Catholic  peer,  Lord 
Arundel;  Lord  Bellasis,  of  the  same  relig- 
ion, was  now  placed  at  the  head  of  the 
commission  of  the  treasury  ;  Sunderland, 
though  he  did  not  yet  cease  to  conform, 
made  no  secret  of  his  pretended  change  of 
opinion ;  the  council  board,  by  virtue  of  the 
dispensing  power,  was  filled  with  those  who 
would  refuse  the  test ;  a  small  junto  of  Cath- 
olics, with  Father  Petre,  the  king's  confess- 
or, at  their  head,  took  the  management  of 
almost  all  affairs  upon  themselves  ;t  men, 

168G,  and  subscribed  by  Powis,  the  solicitor-gener- 
al. The  attorney-general,  Sawyer,  had  refused; 
as  W'O  learn  from  Reresby,  p.  133,  the  only  cotem- 
porary  writer,  perhaps,  who  mentions  this  verj-  re- 
markable aggression  on  the  Established  Church. 

*  The  Catholic  lords,  according  to  BariUon,  had 
represented  to  the  king  that  nothing  could  be  done 
with  Parliament  so  long  as  the  treasurer  caballed 
against  the  designs  of  his  majesty.  James  prom- 
ised to  dismiss  him  if  he  did  not  change  his  relig- 
ion.— Mazure,  ii.,  170.  The  queen  had  previously 
been  rendered  his  enemy  by  the  arts  of  Sunder- 
land, who  persuaded  her  that  Lord  and  Lady  Ro- 
chester had  favored  the  king's  intimacy  with  the 
Countess  of  Dorchester,  in  order  to  thwart  the  pop- 
ish intrigue. — Id.,  149.  "On  voit,"  says  BariUon 
on  the  tieasurer's  dismissal,  "que  la  cabale  Cath- 
olique  a  enticrement  prevalu.  On  s'attendoit  de- 
puis  qnelque  temps  a  ce  qui  est  arrive  au  Comte 
de  Rochester ;  mais  I'execution  fait  encore  una 
nouvelle  impression  sur  les  esprits." — P.  181. 

t  Life  of  James,  74.  BariUon  frequently  men- 
tions this  cabal,  as  having,  in  effect,  the  whole  con- 
duct of  affairs  in  their  hands.  Sunderland  belong- 
ed to  them;  but  Jefferies,  being  reckoned  on  the 
Protestant  side,  had,  I  believe,  very  little  influ- 
ence for  at  least  the  two  latter  years  of  the  king's 
reign.  "Les  affaires  de  ce  pays-ci,"  says  Bonre- 
pos,  in  1686,  "  ne  roulent  a  present  que  sur  la  reli- 
gion. Le  roi  est  absolument  gouveme  par  les  Cath- 
oliques.  My  Lord  Sunderland  ne  se  maintient  que 
par  ceux-ci,  et  par  son  devoucmeut  a  faire  tout  ce 
qu'il  croit  etre  agreable  sur  ce  point.  II  a  le  se- 
cret des  affaires  de  Rome." — Mazure,  ii.,  124. 
"  On  feroit  ici,"  says  BariUon,  the  same  year,  "ce 
que  on  fait  en  France"  [that  is,  I  suppose,  dragon- 


JjLSiES  11] 


FROM  HEXRY  VII.  TO  GEORGE  H. 


529 


whose  known  want  of  principle  gave  reason 
to  expect  their  compliance,  were  raised  to 
bishoprics ;  there  could  be  no  rational  doubt 
of  a  concerted  scheme  to  depress  and  dis- 
countenance the  Established  Church.  The 
dismissal  of  Rochester,  who  had  gone  great 
lengths  to  preserve  his  power  and  emolu- 
ments, and  would,  in  all  probabilitj",  have 
concurred  in  the  establishment  of  arbitraiy 
power  under  a  Protestant  sovereign,*  may 
oe  reckoned  the  most  unequivocal  evidence 
of  the  king's  intentions ;  and  from  thence 
we  may  date  the  decisive  measures  that 
were  taken  to  counteract  them. 

It  was,  I  do  not  merely  say  the  interest, 
„  .      ,^    but  the  clear  right  and  bounden 

Prince  of  Or-  " 

»nge  alarm-  duty,  of  the  Prince  of  Orange,  to 
watch  over  the  internal  politics  of 
England,  on  account  of  the  near  connection 
which  his  own  birth  and  his  marriage  with 
the  presumptive  heir  had  created.  He  was 
never  to  be  reckoned  a  foreigner  as  to  this 
country,  which,  even  in  the  ordinary  course 
of  succession,  he  might  be  called  to  govern. 
From  the  time  of  his  union  with  the  Prin- 
cess Maiy,  he  was  the  legitimate  and  natu- 
ral ally  of  the  Whig  party ;  alien  in  all  his 
sentiments  fi-om  his  two  uncles,  neither  of 
whom,  especially  James,  treated  him  with 
much  regard,  on  account  merely  of  his  at- 
tachment to  religion  and  liberty,  for  he  might 
have  secured  their  affection  by  falling  into 
their  plans.  Before  such  differences  as  sub- 
sisted between  these  personages,  the  bonds 
of  relationship  fall  asunder  like  flax ;  and 
William  would  have  had  at  least  the  sanction 

ner  et  fusilier  les  heretiqnes],  "  si  Ton  pouvoit  es- 
perer  de  reussir." — P.  1127. 

*  Rochester  makes  so  very  bad  a  figure  in  all 
Barillon's  correspondence,  that  there  really  seems 
no  want  of  candor  in  this  supposition.  He  was  ev- 
idently the  most  active  co-operator  in  the  connec- 
tion of  both  the  brothers  with  France,  and  seems 
to  have  had  as  few  compunctious  visitiugs,  where 
the  Church  of  England  was  not  concerned,  as  Sun- 
derland himself.  Qodolphin  was  too  much  impli- 
cated, at  least  by  acquiescence,  in  the  counsels  of 
this  reign  ;  yet  we  find  him  suspected  of  not  wish- 
ing "  se  passer  entierement  de  Parlement,  et  a 
rompre  nettemeut  avec  le  Prince  d'Orange." — 
Fox,  Append.,  p.  60. 

If  Rochester  had  gone  over  to  the  Romanists, 
manj',  probably,  would  have  followed :  on  the  oth- 
er hand,  his  steadiness  retained  the  wavering.  It 
was  one  of  the  first  great  disappointments  with 
which  the  king  met.  But  his  dismissal  from  the 
treasury  created  a  sensible  alarm. — Dalrymplp, 
179. 

L  L 


of  many  precedents  in  history  if  he  had  em- 
ployed his  influence  to  excite  sedition  against 
i  Charles  or  James,  and  to  thwart  their  ad- 
I  ministration.  Yet  his  conduct  appeals  to 
have  been  merely  defensive ;  nor  had  he 
[  the  remotest  connection  with  the  violent  and 
factious  proceedings  of  Shaftesbury  and  his 
partisans.  He  played  a  very  dextrous,  but 
apparently  very  fair,  game  throughout  the 
last  years  of  Charles  ;  never  losing  sight  of 
the  popular  party,  through  whom  alone  he 
could  expect  influence  over  England  during 
the  life  of  his  father-in-law,  while  he  avoided 
any  direct  rupture  with  the  brothers,  and 
every  reasonable  pretext  for  their  taking 
offense. 

It  has  never  been  established  by  any  I'ep- 
utable  testimony,  though  perpetually  as- 
serted, nor  is  it  in  the  least  degi'ee  probable, 
that  William  took  any  share  in  prompting 
the  invasion  of  Monmouth  ;*  but  it  is  never- 
theless manifest  that  he  derived  the  greatest 
advantage  from  this  absurd  rebellion  and 
from  its  fiulure,  not  only  as  it  I'emoved  a 
mischievous  adventurer,  whom  the  multi- 
tude's idle  predilection  had  elevated  so  high, 
that  factious  men  would,  under  every  gov- 
ernment, have  turned  to  account  his  am- 
bitious imbecilitj-,  but  as  the  cruelty  with 
which  this  unhappy  enterprise  was  punish- 
ed rendered  the  king  odious,!  while  the  suc- 

*  Lord  Dartmouth  wrote  to  say  that  Fletcher 
told  him  there  were  good  grounds  to  suspect  that 
the  prince,  underhand,  encouraged  the  expedition, 
with  design  to  ruin  the  Duke  of  Monmouth ;  and 
this  Dalrjmple  believes,  p.  136.  It  is  needless  to 
obser\'e,  that  such  subtle  mid  hazardous  policy  was 
totally  out  of  William's  character:  nor  is  there 
much  more  reason  to  believe,  what  is  insinuated 
by  James  himself  (Macpherson's  Extracts,  p.  144  ; 
Life  of  James,  ii.,  34),  that  Sunderland  had  been 
in  secret  correspondence  with  Monmouth,  unless, 
indeed,  it  were,  as  seems  hinted  in  the  latter  work, 
with  the  king's  knowledge. 

t  The  number  of  persons  who  sufiered  the  sen- 
tence of  the  law,  in  the  famous  western  assize  of 
Jefieries,  has  been  ditferently  stated ;  but,  accord- 
ing to  a  list  in  the  Harleian  Collection,  u.  46S9,  it 
appears  to  be  as  follows :  at  Winchester,  one 
(Mrs.  Lisle)  executed  ;  at  SaUsbury,  none  ;  at  Dor- 
Chester,  74  executed,  171  transported  ;  at  Exeter, 
14  executed,  7  transported ;  at  Taunton,  144  exe- 
cuted, 284  transported ;  at  Wells,  97  executed,  393 
transported.  In  all,  330  executed,  855  tiansport- 
ed ;  besides  many  that  were  left  in  custody  for 
want  of  evidence.  It  may  be  obseni-ed,  that  the 
prisoners  sentenced  to  transportation  appear  to 
have  been  made  over  to  some  gentlemen  of  inter- 
est at  court;  among  others,  to  Sir  Christopher 


530 


CONSTITUTIONAL  HISTOBY  OF  ENGLAJJD 


[Chap.  XIV. 


cess  of  his  arms  inspired  him  with  false 
confidence  and  neglect  of  caution.  Every 
month,  as  it  brought  forth  evidence  of 
James's  arbitraiy  projects,  increased  the 
number  of  those  who  looked  for  deliverance 
to  the  Prince  of  Orange,  either  in  the  course 
of  succession,  or  by  some  special  inter- 
ference. He  had,  in  fact,  a  sti'onger  motive 
for  watching  the  councils  of  his  father-in- 
law  than  has  generally  been  known.  The 
king  was,  at  his  accession,  in  his  fifty-fifth 
year,  and  had  no  male  children  ;  nor  did  the 
queen's  health  give  much  encouragement  to 
expect  them.  Every  dream  of  the  nation's 
voluntary  return  to  the  Church  of  Rome 
must  have  vanished,  even  if  the  consent  of 
a  Parliament  could  be  obtained,  which  was 
nearly  vain  to  think  of :  or  if  open  force  and 
the  aid  of  France  should  enable  James  to 
subvert  the  established  religion,  what  had 
the  Catholics  to  anticipate  from  his  death 
but  that  feaiful  reaction  which  had  ensued 
upon  the  accession  of  Elizabeth  ?  This  had 
already  so  much  disheartened  the  moderate 
part  of  theu-  body,  that  they  were  most  anx- 
ious not  to  m'ge  forward  a  change,  for  which 


Musgrave,  who  did  not  blush  to  heg  the  grant  of 
their  unforttinate  countrymen,  to  be  sold  as  slaves 
in  the  colonies. 

The  apologists  of  James  II.  have  endeavored  to 
lay  the  entire  blame  of  these  cruelties  on  Jefiferies, 
and  to  represent  the  king  as  ignorant  of  them. 
Roger  North  tells  a  story  of  his  brother's  interfer- 
ence, which  is  plainly  contradicted  by  knovra  dates, 
and  the  falsehood  of  which  throws  just  suspicion 
on  his  numerous  anecdotes. — See  State  Trials,  xi., 
303.  But  the  king  speaks  with  appai-ent  appro- 
bation of  what  he  calls  JefFeries's  campaign,  in  writ- 
ing to  the  Prince  of  Orange  (Dahymple,  165) ;  and 
I  have  heard  that  there  are  extant  additional 
proofs  of  his  perfect  acquaintance  with  the  details 
of  those  assizes  :  nor,  indeed,  can  he  be  supposed 
ignorant  of  them.  JefFeries  himself,  before  his 
death,  declared  that  he  had  not  been  half  bloody 
enough  for  him  by  whom  he  was  employed.— Bur- 
net, 651  (note  to  Oxford  edition,  vol.  iii.).  The 
king,  or  his  biographer  in  his  behalf,  makes  a  very 
awkward  apology  for  the  execution  of  Major 
Holmes,  which  is  shown  by  himself  to  have  been 
a  gross  breach  of  faith. — Life  of  James,  ii.,  43. 

It  is-mmecessary  to  dwell  on  what  may  be  found 
in  every  history,  the  trials  of  Mrs.  Lisle,  Mrs. 
Gaunt,  and  Alderman  Comish  ;  the  former  before 
JefFeries,  the  two  latter  before  Jones,  his  successor 
as  chief-justice  of  the  King's  Bench,  a  judge  near- 
ly as  infamous  as  the  former,  though  not  altogeth- 
er so  brutal.  Both  Mrs.  Lisle's  and  Cornish's  con- 
victions were  without  evidence,  and,  consequentlj', 
were  reversed  after  the  Revolution. — State  Trials, 
vol.  xi. 


the  kingdom  was  not  ripe,  and  which  was 
so  little  likely  to  endure,  and  used  their  in- 
fluence to  promote  a  reconciliation  between 
the  king  and  Prince  of  Orange,  contenting 
themselves  with  that  free  exercise  of  their 
worship  which  was  permitted  in  Holland.* 
But  the  ambitious  priesthood  who  sun-ound- 
ed  the  throne  entertained  bolder  projects. 
A  scheme  was  formed  early  in  the  king's 
reign  to  exclude  the  Princess  of  Orange 
from  the  succession  in  favor  of  _, 

Plan  of  set- 

her  sister  Anne,  in  the  event  of  ting  the  prin- 
the  latter's  conversion  to  the  «^'*^"'<=; 
Romish  faith.  The  French  ministers  at 
our  court,  Barillon  and  Bonrepos,  gave  ear  to 
this  hardy  intrigue.  They  flattered  them- 
selves that  both  Anne  and  her  husband  were 
favorably  disposed ;  but  in  this  they  were 
wholly  mistaken.  No  one  could  be  more 
unconquerably  fixed  in  her  religion  j^jected  by 
than  that  princess.  The  king  him-  thekmg. 
self,  when  the  Dutch  ambassador,  Van  Ci- 
ters,  laid  before  him  a  document,  probably 
drawn  up  by  some  Catholics  of  his  court, 
in  which  these  audacious  speculations  were 
developed,  declared  his  indignation  at  so 
criminal  a  project.  It  was  not  even  in  his 
power,  he  let  tlie  prince  afterward  know  by 
a  message,  or  in  that  of  Parliament,  accord- 
ing to  the  principles  which  had  been  main- 
tained in  his  own  behalf,  to  change  the  fun- 
damental order  of  succession  to  the  crowm.f 

■*  Several  proofs  of  this  appear  in  the  corre- 
spondence of  BariUoD. — Fox,  135.  Mazure,  ii.,  22. 
The  nuncio,  M.  d'Adda,  was  a  moderate  man,  and 
united  with  the  moderate  Catholic  peers,  Bellasis, 
Arundel,  and  Powes. — Id.,  1-27.  This  party  urged 
the  king  to  keep  on  good  terms  with  the  Prince  of 
Orange,  and  to  give  way  about  the  Test. — Id., 
in,  255.  They  were  disgusted  at  Father  Petre's 
introduction  into  the  privy  coimcil,  308,  353.  But 
it  has  ever  been  the  misfortune  of  that  respecta- 
ble body  to  snffer  unjustly  for  the  follies  of  a  few. 
Barillon  admits  very  early  in  James's  reign  that 
many  of  them  disliked  the  arbitrarj-  proceedings 
of  the  court :  "  Us  pretendent  etre  bons  Anglois, 
c'est-a-dire,  ne  pas  desirer  que  le  roi  d'Angleterre 
ote  a  la  nation  ses  privileges  et  ses  libertes.'' — 
Mazure,  i ,  404. 

William  openly  declared  his  willingness  to  con- 
cur in  taking  off  the  penal  laws,  provided  the  Test 
might  remain.  —  Burnet,  694.  Dalrymple,  154. 
Mazure,  ii.,  216,  250,  346.  James  replied  that  he 
must  have  all  or  nothing. — Id.,  353. 

t  I  do  not  know  that  this  intrigue  has  been 
brought  to  light  before  the  recent  valuable  pubh- 
cation  of  M.  Mazure,  certainly  not  with  such  full 
evidence.— See  i.,  417 ;  ii.,  128,  160,  165,  167,  1S2, 
183,  192.   Barillon  says  to  his  master  in  one  place: 


James  n.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


531 


Nothing,  indeed,  can  more  forcibly  paint  the 
desperation  of  the  popish  faction  than  their 
entertainment  of  so  preposterous  a  scheme  ; 
but  it  naturally  increased  the  solicitude  of 
William  about  the  intrigues  of  the  English 
cabinet.  It  does  not  appear  that  any  direct 
overtures  were  made  to  the  Prince  of  Or- 
ange, except  by  a  very  few  malcontents,  till 
the  embassy  of  Dykvelt  from  the  States  in 
the  spring  of  1687.  It  was  William's  ob- 
Overturesof  j^*^^  ^°  ascertain,  through  that 
the  maicon-   minister,  the  real  state  of  parties 

tents  to  the  . 

PrinceofOr-  m  England,  buch assurances  as 
^"s*-  he  carried  back  to  Holland  gave 
encouragement  to  an  enterprise  that  would 
have  been  equally  injudicious  and  unwar- 
rantable without  them.*  Danby,  Halifax, 
Nottingham,  and  others  of  the  Tory,  as 
well  as  Whig  factions,  entered  into  a  secret 
corresjwndence  with  the  Prince  of  Orange  ; 
some  from  a  real  attachment  to  the  consti- 
tutional limitations  of  monarchy  ;  some  from 
a  conviction  that,  without  open  apostasy 
from  the  Protestant  faith,  they  could  never 
obtain  from  James  the  prizes  of  their  am- 
bition. This  must  have  been  the  predomi- 
nant motive  with  Lord  Churchill,  who  never 
gave  any  proof  of  solicitude  about  civil  lib- 
erty ;  and  his  influence  taught  the  Princess 
Anne  to  distinguish  her  interests  from  those 
of  her  father.  It  was  about  this  time,  also, 
tJiat  even  Sunderland  entered  upon  a  mys- 
terious communication  with  the  Prince  of 
Orange ;  but  whether  he  afterv^-ard  sen-ed 
his  present  master  only  to  betray  him,  as 
has  been  generally  believed,  or  sought  rather 
to  propitiate,  by  clandestine  professions,  one 
who  might  in  the  course  of  events  become 
such,  is  not,  perhaps,  what  the  evidence  al- 
ready known  to  the  world  will  enable  us  to 
determine,  t    The  apologists  of  James  have 

"C'estnne  matiere  fort  delicate  a  trailer.  Je  sais 
poartant  qu'on  en  parle  aa  roi  d' Angleterre ;  et 
qu'avec  le  temps  on  ne  desespere  pas  de  tioaver 
des  moyens  pour  faire  passer  la  couronne  sar  la 
tete  d'un  heritier  Catholique.  II  faut  pour  cela 
venir  a  bout  de  beaucoup  Ics  choses  qui  ne  sont 
encore  que  commenc^es." 

*  Burnet.   Dalrjmple.  Mazure. 

t  The  correspondence  began  by  an  affectedly 
obscure  letter  of  Lady  Sunderland  to  the  Prince  of 
Orange,  dated  March  7,  1687. — Dab^mple,  187. 
The  nleaning^  however,  can  not  be  misunderstood. 
Sunderland  himself  sent  a  short  letter  of  compli- 
ment by  Dykvelt,  May  28,  referring  to  virhat  that 
envoy  had  to  communicate.  Chm-chill,  Notting- 
ham, Rochester,  Devonshire,  and  others,  wrote 


often  represented  Sunderland's  treachery 
as  extending  back  to  the  commencement  of 
this  reign,  as  if  he  had  entered  upon  the 
king's  seiTice  with  no  other  aim  than  to  put 
him  on  measures  that  would  naturally  lead 
to  his  ruin.  But  the  simpler  hypothesis  is 
probably  nearer  the  ti'uth :  a  corrupt  and 
artful  statesman  could  have  no  better  pros- 
pect for  his  own  advantage  than  the  power 
and  popularity  of  a  government  which  he 
administered ;  it  was  a  conviction  of  the 
king's  incorrigible  and  infatuated  adherence 
to  designs  which  the  rising  spirit  of  the  na- 
tion rendered  utterly  infeasible,  an  appre- 
hension that,  whenever  a  free  Parliament 
should  be  called,  he  might  experience  the 
fate  of  Strafford  as  an  expiation  for  the  sins 
of  the  crown,  which  determined  him  to  se- 
care,  as  far  as  possible,  his  own  indemnity 
upon  a  revolution  that  he  could  not  have 
withstood.* 

The  dismissal  of  Rochester  was  foUowed 
up,  at  no  great  distance  of  time,  T^  , 

'  °  Declaration 

by  the  famous  declaration  for  for  liberty  of 
liberty  of  conscience,  suspending 
the  execution  of  aU  penal  laws  conceraing 
religion,  and  freely  pai'doning  all  offenses 
against  them,  in  as  full  a  manner  as  if  each 
individual  had  been  named.  He  declared, 
also,  his  will  and  pleasure  tliat  the  oaths  of 
supremacy  and  allegiance,  and  the  several 

also  by  Dykvelt.  Halifax  was  in  correspondence 
at  the  end  of  1686. 

*  Sunderland  does  not  appear,  by  the  extracts 
from  Barillon's  letters,  published  by  M.  Mazure,  to 
have  been  the  adviser  of  the  king's  most  injudi- 
cious measures.  He  was  united  with  the  queen, 
who  had  more  moderation  than  her  husband.  It  is 
said  by  Barillon  that  both  he  and  Petre  were 
against  the  prosecution  of  the  bishops,  ii.,  448. 
The  king  himself  ascribes  this  step  to  Jefferies, 
and  seems  to  glance  also  at  Sunderland  as  its  ad- 
viser.— Life  of  James,  ii.,  156.  He  speaks  more 
explicitly  as  to  Jefferies  in  Macpherson's  Extracts, 
151.  Yet  Lord  Clarendon's  Diary,  ii.,  49,  tends  to 
acquit  Jefferies.  Probably  the  king  had  nobody 
to  blame  but  himself.  One  cause  of  Sunderland's 
continuance  in  the  apparent  support  of  a  policy 
which  he  knew  to  be  destractive  was  his  poverty. 
He  was  in  the  pay  of  France,  and  even  importu- 
nate for  its  money. — Mazure,  372.  Dalrymple, 
270,  et  post.  Louis  only  gave  him  half  what  he 
demanded.  Without  the  blindest  submission  to 
the  king,  he  was  every  moment  falling ;  and  this 
drove  liira  into  a  step  as  injudicious  as  it  was  un- 
principled, his  pretended  change  of  religion,  which 
was  not  publicly  made  till  June,  1688,  though  he 
had  been  privately  reconciled,  it  is  said  (Mazure, 
ii.,  463),  more  than  a  year  before  by  Father  Petre. 


532 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


tests  enjoined  by  statutes  of  the  late  reign, 
should  uo  longer  be  required  of  any  one  be- 
fore his  admission  to  offices  of  trust.  The 
motive  of  this  declaration  was  not  so  much 
to  relieve  the  Roman  Catholics  from  penal 
and  incapacitating  statutes  (which,  since  the 
king's  accession  and  the  judgment  of  the 
Court  of  King's  Bench  in  favor  of  Hales, 
were  virtually  at  an  end),  as,  by  extending 
to  the  Protestant  Dissenters  the  same  full 
measure  of  toleration,  to  enlist  under  the 
standard  of  arbitrary  power  those  who  had 
been  its  most  intrepid  and  steadiest  adver- 
saries. It  was  after  the  prorogation  of  Par- 
liament that  he  had  begun  to  caress  that 
party,  who  in  the  first  months  of  his  reign  had 
endured  a  continuance  of  their  persecution  ;* 
but  the  clergy  in  general  detested  the  Non- 
conformists hardly  less  than  the  papists,  and 
had  always  abhorred  the  idea  of  even  a  Par- 
liamentary toleration.  The  present  declara- 
tion went  much  further  than  the  recognized 
prerogative  of  dispensing  with  prohibitory 
statutes.  Instead  of  removing  the  disability 
from  individuals  by  letters  patent,  it  swept 
away  at  once,  in  effect,  the  solemn  ordi- 
nances of  the  Legislature.  There  was,  in- 
deed, a  reference  to  the  future  concurrence 
of  the  two  Houses,  whenever  he  should 
think  it  convenient  for  them  to  meet,  but 
so  expressed  as  rather  to  insult,  than  pay 
respect  to,  their  authority;!  and  no  one 
could  help  considering  the  declaration  of  a 
similar  nature  just  published  in  Scotland  as 
tlie  best  commentaiy  on  the  present.  In 
that  he  suspended  all  laws  against  the  Ro- 
man Catholics  and  moderate  Presbyterians, 
"  by  his  sovereign  authority,  prerogative 
royal,  and  absolute  power,  which  all  his 
subjects  were  to  obey  without  reserve;" 
and  its  whole  tenor  spoke,  in  as  unequivocal 
language  as  his  gi'andfather  was  accustomed 
to  use,  his  contempt  of  all  pretended  limita- 
tions on  his  will.t  Though  the  Constitu- 
tion of  Scotland  was  not  so  well  balanced  as 
our  own,  it  was  notorious  that  the  crown 
did  not  legally  possess  an  absolute  power  in 

*  "  This  defection  of  those  his  majesty  had  hith- 
erto put  the  g^reatest  confidence  in  [Clarendon  and 
Kochester],  and  the  sullen  disposition  of  the  Church 
of  England  party  in  general,  made  him  think  it 
necessaiy  to  reconcile  another ;  and  yet  he  hoped 
to  do  it  in  such  a  manner  as  not  to  disgust  quite 
the  churchman  neither." — Life  of  James,  ii.,  102. 

t  London  Gazette,  March  18,  1687.    Ralph,  945. 

t  Ralph,  943.    Mazure,  ii.,  207. 


that  kingdom ;  and  men  might  conclude  that- 
when  he  should  think  it  less  necessaiy  to 
observe  some  measures  with  his  English 
subjects,  he  would  address  them  in  the  same 
strain. 

Those,  indeed,  who  knew  by  what  course 

his  favor  was  to  be  sought,  did  Addresses  in 

not  hesitate  to  go  before,  and  light  ^^^"^  °^ 
him,  as  it  were,  to  the  altar  on  which  their 
country's  liberty  was  to  be  the  victim. 
Many  of  the  addresses  which  fill  the  columns 
of  the  London  Gazette  in  1687,  on  occasion 
of  the  Declaration  of  Indulgence,  flatter  the 
king  with  assertions  of  his  dispensing  power. 
The  benchers  and  ban'isters  of  the  Middle 
Temple,  under  the  direction  of  the  prosti- 
tute Shower,  were  again  foremost  in  the, 
race  of  infamy.*  They  thank  him  "  for 
asserting  his  own  royal  prerogatives,  the 
very  life  of  the  law,  and  of  their  profession ; 
which  prerogatives,  as  they  were  given  by 
God  himself,  so  no  power  upon  earth  could 
diminish  them,  but  they  must  always  re- 
main entire  and  inseparable  fi'om  his  royal 
person  ;  which  prerogatives,  as  the  address- 
ers had  studied  to  know,  so  they  were  re- 
solved to  defend,  by  asserting  with  their  lives 
and  fortunes  that  divine  maxim,  a  Deo  rex, 
d  rege  ?er."f 

These  addresses,  which,  to  the  number 
of  some  hundreds,  were  sent  up  from  every 
description  of  persons,  the  clergy,  the  non- 
conformists of  all  denominations,  the  grand 
juries,  the  justices  of  the  peace,  the  corpo- 
rations, the  inhabitants  of  towns,  in  conse- 
quence of  the  Declaration,  afford  a  singular 
contrast  to  what  we  know  of  the  prevailing 
dispositions  of  the  people  in  that  year,  and 
of  their  general  abandonment  of  the  king's 
cause  before  the  end  of  the  next.  Those 
from  the  clergy,  indeed,  disclose  their  ill 
humor  at  the  unconstitutional  indulgence, 
limiting  their  thanks  to  some  promises  of 

*  [But  these  addresses  from  the  Middle  and  In- 
ner Temple,  we  are  informed  by  Sir  James  Mack- 
intosh, "  from  recent  examination  of  the  records  of 
those  bodies,  do  not  appear  to  have  been  voted  by 
either.  The  former,  eminent  above  others  for  ful- 
some servility,  is  ti-aditionally  said  to  be  the  clan- 
destine production  of  three  of  the  benchers,  of 
whom  Chauncy,  the  historian  of  Hertfordshire,  was 
one." — Hist,  of  James  II.,  p.  177.] 

t  London  Gazette,  June  9,  1687.  Shower  had 
been  knighted  a  little  before,  on  presenting,  as  re 
corder  of  London,  an  address  from  the  grand  jurj 
of  Middlesex,  thanking  the  king  for  his  declara 
tiou.— Id  ,  May  12. 


James  11.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


533 


favor  the  king  had  used  toward  the  Estab- 
lished Church ;  but  as  to  the  rest,  we  should 
have  cause  to  blush  for  the  sen'ile  hypocrisy 
of  our  ancestors,  if  there  were  not  good 
reason  to  believe  that  these  addresses  were 
sometimes  the  work  of  a  small  minority  in 
the  name  of  the  rest,  and  that  the  grand 
juries  and  the  magistracy  in  general  had 
been  so  gai'bled  for  the  king's  purposes  in 
this  year  that  they  formed  a  very  inadequate 
representation  of  that  great  class  from  which 
they  ought  to  have  been  taken.*  It  was, 
however,  very  natural  that  they  should  de- 
ceive the  court.  The  Catholics  were  eager 
for  that  security  which  nothing  but  an  act 
of  the  Legislature  could  afford  ;  and  James, 
who,  as  well  as  his  minister,  had  a  sti-ong 
aversion  to  the  measure,  seems  about  the 
latter  end  of  the  summer  of  1687  to  have 
made  a  sudden  change  in  his  scheme  of 
government,  and  resolved  once  more  to  try 
the  disposition  of  a  Parliament.  For  this 
purpose,  having  dissolved  that  from  which 
he  could  expect  nothing  hostile  to  the 
Church,  he  set  himself  to  manage  the  elec- 
tion of  another  in  such  a  manner  as  to  in- 
sure his  main  object,  the  security  of  the 
Romish  religion. f 

*  London  Gazette  of  1687  and  1688,  passim. 
Ralph,  946,  368.  These  addresses  grew  more  ar- 
dent after  the  queen's  pregnancy  became  known. 
They  were  renewed,  of  course,  after  the  hirtli  of  the 
Prince  of  Wales.  But  scarce  any  appear  after  the 
expected  invasion  was  announced.  The  Tories 
(to  whom  add  the  Dissenters)  seem  to  have  thrown 
off  the  mask  at  once,  and  deserted  the  king  whom 
they  had  so  gi-ossly  flattered,  as  instantaneously  as 
parasites  on  the  stage  desert  their  patron  on  the 
first  tidings  of  his  ruin. 

The  Dissenters  have  been  a  little  ashamed  of 
their  compliance  with  the  declaration,  and  of  their 
silence  in  the  popish  controversy  during  this  reign. 
— Neal,  75.1,  768  ;  and  see  Biog.  Brit.,  art.  Alsop. 
The  best  excuses  are,  that  they  had  been  so  har- 
assed that  it  was  not  in  human  natui'e  to  refuse  a 
mitigation  of  suffering  almost  on  any  tenns  ;  that 
they  were  by  no  means  unanimous  in  their  transi- 
tory support  of  the  couit ;  and  that  they  gladly  em- 
braced the  first  offers  of  an  equal  indulgence  held 
out  to  them  by  the  Church. 

t  "The  king,  now  finding  that  nothing  which 
had  the  least  appearance  of  novelty,  though  never 
so  well  warranted  by  the  prerogative,  would  go 
down  with  the  people,  unless  it  had  the  Parlia- 
mentary stamp  on  it,  resolved  to  try  if  he  could 
get  the  penal  laws  and  test  taken  off  by  that  au- 
thority."— Life  of  James,  ii.,  134.  But  it  seems  by 
M.  Mazure's  authorities  that  neither  the  king  nor 
Lord  Sunderland  wished  to  convoke  a  Parliament, 
which  was  pressed  foi-ward  by  the  eager  Catho- 


"  His  first  care,"  says  his  biographer  In- 
nes,  "  was  to  purge  the  corpora-  j^^^^  model 
tions  from  that  leaven  which  was  ing  of  the 
in  danger  of  corrupting  the  whole 
kingdom  ;  so  he  appointed  certain  regulators 
to  inspect  the  conduct  of  several  borough 
towns,  to  con-ect  abuses  where  it  was  prac- 
ticable, and  where  not,  by  forfeiting  their 
charters,  to  turn  out  such  rotten  members 
as  infected  the  rest.  But  in  this,  as  in  most 
other  cases,  the  king  had  the  fortune  to 
choose  persons  not  too  well  qualified  for  such 
an  employment,  and  extremely  disagreeable 
to  the  people  ;  it  was  a  sort  of  motley  coun- 
cil made  up  of  Catholics  and  Presbyterians, 
a  composition  which  was  sure  never  to  hold 
long  together,  or  that  could  probably  unite 
in  any  method  suitable  to  both  their  inter- 
ests ;  it  served,  therefore,  only  to  increase 
the  public  odium  by  their  too  arbitraiy  ways 
of  turning  out  and  putting  in  ;  and  yet  those 
who  were  thus  intruded,  as  it  were,  by  force, 
being  of  the  Presbyterian  party,  were  by 
this  time  become  as  little  inclinable  to  favor 
the  king's  intentions  as  the  excluded  mem- 
bers."* 

This  endeavor  to  violate  the  legal  rights 
of  electors,  as  well  as  to  take  away  other 
vested  franchises,  by  new-modeling  corpo- 
rations through  commissions  granted  to  reg- 
ulators, was  the  most  capital  delinquency 
of  the  king's  government,  because  it  tended 
to  preclude  any  repai'ation  for  the  rest,  and 
directly  attacked  the  fundamental  Constitu- 
tion of  the  state  ;f  but,  like  all  his  other 
measures,  it  displayed  not  more  ill  will  to 
the  liberties  of  the  nation  than  inability  to 
overthrow  them.  The  Catholics  were  so 
small  a  body,  and  so  weak,  especially  in  cor- 
porate towns,  that  the  whole  effect  produced 
by  the  regulators  was  to  place  municipal 
power  and  trust  in  the  hands  of  the  Non- 
conformists, those  precarious  and  unfaithful 

lies,  ii.,  399 ;  iii.,  65.  [The  proclamation  for  a  new 
ParUament  came  out  Sept.  21, 1688.  The  king  in- 
tended to  create  new  peers  enough  to  insure  the 
repeal  of  the  Test,  Mazure,  iii.,  81 ;  but  intimates 
in  his  proclamation  that  he  would  consent  to  let 
Roman  Catholics  remain  incapable  of  sitting  in  the 
Lower  House.— Id.,  82.  Ralph,  1010.  But  this 
very  proclamation  was  revoked  in  a  few  days.] 
*  Life  of  James,  p.  139. 

t  Ralph,  965,  966.  The  object  was  to  let  in  the 
Dissenters.  This  was  evidently  a  desperate  game : 
James  had  ever  mortally  hated  the  sectaries  as  en- 
emies to  monarchy,  and  they  were  irreconcilably 
adverse  to  all  his  schemes. 


534 


CONSTITUTIONAI/  HISTOEY  OF  ENGLAND 


[Chap.  XIV. 


allies  of  the  court  ,  whose  resentment  of  past 
oppression,  hereditary  attachment  to  pop- 
ular principles  of  government,  and  inveter- 
ate abhorrence  of  popery,  were  not  to  be 
effaced  by  an  unnatural  coalition.  Hence, 
though  they  availed  themselves,  and  surely 
without  reproach,  of  the  toleration  held  out 
to  them,  and  even  took  the  benefit  of  the 
scheme  of  regulation,  so  as  to  fill  the  corpo- 
ration of  London  and  many  others,  they 
were,  as  is  confessed  above,  too  much  of 
Englishmen  and  Protestants  for  the  pur- 
poses of  the  court.  The  wiser  part  of  the 
churchmen  made  secret  overtures  to  their 
party,  and  by  assurances  of  a  toleration,  if 
not  also  of  a  comprehension  within  the  An- 
glican pale,  won  them  over  to  a  hearty  con- 
currence in  the  great  project  that  was  on 
foot.*  The  king  found  it  necessary  to  de- 
scend so  much  from  the  haughty  attitude  he 
had  taken  at  the  outset  of  his  reign,  as  per- 
sonally to  solicit  men  of  rank  and  local  in- 
fluence for  their  votes  on  the  two  great 
measures  of  repealing  the  test  and  penal 
laws.  The  country  gentlemen,  in  their  dif- 
ferent counties,  Avere  tried  with  circular 
questions,  whether  they  would  comply  with 
the  king  in  their  elections,  or,  if  themselves 
chosen,  in  Parliament.  Those  who  refused 
6uch  a  promise  were  erased  from  the  lists 
of  justices  and  deputy -lieutenants  ;f  yet  his 
biographer  admits  that  he  i-eceived  little  en- 
couragement to  proceed  in  the  experiment 
of  a  Parliament  ;t  and  it  is  said  by  the 
French  ambassador  that  evasive  answers 
were  returned  to  these  questions,  with  such 
uniformity  of  expression  as  indicated  an 
alarming  degree  of  concert.  § 

It  is  unnecessaiy  to  dwell  on  circumstan- 

«  Burnet.  Life  of  James,  169.  D'Oyly's  Life 
of  Sancroft,  i.,  326.  Lord  Halifax,  as  is  supposed, 
published  a  letter  of  advice  to  the  Dissenters, 
warning  them  against  a  coalition  with  the  court, 
and  promising  all  indulgence  from  the  Church. — 
Ralph,  950.    Somers  Tracts,  viii.,  50. 

t  Ralph,  967.  Lonsdale,  p.  15.  "It  is  to  be  ob- 
served," says  the  author  of  this  memoir,  "  that  most 
part  of  the  offices  in  the  nation,  as  justices  of  the 
peace,  deputy-lieutenants,  mayors,  aldermen,  and 
freemen  of  towns,  are  filled  with  Roman  Catholics 
and  Dissenters,  after  having  suffered  as  many  reg- 
ulations as  were  necessary  for  that  purpose.  And 
thus  stands  the  ^tate  of  this  nation  in  this  month 
of  September,  1688." — P.  34.  Notice  is  given  in 
the  London  Gazette  for  December  11,  1687,  that 
the  lists  of  justices  and  deputy-lieutenants  would 
be  revised.  t  Life  of  James,  183. 

$  Mazure,  ii.,  302. 


ces  80  well  known  as  the  expul-  .  „ .  , 

■         Affair  of 

sion  of  the  fellows  of  Magdalen  Col-  Magdalen 
lege.*  It  was  less  extensively  mis-  ^"""S"- 
chievous  than  the  new-modeling  of  corijora- 
tions,  but  perhaps  a  more  glaring  act  of  des- 
potism ;  for  though  the  crown  had  been  ac- 
customed from  the  time  of  the  Reformation 
to  send  very  peremptoiy  commands  to  ec- 
clesiastical foundations,  and  even  to  dispense 
with  their  statutes  at  discretion,  with  so 
little  resistance  that  few  seemed  to  doubt 
of  its  prerogative  ;  though  Elizabeth  would 
probably  have  treated  the  fellows  of  any  col- 
lege much  in  the  same  manner  as  James  II., 
if  they  had  proceeded  to  an  election  in  de- 
fiance of  her  recommendation,  yet  the  right 
was  not  the  less  clearly  theirs,  and  the 
struggles  of  a  century  would  have  been 
thrown  away  if  James  II.  was  to  govern  as 
the  Tudors,  or  even  as  his  father  and  grand- 
father had  done  before  him.f  And  though 
Parker,  bishop  of  Oxford,  the  first  president 
whom  the  ecclesiastical  commissioners  ob- 
truded on  the  college,  was  still  nominally  a 
Protestant.t  his  successor  Giffard  was  an 
avowed  member  of  the  Church  of  Rome. 
The  college  was  filled  with  persons  of  the 
same  persuasion  ;  mass  was  said  in  the  chap- 
el, and  the  estaljlished  religion  was  excluded 
with  a  degree  of  open  force  which  entirely 
took  away  all  security  for  its  preservation 
in  any  other  place.  This  latter  act,  especial- 
ly, of  the  Magdalen  drama,  in  a  still  gi-eater 
degi'ee  than  the  nomination  of  Massey  to 
the  deanery  of  Christ  Church,  *ems  a  de- 
cisive proof  that  the  king's  repeated  promises 
of  contenting  himself  with  a  tolaration  of  his 

*  The  reader  will  find  almost  every  thing  rela- 
tive to  the  subject  in  that  incomparable  repertorj' 
the  State  Trials,  xii.,  1 ;  also,  some  notes  in  the 
Oxford  edition  of  Burnet. 

t  [This  is  the  only  ground  to  be  taken  in  the 
great  case  of  Magdalen  College,  as  in  that  of  Fran- 
cis, at  Cambridge,  a  little  earlier;  for  the  prece- 
dents of  dispensing  with  college  statutes  by  the 
royal  authority  were  numerous. — See  Ralph,  958. 
But  it  is  one  thing  to  do  an  irregular  act,  and  anoth- 
er to  enforce  it.  A  vindication  of  the  proceedings 
of  the  ecclesiastical  commission  was  published, 
wherein  it  is  said  that  "  the  legislative  power  in 
matters  ecclesiastical  was  lodged  in  the  king,  and 
too  ample  to  be  limited  by  act  of  Parliament." — 
Id.,  971.] 

}  Parker's  Reasons  for  Abrogating  the  Test  are 
written  in  such  a  tone  as  to  make  his  readiness  to 
abandon  the  Protestant  side  very  manifest,  even 
if  the  common  anecdotes  of  him  should  be  exag- 
gerated. 


James  TL] 


FBOM  HENRY  VII.  TO  GEORGE  II. 


535 


own  religion  would  have  yielded  to  his  in- 
superable bigotry  and  the  zeal  of  his  con- 
fessor. We  may  perhaps  add  to  these  en- 
croachments upon  the  Act  of  Uniformity, 
the  design  imputed  to  him  of  conferring  the 
archbishopric  of  York  on  Father  Petre; 
yet  there  would  have  been  difficulties  that 
seem  insurmountable  in  the  way  of  this, 
since,  the  validity  of  Anglican  orders  not 
being  acknowledged  by  the  Church  of 
Rome,  Petre  would  not  have  sought  con- 
secration at  the  hands  of  Sancroft ;  nor,  had 
he  done  so,  would  the  latter  have  confen-ed 
it  on  him,  even  if  the  chapter  of  York  had 
gone  through  the  indispensable  form  of  an 
election.* 

The  infatuated  monarch  was  in-itated  by 
Infatuation  that  wliicli  he  should  have  taken 
of  the  king,  g,  terrible  warning,  this  resist- 
ance to  his  will  from  the  University  of  Ox- 
ford. That  sanctuary  of  pure,  unspotted 
loyalty,  as  some  would  say,  that  sink  of  all 
that  was  most  abject  in  servility,  as  less 
courtly  tongues  might  murmur,  the  Univer- 
sity of  Oxford,  which  had  but  four  short 
years  back,  by  a  solemn  decree  in  convoca- 
tion, poured  forth  anathemas  on  all  who  had 
doubted  the  divine  right  of  monarchy,  or  as- 
serted the  privileges  of  subjects  against  their 
sovereigns,  which  had  boasted  in  its  address- 
es of  an  obedience  without  any  restrictions 
or  limitations,  which  but  recently  had  seen 
a  known  convert  to  popery,  and  a  person 
disqualified  in  other  ways,  installed  by  the 
chapter  without  any  remonstrance  in  the 
deaneiy  of  Christ  Church,  was  now  the 
scene  of  a  fiiTO  though  temperate  opposition 
to  the  king's  positive  command,  and  soon 
after  the  wilhng  instrument  of  his  ruin.  In 
vain  the  pamphleteers,  on  the  side  of  the 
court,  upbraided  the  clergy  with  their  apos- 
tasy fi-om  the  principles  they  had  so  much 
vaunted.  The  imputation  it  was  hard  to 
repel ;  but,  if  they  could  not  retract  their 
course  without  shame,  they  could  not  con- 
tinue in  it  without  destruction.}  They 

*  It  seems,  however,  confirmed  by  Mazure,  ii., 
390,  with  the  addition  that  Petre,  )ike  a  second 
Wolsey,  aspired  also  to  be  chancellor.  The  pope, 
however,  would  not  make  him  a  bishop,  against 
the  rules  of  the  order  of  Jesuits  to  which  he  be- 
longed.— Id.,  James  then  tried,  through  Lord 
Castlemain,  to  get  him  a  cardinal's  hat,  but  with 
as  little  sQcceis. 

t  "Above  twenty  years  together,"  says  Sir 
Roger  L 'Estrange,  perhaps  himself  a  disguised 


were  driven  to  extremity  by  the  order  of 
May  4,  1688,  to  read  the  Declaration  of  In- 
dulgence in  their  churches.*  This,  as  is 
well  known,  met  with  great  resistance,  and, 
by  inducing  the  primate  and  six  other  bish- 
ops to  present  a  petition  to  the  king  against 
it,  brought  on  that  famous  prosecution, 
which,  more,  perhaps,  than  all  his  former 
actions,  cost  him  the  allegiance  of  the  An- 
glican Church.  The  proceedings  upon  the 
trial  of  those  prelates  are  so  familiar  as  to 
require  no  particular  notice. f  What  is  most 
worthy  of  remark  is,  that  the  very  party 
who  had  most  extolled  the  royal  preroga- 
tive, and  often  in  such  terms  as  if  all  limita- 
tions of  it  were  only  to  subsist  at  pleasure, 
became  now  the  instruments  of  bringing  it 
down  within  the  compass  and  control  of  the 
law.  If  the  king  had  a  right  to  suspend  the 
execution  of  statutes  by  proclamation,  the 
bishop's  petition  might  not  indeed  be  libel- 
ous, but  their  disobedience  and  that  of  the 
clergy  could  not  be  warranted  ;  and  the  prin- 
cipal argument  both  of  the  bar  and  the  bench 
rested  on  the  gi'eat  question  of  that  preroga- 
tive. 

The  king,  meantime,  was  blindly  hurry- 
ing on  at  the  instigation  of  his  own  pride 
and  bigotry,  and  of  some  ignorant  priests ; 
confident  in  the  fancied  obedience  of  the 
Church,  and  in  the  hollow  support  of  the 
Dissenters,  after  all  his  wiser  counselors,  the 
Catholic  peers,  the  nuncio,  perhaps  the 
queen  herself,  had  gi'own  sensible  of  the 
danger,  and  solicitous  for  temporizing  meas- 
ures. He  had  good  reason  to  perceive  that 
neither  the  fleet  nor  the  army  could  be  re- 
lied upon ;  to  cashier  the  most  rigidly  Prot- 
estant officers,  to  draft  Irish  troops  into  the 

Catholic,  in  his  reply  to  the  reasons  of  the  clergy 
of  the  diocese  of  Oxford  against  petitioning  (Som- 
ers  Tracts,  viii.,  •15),  "  without  any  regard  to  the 
nobility,  gentry,  and  commonalty,  our  clergy  have 
been  publisliing  to  the  world  that  the  king  can  do 
greater  things  than  are  done  in  his  declaration; 
but  now  the  scene  is  altered,  and  they  are  become 
more  concerned  to  maintain  their  reputation  even 
with  the  commonalty  than  with  the  king."  See, 
also,  in  the  same  volume,  p.  19,  "  A  Remonstrance 
from  the  Church  of  England  to  both  Houses  of  Par- 
liament," 1685 ;  and  p.  145,  "  A  new  Test  of  the 
Church  of  England's  Loyalty ;"  both,  especially  the 
latter,  bitterly  reproaching  her  members  for  their 
apostasy  from  former  professions. 
*  Ralph,  982. 

t  See  State  Trials,  xii.,  183.  D'Oyly's  Life  of 
Sancroft,  i.,  250. 


536 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


regiments,  to  place  all  important  commands  I 
in  the  hands  of  Catholics,  were  difficult  and 
even  desperate  measures,  which  rendered 
his  designs  more  notorious,  without  render- 
ing them  more  feasible.  It  is  among  the 
most  astonishing  parts  of  this  unhappy  sov- 
ereign's impolicy,  that  he  sometimes  neg- 
lected, even  offended,  never  steadily  and 
sufficiently  courted,  the  sole  ally  that  could 
by  possibility  have  co-operated  in  his  scheme 
of  government.  In  his  brother's  reign, 
James  had  been  the  most  obsequious  and 
unhesitating  sei-vant  of  the  French  king. 
Before  his  own  accession,  his  first  step  was 
to  implore,  through  Bai'illon,  a  continuance 
of  that  support  and  protection,  without 
which  he  could  undertake  nothing  which  he 
had  designed  in  favor  of  the  Catholics.  He 
received  a  present  of  500,000  livres  with 
tears  of  gratitude  ;  and  telling  the  ambassa- 
dor he  had  not  disclosed  his  real  designs  to 
his  ministers,  pressed  for  a  strict  alliance 
with  Louis,  as  the  means  of  accomplishing 
them  ;*  yet,  with  a  strange  inconsistency, 
he  drew  off"  gi'adually  from  these  profes- 
sions, and  not  only  kept  on  rather  cool  terms 
with  France  during  part  of  his  reign,  but 
sometimes  played  a  double  game  by  treating 
of  a  league  with  Spain. 

The  secret  of  this  uncertain  policy,  which 
J  ,  has  not  been  well  known  till  very 
ness  toward  lately,  is  to  be  found  in  the  king's 
Louis.  character.  James  had  a  real 
sense  of  the  dignity  pertaining  to  a  king  of 
England,  and  much  of  the  national  pride  as 
well  as  that  of  his  rank.  He  felt  the  degi-a- 
dation  of  importuning  an  equal  sovereign  for 
money,  which  Louis  gave  less  frequently 
and  in  smaller  measure  than  it  was  demand- 
ed. It  is  natural  for  a  proud  man  not  to 
love  those  before  whom  he  has  abased  him- 
self. James,  of  frugal  habits,  and  master  of 
a  great  revenue,  soon  became  more  indiflfer- 
ent  to  a  French  pension.  Nor  was  he  in- 
sensible to  the  reproach  of  Europe,  that  he 
was  grown  the  vassal  of  France  and  had 
tarnished  the  luster  of  the  English  crown. f 

*  Fox,  App.,  29.  Dalrymple,  107.  Maznre,  i., 
396,  433. 

t  Several  proofs  of  this  occur  in  the  course  of  M. 
Mazare's  work.  When  the  Dutch  ambassador, 
Van  Citers,  showed  him  a  paper,  probably  forged 
to  exasperate  him,  but  purporting  to  be  written 
by  some  Catholics,  wherein  it  was  said  that  it 
would  be  better  for  the  people  to  be  vassals  of 
France  than  slaves  of  the  devil,  he  burst  out  into 


Had  he  been  himself  Protestant,  or  his  sub- 
jects Catholic,  he  would  jjrobably  have  given 
the  reins  to  that  jealousy  of  his  ambitious 
neighbor,  which,  even  in  his  peculiar  cir- 
cumstances, restrained  him  from  the  most 
expedient  course ;  I  mean  expedient,  on  the 
hypothesis  that  to  overthrow  the  civil  and 
religious  institutions  of  his  people  was  to  be 
the  main  object  of  his  reign ;  for  it  was  idle 
to  attempt  this  without  the  steady  co-opera- 
tion of  France  ;  and  those  sentiments  of  dig- 
nity and  independence,  which  at  first  sight 
appear  to  do  him  honor,  being  without  any 
consistent  magnanimity  of  character,  seiTed 
only  to  accelerate  his  ruin,  and  confirm  the 
persuasion  of  his  incapacity.**  Even  in  the 
memorable  year  1688,  though  the  veil  was 
at  length  torn  fi-om  his  eyes  on  the  verge 
of  the  precipice,  and  he  sought  in  trembling 

rage  :  "  '  Jamais  !  non,  jamais  !  je  ne  ferai  rien  qui 
me  puisse  mettre  au-dessons  des  rois  de  France 
et  d'Espague.  Vassal !  vassal  de  la  France !' 
s'ecria-t-il  avec  emportement.  'Monsieur!  si  le 
Parlcment  avoit  voulu,  s'il  vouloit  encore,  j'aurois 
porte,  je  porterois  encore  la  monarchic  a  un  de 
consideration  qu'elle  n'a  jamais  en  sous  aucane  des 
rois  mes  predecessears,  et  votre  etat  y  tronveroit 
peut-etre  sa  propre  securite.' " — Vol.  H.,  165.  Sun- 
derland said  to  Barillon,  "Le  roy  d'Angleterre  se 
reproche  de  ne  pas  etre  en  Europe  tout  ce  qu'il 
devoit  etre  ;  et  souveut  il  se  plaint  que  le  roi  votre 
maitre  n'a  pas  pour  lui  assez  de  consideration." — 
Id.,  313.  On  the  other  hand,  Louis  was  much  mor- 
tified that  James  made  so  few  applications  for  his 
aid.  His  hope  seems  to  have  been,  that  by  means 
of  French  troops,  or  troops  at  least  in  his  pay,  he 
should  get  a  footing  in  England;  and  this  was 
what  the  other  was  too  proud  and  jealous  to  per- 
mit. "  Conmie  le  roi,"  he  said,  in  1687,  "  ne  doute 
pas  de  mon  affection  et  du  desir  que  j'ai  de  voir  la 
religion  Catholique  bien  Stabile  en  Angleterre,  il 
fant  croire  qu'il  se  trouve  assez  de  force  et  d'aa- 
torite  pour  executer  ses  desseins,  pnisqu'il  n'a  pas 
recours  a  moi."— P.  258;  also  174,  225,  320. 

*  James  affected  the  same  ceremonial  as  the 
King  of  France,  and  received  the  latter's  ambas- 
sador sitting  and  covered.  Louis  only  said,  smil- 
ing, "  Le  roi  mon  frere  est  fier,  mais  il  aune  assez 
les  pistoles  de  France." — Mazure,  i.,  423.  A  more 
extraordinaiy  trait  of  James's  pride  is  mentioned 
by  Dangeau,  whom  I  quote  from  the  Quarterly 
Review,  xix.,  470.  After  his  retirement  to  St. 
Germains,  he  wore  \-iolet  in  court  mourning,  which, 
by  etiquette,  was  confined  to  the  kings  of  France. 
The  courtiers  were  a  little  astonished  to  see  solem 
geminum,  though  not  at  loss  where  to  worship. 
Louis,  of  course,  had  too  much  magnanimity  to  ex- 
press resentment.  But  what  a  picture  of  littleness 
of  spirit  does  this  exhibit  in  a  wretched  pauper, 
who  could  only  escape  by  the  most  contemptible 
insignificance  the  charge  of  most  ungrateful  inso- 
lence ! 


James  II.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


537 


the  assistance  he  had  slighted,  his  silly  pi  ide 
made  him  half  unwilling  to  be  rescued  ;  and, 
when  the  French  ambassador  at  the  Hague, 
by  a  bold  raanoeuver  of  diplomacy,  asserted 
to  the  States  that  an  alliance  already  sub- 
sisted between  his  master  and  the  King  of 
England,  the  latter  took  ofl'ense  at  the  un- 
authorized declaration,  and  complained  pri- 
vately that  Louis  treated  him  as  an  inferior.* 
It  is  probable  that  a  more  ingenuous  policy 
in  the  court  of  Whitehall,  by  determining 
the  King  of  France  to  declare  war  sooner 
on  Holland,  would  have  prevented  the  ex- 
pedition of  the  Prince  of  Orange. f 

The  latter  continued  to  receive  strong 
assurances  of  attachment  from  men  of  rank 
in  England,  but  wanted  that  direct  invitation 
to  enter  the  kingdom  with  force  which  he 
required  both  for  his  security  and  his  justi- 
fication. No  men  who  thought  much  about 
their  country's  interests  or  their  own  would 
be  hasty  in  venturing  on  so  awful  an  enter- 
prise. The  punishment  and  ignominy  of 
treason,  the  reproach  of  history,  too  often 
the  sworn  slave  of  fortune,  awaited  its  fail- 
ui*e.  Thus  Halifax  and  Nottingham  found 
their  conscience  or  their  courage  unequal 
to  the  crisis,  and  drew  back  from  the  hardy 

*  Mazure,  iii.,  50.  James  waa  so  much  oat  of 
humor  at  D'Avaux's  interference,  that  he  asked 
his  confidents  "  if  the  King  of  France  thought  he 
coald  treat  him  Uke  the  Cardinal  of  Furstenburg," 
a  creature  of  Louis  XIV.  w)iom  he  had  set  up  for 
the  electorate  of  Cologne. — Id.,  69.  He  was,  in 
short,  BO  much  displeased  with  his  own  ambassa- 
dor at  the  Hague,  Skelton,  for  giving  in  to  this 
declaration  of  D'Avaux,  that  he  not  only  recalled, 
but  sent  him  to  the  Tower.  Buniet  is  therefore 
mistaken,  p.  769,  in  believing  that  there  was  act- 
ually an  alliance,  though  it  was  veiy  natural  that 
he  should  give  credit  to  what  an  ambassador  as- 
serted in  a  matter  of  such  importance.  In  fact,  a 
treaty  was  signed  between  James  and  Louis,  Sept. 
13,  by  which  some  French  ships  were  to  be  under 
the  former's  orders. — Mazure,  iii.,  67. 

t  Louis  continued  to  find  money,  though  despis- 
ing James  and  disgusted  with  him,  probably  with  a 
view  to  his  own  grand  interests.  He  should,  nev- 
ertheless, have  declared  war  against  Holland  in 
October,  which  must  have  put  a  stop  to  the  arma- 
ment. But  he  had  discovered  that  James,  with 
extreme  meanness,  had  privately  offered,  about 
the  end  of  September,  to  join  the  alliance  against 
him  as  the  only  resource.  This  wretched  action  is 
first  brought  to  light  by  M.  Mazure,  iii.,  104.  He 
excused  himself  to  the  King  of  France  by  an  as- 
surance that  he  was  not  acting  sincerely  toward 
Holland.  Louis,  though  he  gave  up  his  intention 
of  declaring  war.  behaved  with  gi-eat  magnanimi- 
ty and  compassion  toward  the  falling  bigot. 


conspiracy  that  produced  the  Revolution.* 
Nor,  perhaps,  would  the  seven  invitation 
eminent  persons,  whose  names  pf.nce  of"''' 
are  subscribed  to  the  invitation  Orange, 
addressed  on  the  30th  of  June,  1G88,  to 
the  Prince  of  Oi  ange,  the  Earls  of  Danby, 
Shrewsbury,  and  Devonshire,  Lord  Lum- 
ley,  the  Bishop  of  London,  Mr.  Henry  Sid- 
ney, and  Admiral  Russell,  have  committed 
themselves  so  far,  if  the  recent  „.  , 

'  Birth  of  th8 

birth  of  a  prince  of  Wales  had  Prince  of 
not  made  some  measures  of  force 
absolutely  necessary  for  the  common  inter- 
ests of  the  nation  and  the  Prince  of  Or- 
ange, f    It  can  not  be  said  without  absurdi- 
ty that  James  was  guilty  of  any  offense  in 
becoming  father  of  this  child ;  yet  it  was 
evidently  that  which  rendered  his  other  of- 
fenses inexpiable.    He  was  now  considera- 
bly advanced  in  life  ;  and  the  decided  resist- 
ance of  his  subjects  made  it  improbable  that 
he  could  do  much  essential  injury  to  the 
established  Constitution  during  the  remain- 
der of  it.    The  mere  certainty  of  all  revert- 
ing to  a  Protestant  heir  would  be  an  effect- 
ual guarantee  of  the  Anglican  Church.  But 
the  birth  of  a  son  to  be  nursed  in  the  obnox- 
ious bigotry  of  Rome,  the  prospect  of  a  re- 
gency under  the  queen,  so  deeply  implica- 
ted, according  to  common  report,  in  the 
schemes  of  this  reign,  made  every  danger 
appear  more  terrible.    From  the  moment 
that  the  queen's  pregnancy  was  announced, 
the  Catholics  gave  way  to  enthusiastic,  un- 
repressed  exultation ;  and,  by  the  confi- 
dence with  which  they  prophesied  the  birth 
of  an  heir,  furnished  a  pretext  for  the  sus- 
picions which  a  disappointed  people  began 
to  entertain. t    These  suspicions  were  very 
general ;   they  extended  to  the  highest 
ranks,  and  are  a  conspicuous  instance  of  that 

*  Halifax  all  along  discouraged  the  invasion, 
pointing  out  that  the  king  made  no  progi'ess  in  his 
schemes. — Dalrymple,  passim.  Nottingham  said 
he  would  keep  the  secret,  but  could  not  be  a  party 
to  a  treasonable  undertaking  (Id.,  228 ;  Bumet, 
764) ;  and  wrote  as  late  as  July  to  advise  delay 
and  caution.  Notwithstanding  the  splendid  suc- 
cess of  the  opposite  counsels,  it  would  be  judging 
too  servilely  by  the  event  not  to  admit  that  they 
were  tremendously  hazardous. 

t  The  invitation  to  WiUiam  seems  to  have  been 
in  debate  some  time  before  the  Prince  of  Wales's 
birth;  but  it  does  not  follow  that  it  would  have 
been  dispatched  if  the  queen  had  borne  a  daugh- 
ter; nor  do  I  think  that  it  should  havo  been. 
t  Ralph,  980.    Mazure,  ii.,  367. 


538 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


prejudice  which  is  chiefly  founded  on  our 
wishes.  Lord  Dauby,  iu  a  letter  to  Will- 
iam of  3Iarch  27,  insinuates  his  doubt  of  the 
queen's  pregnancy.  After  the  child's  birth, 
the  seven  subscribers  to  the  association  in- 
viting the  prince  to  come  over,  and  pledging 
themselves  to  join  him,  say  that  not  one  in 
a  thousand  believe  it  to  be  the  queen's; 
Lord  Devonshire  separately  held  language 
to  the  same  effect.*  The  Princess  Anne 
talked  with  little  restraint  of  her  suspicions, 
and  made  no  scruple  of  imparting  them  to 
her  sister.f  Though  no  one  can  hesitate 
at  present  to  acknowledge  that  the  Prince 
of  Wales's  legitimacy  is  out  of  all  question, 
there  was  enough  to  raise  a  reasonable  ap- 
prehension in  the  presumptive  heir,  that  a 
party  not  really  veiy  scrupulous,  and  through 
religious  anunosity  supposed  to  be  still  less 
so,  had  been  induced  by  the  undoubted 
prospect  of  advantage  to  draw  the  king, 
who  had  been  wholly  then*  slave,  into  one 
of  those  frauds  which  bigotry  might  call 
pious,  t 

The  great  event,  however,  of  what  has 
Justice  and  been  emphatically  denominated, 
the  Reroiu-  i°  language  of  our  public  acts, 
lion.  the  Glorious  Revolution,  stands  in 
need  of  no  vulgar  credulity,  no  mistaken 
prejudice,  for  its  support.  It  can  only  rest 
*  on  the  basis  of  a  liberal  theory  of  govern- 
ment, which  looks  to  the  public  good  as  the 
gi"eat  end  for  which  positive  laws  and  the 
constitutiouEd  order  of  states  have  been  in- 
stituted. It  can  not  be  defended  without 
rejecting  the  slavish  principles  of  absolute 

"  Dalrymple,  216,  228.  The  prince  was  urged 
in  the  memorial  of  the  seven  to  declare  the  fraud 
of  the  queen's  pregnancj'  to  be  one  of  the  grounds 
of  his  expedition.  He  did  this  :  and  it  is  the  only 
part  of  his  declaration  that  is  false. 

t  State  Trials,  xii.,  151.  Mary  put  some  very 
sensible  questions  to  her  sister,  which  show  her  de- 
eire  of  reaching  the  truth  in  so  important  a  matter. 
They  were  answered  in  a  stjle  which  shows  that 
Anne  did  not  mean  to  lessen  her  sister's  suspi- 
cions.— Dalrymple,  305.  Her  conversation  with 
Lord  Clarendon  on  this  subject,  after  the  deposi- 
tions had  been  taken,  is  a  proof  that  she  had  made 
up  her  mind  not  to  be  convinced.  Henrj-  Earl  of 
Clarendon's  Diary,  77,  79.    State  Trials,  nbi  snpra. 

i  M.  Mazure  has  collected  all  the  passages  in 
the  letters  of  Barillon  and  Bonrepos  to  the  court 
of  France  relative  to  the  queen's  pregnancy,  ii.. 
366 ;  and  those  relative  to  the  birth  of  the  Prince 
of  Wales,  p.  547.  It  is  to  be  observed  that  this 
took  place  more  than  a  month  before  the  time  ex- 
pected. 


obedience,  or  even  that  pretended  modifica- 
tion of  them  which  imagines  some  extreme 
case  of  intolerable  tyranny,  some,  as  it 
were,  lunacy  of  despotism,  as  the  only  plea 
and  palliation  of  resistance.  Doubtless  the 
administration  of  James  II.  was  not  of  this 
nature.  Doubtless  he  was  not  a  Caligula, 
or  a  Commodus,  or  an  Ezzelin,  or  a  Gale- 
azzo  Sforza,  or  a  Christiern  II.  of  Den- 
mark, or  a  Charles  IX.  of  France,  or  one 
of  those  almost  innumerable  tyrants  whom 
men  have  endured  in  the  wantonness  of  un- 
limited power.  No  man  had  been  deprived 
of  his  liberty  by  any  illegal  warrant.  No 
man,  except  m  the  single  though  veiy  im- 
portant instance  of  Magdalen  College,  had 
been  despoiled  of  his  property.  I  must  also 
add  that  the  government  of  James  II.  will 
lose  little  by  comparison  with  that  of  his 
father.  The  judgment  in  favor  of  his  pre- 
rogative to  dispense  with  the  Test  was  far 
more  according  to  received  notions  of  law, 
far  less  injurious  and  unconstitutional,  than 
that  which  gave  a  sanction  to  sliip-money. 
The  injunction  to  read  the  Declaration  of 
Indulgence  in  churches  was  less  offensive 
to  scrupulous  men  than  the  similar  com- 
mand to  read  the  Declaration  of  Sunday 
I  Sports  in  the  time  of  Charles  I.  Nor  was 
any  one  punished  for  a  refusal  to  comply 
with  the  one,  while  the  prisons  had  been 
filled  with  those  who  had  disobeyed  the 
other.  Nay,-^vhat  is  more,  there  are  much 
stronger  presumptions  of  the  father's  than 
of  the  son's  intention  to  lay  aside  Parlia- 
ments, and  set  up  an  avowed  despotism. 
It  is,  indeed,  amusing  to  observe  that  many, 
who  scarcely  put  bounds  to  their  eulogies 
of  Charles  I.,  have  been  content  to  abandon 
the  cause  of  one  who  had  no  faults  in  his 
public  conduct  but  such  as  seemed  to  have 
come  by  inheritance.  The  characters  of 
the  father  and  son  were  very  closely  simi- 
lar; both  proud  of  their  judgment  as  well 
as  their  station,  and  still  more  obstinate  in 
their  understanding  than  in  their  purpose ; 
both  scrupulously  conscientious  in  certain 
great  points  of  conduct,  to  the  sacrifice  of 
that  power  which  they  had  preferred  to 
eveiy  thing  else :  the  one  far  superior  in 
relish  for  the  arts  and  for  polite  letters,  the 
other  more  diligent  and  indefatigable  in  bus- 
iness ;  the  father  exempt  from  those  vices 
of  a  court  to  which  the  son  was  too  long  ad- 
dicted ;  not  so  harsh,  perhaps,  or  prone  to 


James  II.] 


FROM  HENEY  VII.  TO  GEORGE  II. 


539 


severity  in  his  temper,  but  inferior  in  gen- 
eral sincerity  iind  adherence  to  his  word. 
They  were  both  equally  unfitted  for  the 
condition  in  which  they  were  meant  to 
stand — the  limited  kings  of  a  wise  and  free 
people,  the  chiefs  of  the  English  Common- 
wealth. 

The  most  plausible  argument  against  the 
necessity  of  so  violent  a  remedy  for  public 
gi'ievances  as  the  abjuration  of  allegiance  to 
a  reigning  sovereigu,  was  one  that  misled 
half  the  nation  in  that  age,  and  is  still  some- 
times insinuated  by  those  whose  pity  for 
tlie  misfortunes  of  the  house  of  Stuart  ap- 
pears to  predominate  over  every  other  sen- 
timent which  the  history  of  the  Revolution 
should  excite.  It  was  alleged  that  the  con- 
stitutional mode  of  redress  by  Parliament 
was  not  taken  away;  that  the  king's  at- 
tempts to  obtain  promises  of  support  from 
the  electors  and  probable  representatives 
showed  his  intention  of  calling  one ;  that 
the  wi-its  were  in  fact  ordered  before  the 
Prince  of  Orange's  expedition ;  that  after 
the  invader  had  reached  London,  James 
still  offered  to  refer  the  terms  of  reconcilia- 
tion with  his  people  to  a  free  Parliament, 
though  he  could  have  no  hope  of  evading 
any  that  might  be  proposed ;  that  by  re- 
versing illegal  judgments,  by  annulling  un- 
constitutional dispensations,  by  reinstating 
those  who  had  been  unjustly  dispossessed, 
by  punishing  wicked  advisers — above  all,  by 
passing  statutes  to  restrain  the  excesses  and 
cut  off  the  dangerous  prerogatives  of  the 
monarchy  (as  efficacious,  or  more  so,  than 
the  Bill  of  Rights  and  other  measures  that 
followed  the  Revolution),  all  risk  of  arbitra- 
ly  power,  or  of  injury  to  the  established 
religion,  might  have  been  prevented,  with- 
out a  violation  of  that  hereditary  right  which 
was  as  fundamental  in  the  Constitution  as 
any  of  the  subject's  privileges.  It  was  not 
necessary  to  enter  upon  the  delicate  prob- 
lem of  absolute  non-resistance,  or  to  deny 
that  the  conservation  of  the  whole  was  par- 
amount to  all  positive  laws.  The  question 
to  be  proved  was,  that  a  regard  to  this  gen- 
eral safety  exacted  the  means  employed  in 
the  Revolution,  and  constituted  that  ex- 
tremity which  could  alone  justify  such  a 
deviation  from  the  standard  rules  of  law  and 
religion. 

It  is  evidently  ti'ue  that  James  had  made 
very  little  progi-ess,  or,  rather,  experienced 


a  signal  defeat,  in  his  endeavor  to  place  the 
professors  of  his  own  religion  on  a  firm  and 
honorable  basis.  There  seems  the  stron- 
gest reason  to  believe,  that,  far  from  reach- 
ing his  end  tlu-ough  the  new  Parliament, 
he  would  have  experienced  those  warm  as- 
saults on  the  administration  which  generally 
distinguished  the  House  of  Commons  under 
his  father  and  brother ;  but  as  he  was  in  no 
want  of  money,  and  had  not  the  temper  to 
endure  what  ho  thought  the  language  of 
Republican  faction,  we  may  be  equally  sure 
that  a  short  and  angiy  session  would  have 
ended  with  a  more  decided  resolution  on 
his  side  to  govern  in  future  without  such 
impracticable  counselors.  The  doctrine  im- 
puted of  old  to  Lord  Strafford,  that,  after 
trying  the  good-will  of  Parliament  in  vain, 
a  king  was  absolved  from  the  legal  maxims 
of  government,  was  always  at  the  heart  of 
the  Stuarts.  His  army  was  numerous,  ac- 
cording, at  least,  to  English  notions  ;  he  had 
already  begun  to  fill  it  with  popish  officers 
and  soldiers  ;  the  militia,  though  less  to  be 
depended  on,  was  under  the  command  of 
lord  and  deputy  lieutenants  carefully  se- 
lected ;  above  all,  he  would,  at  the  last, 
have  recourse  to  France  ;  and  though  the 
experiment  of  bringing  over  French  troops 
was  very  hazardous,  it  is  difficult  to  say 
that  he  might  not  have  succeeded,  with  all 
these  means,  in  preventing  or  putting  down 
any  concerted  insurrection.  But  at  least 
the  renewal  of  civil  bloodshed  and  the  an- 
archy of  rebellion  seemed  to  be  the  alter- 
native of  slavery,  if  William  had  never 
earned  the  just  title  of  our  deliverer.  It  is 
still  more  evident  that,  after  the  invasiort 
had  taken  place,  and  a  general  defection  had 
exhibited  the  king's  inability  to  resist,  there 
could  have  been  no  such  compromise  as 
the  Tories  fondly  expected,  no  legal  and 
peaceable  settlement  in  what  they  called  a 
free  Parliament,  leaving  James  in  the  real 
and  recognized  possession  of  his  consti- 
tutional prerogatives.  Those  who  have 
gi-udged  William  III.  the  laurels  that  he 
won  for  our  sei'vice  are  ever  prone  to  insin- 
uate, that  his  unnatural  ambition  would  be 
content  with  nothing  less  than  the  crown, 
instead  of  returning  to  his  countty  after  he 
had  convinced  the  king  of  the  error  of  his 
counsels,  and  obtained  securities  for  the  re- 
ligion and  liberties  of  England.  The  hazard 
of  the  enterprise,  and  most  hazardous  it 


540 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


truly  was,  was  to  have  been  his ;  the  profit 
and  advautage  our  own.  I  do  not  know 
that  William  absolutely  expected  to  place 
himself  on  the  throne,  because  he  could 
hardly  anticipate  that  James  would  so  pre- 
cipitately abandon  a  kingdom  wherein  he 
was  acknowledged,  and  had  stiU  many  ad- 
herents ;  but  undoubtedly  he  must,  in  con- 
sistency with  his  magnanimous  designs, 
have  determined  to  place  England  in  its 
natural  station,  as  a  party  in  the  great  al- 
liance against  the  power  of  Louis  XIV. 
To  this  one  object  of  secimng  the  liberties 
of  Europe,  and  chiefly  of  his  own  countiy, 
the  whole  of  his  heroic  life  was  directed 
with  undeviating,  undisheartened  firmness. 
He  had  in  view  no  distant  prospect,  when 
the  entire  succession  of  the  Spanish  mon- 
archy would  be  claimed  by  that  insatiable 
prince,  whose  renunciation  at  the  treaty  of 
the  Pyrenees  was  already  maintained  to  be 
invalid.  Against  the  present  aggressions 
and  future  schemes  of  this  neighbor  the 
league  of  Augsburg  had  just  been  con- 
cluded. England,  a  free,  a  Protestant,  a 
maritime  kingdom,  would,  in  her  natural 
position,  as  a  rival  of  France,  and  deeply 
concerned  in  the  independence  of  the  Neth- 
erlands, become  a  leading  member  of  this 
confederacy.  But  the  sinister  attachments 
of  the  house  of  Stuart  had  long  diverted 
her  from  her  tiTie  interests,  and  rendered 
her  councils  disgracefully  and  treacherously 
subseiTient  to  those  of  Louis.  It  was  there- 
fore the  main  object  of  the  Prince  of  Or- 
ange to  strengthen  the  alliance  by  the  vig- 
orous co-operation  of  this  kingdom  ;  and 
with  no  other  view,  the  emperor,  and  even 
the  pope,  had  abetted  his  undertaking.  But 
it  was  impossible  to  imagine  that  James 
would  have  come  with  sincerity  into  meas- 
ures so  repugnant  to  his  predilections  and 
interests.  What  better  could  bo  expected 
than  a  reciurence  of  that  false  and  hollow 
system  which  had  betrayed  Europe  and 
dishonored  England  under  Charles  II. ;  or, 
rather,  would  not  the  sense  of  injury  and 
thraldom  have  inspired  still  more  deadly 
aversion  to  the  cause  of  those  to  whom  he 
must  have  ascribed  his  humiliation  ?  There 
was  as  little  reason  to  hope  that  he  would 
abandon  the  long-cherished  schemes  of  ar- 
bitrary power,  and  the  sacred  interests  of 
his  own  faith.  We  must  remember  that, 
when  the  adherents  or  apologists  of  James 


II.  have  spoken  of  him  as  an  unfortunately 
misguided  prince,  they  have  insinuated 
what  neither  the  notorious  history  of  those 
times,  nor  the  more  secret  information  since 
brought  to  light,  will  in  any  degree  confirm. 
It  was,  indeed,  a  strange  excuse  for  a  king 
of  such  mature  years,  and  so  trained  in  the 
most  diligent  attention  to  business.  That 
in  some  particular  instances  he  acted  under 
the  influence  of  his  confessor,  Peti'e,  is  not 
unlikely ;  but  the  general  temper  of  his  ad- 
ministration, his  notions  of  government,  the 
objects  he  had  in  view,  were  perfectly  his 
own,  and  were  pursued  rather  in  spite  of 
much  dissuasion  and  many  warnings,  than 
through  the  suggestions  of  any  treacherous 
counselors. 

Both  with  respect,  therefore,  to  the 
Prince  of  Orange  and  to  the  English  nation, 
James  II.  was  to  be  considered  as  an  enemy 
whose  resentment  could  nev«r  be  appeased, 
and  whose  power,  consequently,  must  be 
wholly  taken  away.  It  is  ti-ue  that,  if  he 
had  remained  in  England,  it  would  have 
been  extremely  difficult  to  deprive  him  of 
the  nominal  sovereignty  ;  but  in  this  case, 
the  Prince  of  Orange  must  have  been  in- 
vested, by  some  course  or  other,  with  all 
its  real  attributes.  He  undoubtedly  in- 
tended to  remain  in  this  countiy,  and  could 
not  otherwise  have  preseiTed  that  entire 
ascendency  which  was  necessary  for  his 
ultimate  purposes.  The  king  could  not 
have  been  permitted,  with  any  common 
prudence,  to  retain  the  choice  of  his  min- 
isters, or  the  command  of  his  array,  or  his 
negative  voice  in  laws,  or  even  his  personal 
liberty ;  by  which  I  mean,  that  his  guards 
must  have  been  either  Dutch,  or  at  least 
appointed  by  the  prince  and  Parliament. 
Less  than  this  it  would  have  been  childish 
to  require  ;  and  this  would  not  have  been 
endured  by  any  man  even  of  James's  spirit, 
or  by  the  nation,  when  the  reaction  of  loy- 
alty should  return,  without  continued  efforts 
to  get  rid  of  an  ari'angement  far  more  revo- 
lutionaiy  and  subversive  of  the  established 
monarchy  than  the  king's  deposition. 

In  the  Revolution  of  1688  there  was  an 
unusual  combination  of  favoring  Favorable  cir- 
circumstances,  and  some  of  the  ^?,T^',^"''*'1),. 

^  attending  the 

most  important,  such  as  the  Revoiutmn. 
king's  sudden  flight,  not  within  prior  cal- 
culation, which  render  it  no  precedent  for 
other  times  and  occasions  in  point  of  ex- 


James  II.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


541 


pediency,  whatever  it  may  be  in  point  of 
justice.  Resistance  to  tyranny  by  overt 
rebellion  incurs  not  only  the  risks  of  failure, 
but  those  of  national  impoverishment  and 
confusion,  of  vindictive  retaliation,  and  such 
aggressions  (pei'haps  inevitable)  on  private 
right  and  liberty  as  render  the  name  of  rev- 
olution and  its  adherents  odious.  Those, 
on  the  other  hand,  who  call  in  a  powerful 
neighbor  to  protect  them  from  domestic  op- 
pression, may  too  often  expect  to  realize  the 
horse  of  the  fable,  and  endure  a  subjection 
more  severe,  permanent,  and  ignominious 
than  what  they  shake  off.  But  the  rev- 
olution effected  by  William  III.  united  the 
independent  character  of  a  national  act  with 
the  regularity  and  the  coercion  of  anarchy 
which  belong  to  a  militaiy  invasion.  The 
United  Provinces  were  not  such  a  foreign 
potentate  as  could  put  in  jeopardy  the  inde- 
pendence of  England  ;  nor  could  his  army 
have  maintained  itself  against  the  inclina- 
tions of  the  kingdom,  though  it  was  suffi- 
cient to  repress  any  turbulence  that  would 
naturally  attend  so  exti'aordinary  a  crisis. 
Nothing  was  done  by  the  multitude  ;  no 
new  men,  either  soldiers  or  demagogues, 
liad  their  talents  brought  forward  by  this 
rapid  and  pacific  revolution ;  it  cost  no  blood, 
it  violated  no  right,  it  was  hardly  to  be  traced 
in  the  course  of  justice  ;  the  formal  and  ex- 
terior character  of  the  monarchy  remained 
nearly  the  same  in  so  complete  a  regenera- 
tion of  its  spirit.  Few  nations  can  hope  to 
ascend  up  to  the  sphere  of  a  just  and  hon- 
orable liberty,  especially  when  long  use  has 
made  the  track  of  obedience  familiar,  and 
they  have  learned  to  move  as  it  were  only 
by  the  clank  of  the  chain,  with  so  little  toil 
and  hardship.  We  reason  too  exclusively 
fi'om  this  peculiar  instance  of  1688,  when 
we  hail  the  fearful  stniggles  of  other  revo- 
lutions with  a  sanguine  and  confident  sym- 
pathy. Nor  is  the  only  error  upon  this  side ; 
for,  as  if  the  inveterate  and  cankerous  ills  of 
a  commonwealth  could  be  extirpated  with 
no  loss  and  suffering,  we  are  often  prone  to 
abandon  the  popular  cause  in  agitated  na- 
tions with  as  much  fickleness  as  we  em- 
braced it,  when  we  find  that  intemperance, 
irregularity,  and  confusion,  from  which  gi-eat 
revolutions  are  very  seldom  exempt.  These 
are,  indeed,  so  much  their  usual  attendants, 
the  reaction  of  a  self-deceived  multitude  is 
so  probable  a  consequence,  the  general  pros- 


pect of  success  in  most  cases  so  precarious, 
that  wise  and  good  men  are  more  likely  to 
hesitate  too  long,  than  to  rush  forward  too 
eagerly  ;  yet,  "  whatever  be  the  cost  of  this 
noble  liberty,  we  must  be  content  to  pay  it 
to  Heaven."  * 

It  is  unnecessary  even  to  mention  those 
circumstances  of  this  great  event,  which  are 
minutely  known  to  almost  all  my  readers. 
They  wore  all  eminently  favorable  in  their 
effect  to  the  regeneration  of  our  Constitu- 
tion ;  even  one  of  temporary  inconvenience, 
namely,  the  return  of  James  to  London, 
after  his  detention  by  the  fishermen  near 
Feversham.  This,  as  Burnet  has  obsei-ved, 
and  as  is  easily  demonsti'ated  by  the  writ- 
ings of  that  time,  gave  a  different  color  to 
the  state  of  affairs,  and  raised  up  a  party 
which  did  not  before  exist,  or  at  least  was 
too  disheartened  to  show  itself. f  His  first 
desertion  of  the  kingdom  had  disgusted 
eveiy  one,  and  might  be  construed  into  a 
voluntaiy  cession  ;  but  his  return  to  assume 
again  the  government  put  William  under 
the  necessity  of  using  that  intimidation 
which  awakened  the  mistaken  sympathy 
of  a  generous  people.  It  made  his  subse- 
quent flight,  though  certainly  not  what  a 
man  of  courage  enough  to  give  his  better 
judgment  free  play  would  have  chosen,  ap- 

*  Montesquieu. 

t  Some  short  pamphlets,  vrritten  at  this  juncture, 
to  excite  sympathy  for  the  king,  and  disapproba- 
tion of  the  course  pursued  with  respect  to  hira,  are 
in  the  Somers  Collection,  vol.  ix.  But  this  forco 
put  upon  their  sovereign  first  wounded  the  con- 
sciences of  Bancroft  and  the  other  bishops,  who 
had  hitherto  done  as  much  as  in  their  station  they 
well  could  to  i-uin  the  lying's  cause  and  paralyze 
his  arms.  Several  modem  writers  have  endeavor- 
ed to  throw  an  interest  about  James  at  the  mo- 
ment of  his  fall,  either  from  a  lurking  predilection  for 
all  legitimately  crowned  heads,  or  from  a  notion 
that  it  becomes  a  generous  historian  to  excite  com- 
passion for  the  unfortunate.  There  can  be  no  ob- 
jection to  pitying  James,  if  this  feeling  is  kept  un- 
mingled  with  any  blame  of  those  who  were  the 
instruments  of  liis  misfortune.  It  was  higlilj'-  ex- 
pedient for  the  good  of  this  country,  because  the 
revolution  settlement  could  not  otherwise  be  at- 
tained, to  work  on  James's  sense  of  his  deserted 
state  by  intimidation  ;  and  for  that  purpose,  the  or- 
der conveyed  by  three  of  his  own  subjects,  perhaps 
with  some  rudeness. of  manner,  to  leave  White- 
hall, was  necessary.  The  drift  of  several  accounts 
of  the  Revolution  that  may  be  read  is  to  hold  forth 
Mulgi'ave,  Craven,  An'an.  and  Dundee  to  admira- 
tion, at  the  expense  of  William  and  of  those  who 
achieved  the  great  consolidation  of  English  liberty. 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


pear  excusable  and  defensive.  It  brought 
out  too  glaringly,  I  mean  for  the  satisfaction 
of  prejudiced  minds,  the  undeniable  fact, 
that  the  two  houses  of  Convention  deposed 
and  expelled  their  sovei'eign.  Thus  the 
gi-eat  schism  of  the  Jacobites,  though  it  must 
otherwise  have  existed,  gained  its  chief 
strength  ;  and  the  Revolution,  to  which  at 
the  outset  a  coalition  of  Whigs  and  Tories 
had  conspired,  became,  in  its  final  result,  in 
the  settlement  of  the  crown  upon  William 
and  iNIaiy,  almost  entirely  the  work  of  the 
former  party. 

But  while  the  position  of  the  new  gov- 
ernment was  thus  rendered  less  secure,  by 
narrowing  the  basis  of  public  opinion  where- 
on it  stood,  the  liberal  principles  of  policy 
which  the  Whigs  had  espoused  became  in- 
comparably more  powerful,  and  were  nec- 
essarily involved  in  the  continuance  of  the 
revolution  settlement.  The  ministers  of 
William  III.  and  of  the  house  of  Bi'unswick 
had  no  choice  but  to  respect  and  counte- 
nance the  doctrines  of  Locke,  Hoadley,  and 
Molesworth.  The  assertion  of  passive  obe- 
dience to  the  crown  gi-ew  obnoxious  to  the 
crown  itself.  Our  new  line  of  sovereigns 
scarcely  ventured  to  hear  of  their  hereditaiy 
right,  and  dreaded  the  cup  of  flattery  that 
was  drugged  with  poison.  This  was  the 
greatest  change  that  affected  oiu-  monarchy 
by  the  fall  of  the  house  of  Stuart.  The 
laws  were  not  so  materially  altered  as  the 
spirit  and  sentiments  of  the  people  ;  hence 
those  who  look  only  at  the  former  have 
been  prone  to  underrate  the  magnitude  of 
this  Revolution.  The  fundamental  maxims 
of  the  Constitution,  both  as  they  regard  the 
king  and  the  subject,  may  seem  nearly  the 
same  ;  but  the  disposition  with  which  they 
were  received  and  interpreted  was  entirely 
different. 

It  was  in  this  turn  of  feeling,  in  this 

It.  salutary  ^  "^^^  ^°  ^^^^  °^  ^^^\ 

consequen-  heart,  far  more  than  In  any  posi- ' 
tive  statutes  and  improvements  I 
of  the  law,  that  I  consider  the  Revolution  ! 
to  have  been  eminently  conducive  to  our  { 
freedom  and  prosperity.   Laws  and  statutes  ' 
as  remedial,  nay,  more  closely  limiting  the 
prerogative  than  the  Bill  of  Rights  and  Act 
of  Settlement,  might  possibly  have  been 
obtained  from  James  himself  as  the  price ' 
of  his  continuance  on  the  throne,  or  from  j 
his  family  as  that  of  their  restoration  to  it.  i 


But  what  the  Revolution  did  for  us  was 
this  :  it  broke  a  spell  that  had  charmed  the 
nation  ;  it  cut  up  by  the  roots  all  that  theory 
of  indefeasible  right,  of  paramount  preroga- 
tive, which  had  put  the  crown  in  continual 
opposition  to  the  people.  A  contention  had 
now  subsisted  for  five  hundred  years,  but 
particularly  during  the  last  four  reigna, 
against  the  aggressions  of  arbitraiy  power. 
The  sovereigns  of  this  country  had  never 
patiently  endured  the  control  of  Parlia- 
ment ;  nor  was  it  natural  for  them  to  do 
so,  while  the  two  houses  of  Parliament  ap- 
peared liistorically,  and  in  legal  language, 
to  derive  their  existence  as  well  as  privi- 
leges from  the  ci'own  itself.  They  had  at 
their  side  the  pliant  lawyers,  who  held  the 
prerogative  to  be  uncontrollable  by  statutes, 
a  doctrine  of  itself  destructive  to  any  scheme 
of  reconciliation  and  compromise  between 
the  king  and  his  subjects ;  they  had  the 
churchmen,  whose  casuistry  denied  that 
the  most  intolerable  tyranny  could  excuse 
resistance  to  a  lawful  government.  These 
two  propositions  could  not  obtain  genei-al 
acceptation  without  rendering  all  national 
liberty  precaiious. 

It  has  been  always  reckoned  among  the 
most  difficult  problems  in  the  practical  sci- 
ence of  government,  to  combine  an  heredi- 
tary monarchy  with  security  of  freedom, 
so  that  neither  the  ambition  of  kings  shaD 
undermine  the  people's  rights,  nor  the  jeal- 
ousy of  the  people  overturn  the  throne. 
England  had  ah-eady  experience  of  both 
these  mischiefs.  And  there  seemed  no 
prospect  before  her,  but  either  their  alter- 
nate recurrence,  or  a  final  submission  to  ab- 
solute power,  unless  by  one  great  effort  she 
could  put  the  monarchy  forever  beneath 
the  law,  and  reduce  it  to  an  integrant  por- 
tion instead  of  the  primary  source  and  prin- 
ciple of  the  Constitution.  She  must  reduce 
the  favored  maxim,  "  A  Deo  rex,  k  rege 
lex,"  and  make  the  crown  itself  appear  the 
creature  of  the  law.  But  our  ancient  mon- 
archy, strong  in  a  possession  of  seven  cen- 
turies, and  in  those  high  and  paramount 
prerogatives  which  the  consenting  testi- 
mony of  lawyers  and  the  submission  of 
Parliaments  had  recognized,  a  monarchy 
from  which  the  House  of  Commons  and 
eveiy  existing  peer,  though  not,  perhaps, 
the  aristocratic  order  itself,  derived  its  par- 
ticipation in  the  Legislature,  could  not  be 


James  IL] 


FROM  HENRY  VII.  TO  GEORGE  II. 


543 


bent  to  the  Republican  theories  which  have 
been  not  very  successfully  attempted  in 
some  modern  codes  of  Constitution.  It 
could  not  be  held,  without  breaking  up  all 
the  foundations  of  our  polity,  that  the  mon- 
archy emanated  from  the  Pailiament,  or, 
in  any  historical  sense,  from  the  people. 
But  by  the  Revolution  and  by  the  Act  of 
Settlement,  the  rights  of  the  actual  monarch, 
of  the  reigning  family,  were  made  to  ema- 
nate from  the  Parliament  and  the  people. 
In  technical  language,  in  the  grave  and  re- 
spectful theoiy  of  our  Constitution,  the 
crown  is  still  the  fountain  from  which  law 
and  justice  spring  forth.  Its  prerogatives 
are  in  the  main  the  same  as  under  the 
Tudors  and  the  Stuarts,  but  the  right  of 
the  house  of  Brunswick  to  exercise  them 
can  only  be  deduced  from  the  Convention 
of  1688. 

The  gi-eat  advantage,  therefore,  of  the 
Revolution,  as  I  would  explicitly  affirm, 
consists  in  that  which  was  reckoned  its 
reproach  by  many,  and  its  misfortune  by 
more — that  it  broke  the  line  of  succession. 
No  other  remedy  could  have  been  found, 
according  to  the  temper  and  prejudices  of 
those  times,  against  the  unceasing  conspira- 
cy of  power.  But  when  the  very  tenure 
of  power  was  conditional,  when  the  crown, 
as  we  may  say,  gave  recognizances  for  its 
good  behavior,  when  any  violent  and  con- 
certed aggressions  on  public  liberty  would 
have  ruined  those  who  could  only  resist  an 
inveterate  faction  by  the  arms  which  liberty 
put  in  theii'  hands,  the  several  parts  of  the 
Constitution  were  kept  in  cohesion  by  a  tie 
far  stronger  than  statutes,  that  of  a  common 
interest  in  its  preservation.  The  attachment 
of  James  to  popeiy,  his  infatuation,  his  ob- 
stinacy, his  pusillanimity,  nay,  even  the  death 
of  the  Duke  of  Gloucester,  the  life  of  the 
Prince  of  Wales,  the  extraordinary  perma- 
nence and  fidelity  of  his  party,  were  all  the 
destined  means  tlirough  which  our  present 
grandeur  and  liberty,  om-  dignity  of  thinking 
on  matters  of  government,  have  been  perfect- 
ed. Those  liberal  tenets,  which  at  the  era  of 
the  Revolution  were  maintained  but  by  one 
denomination  of  English  pai'ty,  and  rather, 
perhaps,  on  authority  of  not  veiy  good  prec- 
edents in  our  history  than  of  sound  general 
reasoning,  became,  in  the  course  of  the  next 
generation,  almost  equally  the  creed  of  the 
other,  whose  long  exclusion  from  govern-  j 


ment  taught  them  to  solicit  the  people's 
favor ;  and  by  the  time  that  Jacobitisin  was 
extinguished,  had  passed  into  received  max- 
ims of  English  politics.  None,  at  least, 
would  care  to  call  them  in  question  within 
the  walls  of  Parliament ;  nor  have  their 
opponents  been  of  much  credit  in  the  paths 
of  literature.  Yet,  as  since  the  extinction 
of  the  house  of  Stuart's  pretensions,  and 
other  events  of  the  last  half  century,  we 
have  seen  those  exploded  docU'ines  of  inde- 
feasible hereditary  right  revived  under  an- 
other name,  and  some  have  been  willing  to 
misrepresent  the  ti'ansactions  of  the  Revo- 
lution and  the  Act  of  Settlement  as  if  they 
did  not  absolutely  amount  to  a  deposition  of 
the  reigning  sovereign,  and  an  election  of  a 
new  dynasty  by  the  representatives  of  the 
nation  in  Parliament,  it  may  be  proper  to 
state  precisely  the  several  votes,  and  to 
point  out  the  impossibility  of  reconciling 
them  to  any  gentler  construction. 

The  lords  spiritual  and  temporal,  to  the 
number  of  about  ninety,  and  an  „ 

,  ,       „  „     ,     ,     ,        .  Proceedings 

assembly  oi  all  who  had  sat  m  any  of  the  Con- 
of  King  Charles's  Parliaments, 
with  the  lord-mayor  and  fifty  of  the  com- 
mon council,  requested  the  Prince  of  Or- 
ange to  take  upon  hun  the  administration 
after  the  king's  second  flight,  and  to  issue 
wi-its  for  a  Convention  in  the  usual  manner.* 
This  was  on  the  26th  of  December ;  and 
the  Convention  met  on  the  22d  of  January. 
Their  first  care  was  to  address  the  prince 
to  take  the  administi-ation  of  aflfairs  and  dis- 
posal of  the  revenue  into  his  hands,  in  order 
to  give  a  kind  of  Parliamentaiy  sanction  to 
the  power  he  already  exercised.  On  the 
28th  of  January,  the  Commons,  after  a  de- 
bate in  which  the  fi-iend^  of  the  late  king 


*  Pad.  Hist.,  V.  26.  The  foiTaer  address  on  the 
king's  first  quitting  London,  signed  by  the  peers 
and  bishops,  who  met  at  Guildhall,  Dec.  11,  did 
not,  in  express  terms,  desire  the  Prince  of  Orange 
to  assume  the  goverament,  or  to  call  a  Parliament, 
though  it  evidently  tended  to  that  result,  censur- 
ing the  king  and  extolling  the  prince's  conduct. — 
Id.,  19.  It  -was  signed  by  the  archbishop,  his  last 
public  act.  Burnet  has  exposed  himself  to  the 
lash  of  Ralph  by  stating  this  address  of  Dec.  11 
incorrectly.  [The  prince  issued  two  proclamations, 
Jan.  16  and  21,  addressed  to  the  soldiers  and  sail- 
ors, on  which  Ralph  comments  in  his  usual  invidi- 
ous manner.  They  are  certainly  expressed  in  a 
high  tone  of  sovereignty,  without  the  least  allusion 
to  the  king,  or  to  the  request  of  the  peers,  and 
some  phrases  might  give  offense  to  our  lawyers. — 
Ralph,  ii.,  10.— 1845.] 


544 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


made  but  a  faint  opposition,*  came  to  their 
great  vote  :  That  King  James  II.,  having 
endeavored  to  subvert  the  Constitution  of 
this  kingdom  by  breaking  the  original  con- 
tract between  king  and  people,  and  by  the 
advice  of  Jesuits  and  other  wicked  persons 
having  violated  the  fundamental  laws,  and 
having  withdrawn  himself  out  of  the  king- 
dom, has  abdicated  the  government,  and 
that  the  throne  is  thereby  vacant.  They 
resolved  unanimously  the  next  day,  that  it 
hath  been  found  by  experience  inconsistent 
with  the  safety  and  welfare  of  this  Protes- 
tant kingdom  to  be  governed  by  a  popish 
prince. f  This  vote  was  a  remarkable  tri- 
umph of  the  Whig  party,  who  had  contend- 
ed for  the  Exclusion  Bill;  and,  on  account 
of  that  endeavor  to  establish  a  principle 
which  no  one  was  now  found  to  controvert, 
had  been  subjected  to  all  the  insults  and  re- 
proaches of  the  opposite  faction.  The 
Lords  agieed  with  equal  unanimity  to  this 
vote  ;  which,  though  it  was  expressed  only 
as  an  abstract  proposition,  led  by  a  practi- 
cal inference  to  the  whole  change  that  the 
Whigs  had  in  view.  But  upon  the  former 
resolution  several  important  divisions  took 
place.  The  first  question  put,  in  order  to 
save  a  nominal  allegiance  to  the  late  king, 
was,  whether  a  regency,  with  the  adminis- 
tration of  regal  power  under  the  style  of 
King  James  II.  during  the  life  of  the  said 
King  James,  be  the  best  and  safest  way  to 
pi'eserve  the  Protestant  religion  and  the  laws 
of  this  kingdom  1  This  was  supported  both 
by  those  peers  who  really  meant  to  exclude 
the  king  from  the  enjoyment  of  power,  such 
as  Nottingham,  its  gi-eat  promoter,  and  by 
those  who,  like  Clarendon,  Avere  anxious  for 
his  return  upon  terms  of  security  for  their 
religion  and  liberty.  The  motion  was  lost  by 

*  [It  appears  by  some  notes  of  the  debate  iu  tlie 
Conveutiou,  published  iu  the  Hardwicke  Papers, 
ii.,  401,  that  the  vote  of  abdication  was  carried 
with  only  three  negatives.  The  tide  ran  too  liigh 
for  the  Tories,  though  some  of  them  spoke  ;  they 
recovered  their  spirits  after  the  Lords'  amend- 
ments. This  account  of  the  debate  is  remarkable, 
and  clears  up  much  that  is  obscure  in  Grey,  whom 
the  Parliamentarj'  Histoi-y  has  copied.  The  Dec- 
laration of  Right  was  drawn  up  rather  hastily, 
Sergeant  Mayuard,  as  well  as  younger  lawyers, 
pressing  for  no  delay  iu  filling  the  throne.  I  sup- 
pose that  the  wish  to  screen  themselves  under  the 
statute  of  Henry  VII.  had  something  to  do  with 
this,  which  was  also  very  expedient  in  itself. — 
1845.1  t  Commons'  Journals.    Pari.  Hist. 


fiftj-one  to  forty-nine ;  and  this  seems  to 
have  virtually  decided,  in  the  judgment  of 
the  House,  that  James  had  lost  the  throne.* 
The  Lords  then  resolved  that  there  was  an 
original  contract  between  the  king  and  peo- 
ple, by  fifty-five  to  forty-six ;  a  position  that 
seems  rather  too  theoretical,  yet  necessary 
at  that  time,  as  denying  the  divine  origin  of 
monarchy,  from  which  its  absolute  and  in- 
defeasible authority  had  been  plausibly  de- 
rived. They  concurred,  without  much  de- 
bate, in  the  rest  of  the  Commons'  vote,  till 
they  came  to  the  clause  that  he  had  abdica- 
ted the  government,  for  which  they  substi- 
tuted the  word  "  deserted."  They  next 
omitted  the  final  and  most  important  clause, 
that  the  throne  weis  thereby  vacant,  by  a 
majority  of  fifty-five  to  forty-one.  This  was 
owing  to  the  party  of  .Lord  Danby,  who  as- 
serted a  devolution  of  the  crown  on  the 
Princess  of  Orange.  It  seemed  to  be  tacit- 
ly understood  by  both  sides  that  the  infant 
child  was  to  be  presumed  spuiious.  This, 
at  least,  was  a  necessaiy  supposition  for  the 
Tories,  who  sought  in  the  idle  rumors  of 
the  time  an  excuse  for  abandoning  his  right. 
As  to  the  Whigs,  though  they  were  active 
in  discrediting  this  unfortunate  boy's  legiti- 
macy, their  own  broad  principles  of  chang- 
ing the  line  of  succession  rendered  it,  in 
point  of  argument,  a  superfluous  inquiry. 
The  Tories,  who  had  made  little  resistance 
to  the  vote  of  abdication  when  it  was  pro- 
posed in  the  Commons,  recovered  courage 
by  this  difference  between  the  two  Houses ; 
and  perhaps,  by  observing  the  king's  party 
to  be  stronger  out  of  doors  than  it  had  ap- 
peared to  be,  were  able  to  muster  1.51  voi- 
ces against  282  in  favor  of  agi-eeing  with  the 
Lords  in  leaving  out  the  clause  about  the 
vacancy  of  the  throne,  f  There  was  still, 
however,  a  far  gi-eater  preponderance  of 
the  Whigs  in  one  part  of  the  Convention, 


*  Somerville  aud  several  other  writers  have  not 
accurately  stated  the  question ;  and  suppose  the 
Lords  to  have  debated  whether  the  throne,  on  the 
hypothesis  of  its  vacancy,  should  be  filled  by  a 
king  or  a  regent.  Such  a  mode  of  putting  the 
question  would  have  been  absurd.  I  observe  that 
M.  Mazure  has  been  deceived  by  these  authorities. 

t  Pari.  Hist.,  61.  The  chief  speakers  on  this 
side  were  old  Sir  Thomas  Clarges,  brother-in-law 
of  General  Monk,  who  had  been  distinguished  as 
an  opponent  of  administration  tinder  Charles  and 
James,  and  Mr.  Finch,  brother  of  Lord  Notting- 
ham, who  had  been  solicitor-general  to  Charles, 
but  was  removed  in  the  late  reign. 


James  II.] 


mOM  HENRY  VII.  TO  GEORGE  II. 


545 


than  of  the  Tories  in  the  other.  In  the  fa- 
mous conference  that  ensued  between  com- 
mittees of  the  two  Houses  upon  these 
amendments,  it  was  never  pretended  that 
the  woi-d  "  abdication"  was  used  in  its  ordi- 
naiy  sense  for  a  voluntary  resignation  of  the 
crown.  The  Commons  did  not  practice  so 
pitiful  a  subterfuge.  Nor  could  tho  Lords 
explicitly  maintain,  whatever  might  be  the 
wishes  of  their  managers,  that  the  king  was 
not  expelled  and  excluded  as  much  by  their 
own  word  "  desertion"  as  by  that  which  the 
Lower  House  had  employed.  Their  own 
previous  vote  against  a  regency  was  decisive 
upon  this  [wint.*  But  as  abdication  was  a 
gentler  term  than  forfeiture,  so  desertion 
appeared  a  still  softer  method  of  expressing 
the  same  idea.  Their  chief  objection,  how- 
ever, to  the  former  word  was,  that  it  led,  or 
might  seem  to  lead,  to  the  vacancy  of  the 
throne,  against  which  their  jjrincipal  argu- 
ments were  directed.  They  contended 
that  in  our  government  there  could  be  no 
interval  or  vacancy,  the  heir's  right  being 
complete  by  a  demise  of  the  crown,  so  that 
it  would  at  once  render  the  monarchy  elect- 
ive if  any  other  person  were  designated  to 
the  succession.  The  Commons  did  not  deny 
that  the  present  case  was  one  of  election, 
though  tliey  refused  to  allow  that  the  mon- 
archy was  thus  rendered  perpetually  elect- 
ive. They  asked,  supposing  a  right  to  de- 
scend upon  the  next  heir,  who  was  that 
heir  to  inherit  it  ?  and  gained  one  of  their 
chief  advantages  by  the  difficulty  of  evading 
this  question.  It  was,  indeed,  evident  that 
if  the  Lords  should  cany  their  amendments, 
an  inquiiy  into  the  legitimacy  of  the  Prince 
of  Wales  could  by  no  means  be  dispensed 
with.  Unless  that  could  be  disproved  more 
satisfactorily  than  they  had  reason  to  hope, 
they  must  come  back  to  the  inconveniences 
of  a  regency,  with  the  prospect  of  bequeath- 
ing an  interminable  confusion  to  their  pos- 
terity ;  for  if  the  descendants  of  James 
should  continue  in  the  Roman  Catholic  re- 
ligion, the  nation  might  be  placed  in  the  ridic- 
ulous situation  of  acknowledging  a  dynasty 
of  exiled  kings,  whose  lawful  prerogative 
would  be  withheld  by  another  race  of  Prot- 
estant regents.  It  was,  indeed,  sti-ange  to 
apply  the  provisional  substitution  of  a  re- 
gent in  cases  of  infancy  or  imbecility  of  mind 

*  .James  is  called  "  the  late  kiug"  in  a  resolution 
of  the  Lords  on  Feb.  2. 

M  M 


to  a  prince  of  mature  age  and  full  capacity 
for  the  exercise  of  power.  Upon  the  king's 
return  to  England,  this  delegated  authority 
nmst  cease  of  itself,  unless  supported  by 
votes  of  Parliament  as  violent  and  incom- 
patible with  the  regular  Constitution  as  hia 
deprivation  of  the  royal  title,  but  far  less  se- 
cure for  the  subject,  whom  the  statute  of 
Henry  VII.  would  shelter  in  paying  obe- 
dience to  a  king  de  facto,  while  the  fate  of 
Sir  Henry  Vane  was  an  awful  proof  that  no 
other  name  could  give  countenance  to  usur- 
pation. A  great  part  of  the  nation  not  thir- 
ty years  before  had  been  compelled  by  acts 
of  Parliament*  to  declare  upon  oath  their 
abhorrence  of  that  traitorous  position,  that 
arms  might  be  taken  up  by  the  king's  au- 
thority against  his  person  or  those  commis- 
sioned by  him,  through  the  influence  of  those 
very  Tories  or  Loyalists  who  had  now  re- 
course to  the  identical  distinction  between 
the  king's  natural  and  political  capacity,  for 
which  the  Presbyterians  had  incun-ed  so 
many  reproaches. 

In  this  conference,  however,  if  the  Whigs 
had  every  advantage  on  the  solid  gi-ounds 
of  expediency,  or,  rather,  political  necessi- 
ty, the  Tories  were  as  much  superior  in  the 
mere  argument,  either  as  it  regarded  the 
common  sense  of  words,  or  the  principles 
of  our  constitutional  law.  Even  should  we 
admit  that  an  hereditary  king  is  competent 
to  abdicate  the  throne  in  the  name  of  all 
his  posterity,  this  could  only  be  intended  of 
a  voluntary  and  formal  cession,  not  such  a 
constructive  abandonment  of  his  right  by 
misconduct  as  the  Commons  had  imagined. 
The  word  "forfeiture"  might  better  have 
answered  this  purpose  ;  but  it  had  seemed 
too  great  a  violence  on  principles  which  it 
was  more  convenient  to  undermine  than  to 
assault.  Nor  would  even  forfeiture  bear  out 
by  analogy  the  exclusion  of  an  heir,  whose 
right  was  not  liable  to  be  set  aside  at  the 
ancestor's  pleasure.  It  was  only  by  recur- 
ring to  a  kind  of  paramount,  and  what  1 
may  call  hyper-constitutional  law,  a  mixture 
of  force  and  regard  to  the  national  good, 
which  is  the  best  sanction  of  what  is  done 
in  revolutions,  that  the  vote  of  the  Com- 
mons could  be  defended.  They  proceeded 
not  by  the  stated  rules  of  the  English  gov- 
ernment, but  the  general  rights  of  mankind. 
They  looked  not  so  much  to  Magna  Charta 
*  13  Car.  II.,  c.  i.   17  Car.  II.,  c.  ii. 


546 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XIV. 


as  the  original  compact  of  society,  and  re- 
jected Coke  and  Hale  for  Hooker  and  Har- 
rington. 

The  House  of  Lords,  after  this  struggle 
against  principles  undoubtedly  very  novel  in 
the  discussions  of  Parliament,  gave  way  to 
the  strength  of  circumstance  and  the  stead- 
iness of  the  Commons.  They  resolved  not 
to  insist  on  their  amendments  to  the  original 
vote ;  and  followed  this  up  by  a  resolution, 
that  the  Prince  and  Princess  of  Orange 
shall  be  declared  King  and  Queen  of  En- 
gland, and  all  the  dominions  thereunto  be- 
longing.* But  the  Commons,  with  a  noble 
patriotism,  delayed  to  concur  in  this  hasty 
settlement  of  the  crown,  till  they  should 
have  completed  the  declaration  of  those  fun- 
damental rights  and  liberties  for  the  sake  of 
which  alone  they  had  gone  forward  with 
this  gi-eat  Revolution. f  That  declaration, 
being  at  once  an  exposition  of  the  misgov- 
ernment  which  had  compelled  them  to  de- 
throne the  late  king,  aud  of  the  conditions 
upon  which  they  elected  his  successoi-s, 
was  incorporated  in  the  final  resolution  to 
which  both  Houses  came  on  the  13th  of 
February,  extending  the  limitation  of  the 
crown  as  far  as  the  state  of  affairs  required  : 
Elevation  of  "  That  William  and  Mary,  prince 
Maly^'toth"'^  and  princess  of  Orange,  be,  and 
throne.  be  declared.  King  and  Queen  of 
England,  France,  and  Ireland,  and  the  do- 
minions thereunto  belonging,  to  hold  the 
crown  and  dignity  of  the  said  kingdoms  and 
■dominions  to  them,  the  said  prince  and  prin- 
cess, during  their  lives,  and  the  life  of  the 
survivor  of  them  ;  and  that  the  sole  and  full 
exercise  of  the  regal  power  be  only  in,  .and 
executed  by,  the  said  Prince  of  Orange, 

*  This  was  carried  by  sixty-two  to  fortj'-seven, 
according  to  Lord  Clarendon  ;  several  of  the  Tories 
going  over,  and  others  who  had  been  hitherto  ab- 
sent coming  down  to  vote.  Forty  peers  protested, 
including  twelve  bishops,  oat  of  seventeen  pres- 
ent. Trelawney,  who  had  voted  against  the  re- 
gency, was  one  of  them ;  but  not  Compton,  Lloyd 
of  St.  Asaph,  Crewe,  Sprat,  or  Hall ;  the  three 
former,  I  believe,  being  in  tlie  majoritj'.  Lloyd 
had  been  absent  when  the  vote  passed  against  a 
regency,  out  of  unwillingness  to  disagree  with  the 
majority  of  his  brethren  ;  but  he  was  entirely  of 
Burnet's  mind.  The  votes  of  the  bishops  are  not 
accurately  stated  in  most  books,  which  has  induced 
me  to  mention  them  here. — Lords'  Journals,  Feb.  6. 

t  It  had  been  resolved,  Jan.  29,  that  before  the 
committee  proceed  to  fill  the  throne  now  vacant, 
"they  will  proceed  to  secure  our  religion,  laws,  aud 
liberties. 


in  the  names  of  the  said  prince  and  princess, 
during  their  joint  lives ;  and  after  their  de- 
cease the  said  crown  and  royal  dignity  of 
the  said  kingdoms  and  dominions  to  be  to 
the  heirs  of  the  body  of  the  said  princess ; 
for  default  of  such  issue,  to  the  Princess 
Anne  of  Denmark,  and  the  heirs  of  her 
body ;  and  for  default  of  such  issue,  to  the 
heirs  of  the  body  of  the  said  Prince  of  Or- 
ange." 

Thus,  to  sum  up  the  account  of  this  ex- 
traordinary change  in  our  established  mon- 
archy, the  Convention  pronounced,  under 
the  slight  disguise  of  a  word  unusual  in  the 
language  of  English  law,  that  the  actual 
sovereign  had  forfeited  his  right  to  the  na- 
tion's allegiance.  It  swept  away  by  the 
same  vote  the  reversion  of  his  posterity  and 
of  those  who  could  claim  the  inheritance  of 
the  crown.  It  declared  that,  during  an  in- 
terval of  nearly  two  months,  there  was  no 
King  of  England ;  the  monarchy  lying,  as  it 
were,  in  abeyance  from  the  23d  of  Decem- 
ber to  the  13th  of  February.  It  bestowed 
the  crown  on  William,  jointly  with  his  wife 
indeed,  but  so  that  her  participation  of  the 
sovereignty  should  be  only  in  name.*  It 
postponed  the  succession  of  the  Princess 

*  See  Burnet's  remarkable  conversation  with 
Bentinck,  wherein  the  former  warmly  opposed  the 
settlement  of  the  crown  on  the  Prince  of  Orange 
alone,  as  Halifax  had  suggested.  But  nothing  in 
it  is  more  remarkable  than  that  the  bishop  does 
not  perceive  that  this  was  virtually  done ;  for  i' 
would  be  difficult  to  prove  that  Marj''s  royalty  dif 
fered  at  all  from  that  of  a  queen  consort,  except  ip 
having  her  name  in  the  style.  She  was  exactly 
in  the  same  predicament  as  Philip  had  been  during 
his  marriage  with  Mary  I.  Her  admii'able  temper 
made  her  acquiesce  in  this  exclusion  from  power, 
which  the  sterner  character  of  her  husband  de- 
manded ;  and,  with  respect  to  the  conduct  of  the 
Convention,  it  must  be  observed  that  the  nation 
owed  her  no  particular  debt  of  gi-atitude,  nor  had 
she  any  better  claim  than  her  sister  to  fill  a  throne 
by  election,  which  had  been  declared  vacant.  In 
fact,  there  was  no  middle  course  between  what 
was  done  and  following  the  precedent  of  Philip, 
as  to  which  Bentinck  said,  he  fancied  the  prince 
would  not  like  to  be  his  wife's  gentleman  usher, 
for  a  divided  sovereigntv'  was  a  monstrous  and  im- 
practicable expedient  in  theory,  however  the  sub- 
missive disposition  of  the  queen  might  have  pre- 
vented its  mischiefs.  Buniet  seems  to  have  had 
a  puzzled  view  of  this  ;  for  he  says  afterward,  "  It 
seemed  to  be  a  double-bottomed  monarchy,  where 
there  were  two  joint  sovereigns ;  but  those  who 
know  the  queen's  temper  and  principles  had  no 
apprehensions  of  divided  counsels,  or  of  a  distract- 
ed government." — Vol.  ii.,  2.    The  Convention  had 


Will.  III.] 


FROM  HENRY  VII.  TO  GEORGE  U, 


547 


Anne  during  his  life.  Lastly,  it  made  no 
provision  for  any  future  devolution  of  the 
crown  in  failure  of  issue  from  those  to  whom 
it  was  thus  limited,  leaving  that  to  the  wis- 
dom of  future  Parliaments.  Yet  only  eight 
years  before,  nay,  much  less,  a  large  part 
of  the  nation  had  loudly  proclaimed  the  in- 
competency of  a  full  Parliament,  with  a 
lavi'ful  king  at  its  head,  to  alter  the  lineal 
course  of  succession.  No  Whig  had  then 
openly  professed  the  doctrine,  that  not  only 
a  king,  but  an  entire  royal  family,  might  be 
set  aside  for  public  convenience.  The  no- 
tion of  an  original  contract  was  denounced 
as  a  Republican  chimera.  The  deposing 
of  kings  was  branded  as  the  worst  birth  of 
popery  and  fanaticism.  If  other  revolutions 
have  been  more  extensive  in  their  effect  on 
the  established  government,  few,  perhaps, 
have  displayed  a  more  rapid  transition  of 
public  opinion ;  for  it  can  not,  I  think,  be 
reasonably  doubted  that  the  majority  of  the 
nation  went  along  with  the  vote  of  their  rep- 
resentatives. Such  was  the  termination  of 
that  contest  which  the  house  of  Stuart  had 
obstinately  maintained  against  the  liberties, 
and  of  late,  against  the  religion  of  England  ; 


or,  rather,  of  that  far  more  ancient  contro- 
versy between  the  crown  and  the  people, 
which  had  never  been  wholly  at  rest  since 
the  reign  of  .lohn.  During  this  long  period, 
the  balance,  except  in  a  few  irregular  inter- 
vals, had  been  swayed  in  favor  of  the  crown ; 
and  though  the  government  of  England  was 
always  a  monarchy  limited  by  law — though 
it  always,  or  at  least  since  the  admission  of 
the  commons  into  the  Legislature,  partook 
of  the  three  simple  forms,  yet  the  character 
of  a  monarchy  was  evidently  prevalent  over 
the  other  parts  of  the  Constitution.  But 
since  the  Revolution  of  1G88,  and  particu- 
larly from  thence  to  the  death  of  George 
IL,  after  which  the  popular  element  gi-ew 
much  stronger,  it  seems  equally  just  to  say, 
that  the  predominating  character  has  been 
aristocratical ;  the  prerogative  being  in  some 
respects  too  limited,  and  in  others  too  little 
capable  of  effectual  exercise,  to  counterbal- 
ance the  hereditary  peerage,  and  that  class 
of  gi'eat  tetritorial  proprietors  who,  in  a 
political  division,  are  to  be  reckoned  among 
the  proper  aristocracy  of  the  kingdom. 
This,  however,  will  be  more  fully  explained 
in  the  two  succeeding  chaptei's. 


CHAPTER  XV. 


ON  THE  REIGN  OF  WILLIAM  III. 


Declaration  of  Rights. — Bill  of  Rights. — Military- 
Force  without  Consent  declai-ed  Illegal. — Dis- 
content with  the  new  Government. — Its  Causes. 
—  Incompatibility  of  the  Revolution  with  re- 
ceived Principles.  —  Character  and  EiTors  of 
William. — Jealousy  of  the  Whigs. — Bill  of  In- 
demnity.— Bill  for  restoring  Corporations. — Set- 
tlement of  the  Revenue. — Appropriation  of  Sup- 
plies.—  Dissatisfaction  of  the  King.  —  No  Re- 
publican Party  in  Existence. — William  employs 
Tories  in  Ministry.  —  Inti-igues  with  the  late 
King.  —  Schemes  for  his  Restoration. — Attain- 
der of  Sir  John  Fenwick. — 111  Success  of  the 
War.  —  Its  Expenses.  —  Treaty  of  Ryswick. — 
Jealousy  of  the  Commons.  —  Anny  reduced. — 
Irish  Forfeitures  resumed. — Parliamentai-y  In- 

not  trusted  to  the  queen's  temper  and  principles. 
It  required  a  distinct  act  of  Parliament  (2  W.  & 
M.,  c.  6)  to  enable  her  to  exercise  the  regal  power 
during  the  king's  absence  from  England.  [It  was 
urged  by  some,  not  without  plausible  gi'ouuds,  on 
Mary's  death,  that  the  Parliament  was  dissolved 
by  that  event,  the  writs  having  been  issued  in  her 
name  as  well  as  the  king's.  A  paper,  printed,  but 
privately  handed  about,  with  the  design  to  prove 
this,  will  be  found  in  Pari.  Hist.,  v.,  867.  But  it 
was  not  warmly  taken  up  by  any  party. — 1845.] 


quiries. — Treaties  of  Partition. — Improvements 
in  Constitution  under  William. — Bill  for  Trien- 
nial Parliaments. — Law  of  Treason. — Statute  of 
Edward  III. — Its  constructive  Interpretation.-;- 
Statute  of  William  III. — Liberty  of  the  Press. 
— Law  of  Libel.  —  Religious  Toleration. — At- 
tempt at  Comprehension. — Schism  of  the  Non- 
jurors.— Laws  against  Roman  Catholics. — Act 
of  Settlement. — Limitations  of  Prerogative  con- 
tained in  it.  —  Privy  Council  sui)erseded  by  a 
Cabinet. — Exclusion  of  Placemen  and  Pension- 
ers from  Parliament. — Independence  of  Judges. 
— Oath  of  Abjuration. 

The  Revolution  is  not  to  be  considered 
as  a  mere  effort  of  the  nation  on  a  pressing 
emergency  to  rescue  itself  from  the  violence 
of  a  particular  monarch,  much  less  as  ground- 
ed upon  the  danger  of  the  Anglican  Church, 
Its  emoluments,  and  dignities,  from  the  big- 
otry of  a  hostile  religion.  It  was  rather  the 
triumph  of  those  principles  which,  in  the 
language  of  the  present  day,  are  denomina- 
ted liberal  or  constitutional,  over  those  of 
absolute  monarchy,  or  of  monarchy  not  ef- 
fectually controlled  by  stated  boundaries. 


548 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[CHAr.  XV. 


It  was  the  termination  of  a  contest  between 
the  regal  power  and  that  of  Parliament, 
which  could  not  have  been  brought  to  so  fa- 
vorable an  issue  by  any  other  means.  But 
while  the  chief  renovation  in  the  sphit  of 
our  government  was  likely  to  spring  from 
breaking  the  line  of  succession,  while  no 
positive  enactments  would  have  sufficed  to 
give  security  to  freedom  with  the  legitimate 
race  of  Stuart  on  the  throne,  it  would  have 
been  most  culpable,  and  even  preposterous, 
to  permit  this  occasion  to  pass  by  without 
asserting  and  defining  those  rights  and  lib- 
erties which  the  veiy  indeterminate  nature 
of  the  king's  prerogative  at  common  law,  as 
well  as  the  unequivocal  extension  it  had 
lately  received,  must  continually  place  in 
jeopardy.  The  House  of  Lords,  indeed,  as 
I  have  obsei-ved  in  the  last  chapter,  would 
have  conferred  the  crown  on  William  and 
Mary,  leaving  the  redress  of  gi-ievances  to 
future  an-angement;  and  some  eminent  law- 
yers in  the  Commons,  Maynard  and  Pollex- 
fen,  seem  to  have  had  apprehensions  of 
keeping  the  nation  too  long  in  a  state  of  an- 
nrchy  ;*  but  the  gi'eat  majority  of  the  Com- 
mons wisely  resolved  to  go  at  once  to  the 
root  of  the  natron's  grievances,  and  show 
their  new  sovereign  that  he  was  raised  to 
the  throne  for  the  sake  of  those  liberties, 
by  violating  which  his  predecessor  had  for- 
feited it. 

The  Declaration  of  Rights  presented  to 
Declaration  the  Prince  of  Orange  by  the  Mar- 
of  Rights  qyis  Qf  Halifax,  as  speaker  of  the 
Lords,  in  the  presence  of  both  Houses,  on 
the  18th  of  February,  consists  of  three 
parts :  a  recital  of  the  illegal  and  arbitraiy 
acts  committed  by  the  late  king,  and  of  their 
consequent  vote  of  abdication ;  a  declaration, 
nearly  following  the  words  of  the  former 
part,  that  such  enumerated  acts  are  illegal ; 
and  a  resolution,  that  the  throne  shall  be 
filled  by  the  Prince  and  Princess  of  Orange, 
according  to  the  limitations  mentioned  in 
the  last  chapter.  Thus  the  Declaration  of 
Rights  was  indissolubly  connected  with  the 
revolution  settlement,  as  its  motive  and  its 
condition. 

The  Lords  and  Commons  in  this  instru- 
ment declare,  that  the  pretended  power  of 
suspending  laws,  and  the  execution  of  laws, 
by  regal  authority  without  consent  of  Par- 


liament, is  illegal ;  that  the  pretended  pow- 
er of  dispensing  with  laws  by  regal  author- 
ity, as  it  hath  been  assumed  and  exercised 
of  late,  is  illegal ;  that  the  commission  for 
creating  the  late  court  of  commissioners  for 
ecclesiastical  causes,  and  all  other  commis- 
sions and  courts  of  the  like  nature,  are  ille- 
gal and  pernicious ;  that  levying  of  money 
for  or  to  the  use  of  the  crown,  by  pretense 
of  prerogative  without  giant  of  Parliament, 
for  longer  time  or  in  any  other  manner  than 
the  same  is  or  shall  be  granted,  is  iDegal ; 
that  it  is  the  right  of  the  subjects  to  petition 
the  king,  and  that  all  commitments  or  pros- 
ecutions for  such  petitions  are  illegal ;  that 
the  raising  or  keeping  a  standing  anny  with- 
in the  kingdom  in  time  of  peace,  unless  it 
be  with  consent  of  Parliament,  is  illegal ; 
that  the  subjects  which  are  Protestants  may 
have  arms  for  their  defense  suitable  to  their 
condition,  and  as  allowed  by  law  ;  that  elec- 
tions of  members  of  Parliament  ought  to  be 
free ;  that  the  freedom  of  speech  or  debates, 
or  proceedings  in  Parliament,  ought  not  to 
be  impeached  or  questioned  in  any  court  or 
place  out  of  Parliament ;  that  excessive  bail 
ought  not  to  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments 
inflicted ;  that  juries  ought  to  be  duly  im- 
panueled  and  returned,  and  that  jurors 
which  pass  upon  men  in  trials  of  high  ti-eas- 
on  ought  to  be  fi-eeholders ;  that  all  gi-ants 
and  promises  of  fines  and  forfeitures  of  par- 
ticular persons,  before  conviction,  are  illegal 
and  void  ;  and  that,  for  redress  of  all  gi-iev- 
ances,  and  for  the  amending,  strengthening, 
and  preserving  of  the  laws,  Parliaments 
ought  to  be  held  frequently.* 

Tliis  declaration  was,  some  months  after- 
ward, confirmed  by  a  regular  act  ^  ^ 
of  the  Legislature  in  the  Bill  of 
Rights,  which  establishes,  at  the  same  time, 
the  limitation  of  the  crown  according  to  the 
vote  of  both  Houses,  and  adds  the  important 
provision,  that  all  persons  who  shall  hold 
communion  with  the  Church  of  Rome,  or 
shall  many  a  papist,  shall  be  excluded,  and 
forever  incapable  to  possess,  inherit,  or  en- 
joy the  crown  and  government  of  this 
realm ;  and  in  all  such  cases,  the  people  of 
these  realms  shall  be  absolved  from  their  al- 
legiance, and  the  crown  shall  descend  to  the 
next  heir.    This  was  as  near  an  api)roach 


*  Pari.  Hist.,  v.,  54. 


*  Pari.  Hist.,  v.,  108. 


wiiL.  nr.] 


FROM  HENHY  V: 


II.  TO  GEORGE  II. 


549 


to  a  generalization  of  the  principle  of  resist- 
nuce  ns  could  be  admitted  with  any  security 
for  public  order. 

The  Bill  of  Rights  contained  only  one 
clause  extending  rather  beyond  the  propo- 
sitions laid  down  in  the  Declaration.  This 
relates  to  the  dispensing  power,  which  the 
Lords  had  been  unwilling  absolutely  to  con- 
demn. They  softened  the  general  asser- 
tion of  its  illegality  sent  up  from  the  other 
House,  by  inserting  the  words  "  as  it  has 
been  exercised  of  late."*  In  the  Bill  of 
Rights,  therefore,  a  clause  was  introduced, 
tliat  no  dispensation  by  non  obstante  to  any 
statute  should  be  allowed,  except  in  such 
cases  as  should  be  specially  provided  for  by 
a  bill  to  be  passed  daring  the  present  ses- 
sion. This  reservation  went  to  satisfy  the 
scruples  of  the  Lords,  who  did  not  agree 
without  difficulty  to  the  complete  abolition 
of  a  prerogative,  so  long  recognized,  and  in 
many  cases  so  convenient.!  But  the  pal- 
pable danger  of  permitting  it  to  exist  in  its 
indefinite  state,  subject  to  the  interpretation 
of  time-serving  judges,  prevailed  with  the 
Commons  over  this  consideration  of  conven- 
iency;  and  though  in  the  next  Parliament 
the  judges  were  ordered  by  the  House  of 
Lords  to  draw  a  bill  for  the  king's  dispens- 
ing in  such  cases  wherein  they  should  find 
it  necessaiy,  and  for  abrogating  such  laws 
as  had  been  usually  dispensed  with  and 
were  become  useless,  tlie  subject  seems  to 
have  received  no  further  attention. t 

Except  in  this  article  of  the  dispensing 
prerogative,  we  can  not  say,  on  comparing 
the  Bill  of  Rights  with  what  is  proved  to  be 
the  law  by  statutes,  or  generally  esteemed 
to  be  such  on  the  authority  of  our  best 
writers,  that  it  took  away  any  legal  power 
of  the  crown,  or  enlarged  the  limits  of  pop- 
iilar  and  Parliamentary  privilege.  The 
most  questionable  proposition,  though,  at 
the  same  time,  one  of  the  most  important, 

*  Journals,  11th  and  12th  of  Feb.,  1688-9. 
t  Pari.  Hist ,  345. 

t  Lords'  Journals,  22d  of  Nov.,  1689.  [Pardons 
for  murder  used  to  be  granted  with  a  "  non  obstan- 
tibus  statutis."  After  the  Revolution  it  was  con- 
tended that  they  were  no  longer  legal. — 1  Shower, 
284.  But  Holt  held  "  the  power  of  pardoning  all 
ofifenses  to  be  an  inseparable  incident  of  the  crown 
and  its  royal  power."  This  savors  a  little  of  old 
Tory  times  ;  for  there  are  certainly  unrepealed  stat- 
utes of  Edward  III.  which  materially  limit  the 
crown's  prerogative  of  pardoning  felonies. — 1845.] 


was  that  which  asserts  the  ille-  Military 
gality  of  a  standing  army  in  time  ^renTd'^"' 
of  peace,  unless  with  consent  of  dared  illegal. 
Parliament.  It  seems  difficult  to  perceive 
in  what  respect  this  infringed  on  any  private 
man's  right,  or  by  what  clear  reason  (for 
no  statute  could  be  pretended)  the  king  was 
debarred  from  enlisting  soldiers  by  volunta- 
ry conti'act  for  the  defense  of  his  domin- 
ions, especially  after  an  express  law  had  de- 
clared the  sole  power  over  the  militia,  with- 
out giving  any  definition  of  that  word,  to  re- 
side in  the  crown.  This  had  never  been 
expressly  maintained  by  Charles  II. 's  Par- 
liaments, though  the  general  repugnance 
of  the  nation  to  what  was  certainly  an  in- 
novation might  have  provoked  a  body  of 
men,  who  did  not  always  measure  their 
words,  to  declare  its  illegality.*    It  was, 

*  The  guards  retained  out  of  the  old  ai-my  dis- 
banded at  the  king's  return  have  been  already 
mentioned  to  have  amounted  to  about  5000  men, 
though  some  assert  their  number  at  first  to  have 
been  considerably  less.  No  objection  seems  to 
have  been  made  at  the  time  to  the  continuance  of 
these  regiments.  But  in  1667,  on  the  insult  offer- 
ed to  the  coasts  by  the  Dutch  fleet,  a  great  panic 
arising,  12,000  fresh  troops  were  hastily  levied. 
The  Commons,  on  July  25,  came  to  a  unanimous 
resolution,  that  his  majesty  be  humbly  desired  by 
such  members  as  are  his  privy  council,  that  wheu 
a  peace  is  concluded,  the  new-raised  forces  be  dis- 
banded. The  king,  four  days  after,  in  a  speech  to 
both  Houses,  said,  "  he  wondered  what  one  thing 
he  had  done  since  his  coining  into  England,  to 
persuade  any  sober  person  that  he  did  intend  to 
govern  by  a  standing  anny ;  he  said  he  was  more 
an  Englishman  than  to  do  so.  He  desired,  for  as 
much  as  concerned  him,  to  preserve  the  laws," 
&c. — Pari.  Hist.,  iv.,  363.  Next  session  the  two 
Houses  thanked  him  for  having  disbanded  the  late 
raised  forces. — Id.,  369.  But  in  1673,  during  the 
second  Dutch  war,  a  considerable  force  having 
been  levied,  the  House  of  Commons,  after  a  warm 
debate,  resolved,  Nov.  3,  that  a  standing  army  was 
a  grievance. — Id.,  604.  And  on  February  follow- 
ing, that  the  continuing  of  any  standing  forces  in 
this  nation,  other  than  the  militia,  is  a  great  griev- 
ance and  vexation  to  the  people  ;  and  that  this 
House  do  humbly  petition  his  majesty  to  cause 
immediately  to  be  disbanded  that  part  of  them 
that  were  raised  since  Jan.  1, 1663. — Id.,  665.  This 
was  done  not  long  afterward;  but  early  in  1678,  on 
the  pretext  of  entering  into  a  war  with  France, 
he  suddenly  raised  an  army  of  20,000  men,  or  more, 
according  to  some  accounts,  which  gave  so  much 
alarm  to  the  Parliament,  that  they  would  only  vote 
supplies  on  condition  that  these  troops  should  be 
immediately  disbanded. — Id.,  985.  The  king,  how- 
ever, employed  the  money  without  doing  so;  and 
maintained,  in  the  next  session,  that  it  had  been 
necessary  to  keep  them  on  foot;  intimating,  at  the 


550 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


however,  at  least  unconstitutional,  by  which, 
as  distinguished  from  illegal,  I  mean  a  nov- 
elty of  much  importance,  tending  to  endan- 
ger the  established  laws  ;  and  it  is  manifest 
that  the  king  could  never  inflict  penalties 
by  martial  law,  or  generally  by  any  other 
course,  on  his  troops,  nor  quarter  them  on 
the  inhabitants,  nor  cause  them  to  interfere 
with  the  civil  authorities ;  so  that,  even  if 
the  proposition  so  absolutely  expressed  may 
be  somewhat  too  wide,  it  still  should  be  con- 
sidered as  virtually  correct.*    But  its  dis- 


same  time,  that  he  was  now  willing  to  comply,  if 
the  House  thought  it  expedient  to  disband  the 
troops ;  which  they  accordingly  voted  with  unanim- 
ity to  be  necessary  for  the  safety  of  his  majesty's 
person,  and  preservation  of  the  peace  of  the  gov- 
ernment, Nov.  25. — Id.,  1049.  James  showed,  in 
his  speech  to  Parliament,  Nov.  9,  1685,  that  he  in- 
tended to  keep  on  foot  a  standing  army. — Id.,  1371. 
But,  though  that  House  of  Commons  was  very  dif- 
ferently composed  from  those  in  his  brother's  reign, 
and  voted  as  large  a  supply  as  the  king  required, 
they  resolved  that  a  bill  be  brought  in  to  render 
the  militia  more  useful;  an  oblique  and  timid  hint 
of  their  disapprobation  of  a  regular  force,  against 
which  several  members  had  spoken. 

I  do  not  find  that  any  one,  even  in  debate,  goes 
the  length  of  denyuig  that  the  king  might,  by  his 
prerogative,  maintain  a  regular  army ;  none,  at 
least,  of  the  resolutions  in  the  Commons  can  be 
said  to  have  that  effect. 

*  It  is  expressly  against  the  Petition  of  Right 
to  quarter  troops  on  the  citizens,  or  to  inflict  any 
punishment  by  martial  law.  No  court-martial,  in 
fact,  can  have  any  coercive  jurisdiction  except  by 
statute,  unless  we  should  resort  to  the  old  tribunal 
of  the  constable  and  marshal :  and  that  this  was 
admitted,  even  in  bad  times,  we  may  learn  by  an 
odd  case  in  Sir  Thomas  Jones's  Reports,  147 
(Pasch.  33  Car.  II.,  1681).  An  action  was  brought 
for  assault  and  false  imprisonment.  The  defend- 
ant pleaded  that  he  was  lieutenant-governor  of  the 
Isle  of  Scilly,  and  that  the  plaintiff  was  a  soldier 
belonging  to  the  garrison;  and  that  it  was  the  an- 
cient custom  of  the  castle,  that  if  any  soldier  re- 
fused to  render  obedience,  the  governor  might  pun- 
ish him  by  imprisonment  for  a  reasonable  time  ; 
which  he  had  therefore  done.  The  plaintiff  de- 
murred, and  had  judgment  in  his  favor.  By  demur- 
ring, he  put  it  to  the  court  to  determine  whether 
this  plea,  which  is  obviously  fabncated  in  order  to 
cover  the  want  of  any  general  right  to  maintain 
discipline  in  this  manner,  were  valid  in  point  of 
law ;  which  they  decided,  as  it  appears,  in  the 
negative. 

In  the  next  reign,  however,  an  attempt  was 
made  to  punish  deserters  capitally,  not  by  a  court- 
martial,  but  on  the  authority  of  an  ancient  act  of 
Parliament.  Chief-justice  Herbert  is  said  to  have 
resigned  his  place  in  the  King's  Bench  rather  than 
come  into  this.  Wright  succeeded  hira  ;  and  two 
deserters,  having  been  convicted,  were  executed 


tinct  assertion'  in  the  Bill  of  Plights  put  a 
most  essentia]  restraint  on  the  monarchy, 
and  rendered  it,  in  effect,  forever  impossible 
to  employ  any  direct  force  or  intimidation 
against  the  established  laws  and  liberties  of 
the  people. 

A  revolution  so  thoroughly  remedial,  and 
accom])lished  with  so  little  cost  of  ^ 

'  Disconlent 

private  sun^ermg,  so  little  of  an-  with  the  new 
gry  punishment  or  oppression  of 
the  vanquished,  ought  to  have  been  hailed 
with  unbounded  thankfulness  and  satisfac- 
tion. The  nation's  deliverer  and  chosen 
sovereign,  in  himself  the  most  magnanimous 
and  heroic  character  of  that  age,  might  have 
expected  no  return  but  admiration  and  grat- 
itude. Yet  this  was  veiy  far  from  being 
the  case.  In  no  period  of  time  under  the 
Stuarts  were  public  discontent  and  opposi- 
tion of  Parliament  more  prominent  than  in 
the  reign  of  William  III. ;  and  that  high- 
souled  prince  enjoyed  far  less  of  his  sub- 
jects' affection  than  Charles  II.  No  part 
of  our  history,  perhaps,  is  read,  upon  the 
whole,  with  less  satisfaction,  than  these 
thirteen  years  during  which  he  sat  upon 
his  elective  throne.  It  will  be  sufficient  for 
me  to  sketch  generally  the  leading 
causes,  and  the  errors  both  of  the 
prince  and  people,  which  hindered  the 
blessings  of  the  Revolution  from  being  duly 
appreciated  by  its  cotemporaries. 

The  votes  of  the  two  Houses,  that  James 
had  abdicated,  or  in  plainer  words  incompatibii- 
forfeited,  his  roj-al  authority;  ityfthe 

■'  /  Revolutioa 

that  the  crown  was  vacant;  that  withreceiTcd 
one  out  of  the  regular  line  of  sue-  P"""?""- 
cession  should  be  raised  to  it,  were  so  un- 
tenable by  any  known  law,  so  repugnant  to 
the  principles  of  the  Established  Church, 
that  a  nation  accustomed  to  think  upon  mat- 
ters of  government  only  as  lawyers  and 
churchmen  dictated,  could  not  easily  rec- 
oncile them  to  its  preconceived  notions  of 


lis  causes. 


in  Loudon. — Ralph,  961.  I  can  not  discover  that 
there  was  any  thing  illegal  in  the  proceeding,  and 
therefore  question  a  little  whether  this  were  really 
Herbert's  motive. — See  3  Inst.,  96. 

[I  have  since  obsen^ed,  in  a  passage  which  had 
escaped  me,  that  the  cause  of  Sir  Edward  Her- 
bert's resignation,  which  was,  in  fact,  no  resigna- 
tion, but  only  an  exchange  of  places  with  Wriglit, 
chief-justice  of  the  Common  Pleas,  was  his  objec- 
tion to  the  king's  insisting  on  the  execution  of  one 
of  these  deserters  at  Plymouth,  the  conviction  hav- 
ing occurred  at  Reading. — State  Trials,  xii..  262 
from  Hey  wood's  Vindication  of  Fox — 1845.] 


Will.  III.] 


fhom  HExav  vir.  to  george  ii. 


55i 


duty.  The  first  burst  of  resentment  against 
the  late  king  was  mitigated  bj"  his  fall ;  com- 
passion, and  even  confidence,  began  to  take 
the  place  of  it ;  his  adherents — some  deny- 
ing or  extenuating  the  faults  of  his  adminis- 
tration, others  moi'e  artfully  representing 
them  as  capable  of  redress  by  legal  meas- 
ures— having  recovered  from  their  conster- 
nation, took  advantage  of  the  necessary  de- 
lay before  the  meeting  of  the  Convention, 
and  of  the  time  consumed  in  its  debates,  to 
publish  pamphlets  and  circulate  rumors  in 
his  behalf.*  Thus,  at  the  moment  when 
William  and  Maiy  were  proclaimed  (though 
it  seems  highly  probable  that  a  majority  of 
tlie  kingdom  sustained  the  bold  votes  of  its 
representatives),  there  was  yet  a  very  pow- 
erful minority  who  believed  the  Constitu- 
tion to  be  most  violently  shaken,  if  not  irre- 
trievably destroyed,  and  the  rightful  sover- 
eign to  have  been  excluded  by  usurpation. 
The  clergy  were  moved  by  pride  and  shame, 
by  the  just  apprehension  that  their  influence 
over  the  people  would  be  impaired,  by  jeal- 
ousy or  hatred  of  the  Non-conformists,  to 
deprecate  so  practical  a  confutation  of  the 
doctrines  they  liad  preached,  especially 
when  an  oath  of  allegiance  to  tlieir  new 
sovereign  came  to  be  imposed ;  and  they 
had  no  alternative  but  to  resign  their  bene- 
fices, or  wound  their  reputations  and  con- 
Bciences  by  submission  upon  some  casuistic- 
al pretext.f    Eight  bishops,  including  the 


*  See  several  in  the  Soraers  Tracts,  vol.  x. 
One  of  these,  a  Letter  to  a  Member  of  tlie  Con- 
vention, by  Dr.  Sherlock,  is  very  ablj'  written ; 
and  puts  all  the  consequences  of  a  change  of  gov- 
ernment, as  to  popular  dissatisfaction,  &c.,  much 
as  they  turned  out,  though,  of  course,  failing  to 
show  that  a  treaty  with  tlie  king  would  be  less 
open  to  objection.  Sherlock  declined  for  a  time  to 
take  the  oaths  ;  but,  complying  afterward,  and 
writing  in  vindication,  or  at  least  excuse,  of  the 
Revolution,  incun-ed  the  hostility  of  the  Jacobites, 
and  impaired  his  ovm  reputation  by  so  interested 
a  want  of  consistency ;  for  he  had  been  the  most 
eminent  champion  of  passive  obedience.  Even 
the  distinction  he  found  out,  of  the  lawfuhiess  of 
allegiance  to  a  king  de  facto,  was  contrary  to  his 
former  doctrine.  [A  pamphlet,  entitled  "  A  Second 
Letter  to  a  Friend,"  in  answer  to  the  declaration 
of  James  II.  in  1692  (Somers  Tracts,  x.,  378),  which 
goes  wholly  on  Revolution  principles,  is  attributed 
to  Sherlock  by  Scott,  who  prints  the  title  as  if 
Sherlock's  name  were  in  it,  probably  following  the 
former  edition  of  the  Somers  Tracts.  But  I  do  not 
find  it  ascribed  to  Sherlock  in  the  Biographia  Bri- 
tannica,  or  in  the  list  of  bis  writings  in  Watt's  Bib- 
liotheca.— 1843.]  t  l  W.  &  M.,  c.  8. 


primate  and  several  of  those  who  had  been 
foremost  in  the  defense  of  the  Church  dur- 
ing the  late  reign,  with  about  four  hundred 
clergy,  some  of  them  highly  distinguished, 
chose  the  more  honorable  course  of  refusing 
the  new  oaths  ;  and  thus  began  the  schism 
of  the  non-jurors,  more  mischievous  in  its 
commencement  than  its  continuance,  and 
not  so  dangerous  to  tlie  government  of  Will- 
iam III.  and  George  I.  as  the  false  submis- 
sion of  less  sincere  men.* 


*  The  necessity  of  excluding  men  so  conscien- 
tious, and  several  of  whom  had  very  recently  sus- 
tained so  conspicuously  the  brunt  of  the  battle 
against  King  James,  was  very  painful ;  and  mo- 
tives of  policy,  as  well  as  generosity,  were  not 
wanting  in  favor  of  some  indulgence  toward  them. 
On  the  other  hand,  it  was  dangerous  to  admit 
such  a  reflection  on  the  new  settlement  as  would 
be  cast  by  its  enemies  if  the  clergy,  especially  the 
bishops,  should  be  excused  from  the  Oath  of  Alle- 
giance. The  House  of  Lords  made  an  amendment 
in  the  act  requiring  this  oath,  dispensing  with  it 
in  the  case  of  ecclesiastical  persons,  unless  they 
should  be  called  upon  by  the  privj'-couucil.  This, 
it  was  thought,  would  funiish  a  security  for  their 
peaceable  demeanor,  without  shocking  the  people 
and  occasioning  a  dangerous  schism.  But  the 
Commons  resolutely  opposed  this  amendment  as 
an  unfair  distinction,  and  derogatoi-y  to  the  king's 
title.— Pari.  Hist.,  218.  Lords'  Journals,  17th  of 
April,  1689.  The  clergy,  however,  had  six  months 
more  time  allowed  them,  in  order  to  take  tlie  oath, 
than  the  possessors  of  lay  offices. 

Upon  the  whole,  I  think  the  reasons  for  depri- 
vation greatly  preponderated.  Public  prayers  for 
the  king  by  name  form  part  of  our  Liturgy ;  and  it 
was  surely  impossible  to  dispense  with  the  clergy's 
reading  them,  which  was  as  obnoxious  as  the  Oath 
of  Allegiance.  Thus  the  beneficed  priests  must 
have  been  excluded;  and  it  was  hardly  required 
to  make  an  exception  for  the  sake  of  a  few  bish- 
ops, even  if  difficulties  of  the  same  kind  would  not 
have  occurred  in  the  exercise  of  their  jurisdiction, 
which  hangs  upon,  and  has  a  perpetual  reference 
to,  the  supremacy  of  the  crown. 

The  king  was  empowered  to  reserve  a  third 
part  of  the  value  of  their  benefices  to  any  twelve 
of  the  recusant  clergy. — 1  W.  &  M.,  c.  8,  s.  16. 
But  this  could  only  be  done  at  the  expense  of  their 
successors  ;  and  the  behavior  of  the  non-jurors, 
who  strained  evei-y  nerve  in  favor  of  the  detlu-oned 
king,  did  not  recommend  them  to  the  government. 
The  deprived  bishops,  though  many  of  them, 
through  their  late  behavior,  were  deservedly  es- 
teemed, can  not  be  reckoned  among  the  eminent 
characters  of  our  Church  for  learning  or  capacity. 
Saucroft,  the  most  distinguished  of  them,  had  not 
made  any  remarkable  figure  ;  and  none  of  the  rest 
had  any  pretensions  to  literary  credit.  Those 
who  filled  their  places  were  incomparably  supe- 
rior. Among  the  non-juring  clergy,  a  certain  num- 
ber were  considerable  men ;  but,  upon  the  whole, 
the  well-affected  part  of  the  Church,  not  only  at 


552 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


It  seems  undeniable  that  the  strength  of 
this  Jacobite  faction  sprung  from  the  want 
of  apparent  necessity  for  the  change  of  gov- 
ernment. Extreme  oppression  produces  an 
impetuous  tide  of  resistance,  which  bears 
away  the  reasonings  of  the  casuists.  But 
the  encroachments  of  .James  II.,  being  rath- 
er felt  in  prospect  than  much  actual  injury, 
left  men  in  a  calmer  temper,  and  disposed 
to  weigh  somewhat  nicely  the  nature  of  the 
proposed  remedy.  The  Revolution  was, 
or,  at  least,  seemed  to  be,  a  case  of  political 
expediency;  and  expediency  is  always  a 
matter  of  uncertain  argument.  In  many 
respects  it  was  far  better  conducted,  more 
peaceably,  more  moderately,  with  less  pas- 
sion and  severity  toward  the  guilty,  with  less 
mixture  of  democratic  turbulence,  with  less 
innovation  on  the  regular  laws,  than  if  it  had 
been  that  extreme  case  of  necessity  which 
some  are  apt  to  require.  But  it  was  obtained 
on  this  account  with  less  unanimity  and 
heartfelt  concurrence  of  the  entire  nation. 

The  demeanor  of  William,  always  cold 
Character  sometimes  harsh,  his  foreign 

and  errors  of  Origin  (a  sort  of  crime  in  English 
William.  eyes)  and  foreign  favorites,  the 
natural  and  almost  laudable  prej  udice  against 
one  who  had  risen  by  the  misfortunes  of  a 
very  near  relation,  conspired,  with  a  desire 
of  power  not  very  judiciously  displayed  by 
him,  to  keep  alive  this  disaffection ;  and  the 
opposite  party,  regardless  of  all  the  decen- 
cies of  political  lying,  took  care  to  aggravate 
it  by  the  vilest  calumnies  against  one  who, 
though  not  exempt  from  errors,  must  be 
accounted  the  greatest  man  of  his  own  age. 
It  is  certain  that  his  government  was  in 
very  considerable  danger  for  three  or  four 
years  after  the  Revolution,  and  even  to  the 
peace  of  Ryswick.  The  change  appeared 
so  mai-velous,  and  contraiy  to  the  bent  of 
men's  expectation,  that  it  could  not  be  per- 
manent. Hence  he  was  suiTOunded  by  the 
timid  and  the  ti-eacherous ;  by  those  who 
meant  to  have  merits  to  plead  after  a  res- 
toration, and  those  who  meant,  at  least,  to 
be  secure.  A  new  and  revolutionary  gov- 
ernment is  seldom  fairly  dealt  with.  Man- 


the  Revolution,  but  fifty  years  afterward,  con- 
tained by  far  its  most  useful  and  able  members. 
Yet  the  effect  of  this  expulsion  was  highly  unfa- 
vorable to  the  new  government ;  and  it  required  all 
the  influence  of  a  latitudinarian  school  of  divinity, 
led  by  Locke,  which  was  very  strong  among  the 
laity  under  William,  to  counteract  it. 


kind,  accustomed  to  forgive  almost  every 
thing  in  favor  of  legitimate  prescriptive  pow- 
er, exact  an  ideal  faultlessness  from  that 
which  claims  allegiance  on  the  score  of  its 
utility.  The  personal  failings  of  its  rulers, 
the  negligences  of  their  administration,  even 
the  inevitable  privations  and  difficulties 
which  the  nature  of  human  affairs  or  the 
misconduct  of  their  predecessors  create,  are 
imputed  to  them  with  invidious  minuteness. 
Those  who  deem  their  own  merit  unre- 
warded, become  always  a  numerous  and 
implacable  class  of  adversaries;  those  whose 
schemes  of  public  improvement  have  not 
been  followed,  think  nothing  gained  by  the 
change,  and  return  to  a  restless  censorious- 
ness  in  which  they  have  been  accustomed 
to  place  delight.  With  all  these  it  W£i8 
natural  that  William  should  have  to  con- 
tend ;  but  we  can  not,  in  justice,  impute 
all  the  unpopularity  of  his  administration  to 
the  disaffection  of  one  party,  or  the  fickle- 
ness and  ingratitude  of  another.  It  arose, 
in  no  slight  degree,  from  errors  of  his  own. 

The  king  had  been  raised  to  the  throne 
by  the  vigor  and  zeal  of  the  Whigs ;  jeaioosy  of 
but  the  opposite  party  were  so  theWhigs. 
nearly  upon  an  equality  in  both  Houses  that 
it  would  have  been  difficult  to  frame  bis 
government  on  an  exclusive  basis.  It  would 
also  have  been  highly  impolitic,  and,  with 
respect  to  some  few  persons,  ungrateful,  to 
put  a  slight  upon  those  who  had  an  unde- 
niable majority  in  the  most  powerful  class- 
es. William  acted,  therefore,  on  a  wise 
and  liberal  principle,  in  bestowing  offices  of 
trust  on  Lord  Danby,  so  meritorious  in  the 
Revolution,  and  on  Lord  Nottingham,  whose 
probity  was  unimpeached ;  while  he  gave 
the  Whigs,  as  was  due,  a  decided  prepond- 
erance in  his  council.  Many  of  them,  how- 
ever, with  that  indisci'iminating  acrimony 
which  belongs  to  all  factions,  could  not  en- 
dure the  elevation  of  men  who  had  com- 
plied with  the  court  too  long,  and  seemed 
by  their  tardy  opposition*  to  be  rather  the 
patriots  of  the  Church  than  of  civil  liberty. 
They  remembered  that  Danby  had  been 
impeached  as  a  coiTupt  and  dangerous  min- 
ister; that  Halifax  had  been  involved,  at 
least  by  holding  a  confidential  office  at  the 
time,  in  the  last  and  worst  part  of  Charles's 
reign.  They  saw  Godolphin,  who  had  con- 
curred in  the  commitment  of  the  bishops, 


*  Burnet.    Ralph,  174,  1'9- 


Will.  HI  ] 


FROM  HENRY  VII.  TO  GEORGE  JJ. 


553 


and  every  other  measure  of  the  lute  king, 
still  in  the  ti'easury ;  and,  though  they  could 
not  reproach  Nottingham  with  any  miscon- 
duct, were  shocked  that  his  conspicuous  op- 
position to  the  new  settlement  should  be  re- 
warded with  the  post  of  secretiuy  of  state. 
The  mismanagement  of  affairs  in  Ireland 
during  1689,  which  was  very  glaring,  fur- 
nished specious  grounds  for  suspicion  that 
the  king  was  betrayed.*  It  is  probable  that 
he  was  so,  though  not,  at  that  time,  by  the 
chiefs  of  his  ministry.  This  was  the  begin- 
ning of  that  dissatisfaction  with  the  govern- 
ment of  William,  on  the  part  of  those  who 
had  the  most  zeal  for  his  throne,  which 
eventually  became  far  more  harassing  than 
the  conspiracies  of  his  real  enemies.  Hal- 
ifax gave  way  to  the  prejudices  of  the 
Commons,  and  retired  from  power.  These 
prejudices  were  no  doubt  unjust,  as  they  re- 
spected a  man  so  sound  in  principle,  though 
not  uniform  in  conduct,  and  who  had  with- 
stood the  arbitrary  maxims  of  Charles  and 
.Tames  in  that  cabinet,  of  which  he  unfor- 
tunately continued  too  long  a  member.  But 
his  fall  is  a  warning  to  English  statesmen, 
that  they  will  be  deemed  responsible  to 
their  countiy  for  measures  which  they 
countenance  by  remaining  in  office,  though 
they  may  resist  them  in  council. 

The  same  honest  warmth  which  impell- 
Bill  of  In-  ed  the  Whigs  to  murmur  at  the 
demnity.  employment  of  men  sullied  by  their 
compliance  with  the  court,  made  them  un- 
willing to  concur  in  the  king's  desire  of  a 
total  amnesty.  They  retained  the  Bill  of 
Indemnity  in  the  Commons  ;  and  excepting 
some  by  name,  and  many  more  by  general 
clauses,  gave  their  adversaries  a  pretext  for 
alarming  all  those  whose  conduct  had  not 
been  irreproachable.    Clemency  is,  indeed, 

*  The  Parliamentary  debates  are  full  of  com- 
plaints as  to  the  mismanagement  of  all  things  in 
Ireland.  These  might  be  thought  hasty  or  fac- 
tions ;  but  Marshal  Schomberg's  letters  to  the  king 
yield  them  sti-ong  confirmation.  —  Dalrymple,  Ap- 
pendix, 26,  &c.  William's  resolution  to  take  the 
Ii-ish  war  on  himself  saved  not  only  that  country, 
but  England.  Our  own  Constitution  was  won  on 
the  Boyne.  The  star  of  the  house  of  Stuart  grew 
pale  forever  on  that  illustrious  day,  when  James 
displayed  again  the  pusillanimity  which  had  cost 
him  his  English  crown.  Yet  the  best  friends  of 
William  dissuaded  him  from  going  into  Ireland, 
so  imminent  did  the  peril  appear  at  home.— Dal- 
rymple, Id.,  97.  "  Things,"  says  Burnet,  "  were 
in  a  vei-y  ill  disposition  toward  a  fatal  turn." 
K  K 


for  the  most  part,  the  wisest,  as  well  as  the 
most  generous  policy ;  yet  it  might  seem 
dangerous  to  pass  over  with  unlimited  for- 
giveness that  servile  obedience  to  arbitrary 
power,  especially  in  the  judges,  which,  as 
it  springs  from  a  base  motive,  is  best  con- 
trolled by  tlie  fear  of  punishment.  But 
some  of  the  late  king's  instruments  had  fled 
with  him,  others  were  lost  and  ruined  ;  it 
was  better  to  follow  the  precedent  set  at 
the  Restoration,  than  to  give  them  a  chance 
of  regaining  public  sympathy  by  a  prosecu- 
tion out  of  the  regular  course  of  law.*  la 
one  instance,  the  expulsion  of  Sir  Robert 
Sawyer  from  the  House,  the  majority  dis- 
played a  just  resentment  against  one  of  the 
most  devoted  adherents  of  the  prerogative, 
so  long  as  civil  liberty  alone  was  in  danger. 
Sawyer  had  been  latterly  veiy  conspicuous 
in  defense  of  the  Church ;  and  it  was  ex- 
pedient to  let  the  nation  see  that  the  days 
of  Charles  11.  were  not  entirely  forgotten. f 

*  See  the  debates  on  this  subject  in  the  Parlia- 
mentary History,  which  is  a  transcript  from  An- 
chitel  Grey.  The  Whigs,  or,  at  least,  some  hot- 
headed men  among  them,  were  certainly  too  much 
actuated  by  a  vindictive  spirit,  and  consumed  too 
much  time  on  this  necessary  bill. 

t  The  prominent  instance  of  Sawyer's  delin- 
quency, which  caused  his  expulsion,  was  his  refu- 
sal of  a  writ  of  error  to  Sir  Thomas  Armstrong. — 
Pari.  Hist,  516.  It  was  notorious  that  Armstrong 
suffered  by  a  legal  murder  ;  and  an  attorney-gen- 
eral in  such  a  case  could  not  be  reckoned  as  free 
from  personal  responsibility  as  an  ordinary  advo- 
cate who  maiutains  a  cause  for  his  fee.  The  first 
resolution  had  been  to  give  reparation  out  of  the 
estates  of  the  judges  and  prosecutors  to  Arm- 
strong's family,  which  was,  perhaps  rightly,  aban- 
doned. 

The  House  of  Lords,  who,  having  a  power  to 
examine  upon  oath,  are  supposed  to  sift  the  truth 
in  such  inquiries  better  than  the  Commons,  were 
not  remiss  in  endeavoring  to  bring  the  instruments 
of  Stuart  tyranny  to  justice.  Besides  the  commit- 
tee appointed  on  the  very  second  day  of  the  Con- 
vention, 23d  of  .Tan.,  1689,  to  investigate  the  sup- 
posed circumstances  of  suspicion  as  to  the  death 
of  Lord  Esses  (a  committee  renewed  afterward, 
and  fonned  of  persons  by  no  means  likely  to  have 
abandoned  any  path  that  might  lead  to  the  detec- 
tion of  guilt  in  the  late  king),  another  was  appoint- 
ed in  the  second  session  of  the  same  Parliament 
(Lords'  Journals,  2d  of  Nov.,  1689),  "  to  consider 
who  were  the  advisers  and  prosecutors  of  the 
viurders  of  Lord  Russell,  Col.  Sidney,  Armstrong, 
Cornish,  &c.,  and  who  were  the  advisers  of  issu- 
ing out  writs  of  qno  warrautos  against  coi-pora- 
tions,  and  who  were  their  regulators,  and  also 
who  were  the  public  assertors  of  the  dispensing 
power."  The  examinations  taken  before  this  com- 
mittee are  printed  in  the  Lords'  Journals,  20th  of 


554 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


Nothing  was  concluded  as  to  the  Indemnity  j 
in  this  Parliament;  but  in  the  next,  William 
took  the  matter  into  his  own  hands  by  send- 
ing down  an  act  of  graoe. 

I  can  scarcely  venture,  at  this  distance 
„.„  ,        from  the  scene,  to  pronounce  an 

Bill  for  re-  ' 

storing  cor-  opinion  as  to  the  clause  intro- 
porations.    ^^^^^^j  \Vh\gs  into  a  bill 

for  restoring  corporations,  which  excluded 
for  the  space  of  seven  years  all  who  had 
acted  or  even  concurred  in  surrendering 
charters  from  municipal  offices  of  trust. 
This  was,  no  doubt,  intended  to  maintain 
their  own  superiority  by  keeping  the  Church 
or  Toiy  faction  out  of  corporations  ;  it  evi- 
dently was  not  calculated  to  assuage  the 
prevailing  animosities.  But,  on  the  other 
hand,  the  cowardly  submissiveness  of  the 
others  to  the  quo  warrantos  seemed  at  least 
to  deserve  this  censure ;  and  the  measure 
could  by  no  means  be  put  on  a  level  in  point 
of  rigor  with  the  corporation  act  of  Charles 
II.  As  the  Dissenters,  unquestioned  friends 
of  the  Revolution,  had  been  universally  ex- 
cluded by  that  statute,  and  the  Tories  had 
lately  been  sti-ong  enough  to  prevent  their 
readmission,  it  was  not  unfair  for  the  oppo- 
site party,  or,  rather,  for  the  government, 
to  provide  some  security  against  men  who, 
in  spite  of  their  oaths  of  allegiance,  were 
not  likely  to  have  thoroughly  abjured  their 
former  principles.  This  clause,  which  mod- 
ern historians  generally  condemn  as  op- 
pressive, had  the  strong  support  of  Mr. 
Somers,  then  solicitor-general.     It  was. 


Dec,  1689  ;  and  there  certainly  does  not  appear 
any  want  of  zeal  to  convict  the  guilty.  But  nei- 
ther the  law  nor  the  proofs  would  serve  them. 
They  could  estahlish  nothing  against  Dudley 
North,  the  Tory  sheriiiF  of  1683,  except  that  lie 
had  named  Lord  Russell's  panel  himself;  which, 
though  irregular,  and  doubtless  ill-designed^  had 
unluckily  a  precedent  in  the  conduct  of  the  famous 
Whig  sheriff,  SUngsby  Bethel ;  a  man  who,  like 
North,  though  on  the  opposite  side,  cared  more 
for  his  party  than  for  decency  and  justice.  Lord 
Halifax  was  a  good  deal  hurt  in  character  by  this 
report,  and  never  made  a  considerable  figure  after- 
ward.— Burnet,  34.  ,  His  mortification  led  him  to 
engage  in  an  intrigue  with  the  late  king,  which 
was  discovered;  yet  I  suspect  that,  with  his  usual 
versatility,  he  again  abandoned  that  cause  before 
his  death.— Ralph,  467.  The  Act  of  Grace  (2  W. 
&  M.,  c.  10)  contained  a  small  number  of  excep- 
tions, too  many,  indeed,  for  its  name  ;  but  proba- 
bly there  would  have  been  difficulty  in  prevailing 
on  the  Houses  to  pass  it  generally ;  and  no  one 
was  ever  molested  afterward  on  account  of  his 
conduct  before  the  Revolution. 


however,  lost 'through  the  court's  conjunc- 
tion with  the  Tories  in  the  Lower  House, 
and  the  bill  itself  fell  to  the  ground  in  the 
Upper ;  so  that  those  who  had  come  into 
corporations  by  very  ill  means  retained  their 
power,  to  the  great  disadvantage  of  the 
lievoliition  party,  as  the  next  elections 
made  appear.* 

But  if  the  Whigs  behaved  in  these  instan- 
ces with  too  much  of  that  passion  which, 
though  offensive  and  injurious  in  its  excess, 
is  yet  almost  inseparable  from  pati-iotism  and 
incorrupt  sentiments  in  so  numerous  an  as- 
sembly as  the  House  of  Commons,  they 
amply  redeemed  their  glory  by  what  cost 
them  the  new  king's  favor,  their  wise  and 
admirable  settlement  of  the  revenue. 

The  first  Parliament  of  Charles  II.  had 
fixed  on  ^£1,200, 000  as  the  ordi-  .  ... 

Settlement 

nary  revenue  of  the  crown,  sufli-  of  the  reve- 
cient  in  times  of  no  peculiar  exi- 
gency  for  the  support  of  its  dignity  and  for 
the  public  defense.  For  this  they  provided 
various  resources  ;  the  hereditaiy  excise  on 
liquors  granted  in  lieu  of  the  king's  feudal 
rights,  other  excise  and  custom  duties  grant- 
ed for  his  life,  the  post-office,  the  crown 
lands,  the  tax  called  hearth-money,  or  t^vo 
shillings  for  every  house,  and  some  of  small- 
er consequence.  These,  in  the  beginning 
of  that  reign,  fell  short  of  the  estimate ;  but 
before  its  termination,  by  the  improvement 
of  trade  and  stricter  management  of  the 
customs,  they  certainly  exceeded  that  sum  \j 
for  the  revenue  of  .James  from  these  sources, 
on  an  average  of  the  few  years  of  his  reign, 
amounted  to  ^£1,500,964;  to  which  some- 
thing more  than  c£400,000  is  to  be  added  for 
the  produce  of  duties  imposed  for  eight  years 
by  his  Parliament  of  1685. J 

William  appears  to  have  entertained  no 
doubt  that  this  gi-eat  revenue,  as  well  as  all 
the  power  and  prerogative  of  the  crown,  be- 
came vested  in  himself  as  King  of  England, 

*  Pari.  Hist.,  508,  et  post.  Journals,  2d  and  10th 
of  Jan.,  1689,  1690.  Burnet's  account  is  confused 
and  inaccurate,  as  is  very  commonly  the  case  :  he 
trusted,  I  believe,  almost  entirely  to  his  memorj-. 
Ralph  and  Somerville  are  scarce  ever  candid  to- 
ward the  Whigs  in  this  reign. 

t  [Ralph  puts  the  annual  revenue  about  1675  at 
£1,358,000 ;  but  with  an  anticipation,  that  is,  debt 
upon  it  to  the  amount  of  £866,954.  The  expense 
of  the  army,  navy,  ordnance,  and  the  foitress  of 
Tangier,  was  under  £700,000.  The  rest  went  tc 
the  civil  list,  &c.— Hist,  of  England,  i.,  290.— 1845.] 

t  Pari  Hist.,  150. 


Will.  III.] 


FROM  HEXllY  VII.  TO  GEORGE  II. 


555 


01-  at  least  ought  to  be  instantly  settled  bj'  I 
Parliament  according  to  the  usual  method.* 
There  could,  indeed,  be  no  pretense  for  dis- 
puting his  right  to  the  hereditary  excise, 
though  this  seems  to  have  been  questioned 
in  debate  ;  but  the  Commons  soon  displayed 
a  considerable  reluctatice  to  grant  the  tem- 
porary revenue  for  the  king's  life.  This 
had  been  done  for  several  centuries  in  the 
first  Parliament  of  every  reign.  But  the 
accounts,  for  which  they  called  on  this  oc- 
casion, exhibited  so  considerable  an  increase 
of  the  receipts  on  one  hand,  so  alarming  a 
disposition  of  the  expenditure  on  the  other, 
that  they  deemed  it  expedient  to  restrain  a 
liberality,  which  was  not  only  likely  to  go 
beyond  their  intention,  but  to  place  them, 
at  least  in  future  times,  too  much  within 
the  power  of  the  crown. f  Its  average  ex- 
penses appeared  to  have  been  c£l,700,000. 
Of  this,  =£160,000  was  the  charge  of  the  late 
king's  ai'uiy,  and  d£83,493  of  the  ordnance. 
Nearly  ^£90,000  was  set  under  the  suspi- 
cious head  of  secret  service,  imprested  to 
Mr.  Guy,  secretary  of  the  ti'easury.t  Thus, 
it  was  evident  that,  far  from  sinking  below 
the  proper  level,  as  had  been  the  general 
complaint  of  the  court  in  the  Stuart  reigns, 
the  revenue  was  gi'eatly  and  dangerously 
above  it ;  and  its  excess  might  either  be  con- 
sumed in  unnecessaiy  luxury,  or  diverted 
to  the  worse  purposes  of  despotism  and  cor- 
ruption. They  had,  indeed,  just  declared 
a  standing  army  to  be  illegal ;  but  there 
could  be  no  such  security  for  the  observ- 
ance of  this  declaration  as  the  want  of  means 
in  the  crown  to  maintain  one.  Their  ex- 
perience of  the  interminable  contention  about 

"Burnet,  13.  Ralph,  138, 194.  Some  of  the  law- 
yers endeavored  to  persuade  the  House  that  the 
revenue,  havinc;  been  granted  to  James  foi-his  life, 
devolved  to  William  dviring  the  natural  life  of  the 
former ;  a  technical  subtlety,  against  the  spirit  of 
the  grant.  Somers  seems  not  to  have  come  into 
tliis  ;  but  it  is  hard  to  collect  the  sense  of  speeches 
from  Grey's  memoranda. — Pari.  Hist.,  139.  It  is 
not  to  be  understood  that  the  Tories  universally 
were  in  favor  of  a  grant  for  life,  and  the  Whigs 
against  it ;  but  as  the  latter  were  the  majority,  it 
was  in  their  power,  speaking  of  them  as  a  partj-, 
to  have  carried  the  measure. 

t  [Davenant,  whom  I  quote  at  present  from 
Harris's  Life  of  Charles  II.,  p.  378,  computes  the 
hereditary  excise  on  beer  alone  to  have  amounted, 
in  1689,  to  £694,496.  So  extraordinarily  good  a 
bargain  had  the  crown  made  for  giving  up  the  re- 
liefs and  wardships  of  mihtary  tenure.] 

t  Pari.  Hist.,  187. 


supply,  which  had  been  fought  with  various 
success  between  the  kings  of  England  and 
their  Parliaments  for  some  hundred  j'ears, 
dictated  a  course  to  which  they  wisely  and 
steadily  adhered,  and  to  which,  perhaps, 
above  all  other  changes  at  this  Kevolution, 
the  augmented  authority  of  the  House  of 
Commons  must  be  ascribed. 

They  began  by  voting  that  c£l, 200,000 
should  be  the  annual  revenue  of  the  . 

Appropri- 

crown  in  time  of  peace ;  and  that  ation  of 
one  half  of  this  should  be  appropri-  ^"I'l''''^' 
ated  to  the  maintenance  of  the  king's  gov- 
ernment and  royal  family,  or  what  is  now 
called  the  civil  list,  the  other  to  the  public 
defense  and  contingent  expenditure.*  The 
breaking  out  of  an  eight  years'  war  rendered 
it  impossible  to  carry  into  effect  these  reso- 
lutions as  to  the  peace  establishment;  but 
they  did  not  lose  sight  of  their  principle, 
that  the  king's  regular  and  domestic  expens- 
es should  bo  determined  by  a  fixed  annual 
sum,  distinct  from  the  other  departments 
of  public  service.  They  speedily  improved 
upon  their  original  scheme  of  a  definite  rev- 
enue, by  taking  a  more  close  and  constant 
superintendence  of  these  departments,  the 
navy,  army,  and  ordnance.  Estimates  of 
the  probable  expenditure  were  regularly  laid 
before  them,  and  the  supply  granted  was 
strictly  appropriated  to  each  particular  serv- 
ice. 

This  great  and  fundamental  principle,  as 
it  has  long  been  justly  considei'ed,  that  the 
money  voted  by  Parliament  is  appropriated, 
and  can  only  be  applied,  to  certain  specified 
heads  of  expenditure,  was  introduced,  as  I 
have  before  mentioned,  in  the  reign  of 
Charles  II.,  and  generally,  though  not  in 
every  instance,  adopted  by  his  Parliament. 
The  unworthy  House  of  Commons  that  sat 
in  1685,  not  content  with  a  needless  aug- 
mentation of  the  revenue,  took  credit  with 
the  king  for  not  having  appropriated  their 
supplies  ;f  but  from  the  Revolution  it  has 
been  the  invariable  usage.  The  lords  of  the 
treasury,  by  a  clause  annually  repeated  in 
the  appropriation  net  of  every  session,  are 
forbidden,  under  severe  penalties,  to  order 
by  their  warrant  any  monej-s  in  the  Excheq- 
uer, so  appropriated,  from  being  issued  for 
any  other  service,  and  the  officers  of  the  Ex- 
chequer to  obey  any  such  warrant.  This  has 
given  the  House  of  Commons  so  efiectual  a 

*  Pari.  Hist.,  193.  t  Id.,  iv.,  1359. 


556 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap  XV. 


control  over  the  executive  power,  or,  more 
ti'uly  speaking,  lias  rendered  it  so  much  a 
participator  in  that  power,  that  no  adminis- 
tration can  possibly  subsist  without  its  con- 
currence ;  nor  can  the  session  of  Parliament 
be  intermitted  for  an  entire  year,  without 
leaving  both  the  naval  and  military  force  of 
the  kingdom  unprovided  for.  In  time  of 
war,  or  in  circumstances  that  may  induce 
war,  it  has  not  been  very  uncommon  to  de- 
viate a  little  fi-om  the  rule  of  appropriation, 
by  a  grant  of  considerable  sums  on  a  vote 
of  credit,  which  the  crown  is  thus  enabled 
to  apply  at  its  discretion  during  the  recess 
of  Parliament ;  and  we  have  had,  also,  too 
frequent  experience,  that  the  charges  of 
public  sen  ice  have  not  been  brought  within 
the  limits  of  the  last  year's  appropriation. 
But  the  general  principle  has  not,  perhaps, 
been  often  trausgi-essed  without  sufficient 
reason ;  and  a  House  of  Commons  would 
be  deeply  responsible  to  the  country,  if 
through  supine  confidence  it  should  abandon 
that  high  privilege  which  has  made  it  the 
arbiter  of  court  factions,  and  the  regulator 
of  foreign  connections.  It  is  to  this  trans- 
ference of  the  executive  government  (for  the 
phrase  is  hardly  too  strong)  from  the  crown 
to  the  two  houses  of  Parliament,  and  espe- 
cially the  Commons,  that  we  owe  the  proud 
attitude  which  England  has  maintained  since 
the  Revolution,  so  exti-aordinarily  dissimilar, 
in  the  eyes  of  Europe,  to  her  condition  un- 
der the  .Stuarts.  The  supplies  meted  out 
with  niggardly  caution  by  former  Parlia- 
ments to  sovereigns  whom  they  could  not 
trust,  have  flowed  with  redundant  profuse- 
ness  when  they  could  judge  of  their  neces- 
sity and  dii-ect  their  application.  Doubtless 
the  demand  has  always  been  fixed  by  the 
ministers  of  the  crown,  and  its  influence  has 
retrieved,  in  some  degree,  the  loss  of  au- 
thority ;  but  it  is  still  true  that  uo  small  por- 
tion of  the  executive  power,  according  to 
the  established  laws  and  customs  of  our  gov- 
ernment, has  passed  into  the  hands  of  that 
body,  which  prescribes  the  application  of 
the  revenue,  as  well  as  investigates  at  its 
pleasure  every  act  of  the  administration.* 

The  Convention  ParDament  continued 
the  revenue,  as  it  already  stood,  until  De- 
cember, 1690. f    Their  successors  complied 

*  Hatsell  s  Precedents,  iii.,  30.  et  alibL  Har- 
grave's  Juridical  Arguments,  i.,  39-!. 

t  1  W.  k  M.,  sess.  2,  c.  2.    This  was  intended 


so  far  with  the  king's  expecta-  „ 
tion  as  to  grant  the  excise  duties,  tiooofthe 
besides  those  that  were  heredi- 
tary,  for  the  lives  of  William  and  Mary, 
and  that  of  the  survivor.*  The  customs 
they  only  continued  for  four  years.  They 
provided  extraordinary  supplies  for  the  con- 
duct of  the  war  on  a  scale  of  armament,  and 
consequently  of  expenditure,  unparalleled  in 
the  annals  of  England.  But  the  hesitation, 
and.  as  the  king  imagined,  the  distrust  they 
had  shown  in  settling  the  ordinary  revenue, 
sunk  deep  into  his  mind,  and  chiefly  alien- 
ated him  from  the  \\'hig9,  who  were  stron- 
ger and  more  conspicuous  than  their  adver- 
saries in  the  two  sessions  of  1689.  If  we 
believe  Burnet,  he  felt  so  indignantly  what 
appeared  a  systematic  endeavor  to  reduce 
his  power  below  the  ancient  standard  of 
the  monarchy,  that  he  was  inclined  to  aban- 
don the  government,  and  leave  the  nation 
to  itself.  He  knew  well,  as  he  told  the 
bishop,  what  was  to  be  alleged  for  the  two 
forms  of  government,  a  monarchy  and  a 
commonwealth,  and  wouU  not  determine 
which  was  preferable ;  but  of  all  forms  he 
thought  the  worst  was  that  of  a  monarchy 
without  the  necessary  powers,  f 

The  desire  of  rule  in  William  III.  was  as 
magnanimous  and  pubUc-spirited  as  ambi- 
tion can  ever  be  in  a  human  bosom.  It  was 
the  consciousness  not  only  of  having  devot 
ed  himself  to  a  gi  eat  cause,  the  security  of 
Europe,  and  especially  of  Great  Britain  and 
Holland,  against  unceasing  aggression,  but 
of  resources  in  his  own  firmness  and  sagac- 
ity which  no  other  person  possessed.  A 
commanding  force,  a  copious  revenue,  a 
supreme  authority  in  councils,  were  not 

as  a  provisional  act  "  for  the  preventing  aU  disputes 
and  questions  concemin?  the  collecting,  levying, 
and  assuring  the  public  revenue  due  and  payable 
in  the  reigns  of  the  late  kings  Charles  II.  and 
James  II.,  while  the  belter  settling  the  same  ia 
under  the  consideration  of  the  present  Parhament. 

*  2  \V.  i  M.,  c.  3.    As  a  mark  of  respect,  no 
doubt,  to  the  king  and  queen,  it  was  provided  that, 
if  both  should  die,  the  successor  should  only  enjoy 
1  this  revenue  of  excise  till  December,  1693.    In  the 
1  debate  on  this  subject  in  the  new  Parliament,  the 
'  Tories,  except  Seymour,  were  for  settling  the  rev- 
;  enue  during  the  king's  life ;  but  many  Whigs  spoke 
on  the  other  side. — Pari  Hist.,  552.  The  latter  just- 
ly urged  that  the  amount  of  the  revenue  ought  to  be 
I  well  known  before  they  proceed  to  settle  it  for  an 
'  indeiinite  time.  The  Tories,  at  that  time,  had  great 
hopes  of  the  king's  favor,  and  took  this  method  of 
!  securing  it.  t  Bomet,  35. 


Will.  III.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


557 


souglit,  as  by  the  crowd  of  kings,  for  the  en- 
joyment of  selfish  vanity  and  covetoiisiiess, 
but  as  the  oidy  sure  instruments  of  success 
in  his  high  calHng,  in  the  race  of  heroic  en- 
terprise whicli  Providence  hiid  apjiointed 
for  the  elect  champion  of  civil  and  religious 
liberty.  We  can  hardly  wonder  that  ho 
should  not  quite  render  justice  to  the  mo- 
tives of  those  who  seemed  to  impede  his 
strenuous  energies ;  that  ho  should  resent 
as  ingi-atitude  those  precautions  against 
abuse  of  power  by  him,  tlie  recent  deliver- 
er of  the  nation,  which  it  had  never  called 
for  against  those  who  had  sought  to  en- 
slave it. 

But,  reasonable  as  this  apology  may  be, 
it  was  still  an  uidiappy  error  of  William 
that  he  did  not  sufficiently  weigh  the  cir- 
cumstances which  had  elevated  him  to  the 
English  throne,  and  the  alteration  they  had 
inevitably  made  in  the  relations  between  the 
crown  and  tlio  Parliament.  Chosen  upon 
the  popular  principle  of  general  freedom  and 
public  good,  on  the  ruins  of  an  ancient  he- 
reditary throne,  he  could  expect  to  reign  ou 
no  other  terms  than  as  the  chief  of  a  com- 
monwealth, with  no  other  authority  than 
the  sense  of  the  nation  and  of  Parliament 
deemed  congenial  to  the  now  Constitution. 
The  debt  of  gratitude  to  him  was  indeed 
immense,  and  not  sufficiently  remembered  ; 
but  it  was  due  for  having  enal)lpd  the  nation 
to  regenerate  itself,  and  to  ])lace  barriers 
against  future  assaults,  to  provide  securities 
against  future  inisgovernment.  No  one 
could  seriously  assert  that  .lames  II.  was 
the  only  sovereign  of  whom  there  had  been 
cause  to  complain.  In  almost  every  reign, 
on  the  contrary,  which  our  histoiy  records, 
the  innate  love  of  arbiti-ary  power  had  pro- 
duced more  or  less  of  oppression.  The 
Revolution  was  chiefly  beneficial,  as  it  gave 
a  stronger  impulse  to  the  desire  of  political 
liberty,  and  rendered  it  more  extensively 
attainable.  It  vvfas  cei-tainly  not  for  the  sake 
of  replacing  .lames  by  William  with  equal 
powers  of  doing  injury,  that  the  purest  and 
wisest  patriots  engaged  in  that  cause ;  but 
as  the  sole  means  of  making  a  royal  govern- 
ment pemianently  compatii)le  with  freedom 
and  justice.  The  Bill  of  Rights  had  pre- 
tended to  do  nothing  more  than  stigmatize 
some  recent  proceedings  :  were  the  repre- 
sentatives of  the  nation  to  stop  short  of 
other  measures,  because  they  seemed  nov- 


el, and  restrictive  of  the  crown's  authority, 
when  for  the  want  of  them  the  crown's 
authority  had  nearly  freed  itself  fi'oin  all  re- 
striction ?  Such  was  their  true  motive  for 
limiting  the  revenue,  and  such  the  ample 
justification  of  those  important  statutes  en- 
acted in  the  course  of  this  reign,  which  the 
king,  unfortunately  for  liis  reputation  and 
peace  of  mind,  too  jealously  resisted. 

It  is  by  no  means  unusual  to  find  mention 
of  a  Commonwealth  or  Republi-  _ 

...        .  '  No  Uep\ibli- 

can  party,  as  ii  it  existed  in  some  can  party  in 
force  at  the  time  of  the  Revolu- 
tion,  and  tliroughout  the  reign  of  William 
III.  ;  nay,  some  writers,  such  as  Hume, 
Dalryniple,  and  Somerville,  have,  by  putting 
them  in  a  sort  of  balance  against  the  Jaco- 
bites, as  the  extremes  of  the  Whig  and  Tory 
factions,  endeavored  to  persuade  us  that  the 
one  was  as  substantial  and  united  a  body  as 
the  other.  It  may,  however,  be  confident- 
ly asserted,  that  no  Republican  party  had 
any  existence,  if  by  that  word  we  are  to  un- 
derstand a  set  of  men  whoso  object  was  the 
abolition  of  our  limited  monarchj-.  There 
might  unquestionably  be  persons,  especially 
among  the  Independent  sect,  who  cherished 
the  menioiy  of  what  they  called  the  good 
old  cause,  and  thought  civil  liberty  iriecon- 
cilablo  with  any  form  of  roguhir  govern- 
ment ;  but  these  were  too  inconsiderable, 
and  too  far  removed  from  political  influence, 
to  deserve  the  appellation  of  a  j)arty.  I  be- 
lieve it  would  be  difficult  to  name  five  in- 
dividuals to  whom  even  a  speculative  prefer- 
ence of  a  commonwealth  may  with  proba- 
bility be, ascribed.  Were  it  otherwise,  the 
numerous  pamphlets  of  this  period  would 
bear  witness  to  their  activity  ;  yet,  with  the 
exception,  perhaps,  of  one  or  two,  and  those 
rather  equivocal,  we  should  search,  I  sus- 
pect, the  collections  of  that  time  in  vain  for 
any  manifestations  of  a  Republican  spirit. 
If,  indeed,  an  ardent  zeal  to  see  the  prerog- 
ative eflfectually  restrained,  to  vindicate  that 
high  authority  of  the  House  of  Commons 
over  the  executive  administration  which  it 
has  in  fact  claimed  and  exercised,  to  purify 
the  House  itself  from  corru|)t  influence,  if 
a  tendency  to  dwell  upon  the  poi)ular  origin 
of  civil  society,  and  the  principles  which 
Locke,  above  other  writers,  had  brought 
again  into  fashion,  bo  called  Republican  (as 
in  a  primary  but  less  usual  sense  of  the 
word  they  may),  no  one  can  deny  that  this 


558 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


spirit  eminently  characterized  the  age  of 
William  III.  ;  and  schemes  of  reformation 
emanating  from  this  source  were  sometimes 
offered  to  the  world,  trenching  more,  per- 
haps, on  the  established  Constitution  than 
either  necessity  demanded  or  prudence  war- 
ranted. But  these  were  anonymous  and  of 
little  influence  ;  nor  did  they  ever  extend  to 
the  absolute  subversion  of  the  throne.* 

William,  however,  was  very  early  led  to 
„,.,,.  imagine,  whether  through  the  in- 

Wuliam  em-         "      '  o 

ploys  Tories  sinuations  of  Lord  Nottingham, 
m  ministry.  Burnet  pretends,  or  the  natu- 
ral prejudice  of  kings  against  those  who  do 
not  comply  with  them,  that  there  not  only 
existed  a  Republican  party,  but  that  it  num- 
bered many  supporters  among  the  principal 
Whigs.  He  dissolved  the  Convention  Par- 
liament, and  gave  his  confidence  for  some 
time  to  the  opposite  faction  ;t  but  among 

*  See  the  Soraers  Tracts,  but  still  more  the  col- 
lection of  State  Tracts  in  the  time  of  William  III., 
in  three  volumes  folio.  These  are  almost  entirely 
on  the  Whig  side  ;  and  many  of  them,  as  I  have 
intimated  in  the  text,  lean  so  far  toward  Republi- 
canism as  to  assert  the  original  sovereignty  of  the 
people  in  very  strong  terras,  and  to  propose  various 
changes  in  the  Constitution,  such  as  a  greater 
equality  in  the  representation.  But  I  have  not 
observed  any  one  which  recommends,  even  covert- 
ly, the  abolition  of  hereditary  monarchy.  [It  may 
even  be  suspected,  that  some  of  these  were  really 
intended  for  the  benefit  of  James.  See  one  in 
Somers  Tracts,  x.,  148,  entitled,  "  Good  Advice  be- 
fore it  be  too  late,  being  a  Breviate  for  the  Con- 
vention." The  tone  is  apparently  Republican ; 
yet  we  find  the  advice  to  be  no  more  than  impos- 
ing great  restrictions  on  the  king  during  his  life, 
but  not  to  prejudice  a  Protestant  successor ;  in 
other  words,  the  limitation  scheme,  proposed  by 
Hahfax  in  1679.  It  may  here  be  observed,  that 
the  political  tracts  of  this  reign,  on  both  sides,  dis- 
play a  great  deal  of  close  and  vigorous  reasoning, 
and  may  well  bear  comparison  with  those  of  much 
latei-  periods. — 1845.] 

t  Tiie  sudden  dissolution  of  this  Parliament  cost 
him  the  hearts  of  those  who  had  made  him  king. 
Besides  several  temporary  writings,  especially  the 
Impartial  Inquiry  of  the  Earl  of  Warrington,  an 
honest  and  intrepid  Whig  (Ralph,  ii.,  186),  we  have 
a  letter  from  Mr.  Wharton  (afterward  Marquis  of 
Wharton)  to  the  king,  in  Dalrymple,  Appendix,  p. 
80,  on  the  change  in  his  councils  at  this  time,  writ- 
ten in  a  strain  of  bold  and  bitter  expostulation,  es- 
pecially on  the  score  of  his  employing  those  who 
had  been  the  servants  of  the  late  family,  alluding 
probably  to  Godolphin,  who  was,  indeed,  open  to 
much  exception.  "I  wish,"  says  Lord  Shrews- 
bury, in  the  same  year,  "you  could  have  estab- 
lished your  party  upon  the  moderate  ami  honest- 
principled  men  of  both  factions  ;  but,  as  there  be  a 


these,  a  real  disaffection  to  his  government 
prevailed  so  widely  that  he  could  with  diffi- 
culty select  men  sincerely  attached  to  it. 
The  majority  professed  only  to  pay  al- 
legiance as  to  a  sovereign  de  facto,  and 
violently  opposed  the  Bill  of  Recognition  in 
1690,  both  on  account  of  the  words  "  right- 
ful and  lawful  king"  which  it  applied  to 
William,  and  of  its  declaring  the  laws  pass- 
ed in  the  last  Parliament  to  have  been  good 
and  valid.*  They  had  influence  enough 
with  the  king  to  defeat  a  bill  proposed  by 
the  Whigs,  by  which  an  oath  of  abjuration 
of  James's  right  was  to  be  taken  by  all  per- 

necessity  of  declaring,  I  shall  make  no  difficulty  to 
own  my  sense  that  your  majesty  and  the  govern- 
ment are  much  more  safe  depending  upon  the 
Whigs,  whose  designs,  if  any  against,  are  improb- 
able and  remoter,  than  with  the  Tories,  wlio  many 
of  them,  questionless,  would  bring  in  King  James  ; 
and  the  very  best  of  them,  I  doubt,  have  a  regency 
still  in  their  heads  ;  for  though  I  agree  them  to  be 
the  properest  instruments  to  carry  the  prerogative 
high,  yet  I  fear  they  have  so  unreasonable  a  veu- 
eration  for  monarchy  as  not  altogether  to  approve 
the  foundation  yours  is  built  upon." — Shrewsbury 
CoiTespond.,  15. 

*  Pail.  Hist.,  575.  Ralph,  1S4.  Burnet,  41.  Two 
remarkable  protests  were  entered  on  the  Journals 
of  the  Lords  on  occasion  of  this  bill :  one  by  the 
Whigs,  who  were  outnumbered  on  a  particular  di- 
vision, and  another  by  the  Tories  on  the  passing 
of  the  bill.  They  are  both  vehemently  expressed, 
and  are  among  the  not  very  numerous  instances 
wherein  the  original  Whig  and  Tory  principles 
have  been  opposed  to  each  other.  The  Tory  pro- 
test was  expunged  by  order  of  the  House.  It  Is 
signed  by  eleven  peers  and  six  bishops,  among 
whom  were  StiUingfleet  and  Lloyd.  The  Whig 
protest  has  but  ten  siguatui-es.  The  Convention 
had  already  passed  an  act  for  preventing  doubts 
concerning  their  own  authority,  1  W.  &  M.,  stat. 

I,  c.  1,  which  could,  of  course,  have  no  more  valid- 
ity than  they  were  able  to  give  it.  Tliis  bill  bad 
been  much  opposed  by  the  Tories. — Pari.  Hist., 
v.,  122. 

In  order  to  make  this  clearer,  it  should  be  ob- 
served that  the  Convention  which  restored  Charles 

II.  ,  not  having  been  summoned  by  his  writ,  was 
not  reckoned  by  some  Royalist  lawj-ers  capable 
of  passing  valid  acts,  and  consequently  all  the  stat- 
utes enacted  by  it  were  confirmed  by  the  authority 
of  the  next.  Clarendon  lays  it  down  as  undeniable 
that  such  confirmarion  was  necessary.  Neverthe- 
less, this  objection  having  been  made  in  the  Court 
of  King's  Bench  to  one  of  their  acts,  the  judges 
would  not  admit  it  to  be  disputed ;  and  said  that 
the  act  being  made  by  king,  Lords,  and  Commons, 
they  ought  not  now  to  pry  into  any  defects  of  the 
circumstances  of  calling  them  together,  neither 
would  they  suffer  a  point  to  be  stirred  wherein  the 
estates  of  so  many  were  concerned. — Heath  v. 
Pryn,  1  Ventris,  15 


Will.  III.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


559 


sons  in  trust.*  It  is  by  no  means  certain 
that  even  those  who  abstained  from  all  con- 
nection with  James  after  his  loss  of  the 
throne,  would  have  made  a  strenuoiis  re- 
sistance in  case  of  his  landing  to  recover  it.f 
,    .       But  we  know  that  a  large  propor- 

Intrigues     .  ,       m     •  i 

with  tho  tion  of  the  Tories  were  engaged 
latekiiiff.  ^  confederacy  to  support  him. 
Almost  every  peer,  in  fact,  of  any  consider- 
ation, among  that  party,  with  the  excep- 
tion of  Lord  Nottingham,  is  implicated  by 
the  secret  documents  which  Macpherson 
and  Dalrymple  have  brought  to  light ;  espe- 
cially Godolphin,  Carmarthen  (Danby),  and 
Marlborough,  the  second  at  that  time  prime 
minister  of  William  (as  he  might  justly  be 
called),  the  last  with  circumstances  of  extra- 
ordinary and  abandoned  treacheiy  toward 
his  country  as  well  as  his  allegiance. t  Two 

*  Great  indulgence  was  shown  to  the  assertors 
of  indefeasible  right.  The  Lords  resolved  that 
there  siiould  be  no  penalty  in  the  bill  to  disable 
any  person  from  sitting  and  voting  in  either  house 
of  Parliament.— Journals,  May  5,  1690.  The  bill 
was  rejected  in  the  Commons  by  192  to  178. — 
Journ.,  April  26.   Pari.  Hist,  .594.   Burnet,  41,  ibid. 

t  Some  English  subjects  took  James's  commis- 
sion, and  fitted  out  privateers,  which  attacked  our 
ships.  They  were  taken,  and  it  was  resolved  to 
try  them  as  pirates  ;  when  Dr.  Oldys,  the  king's  ad- 
vocate, had  the  assurance  to  object  that  this  could 
not  be  done,  as  if  James  had  still  the  prerogatives 
of  a  sovereign  prince  by  the  law  of  nations.  He 
was  of  course  turned  out,  and  the  men  hanged  ;  but 
this  is  one  instance  among  many  of  the  difficulty 
tinder  which  the  govemment  labored  through  the 
unfortunate  distinction  oi  friclo  and  jjirc. — Ralph, 
423.  The  boards  of  customs  and  excise  were  filled 
by  Godolphin  with  Jacobites. — Shrews.  Coiresp.,  .51. 

t  The  name  of  Carmarthen  is  pei-petually  men- 
tioned among  those  whom  the  late  king  reckoned 
his  friends. — Macpherson's  Papers,  i.,  457,  &c.  Yet 
this  conduct  was  so  evidently  against  his  interest 
that  we  may  perhaps  believe  him  insincere.  Will- 
iam was  certainly  well  aware  that  an  extensive 
conspiracy  had  been  fonned  against  his  throne.  It 
was  of  gi'eat  importance  to  learn  the  persons  in- 
volved in  it  and  their  schemes.  May  we  not  pre- 
sume tliat  Lord  Carmarthen's  return  to  his  ancient 
allegiance  was  feigned,  in  order  to  get  an  insight 
into  the  secrets  of  that  party  ?  This  has  already 
been  conjectured  by  Somerville  (p.  395)  of  Lord 
Sunderland  (who  is  also  implicated  by  Macpherson's 
publication),  and  doubtless  witli  higher  probability  ; 
for  Sunderland,  always  a  favorite  of  William,  could 
not,  without  insanity,  have  plotted  the  restoration 
of  a  prince  he  was  supposed  to  have  betrayed.  It 
is  evident  that  William  was  perfectly  master  of 
the  cabals  of  St.  Germain's.  That  little  court  knew 
it  was  betrayed ;  and  the  suspicion  fell  on  Lord 
Godolphin. — Dalrymple,  189.  But  I  think  Sunder- 
land and  Carmarthen  more  likely. 


of  the  most  distinguished  Whigs  (and  if  the 
imputation  is  not  fully  substantiated  against 

I  should  be  inclined  to  suspect  that  by  some  of 
this  double  treachery  the  secret  of  Princess  Anne's 
repentant  letter  to  her  father  reached  William's 
ears.  She  had  come  readily,  or  at  least  without 
opposition,  into  that  part  of  the  settlement  which 
postponed  her  succession,  after  the  death  of  Mary, 
for  the  remainder  of  the  khig's  life.  It  would,  in- 
deed, have  been  absurd  to  expect  that  William 
was  to  descend  from  his  throne  in  her  favor;  and 
her  opposition  could  not  have  been  of  much  avail. 
But  when  tlie  civil  list  and  revenue  came  to  be 
settled,  the  Tories  made  a  violent  effort  to  secure 
an  income  of  £70,000  a  year  to  her  and  her  hus- 
band.— Pari.  Hist.,  492.  As  this,  on  one  hand, 
seemed  beyond  all  fair  proportion  to  the  income  of 
the  crown,  so  the  Whigs  were  hardly  less  unreas- 
onable in  contending  that  she  should  depend  alto- 
gether on  the  king's  generosity,  especially  as  by 
letters  patent  in  tlie  late  reign,  which  they  affect- 
ed to  call  in  question,  she  had  a  revenue  of  about 
£30,000.  In  the  end,  the  House  resolved  to  ad- 
dress the  king,  that  he  would  make  the  princess's 
income  £30,000  in  the  whole.  This,  however,  left 
an  iiTeconcilable  enmity,  which  the  artifices  of 
Marlborough  and  his  wife  were  employed  to  ag- 
gravate. They  were  accustomed,  in  the  younger 
sister's  little  court,  to  speak  of  the  queen  with  se- 
verity, and  of  the  king  with  nidc  and  odious  epi- 
thets. Marlborough,  however,  went  much  further. 
He  brought  that  narrow  and  foolish  woman  into  his 
own  dark  intrigues  with  St.  Gennain's.  She  wrote 
to  her  father,  whom  she  had  grossly,  and  almost 
openly,  charged  with  imposing  a  spurious  child  as 
Prince  of  Wales,  supplicating  his  forgiveness,  and 
professing  repentance  for  the  part  she  had  taken. 
— Life  of  James,  476.  Macpherson's  Papers,  i.,  241. 

If  this  letter,  as  can  not  seem  improbable,  be- 
came known  to  William,  we  shall  have  a  more 
satisfactory  explanation  of  the  queen's  invincible 
resentment  toward  her  sister  than  can  be  found  in 
any  other  part  of  their  history.  Mary  refused  to 
see  the  princess  on  her  death-bed,  which  shows 
more  bitterness  than  suited  her  mild  and  religious 
temper,  if  we  look  only  to  their  public  sciuabbles 
about  the  Cluirchills  as  its  motive. — Burnet,  90. 
Conduct  of  Duchess  of  Marlborough,  41.  But  the 
queen  must  have  deeply  felt  the  unhappy,  though 
necessary  state  of  enmity  in  which  slie  was  placed 
toward  her  father.  She  had  borne  a  part  in  a  great 
and  glorious  enterprise,  obedient  to  a  woman's 
highest  duty,  and  had  admirably  performed  those 
of  the  station  to  which  she  was  called,  but  still 
with  some  violation  of  natural  sentiments,  and 
some  liability  to  the  reproach  of  those  who  do  not 
fairly  estimate  the  circumstances  of  lier  situation : 

Infeli.x!  utcunque  ferant  ea  lact.a  minores. 

Her  sister,  who  had  voluntai-ily  trod  the  same  path, 
who  had  misled  her  into  a  belief  of  her  brother's 
illegitimacy,  had  now,  from  no  real  sense  of  duty, 
but  out  of  pique  and  weak  compliance  with  cun- 
ning favorites,  solicited,  in  a  clandestine  manner, 
the  late  king's  pardon,  while  his  malediction  re- 
sounded in  the  ears  of  the  queen.   This  feebleness 


560 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


others*  by  name,  we  know  generally  that 
many  were  liable  to  it)  foi  feited  a  high  name 


and  duplicity  made  a  sisterly  friendship  impos- 
Bible. 

As  for  Lord  Marlborough,  he  was  among  the  first, 
if  we  except  some  Scots  renegades,  who  abau-  I 
doned  the  cause  of  the  Revolution.  He  had  so 
signally  broken  the  ties  of  personal  gratitude  in 
his  desertion  of  the  king  on  that  occasion,  that,  ac- 
cording to  the  severe  remark  of  Hume,  his  conduct 
required  forever  afterward  the  most  upright,  the 
most  disinterested,  and  most  public-spirited  be- 
havior to  render  it  justifiable.  \\'hat,  then,  must 
we  think  of  it.  if  we  find  in  the  whole  of  this  great 
man's  political  life  nothing  but  ambition  and  ra- 
pacity in  his  motives,  nothing  but  treacherj-  and 
intrigue  in  his  means !  He  betrayed  and  aban- 
doned James,  because  he  could  not  rise  in  his  fa- 
vor without  a  sacrifice  that  he  did  not  care  to 
make  ;  he  abandoned  William  and  betrayed  Eng- 
land, because  some  obstacles  stood  yet  in  tlie  way 
of  his  ambition.  I  do  not  mean  only,  when  I  say 
that  he  betrayed  England,  that  he  was  ready  to 
la3'  her  independence  and  libertj'  at  the  feet  of 
James  II.  and  Louis  XIV. ;  but  that  in  one  mem- 
orable instance  he  communicated  to  the  court  of 
St.  Gemiaiu's,  and  through  that  to  the  court  of  Ver- 
sailles, the  secret  of  an  expedition  against  Brest, 
which  failed  in  consequence,  with  the  loss  of  the 
commander  and  eight  hundred  men. — Dalrymple. 
iii.,  13.  Life  of  James,  522.  Macpliersou,  i.,  487. 
In  short,  his  whole  life  was  such  a  picture  of  mean- 
ness and  treacherj',  that  one  must  rate  militaiy 
services  vei^y  high  indeed  to  preserve  any  esteem 
for  his  memory. 

The  private  memoirs  of  James  II.,  as  well  as  the 
papers  published  by  Macpherson,  show  us  how  lit- 
tle treason,  and  especially  a  double  treason,  is 
thanked  or  trasted  by  those  whom  it  pretends  to 
serve.  We  see  that  neither  Churchill  nor  Russell 
obtained  any  confidence  from  the  banished  king. 
Their  motives  were  always  suspected ;  and  some- 
thing more  solid  than  professions  of  loj-alty  was 
demanded,  though  at  the  expense  of  their  own 
credit.  James  could  not  forgive  Russell  for  saj-ing 
that,  if  the  French  fleet  came  out,  he  must  fight.— 
Macpherson,  i.,  242.  If  Providence  in  its  wrath 
had  visited  this  island  once  more  with  a  Stuart 
restoration,  we  may  be  sure  that  these  perfidious 
apostates  would  have  been  no  gainers  by  the 
change. 

*  During  William's  absence  in  Ii-eland  in  1690, 
Bome  of  the  Whigs  conducted  themselves  in  a  man- 
ner to  raise  suspicions  of  their  fidelity,  as  appears 
by  those  most  interesting  letters  of  Marj-,  published 
by  Dalrj  mple,  which  display  her  entire  and  devot- 
ed aff'ection  to  a  husband  of  cold  and  sometimes 
harsh  manners,  hut  capable  of  deep  and  powerful 
attachment,  of  which  she  was  the  chief  object.  1 
have  heard  that  a  late  proprietor  of  these  royal 
letters  was  offended  by  their  publication,  and  that 
the  black  box  of  King  William  that  contained  them 
has  disappeared  from  Kensington.  The  names  of 
the  Duke  of  Bolton,  his  son  the  Marquis  of  \Vin- 
chester,  the  Earl  of  Monmouth,  Lord  Montague. 


among  their  r  otemporaries,  in  the  eyes  of 
a  posterity  which  has  known  them  better ; 
the  Earl  of  Shrewsbuiy,  from  that  strange 
feebleness  of  soul  which  hung  like  a  spell 
upon  his  nobler  qualities,  and  Admiral  Rus- 
sell, from  insolent  pride  and  sullenness  of 
temper.  Both  these  were  engaged  in  the 
vile  intrigues  of  a  faction  they  abhorred  ; 
but  Shrewsbury  soon  learned  again  to  re- 
vere the  sovereign  he  had  contiibuted  to 
raise,  and  withdrew  from  the  contamination 
of  Jacobitism.  It  does  not  appear  that  he 
betrayed  that  trust  which  William  is  said 
with  extraordinary  magnanimity  to  have  re- 
posed on  him,  after  a  full  knowledge  of  his 
connection  with  the  court  of  St.  Germain.* 
But  Russell,  though  compelled  to  win  the 
battle  of  La  Hogue  against  his  will,  took 
care  to  render  his  splendid  victory  as  little 
advantageous  as  possible.  The  credulity 
and  almost  willful  blindness  of  faction  is 
strongly  manifested  iq  the  conduct  of  the 


and  Major  Wildman,  occur  as  objects  of  the  queen's 
or  her  minister's  suspicion. — Dalrymple,  Appendix, 
107,  4cc.  But  Cannarthen  was  desirous  to  throw 
odium  on  the  Whigs  ;  and  none  of  these  noblemen, 
except  on  one  occasion  Lord  Winchester,  appear 
to  be  mentioned  in  the  Stnart  Papers.  Even  Mon- 
mouth, whose  want  both  of  principle  and  sound 
sense  might  cause  reasonable  distrust,  and  who  lay 
at  different  times  of  bis  life  under  this  suspicion  of 
a  Jacobite  intrigue,  is  never  mentioned  in  Mac- 
pherson, or  any  other  book  of  authoritj",  within  my 
recollection.  Yet  it  is  evident  generally  that  there 
was  a  disaffected  party  among  the  Whigs,  or,  as 
in  the  Stuart  Papers  they  were  called  Republicans, 
who  entertained  the  baseless  project  of  restoring 
James  upon  terms.  These  were  chiefly  what  were 
called  compounders,  to  distinguish  them  from  the 
thorough-paced  Royalists,  or  old  Tories.  One  per- 
son whom  we  should  least  suspect  is  occasionally 
spoken  of  as  inclined  to  a  king  whom  he  had  been 
ever  conspicuous  in  opposing — the  Earl  of  Devon- 
shire ;  but  the  Stnart  agents  often  wrote  according 
to  their  wishes  rather  than  their  knowledge,  and  it 
seems  hard  to  believe  what  is  not  rendered  proba- 
ble by  any  part  of  his  public  conduct. 

*  This  fact  apparently  rests  on  good  authority- ; 
it  is  repeatedly  mentioned  in  the  Stuart  Papers, 
and  in  the  Life  of  James.  Yet  Shrewsbury's  let- 
ter to  William,  after  Fenwick's  accusation  of  him, 
seems  hardly  consistent  with  the  king's  knowledge 
of  the  truth  of  that  charge  in  its  full  extent.  I 
think  that  he  served  his  master  faithfully  as  secre- 
tary, at  least  after  some  time,  though  his  warm 
recommendation  of  Marlborough,  "  who  has  been 
with  me  since  this  news  [the  failure  of  the  attack 
on  Brest]  to  offer  his  sen  ices  with  all  the  expres- 
sions of  duty  and  fidelity  imaginable  "  (Slirewsbury 
Correspondence,  47),  is  somewhat  suspicious,  aware 
as  be  was  of  that  traitor's  connections. 


Will.  III.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


561 


House  of  Commons  as  to  the  quaiTel  be- 
tween this  commander  and  the  Board  of 
Admiralty.  They  chose  to  support  one 
who  was  secretly  a  ti-aitor,  because  he  bore 
the  name  of  Whig,  tolerating  his  infamous 
neglect  of  duty  and  contemptible  excuses, 
in  order  to  puU  down  an  honest,  though 
not  very  able  minister,  who  belonged  to  the 
Tories.*  But  they  saw  clearly  that  the 
king  was  beti'ayed,  though  mistaken,  in  this 
instance,  as  to  the  persons ;  and  were  right 
in  concluding  that  the  men  who  had  eflected 
the  Revolution  were  in  general  most  likelj- 
to  maintain  it ;  or,  in  the  words  of  a  com- 
mittee of  the  whole  House,  "  That  his  maj- 
esty be  humbly  advised,  for  the  necessary 
support  of  his  government,  to  employ  in  his 
councils  and  management  of  his  atlairs  such 
pei-sons  only  whose  principles  oblige  them 
to  stand  by  him  and  his  right  against  the 
late  King  James,  and  all  other  pretenders 
whatsoever."  f  It  is  plain  from  this  and 
other  votes  of  the  Commons,  that  the  Tories 
had  lost  that  majority  which  they  seem  to 
have  held  in  the  first  session  of  this  Parlia- 
ment.t 

It  is  not,  however,  to  be  infeired  from 
this  extensive  combination  in  favor  of  the 
banished  king,  that  his  party  embraced  the 
majority  of  the  nation,  or  that  he  could  have 
been  restored  with  any  general  testimonies 
of  satisfaction.  The  friends  of  the  Revolu- 
tion were  still  by  fai"  the  more  powerful 
body.  Even  the  secret  emissaries  of  James 
confess  that  the  common  people  were 
strongly  prejudiced  against  his  return.  His 
own  enumeration  of  peers  attached  to  his 
cause  can  not  be  brought  to  more  than  thir- 
ty, exclusive  of  Catholics  ;§  and  the  real 

*  Commons'  Journals,  Nov.  28,  et  post.  Dal- 
rymple,  iii.,  11.    Ralph,  346. 
"  t  Id.,  Jan.  11,  1692-3. 

i  Burnet  says,  "The  elections  of  Parliament 
(1690)  went  generally  for  men  who  would  probably 
have  declared  for  King  James,  if  they  could  have 
known  how  to  manage  matters  for  him." — P.  41. 
This  is  quite  an  exaggeration;  though  the  Tories, 
some  of  whom  were  at  this  time  in  place,  did  cer- 
tainly succeed  in  several  diN-isious.  But  parties 
had  now  begun  to  be  split,  the  Jacobite  Tories 
voting  with  the  malcontent  Whigs.  Upon  the 
whole,  this  House  of  Commons,  like  the  next  which 
followed  it,  was  well  affected  to  the  revolution  set- 
tlement and  to  public  libertv'.  Whig  and  Tory 
were  becoming  little  more  than  nicluiames. 

ft  Macphei'son's  State  Papers,  i.,  459.  These 
were  all  Tories  except  three  or  four.    Tlie  great 
end  James  and  his  adherents  had  in  view,  was  to 
N  N 


Jacobites  were,  I  believe,  in  a  far  less  pro- 
portion among  the  Commons.  The  hopes 
of  that  wretched  victim  of  his  own  bigotiy 
and  violence  rested  less  on  the  loj-alty  of 
his  former  subjects,  or  on  their  disaflection 
to  his  rival,  than  on  the  perfidious  conspir- 
acy of  EngUsh  statesmen  and  admirals,  of 
lord-lieutenants  aud  governors  of  towns,  and 
on  so  numerous  a  French  army  as  an  ill- 
defended  and  disunited  kingdom  would  be 

incapable  to  resist.    He  was  to  „  ,  , 
'  Schemes  for 

retam,  not  as  his  brother,  alone  his  restora- 
and  unarmed,  strong  only  in  the 
consentient  voice  of  the  nation,  but  amid 
the  bayonets  of  30,000  French  auxiliaries. 
These  were  the  pledges  of  just  and  consti- 
tutional rule,  whom  our  patriot  Jacobites 
invoked  against  the  despotism  of  William 
III.  It  was  from  a  king  of  the  house  of 
Stuart,  from  James  II.,  from  one  thus  en- 
circled by  the  soldiers  of  Louis  XIV.,  that 
we  were  to  receive  the  guarantee  of  civil 
and  religious  liberty.  Happily,  the  determ- 
ined love  of  arbitraiy  power,  burning  un- 
extinguished amid  exile  aud  disgrace,  would 
not  permit  him  to  promise,  in  any  distinct 
manner,  those  securities  which  a  large  por- 
tion of  his  own  adherents  required.  The 
Jacobite  faction  was  divided  between  com- 
pounders and  non-compounders  ;  the  one 
insisting  on  the  necessity  of  holding  forth 
a  promise  of  such  new  enactments  upon 
the  king's  restoration  as  might  remove  all 
jealousies  as  to  the  rights  of  the  Church 
and  people  ;  the  other,  more  agreetibly  to 
James's  temper,  rejecting  eveiy  compro- 
mise with  what  they  called  the  Republican 
party  at  the  expense  of  his  ancient  prerog- 
ative.* In  a  declaration  which  he  issued 
from  St.  Germain  in  1693,  there  was  so 
little  acknowledgment  of  error,  so  few 
promises  of  security,  so  many  exceptions 
from  the  amnesty  he  offered,  that  the  wiser 
of  his  partisans  in  England  were  willing  to 


persuade  Louis  into  an  invasion  of  England  ;  their 
representations,  therefore,  are  to  be  taken  with 
]  much  allowance,  and  in  some  cases  we  know  them 
to  be  false  ;  as  when  James  assures  his  brother  of 
Versailles  that  three  parts  at  least  in  four  of  the 
English  clergy  had  not  taken  the  oaths  to  William. 
—Id.,  409. 

*  Macpherson,  433.  Somers  Tracts,  xi.,  94.  Tliis 
is  a  pamphlet  of  the  time,  exposing  the  St.  Ger- 
main faction,  and  James's  unwillingness  to  make 
I  concessions.  It  is  confirmed  by  the  most  authentic 
documents. 


662 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


insinuate  that  it  was  not  authentic*  This 
declaration,  and  the  virulence  of  Jacobite 
pamphlets  in  the  same  tone,  must  have 
done  harm  to  his  cause. f  He  published 
another  declaration  next  year,  at  the  earn- 
est request  of  those  who  had  seceded  to  his 
side  from  that  of  the  Revolution,  iu  which 
he  held  forth  more  specific  assurances  of 
consenting  to  a  limitation  of  his  preroga- 
tive.J    But  no  reflecting  man  could  avoid 

*  Ralph,  350.    Somers  Tracts,  x,,  211. 

t  Many  of  these  Jacobite  tracts  are  printed  iu 
the  Somers  Collection,  vol.  x.  The  more  we  read 
of  them,  the  more  cause  appears  for  thankfulness 
that  the  nation  escaped  from  such  a  furious  party. 
They  confess,  in  general,  very  little  en-or  or  mis- 
government  in  James,  but  abound  with  malignant 
calumnies  on  his  successor.  The  name  of  TuUia 
is  repeatedly  given  to  the  mild  and  pious  Maiy. 
The  best  of  these  libels  is  stj'led  "  Great  Britain's 
just  Complaint"  (p.  429),  by  Sir  James  Montgom- 
ery, the  false  and  fickle -proto-apostate  of  Whig- 
gism.  It  is  written  with  singular  vigor,  and  even 
elegance  ;  and  rather  extenuates  than  denies  the 
faults  of  the  late  reign. 

i  Ralph,  418.  See  the  Life  of  James,  501.  It 
contains  chiefly  an  absolute  promise  of  pardon,  a 
declaration  that  he  would  protect  and  defend  the 
Church  of  England  as  established  by  law,  and  se- 
care  to  its  members  all  the  churches,  universities, 
schools,  and  colleges,  together  with  its  immunities, 
rights,  and  privileges,  a  promise  not  to  dispense 
with  the  Test,  and  to  leave  the  dispensing  power 
in  other  matters  to  be  explained  and  limited  by 
Parliament,  to  give  tlie  royal  assent  to  bills  for  fre- 
quent Parliaments,  free  elections,  and  impartial 
itrials,  and  to  confirm  such  laws  made  under  the 
present  usurpation  as  should  be  tendered  to  him 
by  Parliament.  "The  king,"  he  says  himself, 
"  was  sensible  he  should  be  blamed  by  several  of 
his  friends  for  submitting  to  such  hard  terms ;  nor 
-was  it  to  be  wondered  at,  if  those  who  knew  not 
the  trae  condition  of  his  affairs,  were  scandalized 
at  it ;  but,  after  all,  be  had  nothing  else  to  do." — 
p.  505.  He  was  so  little  satisfied  with  the  articles 
iu  this  declaration  respecting  the  Church  of  Eng- 
land, that  he  consulted  several  French  and  En- 
glish divines,  all  of  whom,  including  Bossuet,  after 
some  difference,  came  to  an  opinion  that  he  could 
not  in  conscience  undertake  to  protect  and  defend 
an  erroneous  church.  Their  objection,  however, 
seems  to  have  been  rather  to  the  expression  than 
the  plain  sense  ;  for  they  agi'eed  that  he  might 
promise  to  leave  the  Protestant  church  in  posses- 
sion of  its  endowments  and  privileges.  Many,  too, 
of  the  English  Jacobites,  especially  the  non-juring 
bishops,  were  displeased  with  the  declaration,  as 
limiting  the  prerogative,  though  it  contained  noth- 
ing which  they  were  not  clamorous  to  obtain  from 
WilUam. — P.  514.  A  decisive  proof  how  little 
that  party  cared  for  civil  liberty,  and  how  little 
would  have  satisfied  them  at  the  Revolution,  if 
James  bad  put  the  Church  oat  of  danger!  The 


perceiving  thdt  such  promises  wrung  from 
his  disti'ess  were  illusory  and  insincere  ; 
tliat  in  the  exultation  of  triumphant  loyalty, 
even  without  the  sword  of  the  Gaul  thrown 
into  the  scale  of  despotism,  those  who 
dreamed  of  a  conditional  restoration  and  of 
fresh  guarantees  for  civil  liberty,  would 
find,  like  the  Presbyterians  of  1660,  that  it 
became  them  rather  to  be  anxious  about 
their  own  j)ardon,  and  to  receive  it  as  a 
j  signal  boon  of  the  king's  clemency.  The 
I  knowledge  thus  obtained  of  James's  iucor- 
j  rigible  obstinacy  seems  gradually  to  have 
[  convinced  the  disaffected  that  no  hope  for 
I  the  nation  or  for  themselves  could  be  drawn 
j  from  his   restoration.*     His  connections 

j  next  paragraph  is  remarkable  enough  to  be  ex- 
j  ti  acted  for  the  better  confinnation  of  what  I  have 
i  just  said.  "  By  this  the  king  saw  he  had  out-shot 
i  himself  more  ways  than  one  in  this  declaration ; 

and  therefore  what  expedient  he  would  have  found 
1  in  case  he  had  been  restored,  not  to  put  a  force 
I  either  upon  his  conscience  or  honor,  does  not  ap- 
!  pear,  because  it  never  came  to  a  trial ;  bat  this  is 
certain,  his  Church  of  England  friends  absolved 
him  beforehand,  and  sent  him  word,  that  if  he  con- 
sidered the  preamble  and  the  verj'  terms  of  the 
I  declaration,  he  was  not  bound  to  stand  by  it,  or  to 
j  put  it  out  verbatim  as  it  was  worded ;  that  the 
'  changing  some  expressions  and  ambiguous  terms, 
!  so  long  as  what  was  principally  aimed  at  had  been 
,  kept  to,  could  not  be  called  a  receding  from  his 
declaration,  no  more  than  a  new  edition  of  a  book 
can  be  accounted  a  different  work,  thougli  correct- 
ed and  amended.     And,  indeed,  the  preamble 
showed  his  promise  was  conditional,  which  they 
not  perfonniug,  the  king  could  not  be  tied ;  for  my 
Lord  Middleton  had  writ  that,  if  the  king  signed 
the  declaration,  those  who  took  it  engaged  to  re- 
store him  iu  three  or  four  months  after;  the  king 
did  his  part,  but  their  failure  must  needs  take  off 
the  king's  future  obligation." 

In  a  Latin  letter,  the  oiiginal  of  which  is  written 
in  James's  own  hand,  to  Innocent  XII.,  dated  from 
Dublin,  Nov.  26, 1689,  he  declares  himself  "  Cathol- 
icam  fidem  reducere  in  ti-ia  regna  statuisse." — 
Somers  Tracts,  x.,  552.  Though  this  may  have 
been  drawn  up  by  a  priest,  I  suppose  the  king  un- 
derstood what  he  said.  It  appeal's,  also,  by  Lord 
Balcan-as  s  Memoir,  that  Lord  Melfort  had  drawn 
up  the  declaration  as  to  indemnit3-  and  indul- 
gence in  such  a  manner  that  the  king  might 
break  it  whenever  he  pleased. — Somers  Tracts, 
xi.,  517. 

*  The  Protestants  were  treated  with  neglect  and 
jealousy,  whatever  might  have  been  their  loyalty, 
at  the  court  of  James,  as  they  were  afterward  at 
that  of  his  son.  The  iucomgibility  of  the  Stuart 
family  is  veiy  remarkable. — Kennet,  p.  638  and 
738,  enumerates  many  instances.  Sir  James  Mont- 
gomen-,  the  Earl  of  Middleton,  and  others,  were 
shunned  at  the  court  of  St.  Germain  as  guilty  of 


Will.  III.] 


FROM  HENRY  VII. 


:.  TO  GEORGE  n. 


563 


with  the  trencherous  counselors  of  William 
grew  weaker ;  and  even  before  the  peace 
of  Eyswick  it  was  evident  that  the  aged 
bigot  could  never  wield  again  the  scepter 
he  had  thrown  away.  The  scheme  of  as- 
sassinating our  illustrious  sovereign,  which 
some  of  James's  desperate  zealots  had  de- 
vised without  his  privitj-,  as  may  charitably 
and  even  reasonably  be  supposed,*  gave  a 

this  sole  crime  of  heresy,  unless  we  add  that  of 
wishing  for  legal  securities. 

*  James  himself  explicitly  denies,  in  the  extracts 
from  his  Life,  published  by  Macplierson.  all  i)artic- 
ipation  in  the  scheme  of  killing  William,  and  says 
that  he  had  twice  rejected  proposals  for  bringing 
bim  off  alive ;  thougii  it  is  not  true  that  he  speaks 
of  the  design  with  indignation,  as  some  have  pre- 
tended. It  was  verj'  natural,  and  very  comforta- 
ble to  the  principles  of  kings,  and  others  besides 
kings,  in  former  times,  that  he  should  have  lent  an 
ear  to  this  project ;  and  as  to  James's  moral  and 
religions  character,  it  was  not  better  than  that  of 
Clarendon,  whom  we  know  to  have  countenanced 
similar  designs  for  the  assassination  of  Cromwell. 
Iq  fact,  tlie  received  code  of  ethics  has  been  im- 
proved in  this  respect.  We  may  be  sure,  at  least, 
that  those  who  ran  such  a  risk  for  James's  sake 
expected  to  be  thanked  and  rewarded  in  the  event 
of  success.  I  can  not,  tlierefore,  agree  with  Dal- 
rymple,  who  says  that  nothing  but  the  fury  of 
party  could  have  exposed  James  to  this  suspicion. 
Though  the  proof  seems  very  short  of  conviction, 
there  ai'e  some  facts  worthy  of  notice :  1.  Burnet 
positively  chai-ges  the  late  king  with  privity  to  the 
conspiracy  of  Grandval,  executed  in  Flanders  for 
a  design  on  William's  life,  1692  (p.  95) ;  and  this 
he  does  with  so  much  particularity,  and  so  little 
hesitation,  that  he  seems  to  have  drawn  his  infor- 
mation from  high  authority.  The  sentence  of  the 
com-t  martial  on  Grandval  also  alludes  to  James's 
knowledge  of  the  crime  (Somers  Tracts,  x.,  580), 
and  mentions  expressions  of  his,  which,  though 
not  conclusive,  would  raise  a  strong  presumption 
in  any  ordinary  ease.  2.  William  himself,  in  a 
memorial  intended  to  have  been  delivered  to  the 
ministers  of  all  the  allied  powers  at  Ryswick,  in 
answer  to  that  of  James  (Id.,  xi.,  103.  Ralph,  730), 
positively  imputes  to  the  latter  repeated  conspira- 
cies against  his  life  ;  and  he  was  incapable  of  say- 
ing what  he  did  not  believe.  In  the  same  memo- 
rial he  shows  too  much  masnanimity  to  assert  that 
the  birth  of  the  Prince  of  W ales  was  an  imposture. 
3.  A  paper  by  Charnock,  undeniably  one  of  the  con- 
spirators, addressed  to  James,  contains  a  marked 
allusion  to  William's  possible  death  in  a  short 
time  ;  which  even  Macpherson  calls  a  delicate 
mode  of  hinting  the  assassination-plot  to  him. — 
Macpherson,  State  Papers,  i.,  519.  Compare,  also, 
State  Trials,  xii.,  1323,  1327,  1329.  4.  Somei-ville, 
though  a  disbeliever  in  James's  participation,  has 
a  very  curious  quotation  from  Lamberti,  tending 
to  implicate  Louis  XIV.,  p.  428  ;  and  we  can 
hardly  suppose  that  he  kept  the  other  out  of  the 
secret.    Indeed,  the  crime  is  greater  and  less 


I  fatal  blow  to  the  interests  of  that  faction. 
It  was  instantly  seen  that  the  murmurs  of 
malcontent  Whigs  had  nothing  in  common 
with  the  disaffection  of  Jacobites.  The 
nation  resounded  with  an  indignant  cry 
against  the  atrocious  conspiracy.  An  as- 
sociation abjuring  the  title  of  James,  and 
pledging  the  subscribers  to  revenge  the 
king's  death,  after  the  model  of  that  in  the 
reign  of  Elizabeth,  Avas  generally  signed  by 
both  houses  of  Parliament,  and  throughout 
the  kingdom.*  The  adherents  of  the  exiled 
family  dwindled  into  so  powerless  a  minor- 
ity that  they  could  make  no  sort  of  opposi- 
tion to  the  act  of  settlement,  and  did  not 
recover  an  efficient  character  as  a  party  till 
toward  the  latter  end  of  the  ensuing  reign. 
Perhaps  the  indignation  of  Parliament 

credible  in  Louis  than  in  James.  But  devout 
kings  have  odd  notions  of  morality  ;  and  their  con- 
fessors, I  suppose,  much  the  same.  I  admit,  as 
before,  that  the  evidence  falls  short  of  conviction  ; 
and  that  the  verdict,  in  the  language  of  Scots  law, 
should  be.  Nut  Proven ;  but  it  is  too  much  for  our 
Stuart  apologists  to  treat  the  question  as  one  abso- 
lutely determined.  Documents  may  yet  appear 
that  will  change  its  aspect. 

I  leave  the  above  paragraph  as  it  was  written 
before  the  publication  of  M.  Mazure's  valuable 
History  of  the  Revolution.  Ho  has  therein  brought 
to  light  a  commission  of  James  to  Crosby,  in  1C93, 
authorizing  and  requiring  him  "  to  seize  and  secure 
the  person  of  the  Prince  of  Orange,  and  to  bring 
him  before  us,  taking  to  your  assistance  such  other 
of  our  faithful  subjects  in  whom  you  maj'  place 
confidence." — Hist,  de  la  R6vol.,  iii.,  443.  It  is 
justly  observed  by  M.  Mazure,  that  Crosby  might 
think  no  renewal  of  his  authority  necessary  in  1696 
to  do  that  which  he  had  been  required  to  do  in 
1693.  If  we  look  attentively  at  James's  own  lan- 
guage in  Macpherson's  extracts,  without  much  re- 
garding the  glosses  of  Innes,  it  will  appear  that 
he  does  not  deny  in  express  tenns  that  he  had 
consented  to  the  attempt  in  1696  to  seize  the 
Prince  of  Orange's  person.  In  the  commission  to 
Crosby  he  is  required  not  only  to  do  this,  but  to 
bring  him  before  the  king.  But  is  it  possible  to 
consider  this  language  as  any  thing  else  than  a 
euphemism  for  assassination  ? 

Upon  the  whole  evidence,  therefore,  I  now  think 
that  James  was  privy  to  the  conspiracy,  of  which 
the  natural  and  inevitable  consequence  must  have 
been  foreseen  by  himself ;  but  I  leave  the  text  as 
it  stood,  in  order  to  show  that  I  have  not  been 
guided  by  any  prejudice  against  his  character. 

*  Pari.  Hist,  991.  Fifteen  peers  and  ninety- 
two  commoners  refused.  The  names  of  the  latter 
were  circulated  in  a  pi-inted  paper,  which  the 
House  voted  to  be  a  breach  of  their  privilege,  and 
destruction  of  the  freedom  and  liberties  of  Parlia- 
ment, Oct.  30,  1696.  This,  however,  shows  the 
unpopularity  of  their  opposition. 


564 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


aeauist  those  who  sought  to  bring 

Atttiinder       °        ,  .         ,  .... 

of  Sir  John  back  despotism  through  civil  war 
Fenwick.  ^^le  murder  of  an  heroic  sov- 

ereign, was  carried  too  far  in  the  bill  for 
attainting  Sir  John  Fenwick  of  treason. 
Two  witnesses,  i-equired  by  our  law  in  a 
charge  of  that  nature,  Porter  and  Goodman, 
had  deposed  before  the  grand  jury  to  Fen- 
wick's  share  in  the  scheme  of  invasion, 
though  there  is  no  reason  to  believe  that 
he  was  privy  to  the  intended  assassination 
of  the  king.  His  wife  subsequently  pre- 
vailed on  Goodman  to  quit  the  kingdom,  and 
thus  it  became  impossible  to  obtain  a  con- 
viction in  the  course  of  law.  This  was  the 
apology  for  a  special  act  of  the  Legislature, 
by  which  he  suftered  the  penalties  of  trea- 
son. It  did  not,  like  some  other  acts  of 
attainder,  inflict  a  punishment  beyond  the 
offense,  but  supplied  the  deficiency  of  legal 
evidence.  It  was  sustained  by  the  produc- 
tion of  Goodman's  examination  before  the 
privy  council,  and  by  the  evidence  of  two 
grand-jurymen  as  to  the  deposition  he  had 
made  on  oath  before  them,  and  on  which 
they  had  found  the  bill  of  indictment.  It 
was  also  shown  that  he  had  been  tampered 
with  by  Lady  Mary  Fenwick  to  leave  the 
kingdom.  This  was  undoubtedly  as  good 
secondary  evidence  as  can  well  be  imagin- 
ed ;  and  though,  in  criminal  cases,  such  evi- 
dence is  not  admissible  by  courts  of  law,  it 
was  plausibly  urged  that  the  Legislature 
might  prevent  Fenwick  from  taking  ad- 
vantage of  his  own  underhand  management, 
without  transgi'essing  the  moral  rules  of 
justice,  or  even  setting  the  dangerous  prec- 
edent of  punishing  treason  upon  a  single 
testimony.  Yet,  upon  the  whole,  the  im- 
portance of  adhering  to  the  stubborn  rules 
of  law  in  matters  of  treason  is  so  weighty, 
and  the  difficulty  of  keeping  such  a  body 
as  the  House  of  Commons  within  any  less 
precise  limits  so  manifest,  that  we  may 
well  concur  with  those  who  thought  Sir 
John  Fenwick  much  too  inconsiderable  a 
person  to  warrant  such  an  anomaly.  The 
jealous  sense  of  liberty  prevalent  in  Will- 
iam's reign  produced  a  veiy  strong  opposi- 
tion to  this  bill  of  attainder  ;  it  passed  in 
each  House,  especially  in  the  Lords,  by  a 
small  majority.*    Nor,  perhaps,  would  it 

*  Burnet;  see  the  notes  on  the  Oxford  edition. 
Ralph,  692.  The  motion  for  bringing  in  the  bill, 
Nov.  6,  1696,  was  carried  by  169  to  61 ;  but  this 


have  been  cari-ied  but  for  Fenwick's  im- 
prudent disclosure,  in  order  to  save  his  life, 
of  some  great  statesmen's  intrigues  with  the 
late  king ;  a  disclosure  which  he  dared  not, 
or  was  not  in  a  situation  to  confirm,  but 
which  rendered  him  the  victim  of  their 
fear  and  revenge.  Russell,  one  of  those  ac- 
cused, brought  into  the  Commons  the  bill 
of  attainder ;  Marlborough  voted  in  favor 
of  it,  the  only  instance  wherein  he  quitted 
the  Tories ;  Godolphin  and  Bath,  with  more 
humanity,  took  the  other  side ;  and  Shrews- 
bury absented  himself  from  the  House  of 
Lords.*  It  is  now  well  known  that  Fen- 
majority  lessened  at  every  stage ;  and  the  final 
division  was  only  189  to  156.  In  the  Lords  it 
passed  by  68  to  61 ;  several  Whigs,  and  even  the 
Dute  of  Devonshire,  then  lord-steward,  voting  in 
the  minority. — Pari.  Hist.,  996-11.54.  Marlborough 
probably  made  Prince  George  of  Denmark  sup- 
port the  measure.  —  Shrewsbury  Correspondence, 
449.  Many  remarkable  letters  on  the  subject  are 
to  be  found  in  this  collection ;  but  I  warn  the  reader 
against  trusting  any  part  of  the  volume  except  the 
letters  themselves.  The  editor  has,  in  defiance 
of  notorious  facts,  represented  Sir  John  Fenwick's 
disclosures  as  false;  and  twice  charges  him  with 
prevarication  (p.  404),  using  the  word  without  any 
knowledge  of  its  sense,  in  declining  to  answer 
questions  put  to  him  by  members  of  the  House 
of  Commons,  which  he  could  not  have  answered 
without  inflaming  the  animosity  that  sought  hi« 
life. 

It  is  said  in  a  note  of  Lord  Hardwicke  on  Bur- 
net, that  "  the  king,  before  the  session,  had  Sir 
John  Fenwick  brought  to  the  cabinet  council, 
where  he  was  present  himself  But  Sir  John 
would  not  explain  his  paper." — See,  also,  Shrews- 
bury CoiTespondeuce,  419,  et  post.  The  truth  was, 
that  Fenwick,  having  had  his  information  at  sec- 
ond-hand, could  not  prove  his  assertions,  and  feared 
to  make  his  case  worse  by  repeating  them. 

*  Godolphin,  who  was  then  first  commissioner 
of  the  treasury,  not  much  to  the  liking  of  the 
Whigs,  seems  to  have  been  tricked  by  Sunder- 
land into  retiring  fiom  office  on  this  occasion. — Id., 
415.  Shrewsbury",  secretaiy  of  state,  could  hardly 
be  restrained  by  the  king  and  his  own  friends 
from  resigning  the  seals  as  soon  as  he  knew  of 
Fenwick's  accusation.  His  behavior  shows  either 
a  consciousness  of  guilt  or  an  inconceivable  cow- 
ardice. Yet  at  first  he  wrote  to  the  king,  pre- 
tending to  mention  candidly  all  that  had  passed 
between  him  and  the  Earl  of  Middleton,  which  in 
fact  amounted  to  nothing. — P.  147.  This  letter, 
however,  seems  to  show  that  a  story  which  has 
been  several  times  told,  and  is  confirmed  by  the 
biographer  of  James  II.  and  by  Macpherson's 
Papers,  that  William  compelled  Shrewsbury  to 
accept  office  in  1693,  by  letting  him  know  that  he 
was  aware  of  his  connection  with  St.  Germain's, 
is  not  founded  in  ti^uth.  He  could  hardly  have 
written  in  such  a  style  to  the  king  with  that  fact 


Will.  III-l 


FROM  HENRY  VII.  TO  GEORGE  II. 


565 


\\ick's  discoveries  went  not  a  step  beyond 
the  truth.  Their  effect,  however,  was  ben- 
eficial to  the  state ;  as,  by  displaying  a 
strange  want  of  secresy  in  the  court  of  St. 
Germain's,  Fenwick  never  having  had  any 
direct  communication  with  those  he  accus- 
ed, it  caused  Godolphin  and  Marlborough 
to  break  off  their  dangerous  course  of  per- 
fidy.t 

Amid  these  scenes  of  dissension  and  dis- 
Til  success  affection,  and  amid  the  public  loss- 
of  the  war.  gg  jjjj  decline  which  aggravated 
them,  we  have  scarce  any  object  to  con- 
template with  pleasure  but  the  magnani- 
mous and  unconquerable  soul  of  William. 
Mistaken  in  some  parts  of  his  domestic 
policy,  unsuited  by  some  failings  of  his 
character  for  the  EngUsh  nation,  it  is  still 
to  his  superiority  in  virtue  and  energy  over 
all  her  own  natives  in  that  age  that  England 
is  indebted  for  the  presen-ation  of  her  honor 
and  liberty  ;  not  at  the  crisis  only  of  the 
Revolution,  but  through  the  difficult  period 
that  elapsed  until  the  peace  of  Rj'swick. 
A  war  of  nine  years,  generally  unfortunate, 
unsatisfactorj'  in  its  result,  carried  on  at  a 
cost  unknown  to  former  times,  amid  the 
decay  of  trade,  the  exhaustion  of  resources, 
the  decline,  as  there  seems  good  reason  to 
believe,  of  population  itself,  was  the  fester- 
ing wound  that  turned  a  people's  grati- 
tude into  factiousness  and  treachery.  It 
was  easy  to  excite  the  national  preju- 
dices against  campaigns  in  Flanders,  espe- 
cially when  so  unsuccessful,  and  to  inveigh 
against  the  neglect  of  our  maritime  power ; 
yet,  unless  we  could  have  been  secure 
against  invasion,  which  Louis  would  infal- 
libly have  attempted,  had  not  his  whole 
force  been  occupied  by  the  grand  alliance, 
and  which,  in  the  feeble  condition  of  our 
navy  and  commerce,  at  one  time  could  not 
have  been  impracticable,  the  defeats  of 
Steenkirk  and  Lauden  might  probably  have 
been  sustained  at  home.   The  war  of  1689, 

in  his  way.  Monmoutb,  however,  had  some  sus- 
picion of  it,  as  appears  by  the  bints  he  famished 
to  Sir  J.  Fenwick  toward  establishing  the  charges. 
— P.  450.  Lord  Dartmouth,  full  of  inveterate  prej- 
Ddices  against  the  king,  charges  him  with  personal 
piqae  against  Sir  John  Fenwick,  and  with  insti- 
gating members  to  vote  for  the  bill;  yet  it  rather 
seems  that  he  was,  at  least  for  some  time,  by  no 
means  anxious  for  it.  —  Shrewsbury  Coirespond- 
ence;  and  compare  Coxe's  Life  of  Marlborough, 
i.,  63.  *  Life  of  James,  ii.,  558. 


and  the  great  confederacy  of  Europe,  which 
William  alone  could  animate  with  any 
steadiness  and  energy,  were  most  evident- 
ly and  undeniably  the  means  of  preserving 
the  independence  of  England.  That  dan- 
ger, which  has  sometimes  been  in  our 
countrymen's  mouths  with  little  meaning, 
of  becoming  a  province  to  France,  was  then 
close  and  actual ;  for  I  hold  the  restoration 
of  the  house  of  Stuart  to  be  but  another 
expression  for  that  ignominy  and  sei-vitude. 

The  expense,  therefore,  of  this  war  must 
not  be  reckoned  unnecessary  ; 

,  lis  expenses. 

nor  must  we  censure  the  gov- 
ernment for  that  small  portion  of  our  debt 
which  it  was  compelled  to  entail  on  poster- 
ity.* It  is  to  the  honor  of  William's  ad- 
ministration, and  of  his  Parliaments,  not 
always  clear-sighted,  but  honest  and  zealous 
for  the  public  weal,  that  they  deviated  so 
little  from  the  praiseworthy,  though  some- 
times impracticable,  policy  of  providing  a 
revenue  commensurate  with  the  annual  ex- 
penditure. The  supplies  annually  raised 
*  The  debt  at  the  king's  death  amounted  to 
£16,394,702,  of  which  above  three  millions  were 
to  expire  in  1710. — Sinclair's  Hist,  of  Revenue,  i., 
425  {third  edition). 

Of  this  sum,  £664,263  was  incuired  before  the 
Revolution,  being  a  part  of  the  money  of  which 
Charles  II.  had  robbed  the  public  creditor  by  shut- 
ting up  the  Exchequer.  Interest  was  paid  upon 
this  down  to  1683,  when  the  king  stopped  it.  The 
i  Legislature  ought  undoubtedly  to  have  done  just- 
ice more  effectually  and  speedilj-  than  by  passing 
an  act  in  1699,  which  was  not  to  take  effect  till 
December  25,  1705 ;  from  wliich  time  the  excise 
was  charged  with  three  per  cent,  interest  on  the 
principal  sum  of  £1,328,526,  subject  to  be  redeemed 
by  payment  of  a  moiety.  No  compensation  was 
given  for  the  loss  of  so  many  years'  interest. — 12 
&  13  W.  III.,  c.  12,  §  15.  Sinclair,  i.,  397.  State 
Trials,  xiv.,  1,  et  post.  According  to  a  particular 
!  Statement  in  Somers  Tracts,  xii.,  383,  the  receipts 
j  of  the  Exchequer,  including  loans,  during  the 
whole  reign  of  William,  amounted  to  rather  more 
than  £72,000,000.  The  author  of  the  Letter  to  the 
Rev.  T.  Carte,  in  answer  to  the  latter's  Letter  to 
a  By  stander,  estimates  the  sums  raised  under 
Charles  II.,  from  Christmas,  1660,  to  Christmas, 
1684,  at  £46,233,923.  Carte  had  made  them  only 
£32,474,265.  But  his  estimate  is  evidently  false 
and  deceptive.  Both  reckon  the  gross  produce, 
not  the  Exchequer  payments.  This  controversy 
was  about  the  year  1742.  According  to  Sinclair, 
Hist,  of  Revenue,  i.,  309,  Carte  had  the  last  word; 
but  I  can  not  conceive  liow  he  answered  the 
above-mentioned  letter  to  him.  Whatever  might 
be  the  relative  expenditure  of  the  two  reigns,  it  is 
evident  that  the  war  of  1689  was  brought  on  in  a 
great  measure  by  the  conupt  policy  of  Charles  II. 


566 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XT. 


duriug  the  war  were  about  five  millions, 
more  than  double  the  revenue  of  James  II. 
But  a  great  decline  took  place  in  the  prod- 
uce of  the  taxes  by  which  that  revenue 
was  levied.  In  ]  693,  the  customs  had 
dwindled  to  less  than  half  their  amount 
before  the  Revolution,  the  excise  duties 
to  little  more  than  half.*  This  rendered 
heavy  impositions  on  land  inevitaljje  ;  a  tax 
always  obnoxious,  and  keeping  up  disaffec- 
tion in  the  most  poweiful  class  of  the  com- 
munity. The  first  land-tax  was  imposed  in 
1G90,  at  the  rate  of  three  shiUings  in  the 
pound  on  the  rental;  and  it  continued  ever 
afterward  to  be  annually  granted,  at  differ- 
ent rates,  but  commonly  at  four  shillings 
in  the  pound,  till  it  was  made  perpetual  in 
1798.  A  tax  of  twenty  per  cent,  might 
well  seem  gi'ievous  ;  and  the  notorious  in- 
equality of  the  assessment  in  different  coun- 
ties tended  rather  to  aggravate  the  burden 
upon  those  whose  contribution  was  the 
fairest.  Fresh  schemes  of  finance  were 
devised,  and,  on  the  whole,  patiently  borne 
by  a  jaded  people.  The  Bank  of  England 
rose  under  the  auspices  of  the  Whig  party, 
and  mateiially  relieved  the  immediate  exi- 
gencies of  the  government,  while  it  pal- 
liated the  general  distress,  by  discounting 
bills  and  lending  monej-  at  an  easier  rate  of 
interest ;  yet  its  notes  were  depreciated 
by  twenty  per  cent,  in  exchange  for  silver ; 
and  Exchequer  tallies  at  least  twice  as 
much,  till  they  wei'e  funded  at  an  interest 
of  eight  per  cent.f  But,  these  resources 
generally  falling  veiy  short  of  calculation, 
and  being  anticipated  at  such  an  exorbitant 
discount,  a  constantly  increasing  deficiency 
arose,  and  public  credit  sunk  so  low,  that 
about  the  year  1696  it  was  hardly  possible 
to  pay  the  fleet  and  army  from  month  to 
month,  and  a  toteil  bankruptcy  seemed  near 
at  hand.  These  distresses  again  were  en- 
hanced by  the  depreciation  of  the  chculat- 
ing  coin,  and  by  the  bold  remedy  of  re- 
coinage,  which  made  the  immediate  stagna- 

*  Davenant,  Essay  on  Waj-s  and  Means.  In 
another  of  his  tracts,  vol.  ii.,  266,  edit.  1771,  this 
writer  computes  the  payments  of  the  state  in  16iS 
at  one  shilling  in  the  pound  of  the  national  income, 
but  after  the  war  at  two  shillings  and  sixpence. 

t  Godfrey's  Short  Account  of  Bank  of  Ensland, 
in  Somers  Tracts,  xi.,  5.  Kennet's  complete  Hist., 
iii.,  723.  Ralph,  681.  Shrewsburj-  Papers.  Mac- 
pherson's  Annals  of  Commerce,  A.D.  1C97.  Sin- 
clair's Hist,  of  Revenue. 


j  tion  of  conmierce  more  complete.  The 
I  mere  operation  of  exchanging  the  worn  sil- 
I  ver  coin  for  the  new,  which  Mr.  3Ion- 
I  tague  had  the  courage  to  do  without  low- 
I  ering  the  standard,  cost  the  government 
;  two  millions  and  a  half.    Certainly  the 
vessel  of  our  Commonwealth  has  never 
j  been  so  close  to  shipwreck  as  in  this  peri- 
od ;  we  have  seen  the  storm  raging  in  still 
greater  terror  round  our  heads,  but  with 
far  stouter  planks  and  tougher  cables  to 
confront  and  ride  through  it. 

Those  who  accused  William  of  neglecting 
the  maritime  force  of  England  knew  little 
what  they  said,  or  cared  little  about  its 
truth.*    A  soldier  and  a  native  of  Holland, 
j  he  naturally  looked  to  the  Spanish  Nether- 
lands as  the  theater  on  which  the  battle  of 
France  and  Europe  was  to  be  fought.  It 
j  was  by  the  possession  of  that  country  and 
its  chief  fortresses  that  Louis  aspired  to  hold 
j  Holland  in  vassalage,  to  menace  the  coasts 
j  of  England,  and  to  keep  the  Empire  under 
his  influence ;  and  if,  with  the  assistance  of 
those  brave  regiments,  who  learned,  in  the 
well-contested  though  unfortunate  battles  of 
that  war,  the  skill  and  discipline  which  made 
them  conquerors  in  the  next,  it  was  found 
that  France  was  stUl  an  overmatch  for  the 
,  allies,  what  would  have  been  eft'ected  ai^aiust 
j  her  by  the  decrepitude  of  Spain,  the  per- 
I  verse  pride  of  Austria,  and  the  selfish  dis- 
I  union  of  Germany  ?    The  commerce  of 
!  France  might,  perhaps,  have  suflTered  more 
by  an  exclusively  maritime  warfare  ;  but  we 
should  have  obtained  this  advantage,  which 

*  "  Nor  is  it  true  that  the  sea  was  neglected  ; 
for  I  think  during  much  the  greater  part  of  the 

i  wai'  which  began  in  1689  we  were  entirely  mas- 
ters of  the  sea,  by  our  victory  in  1692,  which  was 
only  three  years  after  it  broke  out,  so  that  for  sev- 

I  en  years  we  carried  the  hroom  ;  and  for  any  neg- 
lect of  our  sea  affairs  otherwise,  I  believe,  I  may 
in  a  few  words  prove  that  all  the  princes  since  the 
Conquest  never  made  so  remarkable  an  improve- 
ment to  our  naval  strength  as  King  William.  He 
(Swift)  should  have  been  told,  if  he  did  not  know, 
what  havoc  the  Dutch  had  made  of  our  shipping  in 
King  Charles  the  Second's  reign ;  and  that  his 
successor.  King  James  the  Second,  had  not  in  his 
whole  navy,  fitted  out  to  defeat  the  designed  in- 
vasion of  the  Prince  of  Orange,  an  individual  ship 
of  the  first  or  second  rank,  which  all  lay  neglected, 
and  mere  skeletons  of  former  services,  at  their 
moorings.  These  this  abused  prince  repaired  at 
an  immense  charge,  and  brought  them  to  their 
pristine  magnificence." — Answer  to  Swift's  Con- 
duct of  the  Allies,  in  Somers  Tracts,  siii.,  2-17. 


Will.  III.] 


FROM  HENHY  V: 


II.  TO  GEOEGE  II. 


567 


in  itself  is  none,  and  would  not  have  essen- 
tially crippled  her  force,  at  the  price  of 
abandoning  to  her  ambition  the  quarry  it  had 
so  long  in  pursuit.  Meanwhile,  the  naval 
unnnis  of  this  war  added  much  to  our  re- 
nown ;  Russell,  glorious  in  his  own  despite 
at  La  Hogue,  Rooke,  and  Shovel  ke])t  up 
the  honor  of  the  English  flag.  After  that 
great  victory,  the  enemy  never  encountered 
us  in  battle  ;  and  the  wintering  of  the  fleet 
at  Cadiz  in  1694,  a  measure  determined  on 
by  William's  energetic  mind,  against  the  ad- 
vice of  his  ministers,  and  in  spite  of  the  fret- 
ful insolence  of  the  admiral,  gave  us  so  de- 
cided a  pre-eminence  both  in  the  Atlantic 
and  Mediterranean  Seas,  that  it  is  hard  to 
say  what  more  could  have  been  achieved  by 
the  most  exclusive  attention  to  the  navy.* 
It  is  true  that,  especially  during  the  first 
part  of  the  war,  vast  losses  were  sustained 
through  the  capture  of  merchant  ships  ;  but 
this  is  the  inevitable  lot  of  a  coaunercial 
country,  and  has  occurred  in  every  war, 
until  the  practice  of  placing  the  traders 
under  convoy  of  aj-med  ships  was  intro- 
duced ;  and,  when  we  consider  the  treach- 
eiy  which  pervaded  this  service  and  the 
great  facility  of  secret  intelligence  which  the 
enemy  possessed,  we  may  be  astonished  that 
our  failures  and  losses  were  not  still  more 
decisive. 

The  treaty  of  Ryswick  was  concluded  on 
Treaty  of  at  least  as  fair  terms  as  almost  per- 
Ryswick.  pgtu;ii  ill  fortune  could  warrant  us 
to  expect.  It  compelled  Louis  XIV.  to 
recognize  the  king's  title,  and  thus  both 
humbled  the  court  of  St.  Germain's,  and  put 
an  end  for  several  years  to  its  intrigues«  It 
extinguished,  or,  rather,  the  war  itself  had 
extinguished,  one  of  the  bold  hopes  of  the 
French  court,  the  scheme  of  ])rocuring  the 
election  of  the  dauphin  to  the  Empire.  It 
gave  at  least  a  breathing  time  to  Europe,  so 
long  as  the  feeble  lamp  of  Charles  II. 's  life 

*  Dalnnnple  has  remarked  tlie  important  conse- 
quences of  this  bold  measure  ;  but  we  have  learn- 
ed only  by  the  publittation  of  Lord  Shrevrsbury's 
Con'espondence  that  it  originated  with  the  king, 
and  was  carried  through  by  him  against  the  muti- 
nous remonstrances  of  Russell. — See  p.  68, 104,  202, 
210,  234.  This  was  a  most  odious  man;  as  ill- 
tempered  and  violent  as  he  was  perfdious.  But 
the  rudeness  with  which  the  king  was  treated  by 
Bome  of  his  servants  is-  very  remarkable.  Lord 
Sunderland  wrote  to  liira  at  least  with  great  blunt- 
negs.    Hardwicke  Papers,  444. 


should  continue  to  glimmer,  during  which 
the  fate  of  his  vast  succession  might  possi- 
bly be  regulated  without  injury  to  the  lib- 
erties of  Europe.*  But  to  those  who  looked 
with  the  king's  eyes  on  the  prospects  of 
the  Continent,  this  pacification  could  appear 
nothing  else  than  a  preliminary  armistice  of 
vigilance  and  preparation.  He  knew  that 
the  Spanish  dominions,  or,  at  least,  as  large 
a  portion  of  them  as  could  be  grasped  by  a 
powerful  arm,  had  been  for  more  than  thirty 
j'ears  the  object  of  Louis  XIV.  The  acqui- 
sitions of  that  monarch  at  Aix  la  Chapelle  and 
Nimeguen  had  been  comparatively  trifling, 
and  seem  hardly  enough  to  justify  the  dread 
that  Europe  felt  of  his  aggressions.  But  in 
contenting  himself  for  the  time  with  a  few 
strong  towns,  or  a  moderate  district,  he  con- 
stantly kept  in  view  the  weakness  of  the 
King  of  Spain's  constitution.  The  queen's 
renunciation  of  her  right  of  succession  was 
invalid  in  the  jurisprudence  of  his  court. 
Sovereigns,  accoi-ding  to  the  public  law  of 
France,  uncontrollable  by  the  rights  of  oth- 
ers, were  incapable  of  limiting  their  own. 
They  might  do  all  things  but  guaranty  the 
pi'ivileges  of  their  subjects  or  the  independ- 
ence of  foreign  states.  By  the  Queen  of 
France's  death,  her  claim  upon  the  inlierit- 
ance  of  Spain  had  devolved  upon  the  dau- 
phin ;  so  that  ultimately,  and  viitually  in  the 
first  instance,  the  two  great  monarchies 
would  be  consolidated,  and  a  single  will 
would  direct  a  force  much  more  than  equal 
to  all  the  rest  of  Europe.    If  we  admit  that 

*  The  peace  of  Rj  swick  was  absolutely  neces- 
sary, not  only  on  account  of  the  defection  of  the 
Duke  of  Savoy,  and  the  manifest  disadvantage 
with  which  the  allies  earned  on  the  war,  but  be- 
cause public  credit  in  England  was  almost  annihi- 
lated, and  it  was  hardly  possible  to  pay  the  army. 
The  extreme  distress  for  money  is  forcibly  dis- 
placed in  some  of  the  king's  letters  to  Lord  Shrews- 
bury.—P.  114,  &c.  These  were  in  1C90,  the  very 
nadir  of  English  prosperity;  from  which,  by  the 
favor  of  Providence  and  the  buoyant  energies  of  the 
nation,  we  have,  though  not  quite  with  a  uniform 
motion,  culminated  to  our  present  height  (1824). 

If  the  treaty  could  have  been  concluded  on  the 
basis  originally  laid  down,  it  would  even  have 
been  honorable.  But  the  French  rose  in  their 
terms  during  their  negotiation ;  and  through  the 
selfishness  of  Austiia  obtained  Strasburg,  whicli 
they  had  at  first  offered  to  relinquish,  and  were 
very  near  getting  Luxemburg. — Shrewsbury  Cor- 
respondence, 316,  &c.  Still  the  teiras  were  better 
than  those  offered  in  1G93,  which  William  has 
been  censured  for  refusing. 


068 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV, 


pveiy  little  oscillation  in  the  balance  of  power 
has  sometimes  been  too  minutely  regarded 
by  E  nglish  statesmen,  it  would  be  absurd  to 
contend  that  such  a  subversion  of  it  as  the 
union  of  France  and  Spain  under  one  head 
did  not  most  seriously  threaten  both  the  in- 
dependence of  England  and  Holland. 

The  House  of  Commons  which  sat  at  the 
,  ,       ,  conclusion  of  the  treaty  of  B.ys- 

Jealousy  of 

the  Com-  wick,  chiefly  composed  of  Whigs, 
and  having  zealously  co-operated 
in  the  prosecution  of  the  late  war,  could  not 
be  supposed  lukewarm  in  the  cause  of  lib- 
erty, or  indifferent  to  the  aggi-andizement  of 
France  ;  but  the  nation's  exhausted  state 
seemed  to  demand  an  intermission  of  its  bur- 
dens, and  revived  the  natural  and  laudable 
disposition  to  frugality  which  had  character- 
ized in  all  former  times  an  English  Parlia- 
ment. The  aiTears  of  the  war,  joined  to 
loans  raade  during  its  progi-ess,  left  a  debt 
of  about  seventeen  millions,  which  excited 
much  inquietude,  and  evidently  could  not  be 
discharged  but  by  steady  retrenchment  and 
uninterrupted  peace.  But,  besides  this,  a 
reluctance  to  see  a  standing  army  established 
prevailed  among  the  great  majority  both  of 
Whigs  and  Tories.  It  was  unknown  to 
their  ancestors — this  was  enough  for  one 
party  ;  it  was  dangerous  to  liberty — ^this 
alarmed  the  other.  Men  of  ability  and  hon- 
est intention,  but,  like  most  speculative  pol- 
iticians of  the  sixteenth  and  seventeenth  cen- 
turies, rather  too  fond  of  seeking  analogies 
in  ancient  histoiy,  influenced  the  public 
opinion  by  their  writings,  and  carried  too 
far  the  undeniable  tnith,  that  a  large  army 
at  the  mere  control  of  an  ambitious  prince 
may  often  overthrow  the  liberties  of  a  peo- 
ple.* It  was  not  sufficiently  remembered 
that  the  Bill  of  Rights,  the  annual  mutiny 
bill,  the  necessity  of  annual  votes  of  supply 
for  the  maintenance  of  a  regular  army,  be- 
sides, what  was  far  more  than  all,  the  pub- 
licity of  all  acts  of  government,  and  the 
strong  spirit  of  liberty  burning  in  the  people, 
had  materially  diminished  a  danger  which 
it  would  not  be  safe  entirely  to  contemn. 


*  Moyle  now  published  his  "  Ar^meut,  show- 
ing that  a  standing  army  is  inconsistent  with  a 
free  government,  and  absolutely  destructive  to 
the  constitution  of  the  Enghsh  monarchy''  (State 
Tracts,  temp.  W.  III.,  ii.,  564) ;  and  Trenchard  his 
Histoi-y  of  Standing  Armies  in  England. — Id.,  563. 
Other  pamphlets  of  a  similar  description  may  be 
Ibund  in  the  same  volume. 


Such,  however,  was  the  influence  of  what 
may  be  called  the  constitutional  an- 
tipathy  of  the  English  in  that  age 
to  a  regular  army,  that  the  Commons,  in  the 
first  session  after  the  peace,  voted  that  all 
troops  raised  since  1G80  should  be  disband- 
ed, reducing  the  forces  to  about  7000  men, 
which  they  were  with  difficulty  prevailed 
upon  to  augment  to  10,000.*  They  resolved 
at  the  same  time  that,  "  in  a  just  sense  and 
acknowledgment  of  what  great  things  his 
majesty  has  done  for  these  kingdoms,  a  sum 
not  exceeding  .£700,000  be  granted  to  his 
majesty  during  his  life  fw  the  support  of  the 
civil  list."  So  ample  a  gift  from  an  impov- 
erished nation  is  the  strongest  testinwny  of 
their  affection  to  the  king.f  But  he  was 
justly  disappointed  by  the  former  vote, 
which,  in  the  hazardous  condition  of  Eu- 
rope, prevented  this  country  from  wearing 
a  countenance  of  preparation,  nwre  likely 
to  avert  than  to  bring  on  a  second  conflict. 
He  permitted  himself,  however,  to  carry 
this  resentment  too  far,  and  lost  sight  of  that 
subordination  to  the  law  which  is  the  duty 
of  an  English  sovereign,  when  he  evaded 
compliance  with  this  resolution  of  the  Com- 
mons, and  took  on  himself  the  unconstitu- 
tional responsibility  of  leaving  sealed  orders, 
when  he  went  to  Holland,  that  16,000  men 
should  be  kept  up,  without  the  knowledge 
of  his  ministers,  which  they  as  unconstitu- 
tionally obeyed.  In  the  next  session,  a  new- 
Parliament  having  been  elected,  full  of  men 
strongly  imbued  with  what  the  courtiers 
styled  Commonwealth  principles,  or  an  ex- 
treme jealousy  of  royal  power,t  it  was  found 


*  Journals,  11th  of  Dec,  1697.    Pari.  Hist,  1167. 

t  Jonmals,  iUi  of  Dec.,  1697.  ParL  Hist.,  v, 
1168.    It  was  carried  by  225  to  86. 

X  "The  elections  fell  generally,"  says  Burnet, 
"  on  men  who  were  in  the  interest  of  government ; 
manv  of  them  had  indeed  some  popular  notions, 
which  they  had  drank  in  under  a  bad  government, 
and  thought  this  ought  to  keep  them  under  a  good 
one ;  so  that  those  who  wished  well  to  the  public 
did  apprehend  great  difficulties  in  managing  them." 
Upon  which  Speaker  Onslow  has  a  verj-  proper 
note  :  "  They  might  happen  to  think,"  he  says,  "  a 
good  one  might  become  a  bad  one,  or  a  bad  one 
might  succeed  to  a  good  one.  They  were  the  best 
men  of  the  age,  and  were  for  maintaining  the  rev- 
olution  government  by  its  own  principles,  and  not 
bj-  those  of  a  government  it  had  superseded." 
"  The  elections,"  we  read  in  a  letter  of  Mr.  Mon- 
tague, Aug.,  1698,  "have  made  a  humor  appear 
in  the  counties  that  it  is  not  very  comfortable  to 
us  who  are  in  business.    But  yet,  after  all,  the 


Will.  III.] 


PROM  HENRY  VII.  TO  GEORGE  II. 


569 


impossible  to  resist  a  diminution  of  the  ar- 
my to  7000  troops.*  These,  too,  were  voted 
to  be  natives  of  the  British  dominions  ;  and 
the  king  incurred  the  severest  mortificatioa 
of  liis  reign  in  the  necessity  of  sending  baci< 
liis  regiments  of  Dutch  guards  and  French 
refugees.  The  messages  which  ])assed  be- 
tween him  and  the  Parhanient  bear  witness 
how  deeply  he  felt,  and  how  fruitlessly  he 
deprecated,  this  act  of  unkindness  and  in- 
gratitude, so  strikingly  in  contrast  with  the 
deference  that  Parliament  has  generally 
shown  to  the  humors  and  prejudices  of  the 
crown  in  matters  of  fiir  higher  moment.f 
The  foreign  troops  were  too  numerous,  and 
it  would  have  been  politic  to  conciliate  the 
nationality  of  the  multitude  by  reducing 
their  number;  yet  they  had  claims  which  a 
gi'ateful  and  generous  people  should  not 
have  forgotten  :  they  were,  many  of  them, 
the  chivalry  of  Protestantisu),  the  Huguenot 
gentleman  who  had  lost  all  but  their  swords 
in  a  cause  which  we  deemed  our  own  ;  they 
were  the  men  who  had  terrified  James  from 
Whitehall,  and  brought  about  a  deliverance, 
which,  to  speak  plainly,  we  had  neither 
sense  nor  courage  to  achieve  for  ourselves, 
or  which,  at  least,  we  could  never  have 
achieved  without  enduring  the  convulsive 
throes  of  anarchy. 

There  is,  if  not  more  apology  for  the  con- 
irish  forfeit-  Avict  of  the  Commons,  yet  more 
uros  resumed,  to  censure  on  the  king's  side,  in 
another  scene  of  humiliation  whicli  he  pa.'^s- 

present  mombcrs  are  such  as  will  neither  hurt 
England  nor  this  government,  but  I  believe  they 
mast  be  handled  very  nicely." — Shrewsbury  Cor- 
respondence, 551.  This  Parliament,  however,  fell 
into  a  great  mistake  about  the  reduction  of  the  ar- 
ray, as  Bolingbroke  in  liis  Letters  on  History  very 
candidly  admits,  though  connected  with  those  who 
liad  voted  for  it. 

•  Journals,  17th  of  December,  1698.  Pari.  Hist., 
1191. 

t  Journals,  10th  of  Jan.,  18th,  20th,  and  25th  of 
March.  Lords'  Jounials,  8th  of  Feb.  Pari.  Hist., 
1167,  1191.  Ralph,  808.  Burnet,  219.  It  is  now 
beyond  doubt  that  William  had  serious  thoughts 
of  quitting  the  government,  and  retiring  to  Hol- 
land, sick  of  the  faction  and  ingi-atitude  of  this  na- 
tion.— Shrewsbury  Correspondence,  571.  Hard- 
wicke  Papers,  3C2.  This  was  in  his  character, 
and  not  like  the  vulgar  storj-  which  that  retailer 
of  all  gossip,  Dali-ymple,  calls  a  well-authenticated 
tradition,  that  the  king  walked  furiously  round  his 
room,  exclaiming,  "  If  I  had  a  son,  by  G — ,  the 
guards  should  not  leave  me."  It  would  be  vain  to 
ask  how  this  son  would  have  enabled  him  to  keep 
them  against  the  bent  of  the  Parliament  and  people. 


ed  through,  in  the  business  of  the  Irish  for- 
feitures. These  confiscations  of  the  pi'op- 
erty  of  those  who  had  fought  on  the  side 
of  James,  though,  in  a  legal  sense,  at  the 
crown's  disposal,  ought  undoubtedly  to  have 
been  applied  to  the  public  service.  It  was 
the  intention  of  Parliament  that  two  thirds 
at  least  of  these  estates  should  be  sold  for 
that  purpose  ;  and  William  had,  in  answer 
to  an  addi'ess  (Jan.,  1690),  promised  to  make 
no  grant  of  them  till  the  matter  should  be 
considered  in  the  ensuing  session.  Several 
bills  were  brought  in  to  carry  the  original 
resolutions  into  effect,  but,  probably  through 
the  influence  of  government,  they  always 
fell  to  the  ground  in  one  or  other  house  of 
Parliament.  Meanwhile  the  king  granted 
away  the  whole  of  these  forfeitures,  about 
a  million  of  acres,  with  a  culpable  profuse- 
ness,  to  the  enriching  of  his  personal  favor- 
ites, such  as  the  Earl  of  Portland  and  the 
Countess  of  Orkney  ;*  yet,  as  this  had  been 
done  in  the  exercise  of  a  lawful  prerogative, 
it  is  not  easy  to  justify  the  act  of  resumption 
passed  in  1699.  The  precedents  for  re- 
sumption of  grants  were  obsolete,  and  from 
bad  times.  It  was  agreed  on  all  hands  that 
the  royal  domain  is  not  inalienable ;  if  this 
were  a  mischief,  as  could  not,  perhaps,  be 
doubted,  it  was  one  that  the  Legislature  had 
permitted  with  open  eyes  till  there  was 
nothing  left  to  be  alienated.  Acts,  there- 
fore, of  this  kind,  shake  the  general  stability 
of  possession,  and  destroy  that  confidence  in 


*  The  prodigality  of  William  in  grants  to  his  fa- 
vorites was  an  undeniable  reproach  to  his  reign. 
Charles  II.  had,  however,  with  much  greater  pro- 
fuseness,  though  much  less  blamed  for  it,  givea 
away  almost  all  the  crown  lands  in  a  few  years 
after  the  Restoration  ;  and  the  Commons  could  not 
now  be  prevailed  upon  to  shake  those  grants, 
which  was  urged  by  the  court,  in  order  to  defeat 
the  resumption  of  those  in  the  present  reign.  The 
length  of  time  undoubtedly  made  a  considerable 
dift'ereuce.  An  enormous  grant  of  the  crown's  do- 
manial rights  in  North  Wales  to  the  Earl  of  Port- 
land excited  much  clamor  in  1697,  and  produced  a 
speech  from  Mr.  Price,  afterward  a  baron  of  the 
Exchequer,  which  was  much  extolled  for  its  bold- 
ness, not  rather  to  say,  virulence  and  disaffection. 
This  is  printed  in  Pari.  Hist.,  978,  and  many  oth- 
er books.  The  king,  on  an  address  from  the 
House  of  Commons,  revoked  the  grant,  vs-hich,  in- 
deed, was  not  justifiable.  His  answer  on  this  oc- 
casion, it  may  be  here  remarked,  was  by  its  mild- 
ness and  courtesy  a  striking  contrast  to  the  inso- 
lent rudeness  with  which  the  Stuarts,  one  and  all, 
had  invariably  treated  the  House. 


570 


COXSTITUTIOXAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


which  the  practical  sense  of  freedom  con-  ' 
sists,  that  the  absolute  power  of  the  Legis- 1 
lature,  which  in  strictness  is  as  arbitraiy  in 
England  as  in  Persia,  will  be  exercised  in 
consistency  with  justice  and  lenity.    They  ! 
are  also  accompanied  for  the  most  part,  as 
appears  to  have  been  the  case  in  this  in-  j 
stance  of  the  Irish  forfeitures,  with  partial- 
ity and  misrepresentation  as  well  as  vio- 
lence, and  seldom  fail  to  excite  an  odium  far 
more  than  commensurate  to  the  transient ' 
popularity  which  attends  them  at  the  out- 
set.* 

But,  even  if  the  resumption  of  William's 
Irish  grants  could  be  reckoned  defensible, 
there  can  be  no  doubt  that  the  mode  adopt- 
ed by  the  Commons,  of.  tacking,  as  it  was 
called,  the  provisions  for  this  purpose  to  a 
money  bill,  so  as  to  render  it  impossible  for 
the  Lords  even  to  modify  them  without  de- 
priving the  king  of  his  supply,  tended  to 
subvert  the  Constitution  and  annihilate  the 
rights  of  a  co-equal  house  of  Parliament. 
This  most  reprehensible  device,  though  not 
an  unnatural  consequence  of  their  pretended 
right  to  an  exclusive  concern  in  money  bills, 
had  been  employed  in  a  former  instance 
during  this  reign. f  They  were  again  suc- 
cessful on  this  occasion  ;  the  Lords  receded 
from  their  amendments,  and  passed  the  bill 
at  the  king's  desire,  who  perceived  that  the 
fury  of  the  Commons  was  tending  to  a  ter- 
rible convulsion. t  But  the  precedent  was 
infinitely  dangerous  to  their  legislative  pow- 
er. If  the  Commons,  after  some  more  at- 
tempts of  the  same  nature,  desisted  from 
so  unjust  an  encroachment,  it  must  be  at- 
tributed to  that  which  has  been  the  gieat 
preservative  of  the  equilibrium  in  our  gov- 
ernment, the  public  voice  of  a  reflecting  peo- 
ple, averse  to  manifest  innovation,  and  soon 
offended  by  the  intemperance  of  factions. 

The  essential  change  which  the  fall  of  the 
Parliament-  dynasty  had  \^TOught  in  our 
ary  inqui-  Constitution  displayed  itself  in 
such  a  vigorous  spirit  of  inquiry 
and  interference  of  Parliament  with  all  the 
course  of  government  as,  if  not  absolutely 


•  Pari.  Hist.,  1171,  1202,  &c.  Ralph,  Bumet, 
Slirewsbuiy  Correspondeuce.  See,  also,  Dave- 
iiant's  Essay  on  Grants  and  Resumptions,  and  sun- 
dry- pamplilets  in  Somers  Tracts,  vol.  ii.,  and  State 
Tracts,  temp.  W.  IH.,  vol.  ii. 

t  In  Feb.,  1692. 

t  See  the  same  authorities,  especially  the 
Sbrewsburj'  Letters,  p.  602. 


new,  was  more  uncontested  and  more  effect- 
ual than  before  the  Revolution.  The  Com- 
mons, indeed,  under  Charles  II.  had  not 
wholly  lost  sight  of  the  precedents  which 
the  Long  Parliament  had  established  for 
them,  though  with  continual  resistance  from 
the  court,  in  which  their  right  of  examina- 
tion was  by  no  means  admitted  ;  but  the 
Tories  throughout  the  reign  of  William 
evinced  a  departure  from  the  ancient  prin- 
ciples of  their  faction  in  nothing  more  than 
in  asserting  to  the  fullest  extent  the  powers 
and  privileges  of  the  Commons ;  and,  in  the 
coalition  they  formed  with  the  malcontent 
Whigs,  if  the  men  of  libertj'  adoj^ted  the 
nickname  of  the  men  of  prerogative,  the 
latter  did  not  less  take  up  the  maxims  and 
feelings  of  the  former.  The  bad  success 
and  suspected  management  of  public  affairs 
co-operated  with  the  strong  spirit  of  party 
to  establish  this  important  accession  of  au- 
thoritj-  to  the  House  of  Commons.  In  June, 
1689,  a  special  committee  was  appointed  to 
inquire  into  the  miscarriages  of  the  war  in 
Ii'eland,  especially  as  to  the  delay  in  reliev- 
ing Londonderry.  A  similar  committee 
was  appointed  in  the  Lords.  The  former 
reported  severely  against  Colonel  Lundy, 
governor  of  that  city ;  and  the  House  ad- 
dressed the  king,  that  he  might  be  sent  over 
to  be  tried  for  the  treasons  laid  to  his  charge.* 
I  do  not  think  there  is  any  earlier  precedent 
in  the  Journals  for  so  specific  an  inquity  into 
the  conduct  of  a  public  officer,  especially 
one  in  military  command.  It  inarks,  there- 
fore, very  distinctly  the  change  of  spirit 
which  I  have  so  frequently  mentioned.  No 
courtier  has  ever  since  ventured  to  deny 
this  general  right  of  inquiry,  though  it  is  a 
frequent  practice  to  elude  it.  The  right  to 
inquire  draws  with  it  the  necessary  means, 
the  examination  of  witnesses,  records,  j5a- 
pers,  enforced  by  the  strong  ann  of  Parlia- 
mentary privilege.  In  one  respect  alone 
these  powers  have  fallen  rather  short ;  the 
Commons  do  not  administer  an  oath  ;  and 
having  neglected  to  claim  this  authority  in 
the  iiTegular  times  when  they  could  make 
a  privilege  by  a  vote,  they  would  now,  per- 
haps, find  difficulty  in  obtaining  it  by  consent 
of  the  House  of  Peers.  They  renewed 
this  committee  for  inquiring  into  the  mis- 
carriages of  the  war  in  the  next  session,  f 


*  Commons'  Journals,  June  1,  Aug 
t  Id.,  Nov.  1. 


12. 


Will.  Ill  ] 


FROM  HENRY  VII.  TO  GEORGE  II. 


571 


They  went  very  fully  into  the  dispute  be- 
tween the  Board  of  Admiralty  nud  Admiral 
Russell,  after  the  battle  of  La  ilogue  ;*  and 
the  year  after  investigated  the  conduct  of 
his  successors,  Kiligrew  and  Delaval,  in  the 
command  of  the  Channel  fleet. f  They 
went,  in  the  winter  of  1C94,  into  a  very  long 
examination  of  the  admirals  and  the  orders 
issued  by  the  Admiraltj'  during  the  preced- 
ing year ;  and  then  voted  that  the  sending 
the  fleet  to  the  Mediterranean,  and  the  con- 
tinuing it  there  this  winter,  has  been  to  the 
honor  and  interest  of  his  majesty  and  his 
kingdoms. t  But  it  is  hardlj'  worth  while 
to  enumerate  later  instances  of  exercising  a 
right  which  had  become  indisputable,  and, 
even  before  it  rested  on  the  ba.sis  of  prece- 
dent, could  not  reasonably  be  denied  to  those 
who  might  advise,  remonstrate,  and  ii7i- 
peach. 

It  is  not  surprising  that,  after  such  im- 
portant acquisitions  of  power,  the  natural 
spirit  of  encroachment,  or  the  desire  to  dis- 
ti'ess  a  hostile  government,  should  have  led 
to  endeavors,  which  by  their  success  would 
have  drawn  the  executive  administration 
more  directly  into  the  hands  of  Parliament. 
A  proposition  was  made  by  some  peers,  in 
December,  1692,  for  a  conunittee  of  both 
Houses  to  consider  of  the  present  state  of 
the  nation,  and  what  advice  should  be  given 
to  the  king  concerning  it.  This  dangerous 
pi'oject  was  lost  by  48  to  3G,  several  Tories 
and  dissatisfied  Whigs  uniting  in  a  protest 
against  its  rejection. §  The  king  had  in  his 
speech  to  Pai-liament  requested  their  advice 
in  the  most  general  terms ;  and  this  slight 
expression,  though  no  more  than  is  con- 
tained in  the  common  writ  of  summons,  was 
tortured  into  a  pretext  for  so  extraordinary 
a  proposal  as  that  of  a  committee  of  dele- 
gates, or  council  of  state,  which  might  soon 
have  grasped  the  entire  .administration.  It 
was  at  least  a  remedy  so  little  according  to 
precedent,  or  the  analogy  of  our  Constitu- 
tion, that  some  veiy  serious  cause  of  dissat- 
isfaction with  the  conduct  of  affairs  could 
be  its  only  excuse. 


*  Pari.  Hist.,  657.  Dalrjraple.  Commons'  and 
Lords'  Journals. 

t  Pari.  Hist.,  793.  Delaval  aud  Killisrrew  were 
Jacobites,  whom  William  generously  but  impru- 
dently put  into  the  command  of  the  fleet. 

t  Commons'  Journals,  Feb.  27,  1694-5. 

§  Pari.  Hist,  9-11.    Burnet,  105. 


Burnet  has  spoken  with  reprobation  of 
another  scheme  engendered  by  the  same 
spirit  of  inquiry  and  control,  that  of  a  coun- 
cil of  trade,  to  be  nominated  by  Parliament, 
with  powers  for  the  efl'ectual  preservation 
of  the  interests  of  the  merchants.  If  the 
members  of  it  were  intended  to  be  immov- 
able, or  if  the  vacancies  were  to  be  filled  by 
consent  of  Parliament,  this  would,  indeed, 
have  encroached  on  the  prerogative  in  a  far 
more  eminent  degree  than  the  famous  In- 
dia Bill  of  1783,  because  its  operation  would 
have  been  more  extensive  and  more  at 
home  ;  and,  even  if  they  were  only  named 
in  the  first  instance,  as  has  been  usual  in 
Parliamentaiy  commissioners  of  account  or 
inquiry,  it  would  still  be  material  to  ask, 
what  extent  of  power  for  the  preservation 
of  trade  was  to  be  placed  in  their  hands  ? 
The  precise  nature  of  the  scheme  is  not  ex- 
plained by  Burnet ;  but  it  appears  by  the 
Journals  that  this  council  was  to  receive  in- 
formation from  merchants  as  to  the  neces- 
sity of  convoys,  and  send  directions  to  the 
Board  of  Admiralty,  subject  to  the  king's 
control,  to  receive  complaints  and  represent 
the  same  to  the  king,  and  in  many  other 
respects  to  exercise  very  important  and 
anomalous  functions.  They  were  not,  how- 
ever, to  be  members  of  the  House  ;  but 
even  with  this  restriction,  it  was  too  haz- 
ardous a  dep.irture  from  the  general  max- 
ims of  the  Constitution.* 

The  general  unpopularity  of  William's 
administration,  aud  more  pai-ticu-  Treaties  of 
larly  the  reduction  of  the  forces,  partition, 
afford  an  ample  justification  for  the  two 
treaties  of  partition,  which  the  Tory  faction, 
with  scandalous  injustice  and  inconsistency, 
turned  to  his  reproach.  No  one  could  deny 
that  the  aggrandizement  of  France  by  both 
of  these  treaties  was  of  serious  consequence. 
But,  according  to  English  interests,  tlie  first 
object  was  to  secure  the  Spanish  Nether- 
lands fi-om  becoming  provinces  of  that  pow- 
er ;  the  next  to  maintain  the  real  independ- 
ence of  Spain  and  the  Indies.  Italy  was 
but  the  last  in  order ;  and  though  the  pos- 
session of  Naples  and  Sicily,  with  tho  ports 
of  Tuscany,  as  stipulated  in  the  treaty  of 

*  Burnet,  163.  Commons'  Journals,  Jan.  31, 
1695-6.  An  abjuration  of  Kinsr  James's  title  in 
very  strong  terms  was  proposed  as  a  qualificatiou 
for  members  of  this  council;  but  this  was  lost  by 
195  to  188. 


572 


COXSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV 


partition,  would  have  rendered  France  ab-  ' 
solute  mistress  of  that  whole  country  and 
of  the  3IediteiTanean  Sea,  and  essentially 
changed  the  balance  of  Eui-ope,  it  was  yet 
more  tolerable  than  the  acquisition  of  the 
whole  monarchy  in  the  name  of  a  Bourbon  J 
prince,  which  the  opening  of  the  succession 
without  previous  airangement  was  likely  to 
produce.    They  at  least  who  shrunk  from 
the  thought  of  another  war,  and  studiously 
depreciated  the  value  of  Continental  alli- 
ances, were  the  last  who  ought  to  have  ex- 
claimed against  a  treaty  which  had  been 
ratified  as  the  sole  means  of  giving  us  some-  ' 
thing  like  security  without  the  cost  of  fight- 
ing for  it.    Nothing,  therefore,  could  be 
more  unreasonable  than  the  clamor  of  a  : 
Tory  House  of  Commons  in  1701  (for  the 
malcontent  Whigs  were  now  so  consoUdated 
with  the  Tories  as  in  general  to  bear  their 
name)  against  the  partition  ti-eaties :  nothing 
more  unfair  than  the  impeachment  of  the 
four  lords,  Portland,  Ort'ord,  Soraers,  and 
Halifax,  on  that  account.    But  we  must  at 
the  same  time  remark,  that  it  is  more  easy 
to  vindicate  the  partition  treaties  them- 
selves, than  to  reconcile  the  conduct  of  the 
king  and  of  some  others  with  the  principles 
established  in  our  Coustitutioa.  William 
had  taken  these  important  negotiations  whol- 
ly into  his  own  hands,  not  even  communi- 
cating them  to  any  of  his  English  ministers, 
except  Lord  Jersey,  until  his  resolution  was 
finally  settled.    Lord  Somers,  as  chancel- 
lor, had  put  the  great  seal  to  blank  powers, 
as  a  legal  authority  to  the  negotiators,  which 
evidently  could  not  be  valid,  unless  on  the 
dangerous  principle  that  the  seal  is  conclu- 
Bive  against  all  exception.*    He  had  also 
sealed  the  ratification  of  the  ti'eatj-,  though 
not  consulted  upon  it,  and  though  he  seems 
to  have  had  objections  to  some  of  the  tenns ; 
and  in  both  instances  he  set  up  the  king's 
command  as  a  sufficient  defense.    The  ex- 
clusion of  all  those  whom,  whether  called 
pri^■y  or  cabinet  counselors,  the  nation  holds 
responsible  for  its  safety,  from  this  gi-eat  ne- 
gotiation, tended  to  throw  back  the  whole 
executive  government  into  the  single  will 
of  the  sovereign,  and  ought  to  have  exas- 
perated the  House  of  Commons  far  more 

*  See  Speaker  Onslow's  Note  on  Bnrnet  (Osf. 
edit.,  iv.,  468),  and  Lord  Hardwicke's  hint  of  his 
father's  opinion. — Id.,  473.  Bat  see,  also.  Lord 
Somers's  plea  as  to  tliis. — State  Trials,  xiii.,  267. 


than  the  actual  treaties  of  partition,  which 
may  probably  have  been  the  safest  choice 
in  a  most  peiilous  condition  of  Europe. 
The  impeachments,  however,  were  in  most 
respects  so  ill  substantiated  by  proof,  that 
they  have  generally  been  reckoned  a  dis- 
graceful instance  of  party  spirit.* 

The  Whigs,  such  of  them,  at  least,  as 

continued  to  hold  that  name  in  ,  „ 

Improve- 

honor,  soon  forgave  the  mistakes  menu  in  th« 
and  failings  of  their  great  deliver-  under  Wi'u" 
er ;  and,  indeed,  a  high  regard 
for  the  memory  of  William  HL  may  just- 
ly be  reckoned  one  of  the  tests  by  which 
genuine  Whiggism,  as  opposed  both  to  Tory 
and  Republican  principles,  has  always  been 
recognized.  By  the  opposite  party  he  was 
rancorously  hated  ;  and  their  malignant  cal- 
umnies still  sully  the  stream  of  history. f 

*  Pari.  Hist.    State  Trials,  xiv.,  233.    The  let- 
I  ters  of  William,  published  in  the  Hardwicke  State 
J  Papers,  are  both  the  most  aathentic  and  the  most 
satisfactory  explanation  of  his  policy  during  the 
three  momentous  years  that  closed  the  seventeenth 
]  century.    It  is  said,  in  a  note  of  Lord  Hardwicke 
I  on  Burnet  (Oxford  edit.,  iv.,  417)  (from  Lord  Som- 
'  ers's  papers),  that  when  some  of  the  ministers 
;  objected  to  parts  of  the  treaty,  Lord  Portland's 
1  constant  answer  was,  that  nothing  could  be  al- 
I  tared ;  upon  which  one  of  them  said,  if  that  was 
j  the  case,  he  saw  no  reason  why  they  should  be 
!  called  together.    And  it  appears  by  the  Shrews- 
I  bury  Papers,  p.  371,  that  the  duke,  though  secre- 
tary of  state,  and  in  a  manner  prime  minister,  was 
entirely  kept  by  the  king  out  of  the  secret  of  the 
I  negotiations  which  ended  in  the  peace  of  Rys- 
1  wick :  whether,  after  all,  there  remained  some 
I  lurking  distrust  of  his  fidelity,  or  from  whatever 
other  cause  this  took  place,  it  was  very  anomalous 
j  and  unconstitutional.    And  it  must  be  owned,  that 
I  by  this  sort  of  proceeding,  which  could  have  no 
sufficient  apology  but  a  deep  sense  of  the  unwor- 
thiness  of  mankind,  William  brought  on  himself 
'  much  of  that  dislike  which  appears  so  ungrateful 
!  and  unaccountable. 

]  As  to  the  impeachments,  few  have  pretended  to 
j  justify  them  ;  even  Ralph  is  half  ashamed  of  the 
I  party  he  espouses  vrith  so  little  candor  toward 
their  adversaries.  The  scandalous  conduct  of  the 
Tories  in  screening  the  Earl  of  Jersey,  while  they 
,  impeached  the  Whig  lords,  some  of  whom  had 
■  really  borne  no  part  in  a  measure  he  had  promoted, 
I  sufficiently  displays  the  factiousness  of  their  mo- 
!  fives.  —  See  Lord  Haversham's  speech  on  this, 
,  Pari.  Hist.,  1293. 

I  t  Bishop  Fleetwood,  in  a  sermon  preached  in 
I  1703,  says  of  William,  "  whom  all  the  world  of 
friends  and  enemies  knew  how  to  value,  except  a 
feu-  Enelish  urretthes." — Kennet,  640.  Boyer,  in 
i  his  History  of  the  Reign  of  Queen  Anne,  p.  12, 
says  that  the  king  spent  most  of  his  private  for- 
tune, computed  at  no  less  than  two  millions,  in  the 


Will.  III.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


573 


Let  us  leave  such  as  prefer  Charles  I.  to  i 
William  III.  to  the  enjoyment  of  prejudices 
which  are  not  likely  to  be  overcome  by  ar- 
gument; but  it  must  ever  be  an  honor  to 
the  English  crown  that  it  has  been  worn  by 
so  great  a  man.  Compared  with  him,  the 
statesmen  who  surrounded  his  throne,  the 
Sunderlands,  Godolphins,  and  Shrewsburys, 
even  the  Somerses  and  Montagues,  sink 
into  insignificance.  He  was,  in  truth,  too 
gi'eat,  not  for  the  times  wherein  he  was 
called  to  action,  but  for  the  peculiar  condi- 
tion of  a  king  of  England  after  the  Revolu- 
tion ;  and  as  he  was  the  last  sovereign  of 
tliis  country  whose  understanding  and  en- 
ergy of  character  have  been  veiy  distin- 
guished, so  was  he  the  last  who  has  encoun- 
tered the  resistance  of  his  Parliament,  or 
stood  apart  and  undisguised  in  the  mainte- 
nance of  his  own  jirerogative.  His  reign  is, 
no  doubt,  one  of  the  most  important  in  our 
Constitutional  historj-,  both  on  account  of 
its  general  character,  which  I  have  slightly 
sketched,  and  of  those  beneficial  alterations 
in  om-  law  to  which  it  gave  rise.  These 
now  call  for  our  attention. 

The  enormous  duration  of  seventeen 
Bill  for  tri-  5'^<''i'S'  for  which  Charles  H.  pro- 
ennial  Par-  tracted  his  second  Parliament, 
lameuts.  j-jjg  thoughts  of  all  who 

desired  improvements  in  the  Constitution 
toward  some  limitation  on  a  prerogative 
which  had  not  hitherto  been  thus  abused. 
Not  only  the  continuance  of  the  same  House 
of  Commons  during  such  a  period  destroyed 
the  connection  between  the  people  and  their 
representatives,  and  laid  open  the  latter, 
without  responsibility,  to  the  corruption 
which  was  hardly  denied  to  prevail ;  but  the 
privilege  of  exemption  from  civil  process 
made  needy  and  worthless  men  secure 
against  tlieir  creditors,  and  desirous  of  a 
seat  in  Parliament  as  a  complete  safeguard 
to  fraud  and  injustice.  The  term  of  three 
years  api)eared  sufficient  to  establish  a  con- 
trol of  the  electoral  over  the  representative 
body,  without  recurring  to  the  ancient  but 
inconvenient  scheme  of  annual  Parliaments, 
which  men  enamored  of  a  still  more  popu- 
lar form  of  government  than  our  own  were 
eager  to  recommend.  A  bill  for  this  pur- 
pose was  brought  into  the  House  of  Lords 
in  December,  1089,  but  lost  by  the  proroga- 

service  of  the  Eiiirlish  iiation.  I  should  be  glad  to 
have  found  this  vouched  by  better  authority. 


tion.*  It  passed  both  Houses  early  in  1693, 
the  Whigs  generally  supporting,  and  the 
Tories  opposing  it ;  but  on  this,  as  on  many 
other  great  questions  of  this  reign,  the  two 
parties  were  not  so  regularly  arrayed  against 
each  other  as  on  points  of  a  more  personal 
nature. f  To  this  bill  the  king  refused  his 
assent :  an  exercise  of  pi'erogative  which  no 
ordinary  circumstances  can  reconcile  either 
with  prudence  or  with  a  constitutional  ad- 
ministration of  government,  but  which  was 
too  common  in  this  reign.  But  the  Com- 
mons, as  it  was  easy  to  foresee,  did  not 
abandon  so  important  a  measure ;  a  similar 
bill  received  the  royal  assent  in  November, 
1694. t  By  the  Triennial  Bill  it  was  simply 
provided  that  every  Parliament  should  cease 
and  determine  within  three  years  from  its 
meeting.  The  clause  contained  in  the  act 
of  Charles  II.  against  the  intei-mission  of 
Parliaments  for  more  than  three  years  is 
repeated  ;  but  it  was  not  thought  necessary 
to  revive  the  somewhat  violent  and  perhaps 
impracticable  provisions  by  which  the  act 
of  1641  had  secui-ed  their  meeting,  it  being 
evident  that  even  annual  sessions  might  now 
be  relied  upon  as  indispensable  to  the  ma- 
chine of  government. 

This  annual  session  of  Parliament  was 
rendered  necessary,  in  the  first  place,  by 
the  strict  appropriation  of  the  revenue  ac- 
cording to  votes  of  supply.  It  was  secured, 
next,  by  passing  the  Mutiny  Bill,  under 
which  the  army  is  held  together,  and  sub- 
jected to  military  discipline,  for  a  short  term, 
seldom  or  never  exceeding  twelve  months. 
These  are  the  two  effectual  securities  against 
military  power ;  that  no  pay  can  be  issued 
to  the  troops  without  the  previous  authori- 
zation by  the  Commons  in  a  committee  of 
supply,  and  by  both  Houses  in  an  act  of  ap- 
propriation ;  and  that  no  officer  or  soldier 
can  be  punished  for  disobedience,  nor  any 
court-martial  held,  without  the  annual  re- 
enactment  of  the  Mutiny  Bill.  Thus  it  is 
strictly  true  that,  if  the  king  were  not  to 
summon  Parliament  every  year,  his  army 
would  cease  to  have  a  legal  existence,  and 
the  refusal  of  either  House  to  concur  in  the 
Mutiny  Bill  would  at  once  wrest  the  sword 
out  of  his  gi'asp.  By  the  Bill  of  Rights,  it 
is  declared  unlawful  to  keep  any  forces  in 
time  of  peace  without  consent  of  Parlia- 

*  Lords'  Journals.  t  Pari.  Hist.,  754 

t  6  W.  &  M.,  c.  2. 


57^ 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


ment.  This  consent,  by  an  invariable  and 
wholesome  usage,  is  given  only  from  year 
to  year ;  and  its  necessity  may  bo  consid- 
ered, perhaps,  the  most  powerful  of  those 
causes  which  have  ti'ansfeiTcd  so  much  even 
of  the  executive  power  into  the  management 
of  the  two  houses  of  Parliament. 

The  reign  of  William  is  also  distinguish- 
Law  of  ed  by  the  provisions  introduced  into 
treason.  fgj.  j-j^q  security  of  the  sub- 

ject against  iniquitous  condemnations  on 
the  charge  of  high  treason,  and  intended  to 
perfect  those  of  earlier  times,  which  had 
proved  insufficient  against  the  partiality  of 
judges.  But  upon  this  occasion  it  will  be 
necessary  to  take  up  the  history  of  our  con- 
stitutional law  on  this  important  head  from 
the  beginning. 

In  the  earlier  ages  of  our  law,  the  crime 
of  high  treason  appears  to  have  been  of  a 
vague  and  indefinite  nature,  determined  only 
by  such  arbitrary  construction  as  the  cir- 
cumstances of  each  particular  case  might 
suggest.  It  was  held  treason  to  kill  the 
king's  father  or  his  uncle  ;  and  Mortimer 
was  attainted  for  accroaching,  as  it  was 
called,  royal  power ;  that  is,  for  keeping 
the  administration  in  his  own  hands,  though 
without  violence  tovvai-d  the  reigning  prince. 
But  no  people  can  enjoy  a  free  Constitution, 
imless  an  adequate  security  is  furnished  by 
their  laws  against  this  discretion  of  judges 
in  a  matter  so  closely  connected  with  tlie 
mutual  relation  between  the  government 
and  its  subjects.  A  petition  was  according- 
ly presented  to  Edward  III.  by  one  of  the 
best  Parliaments  that  ever  sat,  requesting 
that,  "whereas  the  king's  justices  in  differ- 
ent counties  adjudge  men  indicted  before 
them  to  be  traitors  for  divers  matters  not 
known  by  the  Commons  to  be  treasonable, 
the  king  would,  by  his  council,  and  the  no- 
bles, and  learned  men  (les  grands  et  sages) 
of  the  land,  declare  in  Parliament  what 
should  be  held  for  treason."  The  answer 
to  this  petition  is  in  the  words  of  the  ex- 
i.sting  statute,  which,  as  it  is  by  no  means 
so  prolix  as  it  is  important,  I  shall  place  be- 
fore the  reader's  eyes. 

"  Whereas  divers  opinions  have  been  be- 
Stiitute  of  fore  this  time  in  what  case  trea- 
Edward  III.  ^qj,  shall  be  said,  and  in  what  not ; 
the  king,  at  the  request  of  the  Lords  and 
Commons,  hath  made  a  declaration  in  the 
manner  as  hereafter  followeth ;  that  is  to 


say,  when  a  man  doth  compass  or  imagine 
the  death  of  our  lord  the  king,  of  my  lady 
his  queen,  or  of  their  eldest  .son  and  heir : 
or  if  a  man  do  violate  the  king's  companion 
or  the  king's  eldest  daughter  unmaiTied,  or 
the  wife  of  the  king's  eldest  son  and  heir : 
or  if  a  man  do  levy  war  against  our  lord  the 
king  in  his  realm,  or  be  adherent  to  the 
king's  enemies  in  his  realm,  giving  to  them 
aid  and  comfort  in  the  realm  or  elsewhere, 
and  thereof  be  provably  attainted  of  open 
deed  by  people  of  their  condition  ;  and  if  a 
man  counterfeit  the  king's  gi-eat  or  privy 
seal,  or  his  money ;  and  if  a  man  bring  false 
money  into  this  realm,  counterfeit  to  the 
money  of  England,  as  the  money  called 
Lusheburg,  or  other  like  to  the  said  money 
of  England,  knowing  the  money  to  be  false, 
to  merchandise  or  make  payment  in  deceipt 
of  our  said  lord  the  king  and  of  his  people ; 
and  if  a  man  slay  the  chancellor,  treasurer, 
or  the  king's  justices  of  the  one  bench  or 
the  other,  justices  in  eyre,  or  justices  of 
assize,  and  all  other  justices  assigned  to 
hear  and  determine,  being  in  their  place  do- 
ing their  offices ;  and  it  is  to  be  understood, 
that  in  the  cases  above  rehearsed,  it  ought 
to  be  judged  treason  which  extends  to  our 
lord  the  king  and  his  royal  majesty.  And 
of  such  treason  the  forfeiture  of  the  escheats 
pertaineth  to  our  lord  the  king,  as  well  of 
the  lands  and  tenements  holdea  of  others 
as  of  himself"* 

It  seems  impossible  not  to  observe  that 
the  want  of  distinct  arrangement 

Its  construc- 

natural  to  so  unphilosophical  an  tive  jnterpre 

11.1  1  c  tatioQ. 

age,  and  which  renders  many  oi 
our  old  statutes  very  confused,  is  eminent- 
ly displayed  in  this  strange  conjunction  of 
offenses,  where  to  counterfeit  the  king's 
seal,  which  might  be  for  the  sake  of  private 
fraud,  and  even  his  coin,  which  must  be  so, 
is  ranged  along  with  all  that  really  endan- 
gers the  established  government,  with  con- 
spiracy and  insurrection.  But  this  is  an 
objection  of  little  magnitude,  compared  with 
one  that  arises -out  of  an  omission  in  enu- 
merating the  modes  whereby  treason  could 
be  committed.  In  most  other  offenses,  the 
intention,  however  manifest,  the  contriv- 
ance, however  deliberate,  the  attempt,  how- 
ever casually  rendered  abortive,  form  so 
many  degi'ees  of  malignity,  or  at  least  of 
mischief,  which  the  jurisprudence  of  most 
'  Rot.  Pari.,  ii.,  239.    3  Inst.,  1. 


Will.  Ill  ] 


FROM  HENRY  VII.  TO  GEORGE  II. 


575. 


countrie.'!,  aiKl  none  more,  at  least  former-  | 
ly.  tlinii  EnglntuI,  has  been  accustomed  to  i 
distinguish  from  the  ])erpetrated  action  by 
awarding  an  inferior  punishment,  or  even 
none  at  all.  Nor  is  this  distinction  merely 
founded  on  a  difference  in  the  moral  indig- 
nation with  which  we  are  impelled  to  re- 
gard an  inchoate  and  a  consummate  crime, 
but  is  warranted  by  a  principle  of  reason, 
since  the  penalties  attached  to  the  complet- 
ed offense  spread  their  terror  over  ail  the 
machinations  preparatory  to  it;  and  he  who 
fails  in  his  stroke  has  had  the  murderer's 
fate  as  much  before  his  eyes  as  tVie  more 
dextrous  assassin ;  but  those  who  conspire 
against  the  constituted  government  connect 
in  their  sanguine  hope  the  assurance  of  im- 
pimity  with  the  execution  of  their  crime, 
and  would  justly  deride  the  mockery  of  an 
accusation  which  could  only  be  preferred 
against  them  when  their  banners  were  un- 
furled, and  their  force  arrayed.  It  is  as 
reasonable,  therefore,  as  it  is  conformable 
to  the  usages  of  every  couutiy,  to  place  con- 
spiracies against  the  sovereign  power  upon 
the  footing  of  actual  reijellion,  and  to  crush 
those  by  the  penalties  of  treason  who,  were 
the  law  to  wait  for  their  opportunity,  might 
silence  or  pervert  the  law  itself.  Yet  in 
this  famous  statute  we  find  it  only  declared 
treasonable  to  compass  or  imagine  the  king's 
death,  while  no  project  of  rebellion  appears 
to  fall  within  the  letter  of  its  enactments, 
unless  it  ripen  into  a  substantive  act  of  lev- 
ying war. 

We  may  be,  perhaps,  less  inclined  to  at- 
tribute this  material  omission  to  the  laxity 
which  has  been  already  remarked  to  bo  us- 
ual in  our  older  laws,  than  to  apprehensions 
entertained  by  the  barons  that,  if  a  mere 
design  to  levy  war  should  be  rendered  trea- 
sonable, they  might  be  exposed  to  much  false 
testimony  and  arbitrary  construction ;  but 
strained  constructions  of  this  veiy  statute, 
if  such  were  their  aim,  they  did  not  pre- 
vent. Without  adverting  to  the  more  ex- 
ti'avagant  convictions  under  tliis  statute  in 
some  violent  reigns,  it  gradually  became  an 
established  doctrine  with  lawyers,  that  a 
conspiracy  to  levy  war  against  the  king's 
person,  though  not  in  itself  a  distinct  treas- 
on, may  be  given  in  evidence  as  an  overt 
act  of  compassing  his  death.  Great  as  the 
authorities  may  be  on  which  this  depends, 
and  reasonable  as  it  surely  is  that  such  of- 


fenses should  he  brought  within  the  pale  of 
high  treason,  yet  it  is  almost  necessary  to 
confess  that  this  doctrine  appears  utterly 
irreconcilable  with  any  fair  interpretation 
of  the  statute.  It  has,  indeed,  by  some, 
been  chiefly  confined  to  cases  where  the 
attempt  meditated  is  directly  against  the 
king's  person,  for  the  purpose  of  deposing 
him,  or  of  compelling  him,  while  under  ac- 
tual duress,  to  a  change  of  measures;  and 
this  was  construed  into  a  compassing  of  his 
death,  since  any  such  violence  must  endan- 
ger his  life,  and  because,  as  has  been  said, 
the  prisons  and  graves  of  princes  are  not 
very  distant.*  But  it  seems  not  very  reas- 
onable to  fomid  a  capital  conviction  on  such 
a  sententious  remark;  nor  is  it  by  any 
means  true  that  a  design  against  a  king's 
life  is  necessarily  to  be  inferred  from  the 
attempt  to  get  possession  of  his  person.  So 
far,  indeed,  is  this  from  being  a  general  rule, 
that  in  a  multitude  of  instances,  especially 
during  the  minority  or  imbecility  of  a  king, 
the  purposes  of  conspirators  would  bo  whol- 
ly defeated  by  the  death  of  the  sovereign 
whose  name  they  designed  to  employ.  But 
there  is  still  less  pretext  for  applying  the 
same  construction  to  schemes  of  insurrec- 
tion, when  the  royal  person  is  not  directly 
the  object  of  attack,  and  where  no  circum- 

*  3  last.,  12.  1  Hale's  Pleas  of  the  Crown,  120. 
Foster,  195.  Coke  lays  it  down  positively,  p.  14, 
that  a  conspiracy  to  levy  war  is  not  high  treason, 
as  an  overt  act  of  compassing  the  king's  death. 
"  For  tliis  were  to  confound  the  several  classes  or 
membra  dividentia."  Hale  objects  that  Coke  him- 
self cites  the  case  of  Lords  Essex  and  Southamp- 
ton, which  seems  to  contradict  that  opinion.  But 
it  may  he  answered,  in  the  first  place,  that  a  con- 
spiracy to  levy  war  was  made  high  ti-eason  dm-ing 
tlio  life  of  Elizabeth;  and  secondly,  tliat  Coke's 
words  as  to  that  case  are,  tliat  they  "  intended  to 
go  to  the  court  wliere  the  queen  was,  and  to  have 
taken  her  into  their  power,  and  to  have  removed 
divers  of  her  council,  and  for  thai  end  did  assemble 
a  midlilude  of  people:  this  being  raised  to  the  end 
aforesaid,  was  a  suiBcieut  overt  act  of  compassing 
the  death  of  the  queen."  The  earliest  case  is  that 
of  Storie,  who  was  convicted  of  compassing  the 
queen's  death  on  evidence  of  exciting  a  foreign 
power  to  invade  the  kingdom.  But  he  was  very 
obnoxious ;  and  the  precedent  is  not  good. — Hale, 
122. 

It  is  also  held  that  an  actual  levj-ing  war  may 
he  laid  as  an  overt  act  of  compassing  the  king's 
death,  which  indeed  follows  a  fortiori  from  the  for- 
mer proposition  ;  provided  it  be  not  a  constructive 
rebellion,  but  one  really  directed  against  the  royal 
authority. — Hale,  J  23. 


576 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


stance  indicates  any  hostile  intention  toward 
bis  safety.  This  ample  extension  of  so  pe- 
nal a  statute  was  first  given,  if  I  am  not  mis- 
taken, by  the  judges  in  1663,  on  occasion 
of  a  meeting  by  some  persons  at  Farley 
Wood  in  Yorkshu-e,*  in  order  to  concert 
measures  for  a  rising ;  but  it  was  afterward 
confirmed  in  Harding's  case,  immediately 
after  the  Revolution,  and  has  been  repeat- 
edly laid  down  from  the  bench  in  subsequent 
proceedings  for  treason,  as  well  as  in  treat- 
ises of  very  great  authority. f  It  has,  there- 
fore, all  the  weight  of  established  precedent; 
yet  I  question  whether  another  instance  can 
be  found  in  our  jurisprudence  of  giving  so 
large  a  construction,  not  only  to  a  penal,  but 
to  anj-  other  statute. t  Nor  does  it  speak  in 
favor  of  this  construction  that  temporary 
laws  have  been  enacted  on  various  occasions 
to  render  a  conspiracy  to  levy  war  ti-eason- 
able  ;  for  which  purpose,  according  to  this 
current  doctrine,  the  statute  of  Edward  III. 
needed  no  supplemental  provision.  Such 
acts  were  passed  under  Elizabeth,  Charles 
II.,  and  George  III.,  each  of  them  limited 
to  the  existing  reign. §  But  it  is  veiy  sel- 
dom that,  in  an  hereditary  monarchy,  the 
reigning  prince  ought  to  be  secured  by  any 
peculiar  provisions;  and  though  the  remark- 
*  Hale,  121. 

t  Foster's  Disconrse  on  High  Treason,  196. 
State  Trials,  xii.,  646,  790.  818;  xiii.,  62  (Sir  John 
Friend's  case),  et  alibi.  This  important  question 
having  arisen  on  Lord  Russell's  trial,  gave  rise  to 
a  controversy  between  two  eminent  lawyers,  Sir 
Bartholomew  Shower  and  Sir  Robert  Atkins  ;  the 
former  maintaining,  the  latter  denjing,  that  a  con- 
spiracy to  depose  the  king  and  to  seize  his  guards 
was  an  overt  act  of  compassing  his  death. — State 
Trials,  ix.,  719,  818. 

See,  also,  Phillipps's  State  Trials,  ii.,  39,  78 ;  a 
work  to  which  I  might  have  refeiTed  in  other 
places,  and  which  shows  the  well-known  judgment 
and  impartiality  of  the  author. 

i  In  the  whole  series  of  authorities,  however,  on 
this  subject,  it  will  be  found  that  the  probable  dan- 
ger to  the  king's  safety  from  rebellion  was  the 
ground-work  upon  which  this  constructive  treason 
rested;  nor  did  either  Halo  or  Foster,  Pember- 
ton  or  Holt,  ever  dream  that  any  other  death  was 
intended  by  the  statute  than  that  of  nature.  It 
was  reser\'ed  for  a  modem  crown  lawyer  to  resolve 
this  language  into  a  metaphysical  personification, 
and  to  argue  that  the  king's  person  being  inter- 
woven with  the  state,  and  its  sole  representative, 
any  conspiracy  against  the  Constitution  must  of  its 
own  nature  be  a  conspiracy  against  his  life. — 
State  Trials,  xxiv.,  1183. 

§  13  Eliz.,  c.  1.  13  Car.  XL,  c.  1.  36  Geo.  III., 
c.  7. 


i  able  circumstances  of  Elizabeth's  situation 
I  exposed  her  government  to  unusual  perils, 
j  there  seems  an  air  of  adulation  or  absurdity 
:  in  the  two  latter  instances.    Finally,  the 
'  act  of  57  Geo.  III.,  c.  6,  has  confirmed,  if 
not  extended,  what  stood  on  rather  a  pre- 
I  carious  basis,  and  rendered  perpetual  that 
I  of  3G  Geo.  III.,  c.  7,  which  enacts  "  that, 
'  if  any  person  or  persons  whatsoever,  dur- 
ing the  hfe  of  the  king,  and  until  the  end  of 
1  the  next  session  of  Parliament  after  a  de- 
I  mise  of  the  crown,  shall,  within  the  realm 
or  without,  compass,  imagine,  invent,  de- 
I  vise,  or  intend  death  or  destruction,  or  any 
j  bodily  harm  tending  to  death  or  destruction, 
I  maim  or  wounding,  imprisonment  or  re- 
j  straint  of  the  person  of  the  same  our  sover- 
,  eign  lord  the  king,  his  heirs  and  successors, 
I  or  to  deprive  or  depose  him  or  them  from 
!  the  style,  honor,  or  kingly  name  of  the  im- 
I  perial  crown  of  this  realm,  or  of  any  other 
of  his  majesty's  dominions  or  countries,  or 
to  levy  war  against  his  majesty,  his  heirs 
and  successors,  within  this  realm,  in  order, 
by  force  or  constraint,  to  compel  him  or 
them  to  change  his  or  their  measures  or 
counsels,  or  in  order  to  put  any  force  or 
constraint  upon,  or  to  intimidate  or  over- 
awe, both  Houses,  or  either  house  of  Par- 
liament, or  to  move  or  stir  any  foi'eigner  or 
stranger  with  force  to  invade  this  realm,  or 
any  other  his  majesty's  dominions  or  coun- 
tries under  the  obeisance  of  his  majesty, 
his  heirs  and  successors :  and  such  cona- 
passings,  imaginations,  inventions,  devices, 
and  intentions,  or  any  of  them,  shall  ex- 
press, uttei",  or  declare,  by  publishing  any 
printing  or  writing,  or  by  any  overt  act  or 
deed  ;  being  legally  convicted  thereof  upon 
the  oaths  of  two  lawful  and  credible  wit- 
nesses, shall  be  adjudged  a  traitor,  and  suf- 
fer as  in  cases  of  high  treason." 

This  from  henceforth  will  become  our 
standard  of  law  in  cases  of  treason,  instead 
of  the  statute  of  Edward  HI.,  the  latterly 
received  interpretations  of  which  it  sanc- 
tions and  imbodies.  But  it  is  to  be  noted 
as  the  doctrine  of  our  most  approved  au- 
thorities, that  a  conspiracy  for  many  pur- 
poses which,  if  carried  into  ellect,  would 
incur  the  guilt  of  treason,  will  not  of  itself 
amount  to  it.  The  constructive  interpreta- 
tion of  compassing  the  king's  death  appears 
only  applicable  to  conspiracies,  whereof  the 
intent  is  to  depose  or  to  use  personal  com- 


Will.  UL] 


FROM  HENKY  VII.  TO  GEORGE  II. 


577 


pulsion  toward  him,  or  to  usurp  the  admin- 
istiation  of  his  government.*  But  though 
insurrections  in  order  to  throw  down  all  in- 
cisures, to  alter  the  established  law  or 
change  religion,  or  in  general  for  the  Refor- 
mation of  alleged  grievances  of  a  public  na- 
ture, wherein  the  insurgents  have  no  spe- 
cial interests,  are  in  themselves  treasonable, 
yet  the  previous  concert  and  conspiracy  for 
such  purpose  could,  under  the  statute  of 
Edward  III.,  onlj'  pass  for  a  misdemeanor. 
Hence,  while  it  has  been  positively  laid 
down  that  an  attempt  by  intimidation  and 
violence  to  force  the  repeal  of  a  law  is  high 
treason,!  though  directed  rather  against  the 
two  hou.ses  of  Parliament  than  the  king's 
person,  the  judges  did  not  venture  to  de- 
clare that  a  mere  conspiracy  and  consulta- 
tion to  raise  a  force  for  that  purpose  would 
amount  to  that  offense. t  But  the  statutes 
of  36  and  57  Geo.  III.  determine  the  in- 
tention to  levy  war,  in  order  to  put  any 
force  upon  or  to  intimidate  either  house  of 
Parliament,  manifested  by  an  overt  act,  to 
be  treason,  and  so  far  have  undoubtedly  ex- 
tended the  scope  of  the  law.  We  may  hope 
that  so  ample  a  legislative  declaration  on  the 
law  of  treason  will  put  an  end  to  the  pre- 
posterous interpretations  which  have  found 
too  much  countenance  on  some  not  very 
distant  occasions.  The  crime  of  compass- 
ing and  imagining  the  king's  death  must  be 
manifested  by  some  overt  act ;  that  is,  there 
must  be  something  done  in  execution  of  a 
traitorous  purpose;  for,  as  no  hatred  toward 
the  person  of  the  sovereign,  nor  any  long- 
ings for  his  death,  are  the  imagination  which 
tlie  law  here  intends,  it  seems  to  follow  that 
loose  words  or  writings,  in  which  such  hos- 
tile feelings  may  be  imbodied,  unconnected 
■with  any  positive  design,  can  not  amount  to 
treason.  It  is  now,  therefore,  generally 
agi'eed,  that  no  words  will  constitute  that 
offense,  unless  as  evidence  of  some  overt 
act  of  treason ;  and  the  same  apj)ears  clear- 
ly to  be  the  case  with  respect  at  least  to  un- 
published \\Titings.§ 

»  Hale,  123.    Foster,  213. 
t  Lord  George  Gordon's  case,  State  Trials,  xxi., 
649. 

t  Hardy's  case.  Id.,  xxiv.,  208.  The  language 
of  Chief-justice  Eyre  is  sufficiently  remarkable. 

§  Foster,  190.  He  seems  to  concur  in  Hale's 
opinion,  that  words  which  being  spoken  will  not 
amount  to  an  overt  act  to  make  good  an  indictment 
for  compassing  the  king's  death,  vet  if  reduced  into 
O  o 


The  second  clause  of  the  statute,  or  that 
which  declares  the  levying  of  war  against 
the  king  within  the  realm  to  be  treason,  has 
given  rise,  in  some  instances,  to  construc- 
tions hardly  less  strained  than  those  upon 
compassing  his  death.  It  would,  indeed, 
be  a  veiy  narrow  interpretation,  as  little  re- 
quired by  the  letter  as  warranted  by  the 
reason  of  this  law,  to  limit  the  expression 
of  levying  war  to  rebellions,  whereof  the 
deposition  of  the  sovereign,  or  subversion 
of  his  government,  should  be  the  deliberate 
object.  Force,  unlawfully  directed  against 
the  supreme  authority,  constitutes  this  of- 
fense ;  nor  could  it  have  been  admitted  as 
an  excuse  for  the  wild  attempt  of  the  Earl 
of  Essex,  on  this  charge  of  levying  war,  that 
his  aim  was  not  to  injure  the  queen's  per- 
son, but  to  drive  his  adversaries  from  her 
presence.  The  only  questions  as  to  this 
kind  of  treason  are,  first.  What  shall  be  un- 
derstood by  force  ?  and,  secondly,  Where 
it  shall  be  construed  to  be  directed  against 
the  government  ?  And  the  solution  of  both 
these,  upon  consistent  principles,  must  so 
much  depend  on  the  circumstances  which 
vary  the  character  of  almost  eveiy  case,  that 
it  seems  natural  to  distrust  the  general  max- 
ims that  have  been  delivered  by  lawyers. 
Many  decisions  in  cases  of  treason  before 
the  Revolution  were  made  by  men  so  serv- 
ile and  corrupt,  they  violate  so  grossly  all 
natural  right  and  all  reasonable  interpreta- 
tion of  law,  that  it  has  generally  been  ac- 
counted among  the  most  important  benefits 
of  that  event  to  have  restored  a  jjurer  ad- 
ministration of  criminal  justice.  But,  though 
the  memory  of  those  who  pronounced  these 
decisions  is  stigmatized,  their  authority,  so 
far  from  being  abrogated,  has  influenced 
later  and  better  men ;  and  it  is  rather  an 
unfortunate  circumstance,  that  precedents 
which,  from  the  character  of  the  times  when 
they  occurred,  would  lose  at  present  all  re- 
spect, having  been  transfused  into  text-books, 
and  formed,  perhaps,  the  sole  basis  of  subse- 
quent decisions,  are  still  in  not  a  few  points 

writing,  and  published,  will  make  such  an  overt 
act,  "  if  the  matters  contained  in  them  import  such 
a  compassing." — Hale's  Pleas  of  Crown,  118.  But 
this  is  indefinitely  expressed,  the  words  marked 
as  a  quotation  looking  like  a  truism,  and  contrary 
to  the  first  part  of  the  sentence ;  and  the  case  of 
Williams,  under  James  I.,  which  Hale  cites  in  cor- 
roboration of  this,  will  hardly  be  approved  by  any 
Constitutional  lawyer. 


578 


CON'STITUTIONAL  HISTORY  OF  EXGLA>rD 


[Chap.  XV. 


the  invisible  foundation  of  our  law.  No 
lawyer,  I  conceive,  prosecuting  for  high 
treason  in  this  age.  would  rely  on  the  case 
of  the  Duke  of  Norfolk  under  Elizabeth,  or 
that  of  Williams  under  James  I.,  or  that  of 
Benstead  under  Charles  I. :  but  he  would 
certaiuly  not  fail  to  dwell  on  the  authorities 
of  Sir  Edward  Coke  and  Sir  Matthew  Hale. 
Yet  these  eminent  men,  and  especially  the 
latter,  aware  that  our  law  is  mainly  built 
on  adjudged  precedent,  and  not  daring  to 
reject  that  which  they  would  not  have  them- 
selves asserted,  will  be  found  to  have  rather 
timidly  exercised  their  judgment  in  the  con- 
struction of  this  statute,  yielding  a  defer- 
ence to  former  authority  which  we  have 
transferred  to  their  own. 

These  observations  are  particularly  ap- 
plicable to  that  class  of  cases  so  repugnant 
to  the  general  understanding  of  mankind, 
and,  I  believe,  of  most  lawyers,  wherein 
trifling  insurrections  for  the  purpose  of  de- 
stroying brothels  or  meeting-houses  have 
been  held  treasonable  under  the  clause  of 
levying  war.  Nor  does  there  seem  any 
ground  for  the  defense  which  has  been  made 
for  this  construction,  by  taking  a  distinction, 
that  although  a  rising  to  effect  a  paitial  end 
by  force  is  only  a  riot,  yet,  where  a  general 
purpose  of  the  kind  is  in  view,  it  becomes 
rebellion  ;  and  thus,  though  to  pull  down  the 
inclosures  in  a  single  manor  be  not  treason 
against  the  king,  yet  to  destroy  all  inclosures 
throughout  the  kingdom  would  be  an  in- 
fringement of  his  sovereign  {wwer:  for. 
however  solid  this  distinction  may  be,  yet 
in  the  class  of  cases  to  which  I  allude,  this 
general  purpose  was  neither  attempted  to 
lie  made  out  in  evidence,  nor  rendered  prob- 
able by  the  circumstances  ;  nor  was  the  dis- 
tinction ever  taken  upon  the  several  trials. 
A  few  apprentices  rose  in  London  in  the 
reign  of  Charles  II.,  and  destroyed  some 
brothels.*  A  mob  of  watermen  and  others, 
at  the  time  of  Sacheverell"s  impeachment, 
set  on  fire  several  Dissenting  meeting- 
houses, f    Every  thing  like  a  formal  attack 

*  Hale,  134.  State  Trials,  vu,  879.  It  is  ob- 
servable that  Hale  himself,  as  chief  baron,  differed 
from  the  other  jad^es  in  this  case. 

t  This  is  the  well-kDowD  case  of  Damaree  and 
Parchase.  State  Trials,  it.,  520.  Foster.  -213.  A 
rabble  bad  attended  Sacheverell  from  Westmin- 
ster to  his  lodginffs  in  the  Temple.  Some  among 
Siem  proposed  to  pull  down  the  meeting-booses  : 
a  cry  was  raised,  and  several  of  these  were  de- 


]  on  the  established  government  is  so  much 
excluded  in  these  instances  by  the  very  na- 
ture of  the  offense  and  the  means  of  the  of- 
fenders, that  it  is  impossible  to  withhold  our 
reprobation  from  the  original  decision,  upon 
which,  with  too  much  respect  for  unreason- 
able and  unjust  authority,  the  later  cases 
have  been  established.  These,  indeed,  still 
continue  to  be  cited  as  law :  but  it  i.s  much 
to  be  doubted  whether  a  conviction  for 
treason  will  ever  again  be  obtained,  or  even 
sought  for,  under  similar  circumstances. 
One  reason,  indeed,  for  this,  were  there  no 
weight  in  any  other,  might  suffice  :  the  pun- 
ishment of  tumultuous  risings,  attended  with 
violence,  has  been  rendered  capital  by  the 
riot  act  of  George  I.  and  other  statutes ;  so 
that,  in  the  present  state  of  the  law,  it  is 
generaUy  more  advantageous  for  the  gov- 
ernment to  treat  such  an  offense  as  felony 
than  as  treason. 

It  might  for  a  moment  be  doubted,  T]f>oa 
the  statute  of  Edward  VI.,  whether  the  two 
witnesses  whom  the  act  requires  must  not 
depose  to  the  same  overt  acts  of  treason ;  but 
as  this  would  give  an  undue  security  to  con- 
spirators, so  it  is  not  necessarily  implied  by 
the  expression  ;  nor  would  it  be,  indeed,  the 
most  unwarrantable  latitude  that  has  been 
given  to  this  branch  of  penal  law.  to  main- 
tain that  two  witnesses  to  any  distinct  acts 
comprised  in  the  same  indictment' would 

j  satisfy  the  letter  of  this  enactment.    But  a 
more  wholesome  distinction  appears  to  have 
been  taken  before  the  Revolu-  s.^nteof 
tion,  and  is  established  by  the  ^^'-'am  UL 

I  statute  of  William,  that,  although  different 

I  ■ 

i  stroyed.    It  appeared  to  be  their  intention  to  pnll 

j  down  all  within  their  reach.  Upon  this  overt  act 
of  levying  war  the  prisoners  were  convicted  :  some 
of  the  judges  differing  as  to  one  of  them,  bat  mere- 
ly on  the  application  of  the  evidence  to  his  case. 
Xotwithstanding  this  solemn  decision,  and  the  ap- 
probation with  which  Sir  Michael  Foster  has 

j  stamped  it,  some  difficalty  woald  arise  in  distin- 
guishing this  case,  as  reported,  from  many  indict- 

'  ments  nnder  the  riot  art  for  mere  felony ;  and  es- 
pecially from  those  of  the  Birmingham  rioters  in 

I  1791.  where  the  similarity  of  motives,  tboagfa  the 
mischief  in  the  latter  instance  was  far  more  ex- 
tensive, woold  naturally  have  suggested  the  same 
species  of  prosecution  as  was  adopted  against  Da- 

I  maree  and  Purchase.  It  may  be  remarked  that 
neither  of  these  men  were  executed ;  which,  noC- 
withstanding  the  sarcastic  observation  of  Foster, 
might  possibly  be  owing  to  an  opinion,  which  ev- 
ery one  but  a  1awy-er  most  have  entertained,  that 

:  their  offense  did  not  amount  to  treason. 


Wn.L.  III.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


579 


overt  acts  may  be  proved  by  two  witnesses,  ; 
they  must  relate  to  the  same  species  of  | 
treason,  so  that  one  witness  to  an  alleged  act 
of  compassing  the  king's  death  can  not  be 
conjoined  with  another  deposing  to  an  act 
of  levying  war,  in  order  to  make  up  the  re- 
quired number.*    As  for  the  practice  of 
courts  of  justice  before  the  Restoration,  it 
was  so  much  at  variance  with  all  principles,  | 
that  few  prisoners  were  allowed  the  benefit  ' 
of  this  statute  ;f  succeeding  judges  fortu-  ' 
nately  deviated  more  from  their  predeces-  j 
sors  in  the  method  of  conducting  trials  than  ! 
they  have  thought  themselves  at  liberty  to 
do  in  laying  down  rules  of  law. 

Nothing  had  brought  so  much  disgrace  on 
the  councils  of  government  and  on  the  ad- 
ministration of  justice,  nothing  had  more 
forcibly  spoken  the  necessity  of  a  great  j 
change,  than  the  prosecutions  for  treason  j 
during  the  latter  years  of  Charles  II.,  and,  in  i 
truth,  during  the  whole  course  of  our  legal 
history.  The  statutes  of  Edward  III.  and 
Edward  VI.,  almost  set  aside  by  sophistical 
constructions,  required  the  corroljoration  of 
some  more  explicit  law ;  and  some  peculiar 
securities  were  demanded  for  innocence 
against  that  conspii'acy  of  the  court  with  the 
prosecutor  which  is  so  much  to  be  dreaded 
in  all  ti'ials  for  political  crimes.  Hence  the 
attainders  of  Russell,  Sidney,  Cornish,  and 
Armstrongwere  I'eversedby  the  Convention 
Parliament  without  opposition  ;  and  men  at- 
tached to  liberty  and  justice,  whether  of  the 
Whig  or  Tory  name,  were  anxious  to  pre- 
vent any  future  recurrence  of  those  iniqui- 
tous proceedings,  by  which  the  popular 
frenzy  at  one  time,  the  wickedness  of  the 
court  at  another,  and  in  each  instance  with 
the  co-operation  of  a  servile  bench  of  judges, 
had  sullied  the  honor  of  English  justice.  A 
better  tone  of  political  sentiment  had  begun 
indeed  to  prevail,  and  the  s])irit  of  the  people 
must  ever  be  a  more  effectual  security  than 
the  virtue  of  the  judges ;  yet,  even  after  the 
Revolution,  if  no  unjust  or  illegal  convictions 
in  cases  of  treason  can  be  imputed  to  our 
tribunals,  there  was  still  not  a  little  of  that 
rudeness  toward  the  prisoner,  and  manifes- 
tation of  a  desire  to  interpret  all  things  to 
his  prejudice,  which  had  been  more  gi'ossly 
displayed  by  the  bench  under  Charles  II. 
The  Jacobites,  against  whom  the  law  now 

*  W.  III.,  c.  3,  $  4.  Poster,  257.     t  Foster,  234. 


directed  its  terrors,  as  loudly  complained  of 
Treby  and  Pollexfen,  as  the  Whigs  had  of 
Scroggs  and  Jefferies,  and  weighed  the  con- 
victions of  Ashton  and  Anderton  against 
those  of  Russell  and  Sidney.* 

Ashton  was  a  gentleman,  who,  in  company 
with  Lord  Preston,  was  seized  in  endeav- 
oring to  go  over  to  France  with  an  invita- 
tion from  the  Jacobite  party.  The  cotem- 
porary  writers  on  that  side,  and  some  his- 
torians who  incline  to  it,  have  I'epresented 
his  conviction  as  grounded  upon  insufificient, 
because  only  upon  presumptive,  evidence. 
It  is  true  that  in  most  of  our  earlier  cases 
of  treason,  treasonable  facts  have  been  di- 
rectly proved ;  whereas  it  was  left  to  th© 
juiy  in  that  of  Ashton,  whetlier  they  were 
satisfied  of  his  acquaintance  with  the  con- 
tents of  certain  papers  taken  on  his  person. 
There  does  not,  however,  seem  to  be  any 
reason  why  presumptive  inferences  are  to 
be  rejected  in  charges  of  treason,  or  why 
they  should  bo  drawn  with  more  hesitation 
than  in  other  grave  offenses ;  and  if  this  be 
admitted,  there  can  be  no  doubt  that  the 
evidence  again.st  Ashton  was  such  as  is  or- 
dinarily reckoned  conclusive.  It  is  stronger 
than  that  offered  for  the  prosecution  against 
O'Quigley  at  Maidstone  in  1798,  a  case  of 
the  closest  resemblance  ;  and  yet  I  am  not 
aware  that  the  verdict  in  that  instance  was 
thought  open  to  censure.  No  judge,  how- 
ever, in  modern  times,  would  question,  mucli 
less  rely  upon,  the  prisoner,  as  to  material 
points  of  his  defense,  as  Holt  and  Pollexfen 
did  in  this  trial ;  the  practice  of  a  neighbor- 
ing kingdom,  which,  in  our  more  advanced 
sense  of  equity  and  candor,  we  are  agreed 
to  condemn. f 

It  is,  perhaps,  less  easy  to  justify  the  con- 
duct of  Chief-justice  Treby  in  the  tibial  of 

*  "Would  you  have  trials  secured?"  says  the 
author  of  the  Jacobite  Principles  Vindicated  (Som- 
ers  Tracts,  10,  526).  "  It  is  the  interest  of  all  par- 
ties care  should  be  taken  about  them,  or  all  pai-ties 
will  suffer  in  their  turns.  Plunket,  and  Sidney, 
and  Ashton  were  doubtless  all  murdered,  though 
they  were  never  so  guilty  of  the  crimes  wherewith 
they  were  charged  ;  the  one  tried  twice,  the  other 
found  guilt}'  upon  one  evidence,  and  the  last  upon 
nothing  but  presumptive  proof"  Even  the  prosti- 
tute lawyer.  Sir  Bartholomew  Sliower.  had  the  as- 
surance to  complain  of  uncertainty  in  the  law  of 
treason. — Id..  572.  And  Roger  North,  in  his  Ex- 
amen,  p.  411,  labors  hard  to  show  that  the  evidence 
in  Ashton's  case  was  slighter  than  in  Sidney's. 

t  State  Trials,  xii.,  646.    See  668  and  790. 


580 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[CHAr.  XV- 


Anderton  for  printing  a  treasonable  pamph-  I 
let.    Tlie  testimony  came  very  short  of  sat- 
isfactoiy  proof,  according  to  the  established 
rules  of  P^nglish  law,  though  by  no  means 
such  as  men  in  general  would  slight.    It  j 
chiefly  consisted  of  a  comparison  between  ' 
the  characters  of  a  printed  work  found  con- 
cealed in  his  lodgings  and  certain  types  be 
longing  to  his  press ;  a  comparison  mani- 
festly less  admissible  than  that  of  hand- 
writing, which  is  always  rejected,  and,  in- 
deed, totally  inconsistent  with  the  rigor  of 
English  proof.    Besides  the  common  ob- 
jections made  to  a  comparison  of  hands,  and 
which  apply  more  forcibly  to  printed  char- 
acters, it  is  manifest  that  types  cast  in  the 
same  font  must  always  be  exactly  similar,  i 
But,  on  the  other  hand,  it  seems  unreason- 
able absolutely  to  exclude,  as  our  courts  have  . 
done,  the  comparison  of  hand-writing  as  in- 
admissible evidence  ;  a  rule  which  is  every 
day  eluded  bj'  fi-esh  rules,  not  much  more  ! 
rational  in  themselves,  which  have  been  i 
invented  to  get  rid  of  its  inconvenience. 
There  seems,  however,  much  danger  in  the  I 
construction  which  draws  printed  libels,  un- 
connected with  any  conspiracy,  within  the 
pale  of  treason,  and  especially  the  treason 
of  compassing  the  king's  death,  unless  where 
they  directly  tended  to  his  assassination.  No 
later  authority  can,  as  far  as  I  remember, 
be  adduced  for  the  prosecution  of  any  libel 
as  treasonable,  under  the  statute  of  Edward 
III. ;  but  the  pamphlet  for  which  Anderton 
was  convicted  was  certainlj- full  of  the  most 
audacious  Jacobinism,  and  might  perhaps 
fall,  by  no  unfair  construction,  within  the 
charge  of  adhering  to  the  king's  enemies, 
since  no  one  could  be  more  so  than  James, 
whose  design  of  invading  the  i-ealm  had  been 
frequently  avowed  by  himself.* 

A  bill  for  regulating  tiials  upon  charges  of 
high  treason  passed  the  Commons  with 
slight  resistance  from  the  crown  lawyers  in 
1691.f  The  Lords  introduced  a  provision 
in  their  own  favor,  that  upon  the  trial  of  a 
peer  in  the  court  of  the  high  steward,  all 

*  State  Trials,  xii.,  1245.  Ralph,  420.  Somers 
Tracts,  x.,  472.  The  Jacobites  took  a  very  frivo- 
lous objection  to  the  eonWction  of  Auderton,  that 
printins  could  not  be  treason  within  the  statute  of 
Edward  III.,  because  it  was  not  invented  for  a 
century  afterward.  According  to  this  rule,  it  could 
not  be  ti  eason  to  shoot  the  king  with  a  pistol,  or 
poison  him  with  an  American  drug. 

t  Pari.  Hist.,  v.,  698. 


such  as  were  entitled  to  vote  should  be  reg- 
ularly summoned,  it  having  been  the  prac- 
tice to  select  twenty-three  at  the  discretion 
of  the  crown.  Those  who  wished  to  hinder 
the  bill  availed  themselves  of  the  jealousy 
which  the  Commons  in  that  age  entertained 
of  the  upper  house  of  Parliament,  and  per- 
suaded them  to  disagree  with  this  just  and 
reasonable  amendment.*  It  fell  to  the 
gi'ound,  therefore,  on  this  occasion ;  and, 
though  more  than  once  revived  in  subse- 
quent sessions,  the  same  difterence  between 
the  two  Houses  continued  to  be  insupera- 
ble.f  In  the  new  Parliament  that  met  in 
1695,  the  Commons  had  the  good  sense  to 
recede  from  an  irrational  jealousy.  Not- 
withstanding the  reluctance  of  the  ministry, 
for  which,  perhaps,  the  very  dangerous  po- 
sition of  the  king's  government  furnishes  an 
apology,  this  excellent  statute  was  enacted 
as  an  additional  guarantee  (in  such  bad  times 
as  might  again  occur)  to  those  who  are  prom- 
inent in  their  country's  cause,  against  the 
great  danger  of  false  accusers  and  iniquitous 
judges. t  It  provides  that  all  persons  in- 
dicted for  high  ti'eason  shall  have  a  copy  of 
their  indictment  delivered  to  them  five  days 
before  their  trial,  a  period  extended  by  a 
subsequent  act  to  ten  days,  and  a  copy  of 
the  panel  of  jurors  two  days  before  their 
trial;  that  they  shall  be  allowed  to  have 
their  witnesses  examined  on  oath,  and  to 
make  their  defense  by  counsel.  It  clears 
up  any  doubt  that  could  be  pretended  on 
the  statute  of  Edward  VI.,  by  requiring  two 
witnesses,  either  both  to  the  same  overt  act 
or  the  first  to  one,  the  second  to  another 
overt  act  of  the  same  treason  (that  is,  the 
same  kind  of  treason),  unless  the  party  shaD 
volunt£irily  confess  the  charge. §    It  limits 


*  Pari  Hist.,  v.,  675. 

t  Id.,  712,  737.  Commons'  Journals,  Feb.  8, 
1695. 

t  Pari.  Hist.,  963.  Journals,  17th  of  Feb.,  1696. 
Stat.  7  Wm.  III.,  c.  3.  Though  the  court  opposed 
this  bill,  it  was  certainly  favored  by  the  zealous 
Whiss  as  much  as  by  the  opposite  party. 

§  \Vhen  several  persons  of  distinction  were  ar- 
rested on  account  of  a  Jacobite  conspiracy  in  1690, 
there  was  but  one  witness  against  some  of  them. 
The  judges  were  consulted  whether  they  could  be 
indicted  for  a  high  misdemeanor  on  this  single  tes- 
timony, as  Hampden  had  been  in  16S5,  the  Attor- 
ney-general Treby  maintaining  this  to  be  lawful. 
Four  of  the  judges  were  positively  against  this, 
two  more  doubtfuUy  the  same  way,  one  altogether 
doubtful,  and  three  in  favor  of  it.    The  scheme  was 


Will,  in.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


581 


pi-osecutions  for  treason  to  the  term  of  thrre  ] 
years,  except  in  the  case  of  an  attempted 
a.ssassiiiation  on  the  king.  It  includes  the 
contested  provision  for  the  trial  of  peers  by 
all  who  have  a  right  to  sit  and  vote  in  Par- 
liament. A  later  statute,  7  Anne,  c.  21, 
which  may  be  mentioned  here  as  the  com- 
plement of  the  former,  has  added  a  peculiar 
privilege  to  the  accused,  hardly  less  material 
than  any  of  the  rest.  Ten  days  before  the 
tiial,  a  list  of  the  witnesses  intended  to  be 
brought  for  proving  the  indictment,  with 
their  professions  and  places  of  abode,  must 
be  delivered  to  the  prisoner,  along  with  the 
copy  of  the  indictment.  The  operation  of 
this  clause  was  suspended  till  after  the 
deatli  of  the  pretended  Prince  of  Wales. 

Notwithstanding  a  hasty  remark  of  Bur- 
net, that  the  design  of  this  bill  seemed  to  be 
to  make  men  as  safe  in  all  treasonable  prac- 
tices as  possible,  it  ought  to  be  considered  a 
valuable  accession  to  our  constitutional  law ; 
and  no  part,  I  think,  of  either  statute  will  be 
reckoned  inexpedient,  when  we  reflect  upon 
the  histoiy  of  all  nations,  and  more  especial- 
ly of  our  own.  The  histoiy  of  all  nations, 
and  more  especially  of  our  own,  in  the  fresh 
recollection  of  those  who  took  a  share  in 
these  acts,  teaches  us  that  false  accusers  are 
always  encouraged  by  a  bad  government, 
and  may  easily  deceive  a  good  one.  A 
prompt  belief  in  the  spies  whom  they  per- 
haps necessarily  employ,  in  the  voluntary 
informers  who  dress  up  probable  falsehoods, 
is  so  natural  and  constant  in  the  offices  of 
ministers,  that  the  best  are  to  l)e  heard  with 
suspicion  when  they  bring  forward  such 
testimony.  One  instance,  at  least,  had  oc- 
curred since  the  Revolution,  of  charges  un- 
questionably false  in  their  specific  details, 
prefeired  against  men  of  eminence  by  im- 
postoi's  who  panted  for  the  laurels  of  Oates 
and  Turberville  ;*  and  as  men  who  are  ac- 
cused of  conspiracy  against  a  government 
are  generally  such  as  are  beyond  question 
disaffected  to  it,  the  indiscriminating  temper 
of  the  prejudging  people,  from  whom  juries 
must  be  taken,  is  as  much  to  be  apprehend- 
ed, when  it  happens  to  be  favorable  to  au- 
thority, as  that  of  the  government  itself,  and 
requires  as  much  the  best  securities,  iraper- 

very  properly  abandoned ;  and  at  present,  I  sup- 
pose, nothing  can  be  more  established  than  the 
negative. — Dalrj'mple,  Append.,  186. 
'  State  Trials,  xii.,  1051. 


feet  as  the  best  are,  which  prudence  and 
patriotism  can  furnish  to  innocence.  That 
the  prisoner's  witnesses  should  be  examined 
on  oath  will  of  course  not  be  disputed,  since 
by  a  subsequent  statute  that  strange  and  un- 
just anomaly  in  our  criminal  law  has  been 
removed  in  all  cases  as  well  as  in  treason ; 
but  the  judges  had  sometimes  not  been 
ashamed  to  point  out  to  the  jury,  in  deroga- 
tion of  the  credit  of  those  whom  a  prisoner 
called  in  his  behalf,  that  they  were  not  speak- 
ing under  the  same  sanction  as  those  for  the 
crown.  It  was  not  less  reasonable  that  the 
defense  should  be  conducted  by  counsel, 
since  that  excuse  which  is  often  made  for 
denying  the  assistance  of  counsel  on  charges 
of  felony,  namely,  the  moderation  of  pros- 
ecutors and  the  humanity  of  the  bench, 
could  never  be  urged  in  those  political  ac- 
cusations wherein  the  advocates  for  the 
prosecution  contend  with  all  their  strength 
for  victory  ;  and  the  impartiality  of  the  court 
is  rather  praised  when  it  is  found  than  re- 
lied upon  beforehand.*  Nor  does  there  lie, 
perhaps,  any  sufficient  objection  even  to  that 
which  many  dislike,  which  is  more  question- 
able than  the  rest,  the  furnishing  a  list  of  the 
witnesses  to  the  prisoner,  when  we  set  on 
the  other  side  the  danger  of  taking  away  in- 
nocent lives  by  the  testimony  of  suborned 
and  infamous  men,  and  remember,  also,  that 
a  guilty  person  can  rarely  be  ignorant  of 
those  who  will  bear  witness  against  him  ;  or 
if  he  could,  that  he  may  alwaj's  discover 
those  who  have  been  examined  before  the 
grand-jury. 

The  subtlety  of  crown  lawyers  in  draw- 
ing indictments  for  treason,  and  sometimes 
the  willingness  of  judges  to  favor  such  pros- 
ecutions, have  considerably  eluded  the  chief 
difficulties  which  the  several  statutes  appear 

*  The  dexterity  with  which  Lord  Shaftesbury 
(tlie  author  of  the  Characteristics),  at  that  time  in 
the  House  of  Commons,  turned  a  momentary  con- 
fusion which  came  upon  him  while  speaking  on 
this  hill,  into  an  argument  for  extending  the  aid  of 
covinsel  to  those  who  might  so  much  more  natural- 
ly he  embarrassed  on  a  trial  for  their  lives,  is  well 
known.  All  well-infonned  vsriters  ascribe  this  to 
Shaftesbui-y.  But  Johnson,  in  the  Lives  of  the 
Poets,  has,  through  inadvertence,  as  I  believe, 
given  Lord  Halifax  (Montagu)  the  credit  of  it; 
and  some  have  since  followed  him.  As  a  complete 
refutation  of  this  mistake,  it  is  sufficient  to  say  that 
Mr.  Montagu  opposed  the  bill.  His  name  appears 
as  a  teller  on  two  divisions,  31st  of  Dec,  1691,  and 
18th  of  Nov.,  1692. 


582 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


(Chap.  XV! 


to  throw  ia  their  way.  The  government 
has  at  least  had  no  reason  to  complain  that 
the  construction  of  those  enactments  has 
been  too  rigid.  The  overt  acts  laid  in  the 
indictment  are  expressed  so  generally  that 
they  give  sometimes  little  insight  into  the 
pai'ticular  circumstances  to  be  adduced  in 
evidence  ;  and,  though  the  act  of  William  is 
positive  that  no  evidence  shall  be  given  of  any 
overt  act  not  laid  in  the  indictment,  it  has 
been  held  allowable,  and  is  become  the  con- 
stant practice,  to  bring  forward  such  evi- 
dence, not  as  substantive  charges,  but  on 
the  pretense  of  its  tending  to  prove  certain 
other  acts  specially  alleged.  The  disposi- 
tion to  extend  a  constructive  interpretation 
to  the  statute  of  Edward  III.  has  continued 
to  increase,  and  was  carried,  especially  by 
Chief-justice  Eyre  in  the  trials  of  1794,  to 
a  length  at  which  we  lose  sight  altogether 
of  the  plain  meaning  of  words,  and  appar- 
ently much  beyond  what  Pemberton,  or 
even  Jefferies,  had  reached.  In  the  vast 
mass  of  circumstantial  testimony  which  our 
modern  trials  for  high  treason  display,  it  is 
sometimes  difficult  to  discern  whether  the 
great  principle  of  our  law,  requiring  two 
witnesses  to  overt  acts,  has  been  adhered  to ; 
for  certainly  it  is  not  adhered  to,  unless  such 
witnesses  depose  to  acts  of  the  prisoner, 
from  which  an  inference  of  his  guilt  is  im- 
mediately deducible.*  There  can  be  no 
doubt  that  state  prosecutions  have  long  been 
conducted  with  an  urbanity  and  exterior 
moderation  unknown  to  the  age  of  the  Stu- 
arts, or  even  to  that  of  William ;  but  this  may 
by  possibility  be  compatible  with  very  partial 
wresting  of  the  law,  and  the  substitution  of 
a  sort  of  political  reasoning  for  that  strict  in- 
terpretation of  penal  statutes  which  the  sub- 
ject has  a  right  to  demand.  No  confidence 
in  the  general  integi-ity  of  a  government, 
much  less  in  that  of  its  lawyers,  least  of  all 
any  belief  in  the  guilt  of  an  accused  person, 
should  beguile  us  to  remit  that  vigilance 
which  is  peculiarly  required  in  such  cir- 
cumstances, f 

.  *  It  was  said  by  Scroggs  and  Jeiferies,  that  if 
one  witness  prove  that  A.  bought  a  knife,  and  an- 
other that  he  intended  to  kill  the  king  with  it, 
these  are  two  witnesses  within  the  statute  of  Ed- 
ward VI.    But  this  has  been  justly  reprobated. 

t  Upon  some  of  the  topics  touched  in  the  forego- 
ing pages,  besides  Hale  and  Foster,  see  Luder's 
Considerations  on  the  Law  of  Treason  in  Levying 
War,  and  many  remarks  in  Phillipps's  State  Tri- 


For  this  vigilance,  and,  indeed,  for  almo.st 
all  that  keeps  up  in  us,  permanently  and 
eflectually,  the  spirit  of  regard  to  liberty 
and  the  public  good,  we  must  look  to  the 
unshackled  and  independent  energies  of  the 
press.  In  the  reign  of  William  III.,  and 
through  the  influence  of  the  popular  prin- 
ciple in  our  Constitution,  this  finally  became 
free.  The  Licensing  Act,  suffered  to  ex- 
pire in  1679,  was  revived  in  1685  for  seven 
years.  In  1692,  it  was  continued  till  the 
end  of  the  session  of  1693.  Several  at- 
tempts were  afterward  made  to  renew  its 
operation,  which  the  less  courtly  Whigs 
combined  with  the  Tories  and  Jacobites  to 
defeat.*  Both  parties,  indeed,  employed 
the  press  with  gi-eat  diligence  in  this  reign  ; 
but  while  one  degenerated  into  malignant 
calumny  and  misrepresentation,  the  signal 
victory  of  liberal  principles  is  manifestly  due 
to  the  boldness  and  eloquence  with  which 
they  were  promulgated.  Even  during  the 
existence  of  a  censorship,  a  host  of  un- 
licensed publications,  by  the  negligence  or 
connivance  of  the  officers  employed  to  seize 
them,  bore  witness  to  the  inefficacy  of  its 
restrictions.  The  bitterest  invectives  of 
Jacobitism  were  circulated  in  the  first  four 
years  after  the  Revolution,  f 

The  liberty  of  the  press  consists,  in  a 
strict  sense,  merely  in  an  exemp-  Liberty  of 
tion  from  the  superintendence  of  a  '^e  press, 
licenser.  But  it  can  not  be  said  to  exist  in 
any  security,  or  sufficiently  for  its  principal 
ends,  where  discussions  of  a  political  or  re- 
ligious nature,  whether  general  or  particu- 
lar, are  restrained  by  too  narrow  and  severe 
limitations.  The  law  of  libel  has  always 
been  indefinite  ;  an  evil  probably  beyond 
any  complete  remedy,  but  which  evidently 
renders  the  liberty  of  free  discussion  rather 
more  precarious  in  its  exercise  than  might 

als,  besides  much  that  is  scattered  through  the 
notes  of  Mr.  Howell's  great  collection.  Mr.  Phil- 
lipps's work,  however,  was  not  published  till  after 
my  own  was  written. 

*  Commons'  Journals,  9th  of  Jan.  and  11th  of 
Feb.,  1694-95.  A  bill  to  the  same  effect  sent  down 
from  the  Lords  was  thrown  out,  l~th  of  April,  1695. 
Another  bill  was  rejected  on  the  second  reading 
in  1697.— Id..  3d  of  April. 

t  Somers  Tracts,  passim.  John  Dunton,  the  book- 
seller, in  the  History  of  his  Life  and  Errors,  hints 
that  unlicensed  books  could  be  published  by  a 
douceur  to  Robert  Stephens,  the  messenger  of  the 
press,  whose  business  it  was  to  inform  against 
them. 


Will.  III.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


583 


be  wished.  It  appears  to  have  been  re- 
ceived doctrine  in  Westraiu.ster  Hall  before 
the  Revolution,  that  no  man  might  publish 
a  writing  reflecting  on  the  government,  nor 
upon  the  character,  or  even  capacity  and 
fitness,  of  any  one  employed  in  it.  Nothing 
having  passed  to  change  the  law,  the  law 
remained  as  befoi'e.  Hence,  in  the  case 
of  Tutchin,  it  is  laid  down  by  Holt,  that  to 
possess  the  people  of  an  ill  opinion  of  the 
government,  that  is,  of  the  ministry,  is  a  li- 
bel ;  and  the  attorney-general,  in  his  speech 
for  the  prosecution,  urges  that  there  can 
be  no  reflection  on  those  that  are  in  office 
under  her  majesty,  but  it  must  cast  some 
reflection  on  the  queen  who  employs  them : 
yet  in  this  case  the  censure  upon  the  ad- 
ministration, in  the  passages  selected  for 
prosecution,  was  merely  general,  and  with- 
out reference  to  any  person,  upon  which 
the  counsel  for  Tutchin  vainly  relied.* 

It  is  manifest  that  such  a  doctrine  was 
irreconcilable  with  the  interests  of  any 
party  out  of  power,  whose  best  hope  to  re- 
gain it  is  commonly  by  prepossessing  the 
nation  with  a  bad  opinion  of  their  adversa- 
.ries.  Nor  would  it  have  been  possible  for 
any  ministry  to  stop  the  torrent  of  a  free 
press,  under  the  secret  guidance  of  a  pow- 
erful faction,  by  a  few  indictments  for  libel. 
They  found  it  generally  more  expedient 
and  more  agreeable  to  borrow  weapons 
from  the  same  armory,  and  retaliate  with 
unsparing  invective  and  calumnj^  This  was 
first  practiced  (first,  I  mean,  with  the  avow- 
ed countenance  of  government)  by  Swift  in 
the  Examiner  and  some  of  his  other  writ- 
ings. And  both  parties  soon  went  such 
lengths  in  this  warfare,  that  it  became  tacit- 
ly understood  that  the  public  characters  of 
statesmen,  and  the  measures  of  adminstra- 
■tion,  are  the  fair  topics  of  pretty  severe  at- 
tack.!   Less  than  this,  indeed,  would  not 

*  State  Trials,  xiv.,  1103,  1128.  Mr.  Justice 
Powell  told  the  Rev.  Mr.  Stephens,  in  passing  sen- 
tence on  him  for  a  libel  on  Harley  and  Marlborough, 
that  to  traduce  the  queen's  ministers  was  a  reflec- 
tion on  the  queen  herself.  It  is  said,  however, 
that  this  and  other  prosecutions  were  generally 
blamed,  for  the  public  feeling  was  strong  in  favor 
of  the  liberty  of  the  press. — Boyer's  Reigu  of 
dueen  Anne,  p.  286. 

t  [In  a  tract  called  the  "  Memorial  of  the  State 
of  England,"  170.5  (Somers  Tracts,  xii.,  526),  writ- 
ten on  tlie  Whig  side,  in  answer  to  Drake's  "  Me- 
morial of  the  Church  of  England,"  we  find  a  vin- 
dication of  the  press,  which  had  been  attacked,  at 


have  contented  the  political  temper  of  the 
nation,  gradually  and  without  intermission 
becoming  more  democratical,  and  more  ca- 
pable, as  well  as  more  accustomed,  to  judge 
of  its  general  interests,  and  of  those  to 
whom  they  were  intrusted.  The  just  limit 
between  political  and  private  censure  has 
been  far  better  drawn  in  these  later  times, 
licentious  as  we  still  may  justly  deem  the 
press,  than  in  an  age  when  courts  of  justice 
had  not  deigned  to  acknowledge,  as  they 
do  at  present,  its  theoretical  liberty.  No 
writer,  except  of  the  most  broken  reputa- 
tion, would  venture  at  this  day  on  the  ma- 
lignant calumnies  of  Swift. 

Meanwhile,  the  judges  naturally  adhered 
to  their  established  docti  *ine,  and  Law  of 
in  prosecutions  for  political  libels,  I^'^'^'- 
were  very  little  inclined  to  favor  wliat  they 
deemed  the  presumption,  if  not  the  licen- 
tiousness, of  the  press.    They  advanced  a 
little  further  than  their  predecessors  ;  and, 
contrary  to  the  piactice  both  before  and 
after  the  Revolution,  laid  it  down  at  length 
as  an  absolute  principle,  that  falsehood, 
though  alwfiys  alleged  in  the  indictment, 
was  not  essential  to  the  guilt  of  the  libel ; 
refusing  to  admit  its  truth  to  be  pleaded,  or 
given  in  evidence,  or  even  urged  by  way 
of  mitigation  of  punishinent.*    But  as  the 
that  time,  by  the  Tories  :  "  If  the  Whigs  have  their 
Observator,  have  not  the  Tories  their  Rehearsal? 
The  Review  does  not  take  more  liberty  than  the 
Whipping  Post,  nor  is  he  a  wilder  politician  than 
the  Mercury  ;  and  many  will  think  it  a  meaner 
character  for  Ridpath  to  be  Atwood's  antagonist 
than  to  be  author  of  the  Flying  Post."    The  reign 
of  Anne  was  the  era  of  periodical  politics.  Gutta 
cavat  lapidem,  non  vi,  sed  sajpe  cadendo.  Wc 
well  know  how  forcibly  this  line  describes  the  ac- 
tion of  the  regular  press.    It  did  not  begin  to  oper- 
ate much  before  1704  or  170.">,  when  the  Whigs 
came  into  ofllce,  and  the  rejection  of  the  Occasional 
Conformity  Bill  blew  up  a  flame  in  the  opposite 
party.    But  even  then  it  was  confined  to  periodical 
papers,  such  as  the  Observator  or  Rehearsal,  for 
the  common  newspapers  were  as  yet  hardly  at  all 
political.— 1845.] 

*  Pemberton,  as  I  have  elsewhere  observed, 
permitted  evidence  to  be  given  as  to  the  tnith  of 
an  alleged  libel  in  publishing  that  Sir  Edmondhury 
Godfrey  had  murdered  himself.  And  what  may 
be  reckoned  more  important,  in  a  trial  of  the  fa- 
mous Fuller  on  a  similar  charge,  Holt  repeatedly 
(not  less  than  five  times)  offered  to  let  him  prove 
the  truth  if  he  could.— State  Trials,  xiv.,  534.  Bat 
on  the  trial  of  Franklin,  in  1731,  for  publishing  a 
libel  in  the  Craftsman,  Lord  Raymond  positively 
refused  to  admit  of  any  evidence  to  prove  the  mat- 
ters to  be  true,  and  said  he  was  ouly  abidiug  by 


584 


CONSTITUTIONAL  EOSTOttY  OF  ENGLAND 


[Chap.  XV. 


defendant  could  only  be  convicted  by  the 
verdict  of  a  jmy,  and  jurors  both  partook 
of  the  general  sentiment  in  favor  of  free 
discussion,  and  might  in  certain  cases  have 
acquired  some  prepossessions  as  to  the  real 
truth  of  the  supposed  libel,  which  the  court's 
refusal  to  enter  upon  it  could  not  remove, 
they  were  often  reluctant  to  find  a  verdict 
of  guilty ;  and  hence  arose,  by  degrees,  a 
sort  of  contention,  which  sometimes  showed 
itself  upon  trials,  and  divided  both  the  pro- 
fession of  the  law  and  the  general  public. 
The  judges  and  lawyers,  for  the  most  part, 
maintained  that  the  province  of  the  jury 
was  only  to  determine  the  fact  of  publica- 
tion ;  and  also  whether  what  are  called  the 
innuendoes  were  properly  filled  up,  that 
is,  whether  the  libel  meant  that  which  it 
was  alleged  in  the  indictment  to  mean,  not 
whether  such  meaning  were  criminal  or 
innocent,  a  question  of  law  which  the  court 
were  exclusively  competent  to  decide. 
That  the  jury  might  acquit  at  their  pleas- 
ure was  undeniable  ;  but  it  was  asserted 
that  they  would  do  so  in  violation  of  their 
oaths  and  duty,  if  they  should  reject  the 
opinion  of  the  judge  by  whom  they  were 
to  be  guided  as  to  the  general  law.  Others 
of  great  name  in  our  jurisprudence,  and  the 
majority  of  the  public  at  large,  conceiving 
that  this  would  throw  the  liberty  of  the 
press  altogether  into  the  hands  of  the  judges, 
maintained  that  tlie  jury  had  a  strict  right 
to  take  the  whole  matter  into  their  con- 
sideration, and  determine  the  defendant's 
criminality  or  innocence  according  to  the 
nature  and  c'u-cumstances  of  the  publication. 
This  controversy,  which  perhaps  hardly 
arose  within  the  period  to  which  the  pres- 
ent work  relates,  was  settled  by  Mr.  Fox's 
Libel  Bill  m  IT 92.  It  declares  the  right 
of  the  jury  to  find  a  general  verdict  upon 
the  whole  matter :  and  though,  from  causes 
easy  to  explain,  it  is  not  drawn  in  the  most 
intelligible  and  consistent  manner,  was  cer- 
wbst  had  been  formerly  done  in  other  cases  of  the 
like  natare. — Id.,  xvii..  659.  [  •  To  make  it  a  libel," 
says  Powell  in  the  case  of  the  seven  bishops.  "  it 
must  be  faUe,  it  most  be  scandaloos.  and  it  mnst  , 
tend  to  sedition.  " — Id.,  xii..  -liT.  In  1  Lord  Ray- 
mond, -iio.  we  find  a  case  where  judgment  was 
arrested  on  an  indictment  for  a  libel  on  persons 
■■  to  the  jurors  unknown."'  because  they  could  not 
properly  say  that  the  matter  was  false  and  scandal- 
ous, when  they  did  not  know  the  persons  of  whom 
it  was  spoken,  nor  could  they  say  that  any  one  was 
defamed  by  it. — liio.] 


tainly  designed  to  turn  the  defendant's  in- 
tention, as  it  might  be  laudable  or  innocent, 
seditious  or  malignant,  into  a  matter  of  fact 
for  their  inquiry  and  decision. 

The  Revolution  is  justly  entitled  to  honor 
as  the  era  of  religions,  in  a  far  jui.j^oos 
greater  degree  than  of  civil  Lberty.  «>ieriuon. 
the  privileges  of  conscience  baring  had  do 
earlier  Magna  Charta  and  Petition  of  Right 
whereto  they  could  appeal  against  encroach- 
ment. Civil,  indeed,  and  religious  Uberty 
had  appeared,  not  as  twin  sisters  and  co- 
heirs, but  rather  in  jealous  and  selfish  riT- 
alry :  it  was  in  despite  of  the  law,  it  was 
through  infringement  of  the  Constitution, 
by  the  court's  connivance,  by  the  dispens- 
"  ing  prerogative,  by  the  declarations  of  in- 
dulgence under  Charles  and  James,  that 
some  respite  had  been  obtained  from  the 
tyranny  which  those  who  proclaimed  their 
attachment  to  civil  rights  had  always  exer- 
cised against  one  class  of  separatists,  and 
frequently  against  another. 

At  the  time  when  the  Test  Law  was 
enacted,  chiefly  ^v^th  a  view  against  popery, 
but  seriously  affecting  the  Protestant  Non- 
conformists, it  was  the  intention  of  the 
House  of  Commons  to  afford  relief  to  the 
latter  by  relaxing  in  some  measure  the 
strictness  of  the  Act  of  Uniformity  in  favor 
of  such  ministers  as  might  be  induced  to 
conform,  and  by  granting  an  indulgence  of 
worship  to  those  who  should  persist  in 
their  separation.  This  bill,  however,  drop- 
ped  in  that  session.  Several  more  attempts 
at  a  union  were  devised  by  woitliy  men  of 
both  parties  in  that  reign,  but  with  no  suc- 
cess. It  was  the  policy  of  the  court  to 
withstand  a  comprehension  of  Dissenters  ; 
nor  would  the  bishops  admit  of  any  conces- 
sion worth  the  other's  acceptance.  The 
High-Church  party  would  not  endure  any 
mention  of  indulgence.*    In  the  Parliament 

*  See  the  pamphlets  of  that  ase.  passim.  One 
of  these,  entitled  The  Zealous  and  Impartial  Prot- 
estant. ISsl.  the  author  of  which,  though  well 
known,  I  can  not  recollect,  after  much  invective, 
says,  "  Liberty  of  conscience  and  toleration  are 
things  only  to  be  talked  of  and  pretended  to  by 
those  that  are  under;  but  none  like  or  think  it 
reasonable  that  are  in  authority.  'Tis  an  instru- 
ment of  mischief  and  dissettlement  to  be  courted 
by  those  who  would  have  change,  but  do  way  de- 
sirable by  such  as  would  be  quiet,  and  have  the 
government  undisturbed :  for  it  is  not  connstent 
with  public  peace  and  safety  without  a  standing; 
army,  conventicles  being  eternal  nurseries  of  aedi- 


Will.  HI.] 


PROM  HENRY  VII.  TO  GEORGE  II. 


585 


of  1680,  a  bill  to  relieve  Protestant  Dissent- 
ers from  the  penalties  of  the  35th  of  Eliz- 

tion  and  rebellion,"  p.  30.  "  To  strive  for  tolera- 
tion," he  says,  iu  another  place,  "  is  to  contend 
agauist  all  government.  It  will  come  to  this, 
whether  there  should  be  a  government  in  the 
Church  or  not?  for  if  there  be  a  government,  there 
must  be  laws ;  if  there  be  laws,  there  must  be 
penalties  annexed  to  the  violation  of  those  laws  ; 
otherwise  the  government  is  precarious  and  at  ev- 
ery man's  mercy ;  that  is,  it  is  none  at  all.  .  .  .  The 
Constitution  should  he  made  firm,  whether  with 
any  alterations  or  without  them,  and  laws  put  iu 
punctual,  vigorous  execution.  Till  that  is  done, 
all  will  signify  nothing.  The  Church  hath  lost  all 
through  remissness  and  non-execution  of  laws  ;  and 
by  the  contrary  course  things  must  be  reduced,  or 
they  never  will.  To  what  purpose  are  Parliaments 
so  concerned  to  prepare  good  laws,  if  the  officers 
who  are  intiiisted  with  the  execution  neglect  that 
duty  and  let  them  lie  dead  ?  This  brings  laws  and 
government  into  contempt,  and  it  were  much  bet- 
ter the  laws  were  never  made ;  by  these  the  Dis- 
senters are  provoked,  and  being  not  restrained  by 
the  exacting  of  the  penalties,  they  are  fiercer  and 
more  bent  upon  their  own  ways  than  they  would 
be  otherwise.  But  it  may  be  said  the  execution 
of  laws  of  conformity  raiseth  the  cry  of  persecu- 
tion;  and  will  not  that  be  scandalous?  Not  so 
scandalous  as  anarchy,  schism,  and  eternal  divi- 
sions and  confusions  both  in  Church  and  State.  Bet- 
ter that  the  unruly  should  clamor,  than  that  the 
regular  should  groan,  and  all  should  be  undone," 
p.  33.  Another  tract,  "  Short  Defense  of  the 
Chui'ch  and  Clergy  of  England,  1C79,"  declares  for 
union  (in  his  own  way),  but  against  a  comprehen- 
sion, and  still  more  a  toleration.  "  It  is  observable 
that  whereas  the  best  emperors  have  made  the 
severest  laws  against  all  manner  of  sectaries,  Ju- 
lian the  apostate,  the  most  subtle  and  bitter  enemy 
that  Christianity  ever  had,  was  the  man  that  set 
up  this  way  of  toleration,"  p.  87.  Such  was  the 
temper  of  this  odious  faction ;  and  at  the  time  they 
were  instigating  the  government  to  fresh  severi- 
ties, by  which,  I  sincerely  believe,  they  meant  the 
pillory  or  the  gallows  (for  nothing  else  was  want- 
ing), scarce  a  jail  in  England  was  without  Non- 
conformist ministers.  One  can  hardly  avoid  re- 
joicing tliat  some  of  these  men,  after  the  Revolu- 
tion, experienced,  not,  indeed,  the  persecution,  but 
the  poverty  they  had  been  so  eager  to  inflict  on 
others. 

The  following  passage  from  a  very  judicious 
tract  on  the  other  side,  "  Discourse  of  the  Religion 
of  England,  lfi67,"  may  deserve  to  be  extracted: 
"Whether  cogent  reason  speaks  for  this  latitude, 
be  it  now  considered.  How  momentous  in  the 
balance  of  tliis  nation  those  Protestants  are  which 
are  dissatisfied,  in  the  present  ecclesiastical  pohty. 
They  are  every  where  spread  through  city  and 
country  ;  they  make  no  small  part  of  all  ranks  and 
sorts  of  men  ;  by  relations  and  commerce  they  are 
so  woven  into  the  nation's  interest  that  it  is  not 
easy  to  sever  them  without  unraveling  the  whole. 
They  are  not  excluded  from  the  nobiUty,  among 


abeth,  the  most  severe  act  in  force  against 
them,  having  passed  both  Houses,  was  lost 
oft'  the  table  of  the  House  of  Lords  at  the 
moment  that  the  king  came  to  give  his  as- 
sent :  an  artifice  by  which  he  evaded  the 
odium  of  an  explicit  refusal.*  Meanwhile, 
the  non-conforming  ministers,  and  in  many 
cases  their  followers,  experienced  a  harass- 
ing persecution  under  the  various  penal 
laws  that  oppressed  them ;  the  judges, 
especially  in  the  latter  part  of  this  reign, 
when  some  good  magistrates  were  gone,  and, 
still  more,  the  justices  of  the  peace,  among 
whom  a  High-Church  ardor  was  prevalent, 
crowding  the  jails  with  the  pious  confessors 
of  Puritanism. t  Under  so  rigorous  an  ad- 
ministration of  statute  law,  it  was  not  un- 
natural to  take  the  shelter  offered  by  the 
Declaration  of  Indulgence  ;  but  the  Dis- 
senters never  departed  from  their  ancient 
abhorrence  of  popery  and  arbitrary  power, 
and  embraced  the  terms  of  reconciliation 
and  alliance  which  the  Church,  in  its  distress, 
held  out  to  them.  A  scheme  of  compre- 
hension was  framed  under  the  auspices  of 
Archbishop  Sancroft  before  the  Revolution. 
Upon  the  completion  of  the  new  settlement, 
it  was  determined,  with  the  apparent  con- 
currence of  the  Church,  to  grant  an  in- 
dulgence to  separate  conventicles,  and  at 
the  same  time,  by  enlarging  the  terms  of 
conformity,  to  bring  back  those  whose  dif- 
ferences were  not  irreconcilable  within  the 
pale  of  the  Anglican  communion. 

The  Act  of  Toleration  was  jjassed  with 
little  difficulty,  though  not  without  mvn-murs 
of  the  bigoted  churchmen. t  It  exempts 
from  the  penalties  of  existing  statutes  against 
sepasate  conventicles,  or  absence  from  the 
established  worship,  such  as  should  take  the 
the  gentry  they  are  not  a  few  ;  but  none  are  of 
more  importance  than  they  in  the  trading  part  of 
the  people  and  those  that  hve  by  industiy,  upon 
whose  hands  the  business  of  the  nation  lies  much. 
It  hath  been  noted  that  some  who  bear  them  no 
good  will  have  said  that  the  very  air  of  corpora- 
tions is  infested  with  their  contagion  ;  and  in  what- 
soever degree  they  are  high  or  low,  ordinarily  for 
good  understanding,  steadiness,  and  sobriety,  they 
are  not  inferior  to  others  of  the  same  rank  and 
quality  ;  neither  do  they  want  the  national  courage 
of  Englishmen,"  p.  23. 

*  Pari.  Hist.,  iv.,  1311.    Ralph,  559. 

t  Baxter.  Neal.  Palmer's  Nou-conforniist's  Me- 
morial. 

}  Pari.  Hist.,  v.,  2C3.  Some  of  the  Tories  wished 
to  pass  it  only  for  seven  years.  The  High-Church 
pamphlets  of  the  age  gi-umble  at  the  toleration. 


586 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XV. 


Oath  of  Allegiance,  and  subscribe  the  dec- 
laration against  popery,  and  such  ministers 
of  separate  congregations  as  should  sub- 
scribe the  Thirty-nine  Articles  of  the 
Church  of  England,  except  thi'ee,  and  part 
of  a  fourth.  It  gives,  also,  an  indulgence  to 
Quakers  without  this  condition.  Meeting- 
houses are  required  to  be  registered,  and 
are  protected  from  insult  by  a  penalty.  No 
part  of  this  toleration  is  extended  to  papists, 
or  to  such  as  deny  the  Trinity.  We  may 
justly  deem  this  act  a  very  scanty  measure 
of  religious  liberty  ;  yet  it  proved  more  ef- 
fectual through  the  lenient  and  liberal  policy 
of  the  eighteenth  century  ;  the  subscription 
to  articles  of  faith,  which  soon  became  as 
obnoxious  as  that  to  matters  of  a  more  in- 
different nature,  having  been  practically 
dispensed  with,  though  such  a  genuine  tol- 
eration as  Christianitj'  and  philosophj'  alike 
demand,  had  no  place  in  our  statute-book 
before  the  reign  of  George  III. 

It  was  found  more  impracticable  to  over- 
come the  prejudices  which  stood 
Attempt  at  , 
Comprehen.  against  any  enlargement  of  the 

basis  of  the  English  Cliui'ch. 
The  Bill  of  Comprehension,  though  nearly 
such  as  had  been  intended  by  the  primate, 
and  conformable  to  the  plans  so  often  in 
vain  devised  by  the  most  wise  and  moder- 
ate churchmen,  met  with  a  veiy  cold  recep- 
tion. Those  among  the  clergy  who  disliked 
the  new  settlement  of  the  crown  (and  they 
were  by  far  the  gi'eater  part)  plaj-ed  upon 
the  ignorance  and  apprehensions  of  the 
gentry.  The  king's  suggestion  in  a  speech 
from  the  throne,  that  means  should  be  found 
to  render  all  Protestants  capable  of  serving 
him  in  Ireland,  as  it  looked  toward  a  repeal 
or  modification  of  the  Test  Act,  gave  offense 
to  the  zealous  churchmen.*  A  clause  pro- 
posed in  the  bill  for  changing  the  Oaths  of 
Supremacy  and  Allegiance,  in  order  to  take 
away  the  necessity  of  receiving  the  sacra- 
ment in  the  Church  as  a  qualification  for 
office,  was  rejected  by  a  great  majority  of 
the  Lords,  twelve  Whig  peers  protesting. f 
Though  the  Bill  of  Comprehension  propos- 
ed to  Parliament  went  no  further  than  to 
leave  a  few  scrupled  ceremonies  at  discre- 
tion, and  to  admit  Presbyterian  ministers 
into  the  Church  without  pronouncing  on 
the  invalidity  of  their  former  ordination,  it 


*  Bamet.  Pari.  Hist,  184.      t  Pari.  Hist.,  196. 


was  mutilated  in  passing  through  the  Upper 
House  ;  and  the  Commons,  after  entertain- 
ing it  for  a  time,  substituted  an  address  to 
the  king  that  he  would  call  the  house  of 
Convocation  "  to  be  advised  with  in  ecclesi- 
astical matters."*  It  was,  of  course,  neces- 
sarj'  to  follow  this  recommendation.  But 
the  lower  house  of  Convocation,  as  might 
be  foreseen,  threw  every  obstacle  in  the 
way  of  the  king's  enlarged  policy.  They 
chose  a  man  as  their  prolocutor  who  had 
been  forward  in  the  worst  conduct  of  the 
University  of  Oxford.  They  displayed  in 
every  thing  a  factious  temper,  which  held 
the  very  names  of  concession  and  concilia- 
tion in  abhoiTence.f  Meanwhile,  a  com- 
mission of  divines,  appointed  under  the  gfeat 
seal,  had  made  a  revision  of  the  Liturgy,  in 
order  to  eradicate  eveiy  thing  which  could 
give  a  plausible  ground  of  offense,  as  well 
as  to  render  the  service  more  perfect. 
Those  of  the  High-Church  faction  had  soon 
seceded  from  this  commission  ;t  and  its  de- 
liberations were  doubtless  the  more  honest 
and  rational  for  their  absence.  But,  as  the 
complacence  of  Parliament  toward  ecclesi- 
astical authority  had  shown  that  no  legis- 
lative measure  could  be  forced  against  the 
resistance  of  the  lower  house  of  Convoca- 
tion, it  was  not  thought  expedient  to  lay 
before  that  ill-affected  body  the  revised 
Liturgy,  which  they  would  have  emploj-ed 
as  an  engine  of  calumny  against  the  bishops 
and  the  crown.  The  scheme  of  compre- 
hension, therefore,  fell  absolutely  and  final- 
ly to  the  gi-ound.§ 

A  similar  relaxation  of  the  terms  of  con- 


*  Pari.  Hist.,  212,  216. 

t  [The  two  houses  of  Convocation  differed  about 
their  address  to  the  king,  thanking  him  for  his 
message  about  Church  reform.  The  Lower  House 
thought  that  proposed  by  the  bishops  too  compli- 
mentary- to  the  king  and  the  Revolution ;  one  was 
at  last  agreed  upon,  omitting  the  panegj-rical  pass- 
ages. See  both  in  Wilkin's  Concilia,  iv.,  620. — 
1845.] 

t  [Ralph,  ii.,  167.  The  words  High  and  Low 
Church  are  said  by  Swift  in  the  Examiner  to  have 
come  in  soon  after  the  Revolution ;  and  probably 
they  were  not  in  common  use  before ;  but  I  find 
"  High  Church  '  named  in  a  pamphlet  of  the  reign 
of  Charles  II.  It  is  in  the  Harleian  Miscellany ; 
but  I  have  not  got  any  more  distinct  reference. — 
1845.] 

6  Burnet.  Ralph.  But  a  better  account  of  what 
took  place  in  the  Convocation  and  among  the  com- 
missioners will  be  found  in  Kennet's  Compl.  Hist., 
557,  558,  (Sec. 


Will.  III.] 

Schismofthe  fovmity  would,  in  the  reign  of 
non-jurors.  Elizabeth,  or  even  at  the  time 
of  the  Savoy  Conferences,  have  brought 
back  so  large  a  majority  of  Dissenters  that 
the  separation  of  the  remainder  could  not 
have  afforded  any  color  of  alarm  to  the  most 
jealous  dignitary.  Even  now  it  is  said  that 
two  thirds  of  the  Non-conformists  would 
have  embraced  the  terms  of  reunion ;  but 
the  motives  of  dissent  were  already  some- 
what changed,  and  had  come  to  turn  less 
on  the  petty  scruples  of  the  elder  Puritans, 
and  on  the  differences  in  ecclesiastical  dis- 
cipline, than  on  a  dislike  to  all  subscriptions 
of  faith  and  compulsory  uniformity.  The 
Dissenting  ministers,  accustomed  to  inde- 
pendence, and  finding  not  unfrequently  in 
the  conti-ibutions  of  their  disciples  a  better 
maintenance  than  court  favor  and  private 
patronage  have  left  for  diligence  and  piety 
in  the  Establishment,  do  not  seem  to  have 
much  regretted  the  fate  of  this  measure. 
None  of  their  friends,  in  the  most  favorable 
times,  have  ever  made  an  attempt  to  renew 
it.  There  are,  indeed,  serious  reasons  why 
the  boundaries  of  religious  communion 
should  he  as  widely  extended  as  is  consist- 
ent with  its  end  and  nature,  and  among 
these  the  hardship  and  detriment  of  exclud- 
ing conscientious  men  from  the  raiuistry  is 
not  the  least :  nor  is  it  less  evident  that  from 
time  to  time,  according  to  the  progress  of 
knowledge  and  reason,  to  remove  defects 
and  errors  from  the  public  service  of  the 
Church,  even  if  they  have  not  led  to  scan- 
dcil  or  separation,  is  the  bounden  duty  of  its 
governors.  But  none  of  these  considerations 
press  much  on  the  minds  of  statesmen; 
and  it  was  not  to  be  expected  that  any  ad- 
ministration should  prosecute  a  religious  re- 
form for  its  own  sake,  at  the  hazard  of  that 
tranquillity  and  exterior  unity  which  is  in 
general  the  sole  end  for  which  they  would 
deem  such  a  reform  worth  attempting :  nor 
could  it  be  dissembled  that,  so  long  as  the 
endowments  of  a  national  church  are  sup- 
posed to  require  a  sort  of  politic  organiza- 
tion within  the  Commonwealth,  and  a  busy 
spirit  of  faction  for  their  security,  it  will  be 
convenient  for  the  governors  of  the  state, 
whenever  they  find  this  spirit  adverse  to 
them,  as  it  was  at  the  Revolution,  to  pre- 
serve tlie  strength  of  the  dissenting  sects  as 
a  counterpoise  to  that  dangerous  influence 
which  in  Protestant  churches,  as  well  as 


587 

that  of  Rome,  has  sometimes  set  up  the  in- 
terest of  one  order  against  that  of  tlie  com- 
munity ;  and  though  the  Church  of  England 
made  a  high  vaunt  of  her  loyalty,  yet,  as 
Lord  Shrewsbury  told  William  of  the  To- 
ries in  general,  he  must  remember  that  he 
was  not  their  king,  of  which,  indeed,  he  had 
abundant  experience. 

A  still  more  material  reason  against  any 
alteration  in  the  public  Liturgy  and  cere- 
monial religion  at  that  feverish  crisis,  unless 
with  a  much  more  decided  concurrence  of 
the  nation  than  could  be  obtained,  was  the 
risk  of  nourishing  the  schism  of  the  non-ju- 
rors. These  men  went  off  from  the  Church 
on  grounds  merely  political,  or  at  most  on 
the  pretense  that  the  civil  power  was  in- 
competent to  deprive  bishops  of  their  ec- 
clesiastical jurisdiction,  to  which  none  among 
the  laity,  who  did  not  adopt  the  same  polit- 
ical tenets,  were  likely  to  pay  attention. 
But  the  established  Liturgy  was,  as  it  is  at 
present,  in  the  eyes  of  the  gi-eat  majority, 
the  distinguishing  mark  of  the  Anglican 
Church,  far  more,  indeed,  than  episcopal 
government,  whereof  so  little  is  known  by 
the  mass  of  the  people  that  its  abolition,  if 
we  may  utter  such  a  paradox,  would  make 
no  perceptible  difference  in  their  religion. 
Any  change,  though  for  the  better,  would 
offend  those  prejudices  of  education  and 
habit,  which  it  requires  such  a  revolutiona- 
ry commotion  of  the  public  mind  as  the  six- 
teenth century  witnessed,  to  subdue,  and 
might  fill  the  Jacobite  conventicles  with  ad- 
herents to  the  old  Church.  It  was  already 
the  policy  of  the  non-juring  clergy  to  hold 
themselves  up  in  this  respectable  light,  and 
to  treat  the  Tillotsons  and  Burnets  as  equal- 
ly schismatic  in  discipline  and  unsound  in 
theology.  Fortun.itely,  however,  they  fell 
into  the  snare  which  the  Established  Church 
had  avoided  ;  and  deviating,  at  least  in  their 
writings,  from  the  received  standard  of  An- 
glican orthodoxy,  into  what  the  people  saw 
with  most  jealousy,  a  sort  of  approximation 
to  the  Church  of  Rome,  gave  their  oppo- 
nents an  advantage  in  controversy,  and  drew 
further  from  that  part  of  the  clergy  who 
did  not  much  dislike  their  political  creed. 
They  were  equally  injudicious  and  neglect- 
ful of  the  signs  of  the  times,  when  they 
promulgated  such  extravagant  assertions  of 
sacerdotal  power  as  could  not  stand  with 
the  regal  supremacy,  or  any  subordination 


FROM  HENRY  VII.  TO  GEORGE  XL 


588 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XV. 


to  the  state.    It  was  plain,  from  the  writ- ' 
ings  of  Leslie  and  other  leaders  of  their  par-  | 
ty,  that  the  mere  restoration  of  the  house  | 
of  Stuart  would  not  content  them,  without 
undoing  all  that  had  been  enacted  as  to  the 
Church  from  the  time  of  Heniy  VIII. ;  ' 
and  thus  the  charge  of  innovation  came  ev- 
idently home  to  themselves.* 

The  Convention  Parliament  would  have 
acted  a  truly  politic  as  well  as  magnanimous 
part  in  extending  this  boon,  or,  rather,  this  j 
right,  of  religious  liberty  to  the  members 
of  that  unfortunate  Church,  for  whose  sake  ! 
the  late  king  had  lost  his  throne.    It  would  , 
have  displayed  to  mankind  that  James  had 
fallen,  not  as  a  Catholic,  nor  for  seeking  to  | 
bestow  toleration  on  Catholics,  but  as  a  vio-  j 
later  of  the  Constitution.    William,  in  all 
things  superior  to  his  subjects,  knew  that 
temporal,  and  especially  militai-y  fidelity, 
would  be  in  almost  every  instance  proof 
against  the  seductions  of  bigotry.  The 
Dutch  armies  have  always  been  in  a  great ' 
measure  composed  of  Catholics  ;  and  many 
of  that  profession  sei-ved  under  him  in  the 
invasion  of  England.    His  own  judgment' 
for  the  repeal  of  the  penal  laws  had  been 
declared  even  in  the  reign  of  James.  The 
danger,  if  any,  was  now  immensely  dimin- 

*  Leslie's  case  of  the  Regale  and  Pontificate  is 
a  long,  dull  attempt  to  set  up  the  sacerdotal  order 
above  all  civil  power,  at  least  as  to  the  exercise  > 
of  its  functions,  and  especially  to  get  rid  of  the  ap- 1 
pointment  of  bishops  by  the  crown,  or,  by  parity  | 
of  reasoning,  of  priests  by  lapnen.  He  is  indig- 
nant even  at  laymen  choosing  their  chaplains,  and  ; 
thinks  they  ought  to  take  tliem  from  the  bishop;  j 
objecting,  also,  to  the  phrase  my  chaplain,  as  if  i 
tliey  were  ser\-ants:  "otherwise  the  expression  is 
proper  enough  to  say  my  chaplain,  as  I  say  my  par- 
ish priest,  my  bishop,  my  king,  or  my  God  ;  which 
argues  my  being  under  their  care  and  direction,  and 
that  I  belong  to  them,  not  they  to  me." — P.  182. 
[In  another  place  he  says,  a  man  can  not  serve  two 
masters  ;  therefore  a  peer  should  not  have  two 
chaplains.]  It  is  full  of  enonnous  misrepresentation 
as  to  the  English  law.  [Leslie,  however,  like 
many  other  couti-oversialists,  wrote  impetuously 
and  hastily  for  his  immediate  purpose.  There  is  a 
great  deal  of  contradiction  between  this  "  Case  of 
the  Regale  and  Pontificate,"  published  in  1700  or 
1701,  and  his  "Case  stated  between  the  Churches 
of  Rome  and  England,"  in  1713.  In  the  latter,  the 
whole  reasoning  is  strictly  Protestant ;  and  while, 
in  the  Case  of  the  Regale,  he  had  set  up  the  au- 
thority of  the  Catholic  Church  as  binding,  not  only 
to  individuals,  but  to  national  churches,  he  here 
even  asserts  the  right  of  private  judgment,  and  de- 
nies that  any  general  coancU  ever  did  or  can  exist. 
—1845.] 


ished ;  and  it  appears  in  the  highest  degree 
probable  that  a  genuine  toleration  of  their 
worship,  with  no  condition  but  the  Oath  of 
Allegiance,  would  have  brought  over  the 
majority  of  that  Church  to  the  Protestant 
succession,  so  far,  at  least,  as  to  engage  in 
no  schemes  inimical  to  it.  The  wiser  Cath- 
olics would  have  perceived  that,  under  a 
king  of  their  own  faith,  or  but  suspected  of 
an  attachment  to  it,  they  must  continue  the 
objects  of  perpetual  distrust  to  a  Protestant 
nation.  They  would  have  learned  that  con- 
spiracy and  Jesuitical  intrigue  could  but 
keep  alive  calumnious  imputations,  and  di- 
minish the  respect  which  a  generous  people 
would  naturally  pay  to  their  sincerity  and 
their  misfortune.  Had  the  legislators  of 
that  age  taken  a  still  larger  sweep,  and  abol- 
ished at  once  those  tests  and  disabilities, 
which,  once  necessary  bulwarks  against  an 
insidious  court,  were  no  longer  demanded 
in  the  more  republican  model  of  our  gov- 
ernment, the  Jacobite  cause  would  have 
suffered,  I  believe,  a  more  deadly  wound 
than  penal  statutes  and  double  taxation  were 
able  to  inflict.  But  this  was  beyond  the 
philosophers,  how  much  beyond  the  states- 
men, of  the  time ! 

The  Tories,  in  their  malignant  hatied  of 
our  illusti-ious  monarch,  turned  ,  .  _ 

Laws  against 

his  connivance  at  popery  into  a  Roman  Cath- 
theme  of  reproach.*  It  was  be- 
lieved,  and  probably  with  truth,  that  he  had 
made  to  his  Catholic  allies  promises  of  re- 
laxing the  penal  laws  ;  and  the  Jacobite  in- 
triguers had  the  mortification  to  find  that 
William  had  his  party  at  Rome,  as  well  as 
her  exiled  confessor  of  St.  Germain's.  Aft- 
er the  peace  of  Ryswick  many  priests  came 
over,  and  showed  themselves  with  such  in- 
cautious publicity  as  alarmed  the  bigotry  of 
the  House  of  Commons,  and  produced  the 
disgraceful  act  of  1700  against  the  growth 
of  popery. f    The  admitted  aim  of  this  stat- 

•  See  Burnet  (Oxf.,  iv.,  409),  and  Lord  Dart- 
mouth's note. 

t  No  opposition  seems  to  have  been  made  in  the 
House  of  Commons ;  but  we  have  a  protest  from 
four  peers  against  it.  Burnet,  though  he  offerg 
some  shameful  arguments  in  favor  of  the  bill,  such 
as  might  justify  any  tyranny,  admits  that  it  con- 
tained some  unreasonable  severities,  and  that  many 
were  really  adverse  to  it.  A  bill  proposed  in  1705, 
to  render  the  late  act  against  papists  effectivei 
was  lost  by  119  to  43  (Pari.  Hist.,  vi.,  514),  which 
shows  that  men  were  ashamed  of  what  they  had 
done.    A  proclamation,  however,  was  issaed  in 


Will.  III.] 


FROM  HENRY  V: 


11.  TO  GEORGE  11. 


589 


ute  was  to  expel  the  Catholic  proprietors 
of  land,  coinprisiug  many  very  ancient  and 
wealthy  families,  by  rendering  it  necessa)y 
for  them  to  sell  their  estates.  It  first  offers 
a  reward  of  c£100  to  any  informer  against  a 
priest  e.\ercising  his  functions,  and  adjudg- 
es the  penalty  of  perpetual  imprisonment. 
It  requires  every  pei'son  educated  iu  the 
popish  religion,  or  professing  the  same, 
within  six  months  after  he  shall  attain  the 
age  of  eighteen  years,  to  take  the  Oaths  of 
Allegiance  and  Supremacy,  and  subscribe  the 
declaiation  set  down  in  the  act  of  Charles 
II.  against  transubstantiation  and  the  wor- 
ship of  saints  ;  in  default  of  which  he  is  in- 
capacitated, not  only  to  purchase,  but  to  in- 
herit or  take  lands  under  any  devise  or  lim- 
itation. The  next  of  kin  being  a  Protestant 
shall  enjoy  such  lauds  during  his  life.*  So 
unjust,  so  unprovoked  a  persecution  is  tlie 
disgrace  of  that  Parliament.  But  the  spir- 
it of  liberty  and  tolerance  was  too  strong 
for  the  tyranny  of  the  law,  and  this  statute 
was  not  executed  according  to  its  purpose. 
The  Catholic  landholders  neither  renounced 
their  religion  nor  abandoned  their  inheritan- 
ces. The  judges  put  such  constructions 
upon  the  clause  of  forfeiture  as  eluded  its 
efficacy ;  and,  I  believe,  there  were  scarce 
any  instances  of  a  loss  of  property  under 
this  law.  It  has  been  said,  and,  I  doubt 
1711,  immediately  after  Guiscai'd's  attempt  to  kill 
Mr.  Harley,  for  enforcing  the  penal  laws  against 
Roman  Catholics,  which  was  very  scandalous,  as 
tending  to  impute  that  crime  to  them. — Boyers 
Reign  of  Anne,  p.  429.  Aiid  in  the  reigii  of  Geo. 
I.  (1722),  £100,000  was  levied  by  a  particular  act 
on  the  estates  of  papists  and  non-jurors.  This  was 
only  carried  by  188  to  172;  Sir  Joseph  Jekyll,  and 
Mr.  Onslow,  afterward  speaker,  opposing  it,  as 
well  as  Lord  Cowper  in  the  other  House. — 9  Geo. 
I.,  c.  18.  Pari.  Hist.,  viii.,  51,  3o3.  It  was  quite 
impossible  that  those  who  sincerely  maintained 
the  priucijjles  of  toleration  should  long  continue  to 
make  any  exception;  though  the  exception  in  this 
instance  was  wholly  on  political  grounds,  and  not 
out  of  bigotry,  it  did  not  the  less  contravene  all 
that  Taylor  and  Locke  had  taught  men  to  cherish. 

*  11  &,  12  Wm.  III.,  c.  4.  It  is  hardly  necessa- 
ry to  add,  that  this  act  was  repealed  in  1779.  [Ac- 
cording to  a  paper  printed  by  Dalrymple,  vol.  ii., 
Appendix,  p.  12,  the  number  of  papists  in  England 
above  the  age  of  sixteen  was  but  13,850.  This 
was  not  long  after  the  Revolution,  though  no  pre- 
cise date  is  given.  The  Protestants,  Conformists, 
and  Non-conformists,  of  the  same  age,  are  made  to 
amount  to  2,-585,930.  This  would  be  not  very  far 
below  the  mark,  as  we  know  from  other  sources ; 
but  the  number  of  Catholics  appears  incredibly 
gmall.— 1845.] 


not,  with  justice,  that  the  Catholic  gentry, 
during  the  greater  part  of  the  eighteenth 
century,  were  as  a  separated  and  half-pro- 
scribed class  among  their  equals,  their  civil 
exclusion  hanging  over  them  iu  the  inter- 
course of  general  society  ;*  but  their  noto- 
rious, though  not  unnatural  disaffection  to 
the  reigning  family  will  account  for  much 
t-f  this,  and  their  religion  was  undoubtedly 
exercised  with  little  disguise  or  apprehen- 
sion. The  laws  were,  perhaps,  not  much 
less  severe  and  sanguinary  than  those  which 
oppressed  the  Protestants  of  France ;  but 
in  their  actual  administration,  what  a  con- 
trast between  the  government  of  George  II. 
and  Louis  XV.,  between  the  gentleness  of 
an  English  court  of  King's  Bench,  and  the 
ferocity  of  the  Parliaments  of  Aix  and  Tou- 
louse ! 

The  immediate  settlement  of  the  crown 
at  the  Revolution  extended  only  Act  of  Set- 
to  the  descendants  of  Anne  and  'lement. 
of  William.  The  former  was  at  that  time 
pregnant,  and  became  in  a  few  months  the 
mother  of  a  son.  Nothing,  therefore,  urged 
the  Convention  Parliament  to  go  any  fur- 
ther iu  limiting  the  succession.  But  the 
king,  in  order  to  secure  the  elector  of  Han- 
over to  the  grand  alliance,  was  desirous  to 
settle  the  reversion  of  the  crown  on  his  wife 
the  Princess  Sophia  and  her  posterity.  A 
provision  to  this  effect  was  inserted  in  the 
Bill  of  Rights  by  the  House  of  Lords.  But 
the  Conmions  rejected  the  amendment  with 
little  opposition;  not,  as  Burnet  idly  insinu- 
ates, tlu'ough  the  secret  wish  of  a  Republi- 
can party  (which  never  existed,  or  had  no 
influence)  to  let  the  monarchy  die  a  natural 
death,  but  from  a  just  sense  that  the  pro- 
vision was  unnecessary  and  might  become 
inexpedient.!    During  the  life  of  the  young 

*  Butler's  Memoirs  of  Catholics,  ii.,  64. 

t  While  the  bill  regulating  the  succession  was 
in  the  House  of  Commons,  a  proviso  was  offered 
by  Mr.  Godolphin,  that  nothing  in  this  act  is  in- 
tended to  be  drawn  into  example  or  consequence 
hereafter,  to  prejudice  the  right  of  any  Protestant 
prince  or  princess  in  their  hereditai-y  succession  to 
the  imperial  crown  of  those  realms.  This  was 
much  opposed  by  the  Whigs,  both  because  it  tend- 
ed to  let  in  the  son  of  James  II.  if  he  should  be- 
come a  Protestant,  and  for  a  more  secret  reason, 
that  they  did  not  like  to  recognize  the  continuance 
of  any  hereditai-y  right.  It  was  rejected  by  179 
to  125. — Pari.  Hist.,  v.,  249.  The  Lords'  amend- 
ment in  favor  of  the  Princess  .Sophia  was  lost  with- 
out a  division. — Id.,  339. 


590 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[ClIAF.  XV. 


Duke  of  Gloucester  the  course  of  succession 
appeared  clear  ;  but  upon  his  untimely  death 
in  1700,  the  manifest  improbability  that  the 
limitations  already  established  could  subsist 
beyond  the  lives  of  the  King  and  Princess 
of  Denmark  made  it  highly  convenient  to 
preclude  intrigue,  and  cut  off"  the  hopes  of 
the  Jacobites  by  a  new  settlement  of  the 
crown  on  a  Protestant  line  of  princes.* 
Though  the  choice  was  truly  free  in  the 
hands  of  Parliament,  and  no  pretext  of  ab- 
solute right  could  be  advanced  on  any  side, 
there  was  no  question  that  the  Princess  So- 
phia was  the  fittest  object  of  the  nation's 
preference.  She  was,  indeed,  veiy  far  re- 
moved from  any  hereditary  title.  Besides 
the  pretended  Prince  of  Wales,  and  his 
sister,  whose  legitimacy  no  one  disputed, 
there  stood  in  her  way  the  Duchess  of  Sa- 
voy, daughter  of  Henrietta  duchess  of  Or- 
leans, and  several  of  the  Palatine  family. 
These  last  had  abjured  the  Reformed  faith, 
of  which  their  ancestors  had  been  the  stren- 
uous assertors ;  but  it  seemed  not  improb- 
able that  some  one  might  return  to  it ;  and 
if  all  hereditaiy  right  of  the  ancient  English 
royal  line,  the  descendants  of  Heury  VII., 
had  not  been  extinguished,  it  would  have 
been  necessaiy  to  secure  the  succession  of 
any  prince  who  should  profess  tVie  Protes- 
tant religion  at  the  time  when  the  existing 
limitations  should  come  to  an  end.f  Ac- 
cording to  the  tenor  and  intention  of  the 
Act  of  Settlement,  all  prior  claims  of  inherit- 
ance, save  that  of  the  issue  of  King  William 
and  the  Princess  Anne,  being  set  aside  and 
annulled,  the  Princess  Sophia  became  the 
source  of  a  new  royal  line.t    The  throne 

*  [It  is  asserted  by  Lord  Dartmouth,  in  a  note 
on  Burnet,  iv.,  520,  that  some  of  the  Whigs  had  a 
project  of  bring-ing  in  the  house  of  Hanover  at  once 
on  the  king's  death.  But  no  rational  man  could 
have  thouglit  of  this. — 1845.] 

t  The  Duchess  of  Savoy  put  in  a  very  foolish 
protest  against  any  thing  that  should  be  done  to 
prejudice  her  right. — Ralph,  924. 

X  [It  might  be  urged  against  this,  that  the  act 
of  settlement  declares,  as  well  as  enacts,  the  Prin- 
cess Sophia  to  be  "  next  in  succession,  in  the  Prot- 
estant line,  to  the  imperial  crown  and  dignity,"  &c., 
reciting,  also,  her  descent  from  James  I.  But  if 
we  take  into  consideration  the  public  history  of  the 
transaction,  and  the  necessity  which  was  felt  for 
a  Parliamentary  settlement,  we  shall  be  led  to 
think  that  this  was  merely  the  assertion  of  a  fact, 
and  not  a  recognition  of  an  existing  right.  This 
also  seems  to  be  the  opinion  of  Blackstone,  who 
treats  the  Princess  Sophia  a.s  a  new  slirps  of  the 


of  England  and  Ireland,  by  virtue  of  the  par- 
amount will  of  Parliament,  stands  entailed 
upon  the  heirs  of  her  body,  being  Protes- 
tants. In  them  the  right  is  as  truly  heredi- 
tary as  it  ever  was  in  the  Plantagenets  or 
the  Tudors ;  but  they  derive  it  not  from 
those  ancient  families.  The  blood,  indeed, 
of  Cerdic  and  of  the  Conqueror  flows  in  the" 
veins  of  his  present  majesty.  Our  Edwards 
and  Henries  illustrate  the  almost  unrivaled 
splendor  and  antiquity  of  the  house  of 
Brunswick  ;  but  they  have  transmitted  no 
more  right  to  the  allegiance  of  England  than 
Boniface  of  Este  or  Henry  the  Lion.  That 
rests  wholly  on  the  Act  of  Settlement,  and 
resolves  itself  into  the  sovereignty  of  the 
Legislature. 

The  majority  of  that  House  of  Commons 
which  passed  the  Bill  of  Settlement  con- 
sisted of  those  who,  having  long  opposed  the 
administration  of  William,  though  with  very 
different  principles  both  as  to  the  succession 
of  the  crown  and  its  prerogative,  were  now 
often  called  by  the  general  name  of  Tories. 
Some,  no  doubt,  of  these  were  adverse  to  a 
measure  which  precluded  the  restoration 
of  the  house  of  Stuart,  even  on  the  contin- 
gency that  its  heir  might  embrace  the  Prot- 
estant religion  ;*  but  this  party  could  not 
show  itself  very  openly  ;  and  Harley,  the 
new  leader  of  the  Tories,  zealously  support- 
royal  family ;  but  it  is  probable  that  those  who 
drew  the  bill  meant  to  show  the  world  that  we  de- 
viated as  little  as  circumstances  would  admit  from 
the  hereditary  line.  The  vote,  in  fact,  of  the  Con- 
vention Parliament  in  January,  1689,  that  the 
throne  was  then  vacant,  put  an  end,  according  to 
any  legal  analogies,  to  the  supposition  of  a  sub- 
sisting reversiouaiy  right.  Nor  do  I  conceive  that 
many  persons,  conversant  with  our  Constitution, 
imagine  any  one  to  have  a  right  to  the  crown,  on 
the  happily  most  improbable  supposition  of  the  ex- 
tinction of  our  royal  family. — 1845.] 

*  ["  The  Whigs,"  says  Bolingbroke,  "  bad  ap- 
peared zealous  for  the  Protestant  succession,  when 
King  William  proposed  it  after  the  death  of  the 
Duke  of  Gloucester.  The  Tories  voted  for  it  then ; 
and  the  acts  that  were  judged  necessary  to  secure 
it,  some  of  them  at  least,  were  promoted  by  them ; 
yet  were  they  not  thought,  nor  did  they  affect,  as 
the  others  did,  to  be  thought  extremely  fond  of  it. 
King  William  did  not  come  into  this  measure  till 
he  found,  upon  trial,  that  there  was  no  other  safe 
and  praclicahlc ;  and  the  Tories  had  an  air  of 
coming  into  it  for  no  other  reason ;  besides  which, 
it  is  certain  that  there  was  at  that  time  a  much 
greater  leaven  of  Jacobitism  in  the  Tory  camp  than 
at  the  time  spoken  of  here." — State  of  Parties  at 
Accession  of  George  I. — 1845.] 


Will.  III.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


591 


ed  the  entail  of  the  crown  on  the  Princess 
Sophia.  But  it  was  determined  to  accom- 
pany this  settlement  with  additional  securi- 
ties for  the  subject's  liberty.*  The  Bill  of 
Rights  was  reckoned  hasty  and  defective  ; 
some  matters  of  gi-eat  importance  had  been 
omitted,  and  in  the  twelve  years  which  had 
since  elapsed,  new  abuses  had  called  for  new 
remedies.  Eight  articles  were  therefore 
inserted  in  the  Act  of  Settlement,  to  take  ef- 
fect only  from  the  commencement  of  the 
new  limitation  to  the  house  of  Hanover. 
Some  of  them,  as  will  appear,  sprung  from  a 
natural  jealousy  of  this  unknown  and  foreign 
line ;  some  should  strictly  not  have  been 
postponed  so  long ;  but  it  is  necessary  to  be 
content  with  what  it  is  practicable  to  obtain. 
These  articles  are  the  following  : 

That  whosoever  shall  hereafter  come  to 
Limitations  the  possession  of  this  crown,  shall 
Uve'cm^^'  '"^   communion   with  the 

taincd  in  it.  Church  of  England,  as  by  law 
established. 

That  in  case  the  crown  and  imperial  dig- 
nity of  this  realm  shall  hereafter  come  to 
any  person,  not  being  a  native  of  this  king- 
dom of  England,  this  nation  be  not  obliged 
to  engage  in  any  war  for  the  defense  of  any 
dominions  or  territories  which  do  not  be- 
long to  the  crown  of  England,  without  the 
consent  of  Parliament. 

That  no  person  who  shall  hereafter  come 
to  the  possession  of  this  crown,  shall  go  out 
of  the  dominions  of  England,  Scotland,  or 
Ireland,  without  consent  of  Parliament. 

That  from  and  after  the  time  that  the 
further  limitation  by  this  act  skall  take  ef- 
fect, all  matters  and  things  relating  to  the 
well  governing  of  this  kingdom,  which  are 
properly  cognizable  in  the  privy  council  by 
the  laws  and  customs  of  this  realm,  .shall  be 
transacted  there,  and  all  resolutions  taken 
thereupon  shall  be  signed  by  such  of  the 
privy  council  as  shall  advise  and  consent  to 
the  same. 

*  [It  was  resolved  in  a  committee  of  t!ie  wliole 
House,  and  agreed  to  by  the  House,  that  "for  the 
preserving  the  peace  and  Iiappiness  of  this  king- 
dom and  the  security  of  the  Protestant  religion  by 
law  established,  it  is  absolutely  necessary  a  fur- 
ther declaration  be  made  of  the  limitation  and  suc- 
cession of  the  crown  in  the  Protestant  line,  after 
his  majesty  and  the  princess,  and  the  heirs  of  their 
bodies  respectively.  Resolved,  that  further  pro- 
vision be  first  made  for  security  of  the  rights  and 
liberties  of  the  people." — Commons'  Journals,  2d 
of  March,  1700-1.— 18-15.] 


That  after  the  said  limitation  shall  take 
effect  as  aforesaid,  no  person  born  out  of  the 
kingdoms  of  England,  Scotland,  or  Ireland, 
or  the  dominions  thereunto  belonging  (al- 
though he  be  naturalized  or  made  a  denizen 
— except  such  as  are  born  of  English  pa- 
rents), shall  be  capable  to  be  of  the  privy 
council,  or  a  member  of  either  house  of  Par- 
liament, or  to  enjoy  any  office  or  place  of 
trust,  either  civil  or  military,  or  to  have  any 
grant  of  lands,  tenements,  or  hereditaments 
from  the  crown,  to  himself,  or  to  any  other 
or  others  in  trust  for  him. 

That  no  person  who  has  an  office  or  place 
of  profit  under  the  king,  or  receives  a  pen- 
sion from  the  crown,  shall  be  capable  of 
serving  as  a  member  of  the  House  of  Com- 
mons. 

That,  after  the  said  limitation  shall  take 
effect  as  aforesaid,  judges'  commissions  be 
made  quamdiu  se  bene  gesserint,  and  their 
salaries  ascertained  and  established ;  but, 
upon  the  address  of  both  houses  of  Parlia- 
ment, it  may  be  lawful  to  remove  them. 

That  no  pardon  under  the  great  seal  of 
England  be  pleadable  to  an  impeachment  by 
the  Commons  in  Parliament.* 

The  first  of  these  provisions  was  well 
adapted  to  obviate  the  jealousy  which  the 
succession  of  a  new  dynasty,  bred  in  a  Prot- 
estant Church  not  altogether  agreeing  Avith 
our  own,  might  excite  in  our  susceptible 
nation.  A  similar  apprehension  of  foreign 
government  produced  the  second  article, 
which  so  far  limits  the  royal  prerogative, 
that  any  minister  who  could  be  proved  to 
have  advised  or  abetted  a  declaration  of  war 
in  the  specified  contingency  would  be  crim- 
inally responsible  to  Parliament.f  The 

*  12  &  13  Wm.  ill.,  c.  2^ 

t  It  was  frequently  contended  in  the  reign  of 
George  II.  that  subsidiary  treaties  for  the  defense 
of  Hanover,  or,  rather,  such  as  were  covertly  de- 
signed for  that  and  no  other  purpose,  as  those  with 
Russia  and  Hesse  Cassel  in  1755,  were  at  least 
conti-ary  to  the  spirit  of  the  Act  of  Settlement.  On 
the  other  hand,  it  was  justly  answered  that,  al- 
though in  case  Hanover  should  be  attacked  on  the 
ground  of  a  German  quarrel,  unconnected  with 
English  politics,  we  were  not  bound  to  defend  her; 
yet,  if  a  power  at  war  with  England  should  think 
fit  to  consider  that  electorate  as  part  of  the  king's 
dominions  (which,  perhaps,  according  to  the  law  of 
nations,  might  be  done),  our  honor  must  require 
that  it  should  be  defended  against  such  an  attack. 
This  is  true ;  and  yet  it  shows  very  forcibly  that 
the  separation  of  the  two  ought  to  have  been  in- 
sisted upon,  since  the  present  connection  engages 


592 


CONSTITUTIONAL  HISTOHY  OF  ENGLAND 


[Chap.  XV. 


third  article  was  repealed  very  soon  after 
the  accession  of  George  I.,  whose  frequent 
journeys  to  Hanover  were  an  abuse  of  the 
graciousuess  with  which  the  Parliament 
consented  to  annul  the  restriction.* 

A  very  remaikable  alteration  that  had 
.,  been  silently  wrought  in  the 
superseded  course  of  the  executive  govern- 
by  a  cabinet,  jj^g^j.  gave  rise  to  the  fourth  of 
the  remedial  articles  in  the  Act  of  Settle- 
ment. According  to  the  original  constitu- 
tion of  our  monarchy,  the  king  had  his  privy 
council  composed  of  the  gi-eat  ofificers  of 
state,  and  of  such  others  as  he  should  sum- 
mon to  it,  bound  by  an  oath  of  fidelity  and 
secrecy,  by  whom  all  aftairs  of  weight, 
whether  as  to  domestic  or  exterior  policy, 
were  debated  for  the  most  part  in  his  pres- 
ence, and  deteiTuined,  subordinately,  of 
course,  to  his  pleasure,  by  the  vote  of  the 
major  part.  It  could  not  happen  but  that 
some  counselors  more  eminent  than  the  rest 
should  form  juntos  or  cabals  for  more  close 
and  private  management,  or  be  selected  as 
more  confidential  advisers  of  their  sover- 
eign ;  and  the  very  name  of  a  cabinet  coun- 
cil, as  distinguished  from  the  larger  body, 
may  be  found  as  far  back  as  the  reign  of 
Charles  I. ;  but  the  resolutions  of  the 
crown,  whether  as  to  foreign  alliances  or 
the  issuing  of  proclamations  and  orders  at 
home,  or  any  other  overt  act  of  government, 
were  not  finally  taken  without  the  deliber- 
ation and  assent  of  that  body  whom  the  law 
recognized  as  its  sworn  and  notorious  coun- 
selors. This  was  first  broken  in  upon  after 
the  Restoration,  and  especially  after  the  fall 
of  Clarendon,  a  stienuous  assertor  of  the 
rights  and  dignity  of  the  privy  council. 
"  The  king,"  as  he  complains,  "  had  in  his 
nature  so  little  reverence  and  esteem  for 
antiquity,  and  did,  in  ti'uth,  so  much  con- 
temn old  orders,  forms,  and  institutions,  that 
the  objection  of  novelty  rather  advanced 
than  obstructed  any  proposition. "f  He 
wanted  to  be  absolute  on  the  French  plan. 

Great  Britain  in  a  verj-  disadvantageous  mode  of 
earn  ing  on  its  wars,  without  any  compensation  of 
national  wealth  or  honor,  except,  indeed,  that  of 
emplo\Tng  occasionally  in  its  service  a  very  brave 
and  efficient  body  of  troops. — 1829. 
*  1  Geo.  L.  c.  51. 

t  Life  of  Clarendon,  319.  [It  was  not  usual  to 
have  any  privy  counselors  except  great  officers  of 
state,  and  a  few  persons  of  high  rank.  This  was 
rather  relaxed  after  the  Kestoration  ;  bat  Claren- 


i  for  which  both  he  and  his  brother,  as  the 
I  same  historian  tells  us.  had  a  great  predi- 
lection, rather  than  obtain  a  power  little  less 
,  arbiti-ary,  so  far,  at  least,  as  private  rights 
I  were  concerned,  on  the  system  of  his  three 
;  predecessors.    The  delays  and  the  decen- 
cies of  a  regular  council,  the  continual  hesi- 
tation of  lawyers,  were  not  suited  to  his 
temper,  his  talents,  or  his  designs;  and  it 
must  indeed  be  admitted  that  the  pri\y 
council,  even  as  it  was  then  constituted 
was  too  numerous  for  the  practical  adminis- 
tration of  supreme  power.    Thus,  by  de- 
!  grees,  it  became  usual  for  the  ministry  or 
cabinet  to  obtain  the  king's  final  approba- 
tion of  their  measures  before  they  were 
;  laid,  for  a  merely  formal  ratification,  before 
the  council.*    It  was  one  object  of  Sir 
William  Temple's  short-lived  scheme  in 
1679  to  bring  back  the  ancient  course,  the 
king  pledging  himself  on  the  formation  of 
his  new  privy  council  to  act  in  all  things  by 
its  advice. 

i  During  the  reign  of  William,  this  distinc- 
tion of  the  cabinet  from  the  privy  Exclnsioo  of 
council,  and  the  exclusion  of  the  pia«ineD 

,  f  11  I      ■  c  pension- 

latter  trom  all  busmess  oi  state,  era  from 

became  more  fully  established.!  I'"''^"'^"'- 

don  opposed  Sir  "Wilham  Coventry's  introduction 
into  the  council  on  this  account. — P.  565. — 1845.] 
j     *  [Trenchard,  in  his  Short  History  of  Standing 
Armies,  published  about  169S,  and  again  in  1731. 
says,  '  Formerly  all  matters  of  state  and  discretion 
I  were  debated  and  resolved  in  the  privy  council, 
where  every  man  subscribed  his  opinion,  and  was 
answerable  for  it.    The  late  King  Charles  was  the 
.  first  who  broke  this  most  excellent  part  of  our 
,  Constitution,  by  settUng  a  cabal  or  cabinet  council, 
where  all  matters  of  consequence  were  debated 
I  and  resolved,  and  then  brought  to  the  privy  coun- 
\  cil  to  be  confirmed.''— P.  9.— 1845.] 
j     t  "  The  method  is  this,''  says  a  member  in  de- 
I  bate;  "things  are  concerted  in  the  cabinet,  and 
;  then  brought  to  the  council;  such  a  thing  is  re- 
]  solved  in  the  cabinet,  and  brought  and  put  on  them 
I  for  their  assent,  without  showing  any  of  the  reas- 
;  ons.    That  has  not  been  the  method  of  England. 
I  If  this  method  be,  you  will  never  know  who  gives 
advice.'' — Pari.  Hist,  v.,  731.  [In  the  Lords'  House, 
Jan.,  1711,  '•  the  Earl  of  Scarsdale  proposed  the  fol- 
lowing question:  That  it  appears  by  the  Earl  of  Sun- 
derland's letter  to  Mr.  Stanhope,  that  the  design  of 
an  offensive  war  in  Spain  was  approved  and  direct- 
ed by  the  cabinet  council.  "    But  the  mover  after- 
ward subsrituted  the  word  "  ministers"  for  "  cab- 
inet council,  '  as  better  known.    Lord  Cowper  said 
they  were  both  terms  of  an  uncertain  signification, 
and  the  latter  unknown  to  our  law.    Some  con- 
tended that  ministers  and  cabinet  council  were 
synonjinous,  others  that  there  might  be  a  differ- 


Will,  in.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


593 


This,  however,  produced  a  serious  conse- 
quence as  to  the  responsibihty  of  the  advis- 
ers of  the  crown  ;  and  at  the  very  time 
when  the  controlUng  and  chastising  power 
of  Parliament  was  most  effectually  recog- 
nized, it  WEis  silently  eluded  by  the  conceal- 
ment in  which  the  objects  of  its  inquiry 
could  wrap  themselves.  Thus,  in  the  in- 
stance of  a  treaty  which  the  House  of  Com- 
mons might  deem  mischievous  and  dishon- 
orable, the  chancellor  setting  the  great  seal 
to  it  would  of  course  be  responsible  ;  but  it 
is  not  so  evident  that  the  first  lord  of  the 
treasuiy,  or  others  more  immediately  ad- 
vising the  crown  on  the  course  of  foreign 
policy,  could  be  liable  to  impeachment  with 
any  prospect  of  success  for  an  act  in  which 
their  participation  could  not  be  legally 
proved.  I  do  not  mean  that  evidence  may 
not  possibly  be  obtained  which  would  affect 
ence.  Peterborough  said  "  he  had  heard  a  distinc- 
tion between  the  cabinet  council  and  the  privy 
council ;  that  the  privy  council  were  such  as  were 
thought  to  know  every  thing,  and  knew  nothing, 
and  those  of  the  cabinet  council  thought  nobody 
knew  any  thing  but  themselves."  —  Pari.  Hist., 
vi,  971. 

At  a  meeting  of  the  privy  council,  April  7,  1713, 
the  peace  of  Utrecht  was  laid  before  them,  but 
merely  for  form's  sake,  the  treaty  being  signed  by 
all  the  powers  four  days  afterward.  Chief-justice 
Parker,  however,  and  Lord  Cholmondeley  were 
said  to  have  spoken  against  it. — Id.,  1192,  from 
Swift's  Journal 

If  we  may  trust  a  party-writer  at  the  beginning 
of  Anne's  reign,  the  Archbishop  of  Canterbury  was 
regularly  a  member  of  the  cabinet  council. — Public 
Spirit  of  the  Whigs,  in  Somers  Tracts,  ix.,  22. 
But  probably  the  fact  was,  that  he  occasionally 
was  called  to  their  meetings,  as  took  place  much 
later. — Coxe's  Memoirs  of  Walpole,  i.,  637.  et  alibi. 

Lord  Mansfield  said  in  the  House  of  Lords,  in 
1775,  Pari.  Hist.,  xviii.,  274,  that  he  had  been  a 
cabinet  minister  part  of  the  late  reign  and  tlie 
whole  of  the  present ;  but  there  was  a  nominal 
and  an  efficient  cabinet ;  and  a  little  before  Lord 
Rockingham's  administration  he  had  asked  the 
king's  leave  not  to  act  in  the  latter. — 1845  ] 

In  Sir  Humphrey  Mackworth's  [or  perhaps  Mr. 
Harley's]  Vindication  of  the  Rights  of  the  Com- 
mons of  England,  1701,  Somers  Tracts,  xi.,  276,  the 
constitutional  doctrine  is  thus  laid  down,  according 
to  the  spirit  of  the  recent  act  of  settlement :  "  As 
to  the  setting  of  the  great  seal  of  England  to  for- 
eign alliances,  the  lord-chancellor,  or  lord-keeper 
for  the  time  being,  has  a  plain  rule  to  follow ;  that 
is,  humbly  to  inform  the  king  that  he  can  not  legal- 
ly set  the  great  seal  of  England  to  a  matter  of  that 
consequence  unless  the  same  be  first  debated  and 
resolved  in  council ;  which  method  being  observed, 
the  chancellor  is  safe,  and  the  council  answerable." 
—P.  293. 

Q  Q 


the  leaders  of  the  cabinet,  as  in  the  instances 
of  Oxford  and  Bolingbroke ;  but  that,  the 
cabinet  itself  having  no  legal  existence,  and 
its  members  being  surely  not  amenable  to 
punishment  in  their  simple  capacity  of  privy 
counselors,  which  they  generally  share,  in 
modern  times,  with  a  great  number  even  of 
their  adversaries,  there  is  no  tangible  char- 
acter to  which  responsibility  is  attached ; 
nothing,  except  a  signature  or  the  setting 
of  a  seal,  from  which  a  bad  minister  need 
entertain  any  further  apprehension  than 
that  of  losing  his  post  and  reputation.*  It 
may  be  that  no  absolute  corrective  is  prac- 
ticable for  this  apparent  deficiency  in  our 
constitutional  security ;  but  it  is  expedient 
to  keep  it  well  in  mind,  because  all  minis- 
ters speak  loudly  of  their  responsibility, 
and  are  apt,  upon  faith  of  this  imaginary 
guarantee,  to  obtain  a  previous  confidence 
from  Parliament  which  they  may  in  fact 
abuse  with  impunity ;  for  should  the  bad 
success  or  detected  guilt  of  their  ineEisures 
raise  a  popular  cry  against  them,  and  cen- 
sure or  penalty  be  demanded  by  their  op- 
ponents, they  will  infallibly  shroud  their 
persons  in  the  dark  recesses  of  the  cabinet, 
and  employ  every  art  to  shift  off  the  burden 
of  individual  liability. 

William  III.,  from  the  reseiTedness  of 
his  disposition,  as  well  as  from  the  great  su- 
periority of  his  capacity  for  affairs  to  any  of 
our  former  kings,  was  far  less  guided  by 
any  responsible  counselors  than  the  spirit 
of  our  Constitution  requires.  In  the  busi- 
,ness  of  the  partition  ti-eaty,  which,  whether 
rightly  or  otherwise,  the  House  of  Com- 
mons reckoned  highly  injurious  to  the  pub- 
lic interests,  he  had  not  even  consulted  his 

*  This  very  delicate  question  as  to  the  responsi- 
bility of  the  cabinet,  or  what  is  commonly  called 
the  ministry,  in  solidum,  if  I  may  use  the  expres- 
sion, was  canvassed  in  a  remarkable  discussion 
within  our  memory,  on  the  introduction  of  the  late 
chief-justice  of  the  King's  Bench  into  that  select 
body  1  Mr.  Fox  strenuously  denying  the  proposition, 
and  Lord  Castlereagh,  with  others  now  living, 
maintaining  it. — Pari.  Debates,  A.D.  1806.  I  can 
not  possibly  comprehend  how  an  article  of  im- 
peachment for  sitting  as  a  cabinet  minister  could 
be  drawn ;  nor  do  I  conceive  that  a  privy  counsel- 
or has  a  right  to  resign  his  place  at  the  board,  or 
even  to  absent  himself  when  summoned ;  so  that  it 
would  be  highly  unjust  and  illegal  to  presume  a 
participation  in  culpable  measures  from  the  mere 
circumstance  of  belonging  to  it.  Even  if  notoriety 
be  a  ground,  as  has  been  sometimes  contended,  for 
impeachment,  it  can  not  be  sufficient  for  conviction. 


594 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XV. 


cabinet ;  nor  could  any  minister,  except  the 
Earl  of  Portland  and  Lord  Somers,  be 
proved  to  have  had  a  concern  in  the  trans- 
action ;  for,  though  the  House  impeached 
Lord  Orford  and  Lord  Halifax,  they  were 
not,  in  fact,  any  further  parties  to  it  than 
by  being  in  the  secret,  and  the  former  had 
shown  his  usual  intractability  by  objecting 
to  the  whole  measure.  This  was  undoubt- 
edly such  a  departure  from  sound  constitu- 
tional usage  as  left  Parliament  no  control 
over  the  executive  administration.  It  was 
endeavored  to  restore  the  ancient  principle 
by  this  provision  in  the  Act  of  Settlement, 
that,  after  the  accession  of  the  house  of 
Hanover,  all  resolutions  as  to  government 
should  be  debated  in  the  privy  council,  and 
signed  by  those  present;  but,  whether  it 
were  that  real  objections  were  found  to 
stand  in  the  way  of  this  article,  or  that  min- 
isters shrank  back  from  so  definite  a  respon- 
sibility, they  procured  its  repeal  a  very  few 
years  afterward.*  The  plans  of  govern- 
ment are  discussed  and  determined  in  a 
cabinet  council,  forming,  indeed,  part  of  the 
larger  body,  but  unknown  to  the  law  by  any 
distinct  character  or  special  appointment. 
I  conceive,  though  I  have  not  the  means  of 
tracing  the  matter  clearly,  that  this  change 
has  prodigiously  augmented  the  direct  au- 
thority of  the  secretaries  of  state,  especially 
as  to  the  interior  department,  who  commu- 
nicate the  king's  pleasure  in  the  first  in- 
stance to  subordinate  officers  and  magis- 
trates, in  cases  which,  down,  at  least,  to  the 
time  of  Charles  I.,  would  have  been  de^ 
termined  in  council ;  but  proclamations  and 
orders  still  emanate,  as  the  law  requires, 
from  the  privy  council ;  and  on  some  rare 
occasions,  even  of  late  years,  matters  of  do- 
mestic policy  have  been  referred  to  their 
advice.  It  is  generally  understood,  how- 
ever, that  no  counselor  is  to  attend,  except 
when  summoned  ;f  so  that,  unnecessarily 
numerous  as  the  council  has  become,  these 
special  meetings  consist  only  of  a  few  per- 
sons besides  the  actual  ministers  of  the  cab- 
inet, and  give  the  latter  no  apprehension  of 

*  4  Anne,  c.  8.    6  Anne,  c.  7. 

t  This  is  the  modem  usage,  bnt  of  its  origin  I 
CEin  not  speak.  On  one  remarkahle  occasion,  while 
Anne  was  at  the  point  of  death,  the  Dukes  of  Som- 
erset and  Argjle  went  down  to  the  council  cham- 
ber witliout  summons  to  take  their  seats ;  but  it 
seems  to  have  been  intended  as  an  unexpected 
maiMEuver  of  policy. 


a  formidable  resistance ;  yet  there  can  l)e 
no  reasonable  doubt  that  every  counselor  is 
as  much  answerable  for  the  measures  adopt- 
ed by  his  consent,  and  especially  when  rati- 
fied by  his  signature,  as  those  who  bear  the 
name  of  ministers,  and  who  have  generally 
determined  upon  them  before  he  is  sum- 
moned. 

The  experience  of  William's  partiality  to 
Bentinck  and  Keppel,  in  the  latter  instance 
not  very  consistent  with  the  good  sense  and 
dignity  of  his  character,  led  to  a  strong 
measure  of  precaution  against  the  probable 
influence  of  foreigners  under  the  new  dy- 
nasty ;  the  exclusion  of  all  persons  not  born 
within  the  dominions  of  the  British  crown 
from  every  office  of  civil  and  military  trust, 
and  from  both  houses  of  Parliament.  No 
other  country,  as  far  as  I  recollect,  has 
adopted  so  sweeping  a  disqualification  :  and 
it  must,  I  think,  be  admitted,  that  it  goes  a 
gi'eater  length  than  liberal  policy  can  be  said 
to  warrant.  But  the  narrow  prejudices  of 
George  I.  were  well  restrained  by  this  pro- 
vision from  gratifying  his  corrupt  and  serv- 
ile German  favorites  with  lucrative  offices.* 

The  next  article  is  of  far  more  import- 
ance ;  and  would,  had  it  continued  in  force, 
have  perpetuated  that  struggle  between  the 
different  parts  of  the  Legislature,  especially 
the  crown  and  House  of  Commons,  which 
the  new  limitations  of  the  monarchy  were 
intended  to  annihilate.  The  baneful  system 
of  rendering  the  Parliament  subsenient  to 
the  administi-ation,  either  by  offices  and 
pensions  held  at  pleasure,  or  by  more  clan- 
destine corruption,  had  not  ceased  with  the 
house  of  Stuart.  William,  not  long  after 
his  accession,  fell  into  the  worst  part  of  this 
management,  which  it  was  most  difficult  to 
prevent;  and,  according  to  the  practice  of 
Charles's  reign,  induced  by  secret  bribes 
the  leaders  of  Parliamentary  opposition  to 
betray  their  cause  on  particular  questions. 
The  Toiy  patriot.  Sir  Christopher  Mus- 
grave,  trod  in  the  steps  of  the  Whig  patri- 
ot. Sir  Thomas  Lee.    A  large  expenditure 

*  It  is  provided  by  1  Geo.  I.,  St.  2,  c.  4,  that  no 
bill  of  naturalization  shall  be  received  without  a 
clause  disqualifying  the  party  from  sitting  in  Par- 
liament, &c.,  "for  the  better  preserving  the  said 
clause  in  the  said  act  entire  and  inviolate."  This 
provision,  which  was  rather  supererogatory,  was 
of  course  intended  to  show  the  determination  of 
Parliament  not  to  be  governed,  ostensibly  at  least, 
by  foreigners  under  their  foreign  master. 


Will,  m.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


595 


appeared  every  year,  under  the  head  of  se- 
cret service  money,  which  was  pretty  well 
known,  and  sometimes  proved,  to  be  dis- 
posed of,  in  great  part,  among  the  members 
of  both  Houses.*  No  check  was  put  on 
the  number  or  quality  of  placemen  in  the 
Lower  House.  New  offices  were  continu- 
ally created,  and  at  unreasonable  salaries. 
Those  who  desire  to  see  a  regard  to  virtue 
and  liberty  in  the  Parliament  of  England 
could  not  be  insensible  to  the  enormous  mis- 
chief of  this  influence.  If  some  apology 
might  be  oft'ored  for  it  in  the  precarious 
state  of  the  Revolution  government,  this 
did  not  take  away  the  possibility  of  futiu-e 
danger,  when  the  monarchy  should  have 
regained  its  usual  stability ;  but  in  seeking 
for  a  remedy  against  the  peculiar  evil  of  the 
times,  the  party  in  opposition  to  the  court 
during  this  reign,  whose  efforts  at  reforma- 
tion were  too  frequently  misdirected,  either 
through  faction  or  some  sinister  regards  to- 
ward the  deposed  family,  went  into  the 
preposterous  exti-emity   of  banishing  all 

*  Pari.  Hist.,  807,  840.  Burnet  says,  p.  42,  that 
Sir  John  Trevor,  a  Tory,  first  put  the  king  on  this 
method  of  con-uption.  Trevor  himself  was  so  venal 
that  he  received  a  present  of  1000  guineas  from 
the  city  of  London,  being  then  speaker  of  the  Com- 
mons, for  his  service  in  carrying  a  bill  through  the 
House ;  and,  upon  its  discoverj',  viras  obliged  to 
put  the  vote  that  he  had  been  guilty  of  a  high 
crime  and  misdemeanor.  This  resolution  being 
carried,  he  absented  himself  from  the  House,  and 
was  expelled. — Pari.  Hist.,  900.  Commons'  Jour- 
nals, 12th  of  March,  1G94-.').  The  Duke  of  Leeds, 
that  veteran  of  secret  iniquity,  was  discovered 
about  the  same  time  to  have  taken  bribes  from  the 
East  India  Company,  and  was  impeached  in  con- 
sequence ;  I  say  discovered,  for  there  seems  little 
or  no  doubt  of  his  guilt  The  impeachment,  how- 
ever, was  not  prosecuted  for  want  of  evidence. — 
Pari.  Hist,  881,  911,  933.  Guy,  secretary  of  the 
treasury,  another  of  Charles  II.'s  court,  was  ex- 
pelled the  House  on  a  similar  imputation. — Id., 
886.  Lord  Falkland  was  sent  to  the  Tower  for 
begging  £2000  of  the  king.— Id.,  841.  A  system 
of  infamous  peculation  among  the  officers  of  gov- 
ernment came  to  light  through  the  inquisitive  spirit 
of  Parliament  in  this  reign ;  not  that  the  nation 
was  worse  and  more  corrapt  than  under  the  Stu- 
arts, but  that  a  profligacy,  which  had  been  engen- 
dered and  had  flourished  under  their  administra- 
tion, was  now  dragged  to  light  and  punishment. 
Long  sessions  of  Parliament  and  a  vigilant  party- 
spirit  exposed  the  evil,  and  have  finally,  in  a  great 
measure,  removed  it;  though  Burnet's  remark  is 
still  not  wholly  obsolete.  "  The  regard,"  says  that 
honest  bishop,  "  that  is  shown  to  the  members  of 
Parliament  among  us,  makes  that  few  abuses  can 
be  inquired  into  or  discovered." 


servants  of  the  crown  from  the  House  of 
Commons.  Whether  the  bill  for  free  and 
impartial  proceedings  in  Parliament,  which 
was  rejected  by  a  very  small  majority  of 
the  House  of  Lords  in  1693,  and  having 
in  the  next  session  passed  through  both 
Houses,  met  with  the  king's  negative,  to 
the  great  disappointment  and  displeasure  of 
the  Commons,  was  of  this  general  nature, 
or  excluded  only  certain  specified  officers 
of  the  crown,  I  am  not  able  to  determine, 
though  the  prudence  and  expediency  of 
William's  refusal  must  depend  entirely 
upon  that  question.*  But  in  the  Act  of 
Settlement,  the  clause  is  quite  without  ex- 
ception ;  and  if  it  had  ever  taken  effect,  no 
minister  could  have  had  a  seat  in  the  House 
of  Commons,  to  bring  forward,  explain,  or 
defend  the  measures  of  the  executive  gov- 
ernment. Such  a  separation  and  want  of 
intelligence  between  the  crown  and  Parlia- 
ment must  either  have  destroyed  the  one 
or  degraded  the  other.  The  House  of 
Commons  would  either,  in  jealousy  and 
passion,  have  armed  the  strength  of  the 
people  to  subvert  the  monarchy,  or,  losing 
that  effective  control  over  the  appointment 
of  ministers,  which  has  sometimes  gone 
near  to  their  nomination,  would  have  fallen 
almost  into  the  condition  of  those  States- 
General  of  ancient  kingdoms,  which  have 
met  only  to  be  cajoled  into  subsidies,  and  give 
a  passive  consent  to  the  propositions  of  tlie 
court.    It  is  one  of  the  greatest  safeguards 

'  Pari.  Hist,  748,  829.  The  House  resolved, 
"that  whoever  advised  the  king  not  to  give  the 
royal  assent  to  the  act  touching  free  and  impartial 
proceedings  in  Parliament,  which  was  to  redress  a 
grievance,  and  take  off  a  scandal  upon  the  proceed- 
ings of  the  Commons  in  Parliament  is  an  enemy 
to  their  majesties  and  the  kingdom."  They  laid  a 
representation  before  the  king,  showing  how  few 
instances  have  been  in  former  reigns  of  denying 
the  royal  assent  to  hills  for  redress  of  grievances, 
and  the  great  grief  of  the  Commons  "  for  his  not 
having  given  the  royal  assent  to  several  public 
bills,  and  particularly  the  bill  touching  free  and 
impartial  proceedings  in  Parliament,  which  tended 
so  much  to  the  clearing  the  reputation  of  this 
House,  after  their  having  so  freely  voted  to  supply 
the  public  occasions."  The  king  gave  a  courteous 
but  evasive  answer,  as  indeed  it  was  natural  to 
expect ;  hut  so  great  a  flame  was  raised  in  the 
Commons,  that  it  was  moved  to  address  him  for  a 
further  answer,  which,  however,  there  was  still  a 
sense  of  decoram  suflicient  to  prevent. 

Though  the  particular  provisions  of  this  bill  do 
not  appear,  I  think  it  probable  that  it  went  too  fat 
in  excluding  military  as  well  as  civil  ofHcers. 


596 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  XV. 


of  our  liberty,  that  eloquent  and  ambitious 
men,  such  as  aspire  to  guide  the  councils  of 
the  crown,  are  from  habit  and  use  so  con- 
nected with  the  houses  of  Parliament,  and 
derive  from  them  so  much  of  their  renown 
and  influence,  that  they  lie  under  no  temp- 
tation, nor  could,  without  insanity,  be  pre- 
vailed upon,  to  diminish  the  authority  and 
privileges  of  that  assembly.  No  English 
statesman,  since  the  Revolution,  can  be  lia- 
ble to  the  veiy  slightest  suspicion  of  an  aim, 
or  even  a  wish,  to  establish  absolute  mon- 
archy on  the  ruins  of  our  Constitution. 
Whatever  else  has  been  done,  or  designed 
to  be  done  amiss,  the  rights  of  Parliament 
have  been  out  of  danger.  They  have, 
whenever  a  man  of  powerful  mind  shall  di- 
rect the  cabinet,  and  none  else  can  possibly 
be  formidable,  the  strong  security  of  his 
own  interest,  which  no  such  man  will  de- 
sh'e  to  build  on  the  caprice  and  intrigue  of 
a  court ;  and  as  this  immediate  connection 
of  the  advisers  of  the  crown  with  the  House 
of  Commons,  so  that  they  are,  and  ever 
profess  themselves,  as  truly  the  servants  of 
one  as  of  the  other,  is  a  pledge  for  theiz-  loy- 
alty to  the  entire  Legislature,  as  well  as  to 
their  sovereign  (I  mean,  of  course,  as  to  the 
fundamental  principles  of  our  Constitution), 
so  has  it  preserved  for  the  Commons  their 
preponderating  share  in  the  executive  ad- 
ministration, and  elevated  them  in  the  eyes 
of  foreign  nations,  till  the  monarchy  itself 
has  fallen  comparatively  into  shade.  The 
pulse  of  Europe  beats  according  to  the  tone 
of  our  Parliament ;  the  counsels  of  our 
kings  are  there  revealed,  and  by  that  kind 
of  previous  sanction  which  it  has  been  cus- 
tomaiy  to  obtain,  become,  as  it  were,  the  res- 
olutions of  a  senate  ;  and  we  enjoy  the  in- 
dividual pride  and  dignity  which  belong  to 
Republicans,  with  the  steadiness  and  tran- 
quillity which  the  supremacy  of  a  single 
person  has  been  supposed  peculiarly  to  be- 
stow.* 

*  [The  Tories  introduced  a  clause,  according  to 
Burnet,  into  the  Oathof  Abjuration,  to  maintain  tbe 
government  by  king,  Lords,  and  Commons.  This 
was  rejected  by  the  Lords  ;  and  Burnet  calls  it  "  a 
barefaced  Republican  notion,  which  was  wont  to 
be  condemned  as  such  by  the  same  persons  who 
now  pressed  it."  The  Lords  and  Commons,  he  ob- 
serves, are  indeed  part  of  the  Constitution  and  the 
legislative  body,  but  not  of  the  government. — Vol. 
iv.,  p.  538.  But  Speaker  Onslow,  coming  half  a 
century  later,  after  the  Whig  practice  and  theory 
bad  become  established,  sees  little  to  object  to  in 


But  if  the  chief  ministers  of  the  crown 
are  indispensably  to  be  present  in  one  or 
other  house  of  Parliament,  it  by  no  means 
follows  that  the  doors  should  be  thrown 
open  to  all  those  subaltern  retainers  who, 
too  low  to  have  had  any  participation  in  the 
measures  of  government,  come  merely  to 
earn  their  salaries  by  a  sure  and  silent  vote. 
Unless  some  limitation  could  be  put  on  the 
number  of  such  officers,  they  might  become 
the  majority  of  every  Parliament,  especial- 
ly if  its  duration  were  indefinite  or  very 
long.  It  was  always  the  popular  endeavor 
of  the  opposition,  or,  as  it  was  usually  de- 
nominated, the  countiy  party,  to  reduce 
the  number  of  these  dependents,  and  as  con- 
stantly the  whole  strength  of  the  court  was 
exerted  to  keep  them  up.  William,  in 
truth,  from  his  own  errors,  and  from  the 
disadvantage  of  the  times,  would  not  vent- 
ure to  confide  in  an  unbiased  Parliament. 
On  the  formation,  however,  of  a  new  board 
of  revenue  in  1694,  for  managing  the  stamj)- 
duties,  its  members  were  incapacitated 
from  sitting  in  the  House  of  Commons.* 
This,  I  believe,  is  the  first  instance  of  ex- 
clusion on  account  of  employment ;  and  a 
similar  act  was  obtained  in  1699,  extend- 
ing this  disability  to  the  commissioners  and 
some  other  oflScers  of  excise  ;t  but  when 
the  absolute  exclusion  of  all  civil  and  milita- 
ry officers  by  the  Act  of  Settlement  was 
found,  on  cool  reflection,  too  impracticable 
to  be  maintained,  and  a  revision  of  that  ar- 
ticle took  place  in  the  year  1706,  the  House 
of  Commons  were  still  determined  to  pre- 
serve at  least  the  principle  of  limitation,  as 
to  the  number  of  placemen  within  their 
walls.  They  gave  way,  indeed,  to  the 
other  House  in  a  considerable  degree,  re- 
ceding, with  some  unwillingness,  from  a 
clause  specifying  expressly  the  description 
of  oflSces  which  should  not  create  a  disqual- 
ification, and  consenting  to  an  entire  repeal 


the  phrase  "  government,"  which  may  be  taken  in 
a  large  sense.  Burnet,  however,  as  Ralph  points 
out,  has  misrepresented  the  clause.  The  words 
were,  "  Constitution  and  government  by  king, 
Lords,  and  Commons,  as  by  law  established," 
which  he  conjectures  to  be  rather  leveled  at 
"barefaced  Republican  notions"  than  borrowed 
from  them. — Ralph,  ii.,  1018.  Burnet's  memory 
was  too  deceitful  to  be  trusted  without  reference 
to  books ;  yet  he  seems  rarely  to  have  made  any. 
—1845.]  *  4  &  5  Wm.  &  Mary,  c.  21. 

t  11  &  12  Wm.  IIL,  c.  2,  §  50. 


Will.  III.] 


FROM  HENRY  VII.  TO  GEORGE  U. 


597 


of  the  original  article  ;*  but  they  established 
two  provisions  of  great  importance,  which 
still  continue  the  great  securities  against  an 
overwhelming  influence :  first,  that  every 
member  of  the  House  of  Commons  accept- 
ing an  office  under  the  crown,  except  a 
higher  commission  in  the  army,  shall  vacate 
his  seat,  and  a  new  writ  shall  issue ;  sec- 
ondly, that  no  person  holding  an  office  cre- 
ated since  the  25th  of  October,  1705,  shall 
be  capable  of  being  elected  or  re-elected  at 
all.  They  excluded,  at  the  same  time,  all 
such  as  held  pensions  during  the  pleasure 
of  the  crown  ;  and,  to  check  the  multiplica- 
tion of  placemen,  enacted,  that  no  greater 
number  of  commissioners  should  be  ap- 
pointed to  execute  any  office  than  had  been 
employed  in  its  execution  at  some  time  be- 
fore that  Parliament.!  These  restrictions 
ought  to  be  rigorously  and  jealously  main- 
tained, and  to  receive  a  construction,  in 
doubtful  cases,  according  to  their  Constitu- 
tional spirit;  not  as  if  they  were  of  a  penal 
nature  toward  individuals,  an  absurdity  iu 
which  the  careless  and  indulgent  temper  of 
modern  times  might  sometimes  acquiesce. t 

*  The  House  of  Commons  introduced  into  the 
Act  of  Security,  as  it  was  called,  a  long  clause, 
carried  on  a  division  by  167  to  160,  Jan.  24,  1706, 
enumerating  various  persons  who  should  be  eligi- 
ble to  Parliament ;  the  principal  officers  of  state, 
the  commissioners  of  treasury  and  admiralty,  and 
a  limited  number  of  other  placemen.  The  Lords 
thought  fit  to  repeal  the  whole  prohibitory  enact- 
ment. It  was  resolved  in  the  Commons,  by  a  ma- 
jority of  205  to  183,  that  they  would  not  agree  to 
this  amendment.  A  conference  accordingly  took 
place,  when  the  managers  of  the  Commons  object- 
ed, Feb.  7,  that  a  total  repeal  of  that  provision 
would  admit  such  an  unlimited  number  of  officers 
to  sit  in  their  House,  as  might  destroy  the  free  and 
impartial  proceedings  in  Parliament,  and  endanger 
the  liberties  of  the  commons  of  England.  Those 
on  the  Lords'  side  gave  their  reasons  to  the  con- 
trary at  great  length,  Feb.  11.  The  Commons  de- 
termined, Feb.  ]  8,  to  insert  the  provision  vacating 
the  seat  of  a  member  accepting  office,  and  resolved 
not  to  insist  on  their  disagreements  as  to  the  main 
clause.  Three  protests  were  entered  in  the  House 
of  Lords  against  inserting  the  word  "repealed"  in 
reference  to  the  prohibitoiy  clause,  instead  of 
"regulated  and  altered,"  all  by  Tory  peers.  It  is 
observable  that,  as  the  provision  was  not  to  take 
effect  till  the  house  of  Hanover  should  succeed  to 
the  throne,  the  sticklers  for  it  might  be  full  as 
much  influenced  by  their  ill  will  to  that  family  as 
by  their  zeal  for  liberty. 

t  4  Anne,  c.  8.    6  Anne,  c.  7. 

X  This,  it  is  to  be  observed,  was  written  before 
the  Reform  Bill  of  1832,  which  created  a  necessity, 


It  had  been  the  practice  of  the  Stuarts, 
especially  in  the  last  years  of  independence 
their  dynasty,  to  dismiss  judges,  "f  judges, 
without  seeking  any  other  pretense,  who 
showed  any  disposition  to  thwart  govern- 
ment in  political  prosecutions.  The  gener- 
al behavior  of  the  bench  had  covered  it  with 
infamy.  Though  the  real  security  for  an 
honest  court  of  justice  must  be  found  in 
their  responsibility  to  Parliament  and  to 
public  opinion,  it  was  evident  that  their  ten- 
ure in  office  must,  in  the  first  place,  cease 
to  be  precarious,  and  their  integrity  rescued 
from  the  severe  trial  of  forfeiting  the  emol- 
uments upon  which  they  subsisted.  In 
the  debates  previous  to  the  Declaration  of 
Rights,  we  find  that  several  speakers  in- 
sisted on  making  the  judges'  commissions 
quamdiu  se  bene  gesserint,  that  is,  during 
life  or  good  behavior,  instead  of  durante 
placito,  at  the  discretion  of  the  crown. 
The  former,  indeed,  is  said  to  have  been 
the  ancient  course  till  the  reign  of  James  I. ; 
but  this  was  omitted  in  the  hasty  and  im- 
perfect Bill  of  Rights.  The  commissions, 
however,  of  William's  judges  ran  quamdiu 
se  bene  gesserint.  But  the  king  gave  an 
unfortunate  instance  of  his  very  injudicious 
tenacity  of  bad  prerogatives,  in  refusing  hia 
assent,  in  1692,  to  a  bill  that  had  passed 
both  Houses,  for  establishing  this  independ- 
ence of  the  judges  bj'  law  and  confirming 
their  salaries.*  We  owe  this  important 
provision  to  the  Act  of  Settlement ;  not,  as 
ignorance  and  adulation  have  perpetually 
asserted,  to  his  late  majesty  George  III. 
No  judge  can  be  dismissed  from  office,  ex- 
cept in  consequence  of  a  conviction  for  some 
offense,  or  the  address  of  both  houses  of 
Parliament,  which  is  tantamount  to  an  act 
of  the  Legislature. f  It  is  always  to  be 
kept  in  mind  that  they  are  still  accessible  to 
the  hope  of  further  promotion,  to  the  zeal 
of  political  attachment,  to  the  flattery  of 

if  any  sort  of  balance  is  to  be  preserved  in  our 
Constitution,  of  strengthening  the  executive  power, 
and  consequently  dictated  the  expediency  of  re- 
laxing many  provisions  which  had  been  required 
in  very  different  times. 

*  Burnet,  86.  It  was  represented  to  the  king, 
he  say.s,  by  some  of  the  judges  themselves,  that  it 
was  not  fit  they  should  be  out  of  all  dependence 
on  the  court. 

t  It  was  originally  resolved  that  they  should  be 
removable  on  the  address  of  either  House,  which 
was  changed  afterward  to  both  Houses. — Comm. 
Joum.,  12th  of  March  and  10th  of  May. 


598 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


(Chap.  XV. 


princes  and  ministers  ;  that  the  bias  of  their 
prejudices,  as  elderly  and  peaceable  men, 
will,  in  a  plurality  of  cases,  be  on  the  side 
of  power ;  that  they  have  very  frequently 
been  trained,  as  advocates,  to  vindicate 
eveiy  proceeding  of  the  crown  ;  from  all 
which  we  should  look  on  them  with  some 
little  vigilance,  and  not  come  hastily  to  a 
conclusion  that,  because  their  commissions 
can  not  be  vacated  by  the  crown's  authori- 
ty, they  are  wholly  out  of  the  reach  of  its 
influence.  I  would  by  no  means  be  misin- 
terpreted, as  if  the  general  conduct  of  our 
courts  of  justice  since  the  Revolution,  and 
especially  in  later  times,  which  in  most  re- 
spects have  been  the  best  times,  were  not 
deserving  of  that  credit  it  has  usually  gain- 
ed ;  but  possibly  it  may  have  been  more 
guided  and  kept  straight  than  some  are  will- 
ing to  acknowledge  by  the  spirit  of  observa- 
tion and  censure  which  modifies  and  con- 
trols our  whole  government. 

The  last  clause  in  the  Act  of  Settlement, 
that  a  pardon  under  the  great  seal  shall  not 
be  pleadable  in  bar  of  an  impeachment,  re- 
quires no  particular  notice  beyond  what  has 
been  said  on  the  subject  in  a  former  chap- 
ter.* 

In  the  following  session,  a  new  Parlia- 
OathofAb-  ment  having  been  assembled  in 
juration.  which  the  Tory  faction  had  less 
influence  than  in  the  last,  and  Louis  XIV. 
having,  in  the  mean  time,  acknowledged 
the  son  of  James  as  King  of  England,  the 
natural  resentment  of  this  insult  and  breach 
of  faith  was  shown  in  a  more  decided  as- 
sertion of  Revolution  principles  than  had 
hitherto  been  made.  The  pretended  king 
was  attainted  of  high  treason  ;  a  measure 
absurd  as  a  law,  but  politic  as  a  denuncia- 
tion of  perpetual  enmity. f    It  was  made 

*  It  was  proposed  in  the  Lords,  as  a  clause  in 
the  Bill  of  Rights,  that  pardons  upon  an  impeach- 
ment should  be  void,  but  lost  by  50  to  17  ;  on  which 
twelve  peers,  all  Whigs,  entered  a  protest. — Pari. 
Hist,  482. 

t  13  Wm.  III.,  c.  3.  The  Lords  introduced  an 
amendment  into  this  bill,  to  attaint  also  Mary  of 
Este,  the  late  dueen  of  James  II.  But  the  Com- 
mon.s  disagreed,  on  the  ground  that  it  might  be  of 
dangerous  consequence  to  attaint  any  one  by  an 
amendment,  in  which  case  such  due  consideration 
can  not  be  had  as  the  nature  of  an  attainder  re- 
quires. The  Lords,  after  a  conference,  gave  way ; 
but  brought  in  a  separate  bill  to  attaint  Mar>-  of 
Este,  which  passed  with  a  protest  of  the  Torj- 
peers.— Lords'  Journals,  Feb.  6,  12,  20,  1701-2. 


high  treason  to  correspond  with  him,  or  re- 
mit money  for  his  service  ;  and  a  still  more 
vigorous  measure  was  adopted,  an  oath  to 
be  taken,  not  only  by  all  civil  oflficers,  but 
by  all  ecclesiastics,  members  of  the  Uni- 
versities, and  schoolmasters,  acknowledging 
William  as  lawful  and  rightful  king,  and 
denying  any  right  or  title  in  the  pretended 
Prince  of  Wales.*  The  Tories,  and  es- 
pecially Lord  Nottingham,  had  earnestly 
contended,  in  the  beginning  of  the  king's 
reign,  against  those  words  in  the  Act  of 
Recognition,  which  asserted  William  and 
Mary  to  be  rightfully  and  lawfully  king  and 
queen.  They  opposed  the  association  at 
the  time  of  the  assassination-plot,  on  ac- 
count of  the  same  epithets,  taking  a  dis- 
tinction which  satisfied  the  narrow  under- 
standing of  Nottingham,  and  served  as  a 
subterfuge  for  more  cunning  men,  between 
a  king  whom  they  were  bound  in  all  cases 
to  obey,  and  one  whom  they  could  style 
rightful  and  lawful.  These  expressions 
were,  in  fact,  slightly  modified  on  that  oc- 
casion ;  yet  fifteen  peers  and  ninety-two 
commoners  declined,  at  least  for  a  time,  to 
sign  it.  The  present  oath  of  abjuration, 
thei-efore,  was  a  signal  victory  of  the  Whigs, 
who  boasted  of  the  Revolution,  over  the 
Tories,  who  excused  it.f  The  renuncia- 
tion of  the  hereditary  right,  for  at  this  time 
few  of  the  latter  party  believed  in  the  young 
man's  spuriousness,  was  complete  and  xm- 
equivocal.  The  dominant  faction  might 
enjoy,  perhaps,  a  charitable  pleasure  in  ex- 
posing many  of  their  adversaries,  and  es- 
pecially the  High-Church  clergy,  to  the 
disgrace  and  remorse  of  perjury.  Few  or 
none,  however,  who  had  taken  the  Oath  of 
Allegiance,  refused  this  additional  cup  of 
bitterness,  though  so  much  less  defensible, 
according  to  the  principles  they  had  em- 
ployed to  vindicate  their  compliance  in  the 
former  instance ;  so  true  it  is  that,  in  mat- 
ters of  conscience,  the  first  scruple  is  the 
only  one  which  it  costs  much  to  overcome. 
But  the  imposition  of  this  test,  as  was  evi- 
dent in  a  few  years,  did  not  check  the  bold- 


*  13  Wm.  III.,  c.  6. 

t  Sixteen  lords,  including  two  bishops,  Compton 
and  Sprat,  protested  against  the  bill  containing  the 
abjuration  oath.  The  first  reason  of  their  votes 
was  afterward  expunged  from  the  Journals  by  or- 
der of  the  House. — Lords'  Joamals,  24th  of  Feb., 
3d  of  March,  1701-2. 


Anne,  Geo.  I.,  Geo.  II.]      FROM  HENRY  VII.  TO  GEORGE  II. 


599 


ness,  or  diminish  the  numbers,  of  the  Jaco- 
bites ;  and  I  must  confess,  that  of  all  soph- 
istry that  weakens  moral  obligation,  that  is 
the  most  pardonable  which  men  employ  to 
escape  from  this  species  of  tyranny.  The 
state  may  reasonably  make  an  entire  and 
heartfelt  attachment  to  its  authority  the 
condition  of  civil  trust ;  but  nothing  more 
than  a  promise  of  peaceable  obedience  can 
justly  be  exacted  from  those  who  ask  only 


to  obey  in  peace.  There  was  a  bad  spirit 
abroad  in  the  Church,  ambitious,  factious, 
intolerant,  calumnious ;  but  this  was  not 
necessarily  partaken  by  all  its  members, 
and  many  excellent  men  might  deem  them- 
selves hardly  dealt  with  in  requiring  their 
denial  of  an  abstract  proposition,  which  did 
not  appear  so  totally  false  according  to  their 
notions  of  the  English  Constitution  and  the 
Church's  doctiiue.* 


CHAPTER  XVI. 


ON  THE  STATE  OF  THE  CONSTITUTION  IN  THE  REIGNS  OF  ANNE,  GEORGE  I., 

AND  GEORGE  II. 


Termination  of  Contest  between  the  Crown  and 
Parliament.  —  Distinctive  Principles  of  Whigs 
and  Tories. — Changes  effected  in  these  by  Cir- 
cnmstances. — Impeachment  of  Sacheverell  dis- 
plays them  again. — Revolutions  in  the  Ministry 
under  Aime. — War  of  the  Succession. — Treaty 
of  Peace  broken  off.  — Renewed  again  by  the 
Tory  Government. — Arguments  for  and  against 
the  Treaty  of  Utrecht. — The  Negotiation  mis- 
managed.—  Litrigues  of  the  Jacobites.  —  Some 
of  the  Ministers  engage  in  them. — Just  Alarm 
for  the  Hanover  Succession.  —  Accession  of 
George  I.  —  Whigs  come  into  Power.  —  Great 
Disaffection  in  the  Kingdom. — Impeachment  of 
Tory  Ministers.  —  Bill  for  Septennial  Parlia- 
ments.— Peerage  Bill. — Jacobitism  among  the 
Clergy. — Convocation.  —  Its  Encroaclmaents. — 
Hoadley. — Convocation  no  longer  suffered  to  sit. 
— Infringements  of  the  Toleration  by  Statutes 
under  Anne. — They  are  repealed  by  the  Whigs. 

—  Principles  of  Toleration  fully  established. — 
Banishment  of  Atterbui-y. — Decline  of  the  Jaco- 
bites.— Prejudices  against  the  reigning  Family. 
— Jealousy  of  the  Crown. — Changes  in  the  Con- 
stitution whereon  it  was  founded. — Permanent 
Military  Force. — Apprehensions  from  it. — Es- 
tablishment of  Militia. — Influence  over  Pai'lia- 
mont  by  Places  and  Pensions. — ^Attempts  to  re- 
strain it. — Place  Bill  of  1743. — Secret  Corrup- 
tion. —  Commitments  for  Breach  of  Privilege  : 
of  Members  for  Offenses  ;  of  Strangers  for  Of- 
fenses against  Members,  or  for  Offenses  against 
the  House. — Kentish  Petition  of  1701. — Dispute 
with  Lords  about  Aylesbury  Election.  —  Pro- 
ceedings against  Mr.  Murray  in  1751. — Commit- 
ments for  Offenses  unconnected  with  the  House. 

—  Privileges  of  the  House  not  controllable  by 
Courts  of  Law. — Danger  of  stretching  this  too 
far. — Extension  of  Penal  Laws. — Diminution  of 
personal  Authority  of  the  Crown.  —  Causes  of 
this. — Party  Connections. — Influence  of  Political 
Writings. — PubUcatiou  of  Debates. — Increased 
Influence  of  the  Middle  Ranks. 

The  Act  of  SettJement  was  the  seal  of 
our  constitutional  laws,  the  complement  of 


the  Revolution  itself  and  the  Bill 

c  -n  -  ,         ,      ,  Termination 

ot  Rights,  the  last  great  statute  of  ihe  roa- 
which  restrains  the  power  of  the  Jf^' 

^  _  the  crown 

crown,  and  manifests,  in  any  con-  and  Pariia- 
spicuous  degree,  a  jealousy  of 
Parliament  in  behalf  of  its  own  and  the  sub- 
ject's privileges.  The  battle  had  been 
fought  and  gained ;  the  statute-book,  as  it 
becomes  more  voluminous,  is  less  inter- 
esting in  the  history  of  our  Constitution; 
the  voice  of  petition,  complaint,  or  remon- 
strance is  seldom  to  be  traced  in  the  Jour- 
nals ;  the  crown,  in  return,  desists  altogeth- 
er, not  merely  fi-om  the  threatening  or  ob- 
jurgatory tone  of  the  Stuarts,  but  from  that 
dissatisfaction  sometimes  apparent  in  the 
language  of  William  ;  and  the  vessel  seems 
rid  ing  in  smooth  water,  moved  by  other  im- 
pulses, and  liable,  perhaps,  to  other  dan- 
gers than  those  of  the  ocean-wave  and  the 
tempest.  The  reigns,  accordingly,  of  Anne, 
George  I.,  and  Geoige  II.,  afford  rather  ma- 
terials for  dissertation  than  consecutive  facts 
for  such  a  work  as  the  present,  and  may  be 
sketched  in  a  single  chapter,  though  by  no 
means  the  least  important,  which  the  read- 
er's study  and  reflection  must  enable  him  to 
fill  up.  Changes  of  an  essential  nature  were 
in  operation  dming  the  sixty  years  of  these 
three  reigns,  as  well  as  in  that  beyond  the 
limits  of  this  undertaking,  which  in  length 


*  Whiston  mentions  that  Mr.  B  aker,  of  St.  John's, 
Cambridge,  a  worthy  and  learned  man,  as  well  as 
others  of  the  college,  had  thoughts  of  taking  the 
oath  of  allegiance  on  the  death  of  King  James; 
but  the  Oath  of  Abjuration  coming  out  the  next 
year,  had  such  expressions  as  he  still  scrupled. — 
Whiston's  Memoirs.  Biog.  Brit.  (Kippis's  edition), 
art.  Baker. 


600 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  XVL 


measures  them  all ;  some  of  them  greatly 
enhancing  the  authority  of  the  crown,  or, 
rather,  of  the  executive  government,  while 
others  had  so  opposite  a  tendency,  that  phil- 
osophical speculators  have  not  been  uniform 
in  determining  on  which  side  was  the  sway 
of  the  balance. 

No  clear  understanding  can  be  acquired 
Distinctive  of  the  political  history  of  England 
^r^s  and*^  without  distinguishing,  with  some 
Tones.  accuracy  of  definition,  the  two 
great  parties  of  Whig  and  Tory.  But  this 
is  not  easy ;  because  those  denominations 
being  sometimes  applied  to  factions  in  the 
state,  intent  on  their  own  aggrandizement, 
sometimes  to  the  principles  they  entertained 
or  professed,  have  become  equivocal,  and  do 
by  no  means,  at  all  periods  and  on  all  occa- 
sions, present  the  same  sense  ;  an  ambigui- 
ty which  has  been  increased  by  the  lax  and 
incon-ect  use  of  familiar  language.  We 
may  consider  the  words,  in  the  first  instance, 
as  expressive  of  a  political  theory  or  princi- 
ple, applicable  to  the  English  government. 
They  were  originally  employed  at  the  time 
of  the  Bill  of  Exclusion,  though  the  distinc- 
tion of  the  parties  they  denote  is  evidently, 
at  least,  as  old  as  the  Long  Parliament. 
Both  of  these  parties,  it  is  material  to  ob- 
serve, agi'eed  in  the  maintenance  of  the 
Constitution  ;  that  is,  in  the  administration 
of  the  government  by  an  hereditary  sover- 
eign, and  in  the  concurrence  of  that  sover- 
eign with  the  two  houses  of  Parliament  in 
legislation,  as  well  as  in  those  other  institu- 
tions which  have  been  reckoned  most  an- 
cient and  fundamental.  A  favorer  of  unlim- 
ited monarchy  was  not  a  Tory,  neither  was 
a  Republican  a  Whig.  Lord  Clarendon 
was  a  Tory,  Hobbes  was  not  ;  Bishop 
Hoadley  was  a  Whig,  Milton  was  not.  But 
they  differed  mainly  in  this  :  that  to  a  Tory 
the  Constitution,  inasmuch  as  it  was  the 
Constitution,  was  an  ultimate  point,  beyond 
which  he  never  looked,  and  from  which  he 
thought  it  altogether  impossible  to  swerve  ; 
whereas  a  Whig  deemed  all  forms  of  gov- 
ernment subordinate  to  the  public  good,  and 
therefore  liable  to  change  when  they  should 
cease  to  promote  that  object.  Within  those 
bounds  which  he,  as  well  as  his  antagonist, 
meant  not  to  transgress,  and  rejecting  aU 
unnecessary  innovation,  the  Whig  had  a 
natural  tendency  to  political  improvement, 
the  Tory  an  aversion  to  it.    The  one  loved 


to  descant  on  liberty  and  the  rights  of  man- 
kind, the  other  on  the  mischiefs  of  sedition 
and  the  rights  of  kings.  Though  both,  aa 
I  have  said,  admitted  a  common  principle, 
the  maintenance  of  the  Constitution,  yet 
this  made  the  privileges  of  the  subject,  that 
the  crown's  prerogative,  his  peculiar  care. 
Hence  it  seemed  likely  that,  through  pas- 
sion and  circumstance,  the  Tory  might  aid 
in  establishing  despotism,  or  the  Whig  in 
subverting  monarchy.  The  former  was  gen- 
erally hostile  to  the  liberty  of  the  press,  and 
to  freedom  of  inquiry,  especially  in  religion  ; 
the  latter  their  friend.  The  principle  of 
the  one,  in  short,  wsis  amelioration ;  of  the 
other,  conservation. 

But  the  distinctive  characters  of  Whig 
and  Toiy  were  less  plainly  seen,  changes 
after  the  Revolution  and  Act  of  ff"'*/' 

these  by  cir- 

Settlement,  in  relation  to  the  cumstauces. 
crown,  than  to  some  other  parts  of  our  pol- 
ity. The  Tory  was  ardently,  and  in  the 
first  place,  the  supporter  of  the  Church  in 
as  much  pre-eminence  and  power  as  he 
could  give  it.  For  the  Church's  sake,  whea 
both  seemed  as  it  were  on  one  plank,  he 
sacrificed  his  loyalty  ;  for  her  he  was  always 
ready  to  persecute  the  Catholic,  and  if  the 
times  permitted  not  to  persecute,  yet  to  re- 
strain and  discountenance,  the  Non-conform- 
ist. He  came  unwillingly  into  the  tolera- 
tion, which  the  Whig  held  up  as  one  of  the 
great  trophies  of  the  Revolution.  The 
Whig  spurned  at  the  haughty  language  of 
the  Church,  and  ti'eated  the  Dissenters 
with  moderation,  or  perhaps  with  favor. 
This  distinction  subsisted  long  after  the  two 
parties  had  shifted  their  ground  as  to  civil 
liberty  and  royal  power.  Again,  a  predilec- 
tion for  the  ten'itorial  aristocracy,  and  for  a 
government  chiefly  conducted  by  their  in- 
fluence, a  jealousy  of  new  men,  of  the  mer- 
cantile interest,  of  the  commonalty,  never 
failed  to  mark  the  genuine  Tory.  It  has 
been  common  to  speak  of  the  Whigs  as  an 
aristocratical  faction.  Doubtless  the  major- 
ity of  the  peerage  from  the  Revolution  down- 
ward to  the  death  of  George  IL  were  of 
that  denomination  ;  but  this  is  merely  an  in- 
stance wherein  the  party  and  the  principle 
are  to  be  distinguished.  The  natural  bias 
of  the  aristocracy  is  toward  the  crown  ;  but, 
except  in  most  part  of  the  reign  of  Anne, 
the  crown  might  be  reckoned  with  the  Whig 
party.    No  one  who  reflects  on  the  motives 


Anne,  Geo.  I.,  Geo.  IL]      FROM  HENRY  VH.  TO  GEORGE  II. 


601 


which  are  Hkely  to  influence  the  judgment 
of  classes  in  society,  would  hesitate  to  pre- 
dict that  an  English  House  of  Lords  would 
contain  a  larger  proportion  of  men  inclined 
to  the  Tory  principle  than  of  the  opposite 
school ;  and  we  do  not  find  that  experience 
contradicts  this  anticipation. 

It  will  be  obvious  that  I  have  given  to 
each  of  these  political  principles  a  moral 
character,  and  have  considered  them  as  they 
would  subsist  in  upright  and  conscientious 
men,  not,  as  we  may  find  them  "  in  the 
dregs  of  Romulus,"  suflfocated  by  selfishness 
or  distorted  by  faction.  The  Wliigs  appear 
to  have  taken  a  far  more  comprehensive 
view  of  the  nature  and  ends  of  civil  society  ; 
their  principle  is  more  virtuous,  more  flex- 
ible to  the  variations  of  time  and  circum- 
stances, more  congenial  to  large  and  mascu- 
line intellects.  But  it  may  probably  be  no 
small  advantage  that  the  two  parties,  or, 
rather,  the  sentiments  which  have  been  pre- 
sumed to  actuate  them,  should  have  been 
mingled,  as  we  find  them,  in  the  complex 
mass  of  the  English  nation,  whether  the  pro- 
portions may  or  not  have  been  always  such 
as  we  might  desire.  They  bear  some  anal- 
ogy to  the  two  forces  which  retain  the 
planetary  bodies  in  their  orbits ;  the  annihi- 
lation of  one  would  disperse  them  into  chaos, 
that  of  the  other  would  drag  them  to  a  cen- 
ter ;  and  though  I  can  not  reckon  these  old 
appellations  by  any  means  characteristic  of 
our  political  factions  in  the  nineteenth  cen- 
tury, the  names  Whig  and  Tory  are  often 
well  applied  to  individuals.  Nor  can  it  be 
othenvise ;  since  they  are  founded  not  only 
on  our  laws  and  history,  with  which  most 
have  some  acquaintance,  but  in  the  diversi- 
ties of  condition  and  of  moral  temperament 
generally  subsisting  among  mankind. 

It  is,  however,  one  thing  to  prefer  the 
Whig  principle,  another  to  justify,  as  an  ad- 
vocate, the  party  which  bore  that  name. 
So  far  as  they  were  guided  by  that  princi- 
ple, I  hold  them  far  more  friendly  to  the 
great  interests  of  the  Commonwealth  than 
their  adversaries.  But,  in  truth,  the  pecu- 
liar circumstances  of  these  four  reigns  after 
the  Revolution  ;  the  spirit  of  faction,  preju- 
dice, and  animosity  ;  above  all,  the  desire  of 
obtaining  or  retaining  power,  which,  if  it  be 
ever  sought  as  a  means,  is  soon  converted 
into  an  end,  threw  both  parties  very  often 
into  a  false  position,  and  gave  to  each  the 


language  and  sentiments  of  the  other,  so 
that  the  two  principles  are  rather  to  be 
traced  in  writings,  and  those  not  wholly  of 
a  temporary  nature,  than  in  the  debates  of 
Parliament.  In  the  reigns  of  William  and 
Anne,  the  Whigs,  speaking  of  them  gener- 
ally as  a  gi'eat  paity,  have  preserved  their  ^ 
original  character  unimpaired  far  more  than 
their  opponents.  All  that  had  passed  in 
the  former  reign  served  to  humble  the  To- 
ries, and  to  enfeeble  their  principle.  The 
Revolution  itself,  and  the  votes  upon  which 
it  was  founded ;  the  Bill  of  Recognition  in 
1690 ;  the  repeal  of  the  Non-resisting  Test; 
the  Act  of  Settlement ;  the  Oath  of  Abju- 
ration, were  solemn  adjudications,  as  it 
were,  against  their  creed.  They  took  away 
the  old  argument,  that  the  letter  of  the  law 
was  on  their  side.  If  this,  indeed,  were  all 
usurpation,  the  answer  was  ready,  but  those 
who  did  not  care  to  make  it,  or  by  their  sub- 
mission put  it  out  of  their  power,  were  com- 
pelled to  sacrifice  not  a  little  of  that  which 
had  entered  into  the  definition  of  a  Tory. 
Yet  even  this  had  not  a  greater  effect  than 
that  systematic  jealousy  and  dislike  of  the 
administration,  which  made  them  encroach, 
according  to  ancient  notions,  and  certainly 
their  own,  on  the  prerogative  of  William. 
They  learned  in  this  no  unpleasing  lesson 
to  popular  assemblies,  to  magnify  their  own 
privileges  and  the  rights  of  the  people. 
This  tone  was  often  assumed  by  the  friends 
of  the  exiled  family,  and  in  them  it  was 
without  any  dereliction  of  their  object.  It 
was  natural  that  a  Jacobite  should  use  pop- 
ular topics  in  order  to  thwart  and  subvert  a 
usurping  government.  His  faith  was  to  the 
crown,  but  to  the  crown  on  a  right  head. 
In  a  Tory  who  voluntarily  submitted  to  the 
reigning  prince,  such  an  opposition  to  the 
prerogative  was  repugnant  to  the  maxims 
of  his  creed,  and  placed  him,  as  I  have  said, 
in  a  false  position.  This  is,  of  course,  ap- 
plicable to  the  reigns  of  George  I.  and  II., 
and  in  a  greater  degree  in  proportion  as  the 
Tory  and  Jacobite  were  more  separated 
than  they  had  been,  perhaps,  under  William. 

The  Tories  gave  a  striking  proof  how  far 
they  might  be  brought  to  abandon  their  the- 
ories, in  supporting  an  address  to  the  queen 
that  she  would  invite  the  Princess  Sophia 
to  take  up  her  residence  in  England ;  a 
measure  so  unnatural  as  weU  as  imprudent, 
that  some  have  ascribed  it  to  a  subtlety  of 


602 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVI. 


politics  which  I  do  not  comprehend.  But 
we  need  not,  perhaps,  look  further  than  to 
the  blind  rage  of  a  party  just  discarded, 
who,  out  of  pique  toward  their  sovereign, 
made  her  more  irreconcilably  their  enemy, 
and  while  they  hoped  to  brand  their  oppo- 
nents with  inconsistency,  forgot  that  the  im- 
putation would  rebound  with  tenfold  force 
on  themselves.  The  Whigs  justly  resisted 
a  proposal  so  little  called  for  at  that  time ; 
but  it  led  to  an  act  for  the  security  of  the 
succession,  designating  a  regency  in  the 
event  of  the  queen's  decease,  and  providing 
that  the  actual  Parliament,  or  the  last,  if 
none  were  in  being,  should  meet  immedi- 
ately, and  continue  for  six  months,  unless 
dissolved  by  the  successor.* 

In  the  conduct  of  this  party,  generally 
speaking,  we  do  not,  I  think,  find  any  aban- 
donment of  the  cause  of  liberty.  The  Whigs 
appear  to  have  been  zealous  for  bills  exclud- 
ing placemen  from  the  House,  or  limiting 
their  numbers  in  it;  and  the  abolition  of  the 
Scots  privy  council,  an  odious  and  despotic 
tribunal,  was  owing,  in  a  gi'eat  measure,  to 
the  authority  of  Lord  Somers.f    In  these 

*  4  Anne,  c.  8.  Pari.  Hist.,  457,  et  post.  Bar- 
net,  429. 

t  6  Anne,  c.  6.  Pari.  Hist.,  613.  Somerville, 
296.  Hardw.  Papers,  ii.,  473.  Cunningham  at- 
tests the  zeal  of  the  Whigs  for  abolishing  the 
Scots  privy  council,  though  he  is  wrong  in  reckon- 
ing Lord  Cowper  among  them,  whose  name  ap- 
pears in  the  protest  on  the  other  side,  ii.,  135,  &c. 
The  distinction  of  old  and  modern  Whigs  appeared 
again  in  tliis  reign ;  the  former  professing,  and  in 
general  feeling,  a  more  steady  attachment  to  the 
principles  of  civil  liberty.  Sir  Peter  King,  Sir 
Joseph  Jekyll,  Mr.  Wortley,  Mr.  Hampden,  and 
the  historian  himself,  were  of  this  description,  and, 
consequently,  did  not  always  support  Godolphin. 
—P.  210,  &c.  Mr.  Wortley  brought  in  a  bill, 
which  passed  the  Commons  in  1710,  for  voting  by 
ballot.  It  was  opposed  by  Wharton  and  Godol- 
phin in  the  Lords,  as  dangerous  to  the  Constitution, 
and  thrown  out.  Wortley,  he  says,  went  the  next 
year  to  Venice,  on  purpose  to  inquire  into  the  ef- 
fects of  the  ballot,  which  prevailed  universally  in 
that  RepuUic. — P.  285.  I  have  since  learned  that 
no  trace  of  such  a  bill  can  be  found  in  the  Jour- 
nals ;  yet  I  think  Cunningham  must  have  had 
some  foundation  for  his  circumstantial  assertion. 
The  ballot,  however,  was  probably  meant  to  be  in 
Parliament,  not,  or  not  wholly,  in  elections. 

[On  searching  the  Journals,  I  find  a  bill  "  to 
prevent  bribery,  corraption,  and  other  indecent 
practices,  in  electing  of  members  to  serve  in  Par- 
liament," ordered  to  be  brought  in,  17th  of  Jan., 
1708-9.  Nothing  further  appears  in  this  session ; 
but  in  the  next,  a  bill  with  the  same  title  is  brought 


measures,  however,  the  Tories  generally 
co-operated ;  and  it  is  certainly  difficult  in 
the  history  of  any  nation  to  separate  the  in- 
fluence of  sincere  patriotism  from  that  of 
animosity  and  thirst  of  power.  But  one 
memorable  event  in  the  reign  of  Anne  gave 
an  opportunity  for  bringing  the  two  theories 
of  government  into  collision,  to  the  signal 
advantage  of  that  which  the  impeachraent 
Whigs  professed:  I  mean,  the  I'^^rX"' 
impeachment  of  Dr.  Sachever-  them  again, 
ell.  Though,  with  a  view  to  the  interests 
of  their  ministiy,  this  prosecution  was  very 
unadvised,  and  has  been  desei-vedly  cen- 
sured, it  was  of  high  impoi-tance  in  a  con- 
stitutional light,  and  is  not  only  the  most 
authentic  exposition,  but  the  most  authori- 
tative ratification  of  the  principles  upon 
which  the  Revolution  is  to  be  defended.* 

The  charge  against  Sacheverell  was,  not 
for  impugning  what  was  done  at  the  Rev- 
olution, which  he  affected  to  vindicate,  but 
for  maintaining  that  it  was  not  a  case  of  re- 
sistance to  the  supreme  power,  and,  con- 
sequently, no  exception  to  his  tenet  of  an 
unlimited  passive  obedience.  The  mana- 
gers of  the  impeachment  had,  therefore,  not 
only  to  prove  that  there  was  resistance  in 
the  Revolution,  which  could  not,  of  course, 
be  sincerely  disputed,  but  to  assert  the  law- 

in,  1 5th  of  Feb.,  1709-10,  and  read  a  second  time 
Feb.  18th ;  but  no  more  appears  about  it.  Mr. 
Wortley's  name  does  not  appear  among  those 
who  were  ordered  to  bring  in  either  of  these  bills. 

I  have  also  found  in  a  short  tract,  entitled  "A 
Patriot's  Proposal  to  the  People  of  England,"  1705, 
a  recommendation  of  election  by  ballot.  It  is 
highly  democratical  in  its  principle,  but  came  a 
full  century  too  soon.  The  proceedings  of  the 
House  of  Commons  in  the  Aj  lesbury  case  seem  to 
have  produced  it. 

It  seems,  therefore,  that  I  was  mistaken  in  sup- 
posing the  bill  mentioned  by  Cunningham  to  have 
respected  the  mode  of  voting  2?i  Parliament. — 1845.] 

*  Pai-L  Hist.,  vi.,  805.  Burnet,  537.  State  Tri- 
als, XV.,  1.  It  is  said  in  Coxe's  Life  of  Marlboi^ 
ough,  iii.,  141,  that  Marlborough  and  Somers  were 
against  this  prosecution.  This  writer  goes  out  of 
his  way  to  make  a  false  and  impertinent  remark 
on  the  managers  of  tlie  impeachment,  as  giving 
encouragement  by  their  speeches  to  licentiousness 
and  sedition. — Id.,  166. 

[Cunningham  says  that  Marlborough  was  for 
prosecution  at  law  rather  than  impeachment ;  Som- 
ers against  both,  ii.,  277  :  Harley  spoke  against 
the  impeachment  as  unworthy  of  the  House,  but 
condemned  SachevereU's  sermon  as  foolish,  calling 
it  a  "  circumgyration  of  incoherent  words  ;  '  which, 
the  historian  says,  some  thought  was  the  character 
of  his  own  speech. — Vol.  ii.,  p.  285. — 1845.] 


AnSK,  Gbo.  I.,  Geo.  II.]        FROM  HENRY  VH.  TO  GEORGE  II. 


603 


fulness,  in  great  emergencies,  or  what  is 
called  in  politics  necessity,  of  taking  arms 
against  the  law :  a  delicate  matter  to  treat 
of  at  any  time,  and  not  least  so  by  ministers 
of  state  and  law  officers  of  the  crown,  in 
the  very  presence,  as  they  knew,  of  their 
sovereign.*  We  can  not  praise  too  highly 
their  speeches  upon  this  charge;  some 
shades,  rather  of  discretion  than  discord- 
ance, may  bo  perceptible ;  and  we  may  dis- 
tinguish the  warmth  of  Lechmere,  or  the 
openness  of  Stanhope,  from  the  caution  of 
Walpole,  who  betrays  more  anxiety  than 
his  colleagues  to  give  no  ofi'ense  in  the  high- 
est quarter  ;  but  in  eveiy  one  the  same  fun- 
damental principles  of  the  Whig  creed,  ex- 
cept on  which,  indeed,  the  impeachment 
could  not  rest,  are  unambiguously  proclaim- 
ed. "  Since  we  must  give  up  our  right  to 
the  laws  and  liberties  of  this  kingdom,"  says 
Sir  Joseph  Jekyll,  "  or,  which  is  all  one,  be 
precarious  in  the  enjoyment  of  them,  and 
hold  them  only  during  pleasure,  if  this  doc- 
trine of  unlimited  non-resistance  prevails, 
the  Commons  have  been  content  to  under- 
take this  prosecution. "f  "  The  doctrine  of 
unlimited,  unconditional,  passive  obedience," 

*  "  The  managers  appointed  by  the  House  of 
Commons,"  says  an  ardent  Jacobite,  "behaved 
with  all  the  insolence  imaginable.  In  their  dis- 
course they  boldly  asserted,  even  iu  her  majesty's 
presence,  that,  if  the  right  to  the  crown  was  he- 
reditary and  iudefeasible,  the  prince  beyond  seas, 
meaning  the  king,  and  not  the  queen,  had  the 
legal  title  to  it,  she  having  no  claim  thereto  but 
what  she  owed  to  the  people ;  and  that  by  the 
Revolution  principles,  on  which  the  Constitution 
was  founded,  and  to  which  the  laws  of  the  land 
agreed,  the  people  might  turn  oat  or  lay  aside 
their  sovereigns  as  they  saw  cause.  Though,  no 
doubt  of  it,  there  was  a  great  deal  of  truth  in  these 
assertions,  it  is  easy  to  be  believed  that  the  queen 
was  not  well  pleased  to  bear  them  maintained, 
even  in  her  own  presence  and  in  so  solemn  a 
manner,  before  such  a  great  concourse  of  her  sub- 
jects ;  for,  though  princes  do  cherish  these  and  tlie 
like  doctrines,  while  they  serve  as  the  means  to 
advance  themselves  to  a  crown,  yet,  being  once 
possessed  thereof,  they  have  as  little  satisfaction 
in  them  as  those  who  succeed  by  an  hereditary,  un- 
questionable title." — liOckhart  Papers,  i.,  312. 

It  is  probable  enough  that  the  last  remark  has 
its  weight,  and  that  the  queen  did  not  wholly  like 
the  speeches  of  some  of  the  managers ;  and  yet 
nothing  can  be  more  certain  than  that  she  owed 
her  crown  in  the  first  instance,  and  the  preserva- 
tion of  it  at  that  very  time,  to  tliose  insolent  doc- 
trines which  wounded  her  royal  ear ;  and  that  the 
genuine  Loyalists  would  soon  have  lodged  her  in 
the  Tower.  t  State  Trials,  xv.,  95. 


says  Mr.  Walpole,  "  was  first  invented  to 
support  arbitrary  and  despotic  power,  and 
was  never  promoted  or  countenanced  by  any 
government  that  had  not  designs  some  time 
or  other  of  making  use  of  it."*  And  thus 
General  Stanhope  still  more  vigorously : 
"  As  to  the  doctrine  itself  of  absolute  non- 
resistance,  it  should  seem  needless  to  prove 
by  arguments  that  it  is  inconsistent  with  the 
law  of  reason,  with  the  law  of  nature,  and 
with  the  practice  of  all  ages  and  countries. 
Nor  is  it  very  material  what  the  opinions  of 
some  particular  divines,  or  even  the  doctrine 
generally  preached  in  some  particular  reigns, 
may  have  been  concerning  it.  It  is  sufficient 
for  us  to  know  what  the  practice  of  the 
Church  of  England  has  been,  when  it  found 
itself  oppressed;  and,  indeed,  one  may  ap- 
peal to  the  practice  of  all  churches,  of  all 
states,  and  of  all  nations  in  the  world,  how 
they  behaved  themselves  when  they  found 
their  civil  and  religious  constitutions  invaded 
and  oppressed  by  tyranny.  I  believe  we 
may  further  venture  to  say,  that  there  is  not 
at  this  day  subsisting  any  nation  or  govern- 
ment in  the  woild,  whose  first  original  did 
not  receive  its  foundation  either  from  resist- 
ance or  compact ;  and  as  to  our  purpose, 
it  is  equal  if  the  latter  be  admitted ;  for 
wherever  compact  is  admitted,  there  must 
be  admitted  likewise  a  right  to  defend  the 
rights  accruing  by  such  compact.  To  argue 
the  municipal  laws  of  a  country  in  this  case 
is  idle.  Those  laws  were  only  made  for 
the  common  course  of  things,  and  can  never 
be  understood  to  have  been  designed  to  de- 
feat the  end  of  all  laws  whatsoever,  which 
would  be  the  consequence  of  a  nation's 
tamely  submitting  to  a  violation  of  all  their 
divine  and  human  rights. "f  Mr.  Lechmere 
argues  to  the  same  purpose  in  yet  stronger 
terms. t 

But,  if  these  managers  for  the  Commons 
v/ere  explicit  in  their  assertion  of  the  Whig 
principle,  the  counsel  for  Sacheverell  by  no 
means  unfurled  the  opposite  banner  with 
equal  courage.  In  this  was  chieflj'  mani- 
fested the  success  of  the  former.  His  ad- 
vocates had  recourse  to  the  petty  chicane 
of  arguing  that  he  had  laid  down  a  general 
rule  of  obedience  without  mentioning  its  ex- 
ceptions ;  that  the  Revolution  was  a  case  of 
necessity,  and  that  they  fully  approved  what 

*  State  Trials,  115.        t  Id.,  127.        t  W.,  61. 


604 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVI 


was  done  therein.  They  set  up  a  distinc- 
tion, which,  though  at  that  time,  perhaps, 
novel,  has  sometimes  since  been  adopted  by 
Tory  witers :  that  resistance  to  the  su- 
preme power  was  indeed  utterly  iUegal  on 
any  pretense  whatever,  but  that  the  su- 
preme power  in  this  kingdom  was  the  Leg- 
islature, not  the  king;  and  that  the  Revo- 
lution took  effect  by  the  concurrence  of  the 
Lords  and  Commons.*  This  is  of  itself  a 
descent  from  the  high  ground  of  Toryism, 
and  would  not  have  been  held  by  the  sin- 
cere bigots  of  that  creed.  Though  specious, 
however,  the  argument  is  a  sophism,  and 
does  not  meet  the  case  of  the  Revolution ; 
for,  though  the  supreme  power  may  be  said 
to  reside  in  the  Legislature,  yet  the  pre- 
rogative within  its  due  limits  is  just  as  much 
part  of  the  Constitution,  and  the  question  of 
resistance  to  lawful  authority  remains  as  be- 
fore. Even  if  this  resistance  had  been  made 
by  the  two  houses  of  Parliament,  it  was  but 
the  case  of  the  civil  war,  which  had  been 
explicitly  condemned  by  more  than  one  stat- 
ute of  Charles  II.  But,  as  Mr.  Lechmere 
said  in  reply,  it  was  undeniable  that  the 
Lords  and  Commons  did  not  join  in  that 
resistance  at  the  Revolution  as  part  of  the 
legislative  and  supreme  power,  but  as  pai-t 
of  the  collective  body  of  the  nation  ;f  and 
Sir  John  Holland  had  before  obseiTed,  "  that 
there  was  a  resistance  at  the  Revolution 
was  most  plain,  if  taking  up  arms  in  York- 
shire, Nottinghamshire,  Cheshire,  and  al- 
most all  the  counties  of  England  ;  if  the  de- 
seition  of  a  prince's  own  ti-oopis  to  an  in- 
vading prince,  and  turning  their  arms  against 
their  sovereign,  be  resistance."!    It  might, 

*  State  Trials,  196,  229.  It  is  observed  by  Cun- 
ningham, p.  286,  that  Sacheverell's  counsel,  except 
Pbipps,  were  ashamed  of  him,  which  is  really  not 
far  from  the  case.  "  The  doctor,"  says  Lockhart, 
"  employed  Sir  Simon,  afterward  Lord  Harcourt, 
and  Sir  Constantine  Phipps,  as  his  counsel,  who 
defended  him  the  best  way  they  could,  though  they 
were  hard  put  to  it  to  maintain  the  hereditary 
right  and  unlimited  doctrine  of  non-resistance,  and 
not  condemn  the  Revolution.  And  the  truth  on  it 
is,  these  are  so  inconsistent  with  one  another,  that 
the  chief  arguments  alleged  in  this  and  other  par-  j 
allel  cases  came  to  no  more  than  this  :  that  the  ' 
Revolution  was  an  exceprion  from  the  nature  of  | 
government  in  general,  and  the  Consritution  and 
laws  of  Britain  in  particular,  which  necessity,  in 
that  particular  case,  made  expedient  and  lavrful." 
—Ibid. 

f  State  Trials,  407.  t  M.,  110. 


in  fact,  have  been  asked  whether  the  Dukes 
of  Leeds  and  Shrewsbury,  then  sitting  in 
judgment  on  SachevereU  (and  who  after- 
ward voted  him  not  guilty),  might  not  have 
been  convicted  of  treason  if  the  Prince  of 
Orange  had  failed  of  success?*  The  ad- 
vocates, indeed,  of  the  prisoner  made  so 
many  concessions  as  amounted  to  an  aban- 
donment of  all  the  general  question.  They 
relied  chiefly  on  numerous  passages  in  the 
Homilies,  and  most  approved  writers  of  the 
Anglican  Church,  asserting  the  duty  of  un- 
bounded passive  obedience  ;  but  the  mana- 
gers eluded  these  in  their  reply  with  decent 
respect.f  The  Lords  voted  SachevereU 
guilty  by  a  majority  of  67  to  59,  several 
voting  on  each  side  rather  according  to  their 
present  faction  than  their  own  principles. 
They  passed  a  slight  sentence,  interdicting 
him  only  from  preaching  for  three  years. 
This  was  deemed  a  sort  of  triumph  by  his 
adherents  ;  but  a  severe  punishment  on  one 
so  insignificant  would  have  been  misplaced  ; 
and  the  sentence  may  be  compared  to  the 


*  Cunningham  says  that  the  Duke  of  Leeda 
spoke  strongly  in  favor  of  the  Revolution,  though 
he  voted  SachevereU  not  gnilty. — P.  298.  Lock- 
liart  observes,  that  he  added  success  to  necessity, 
as  an  essential  point  for  rendering  the  Revolution 
lawful. 

t  The  Homilies  are  so  much  more  vehement 
against  resistance  than  SachevereU  was,  that  it 
would  have  been  awkward  to  pass  a  rigorous 
sentence  on  him.  In  fact,  he  or  any  other  clergy- 
man had  a  right  to  preach  the  Homily  against  Re- 
bellion instead  of  a  sermon.  As  to  their  laying 
down  general  rules  without  adverting  to  the  ex- 
ceptions, an  apology  which  the  managers  set  up 
for  them,  and  it  was  just  as  good  for  SachevereU  ; 
and  the  Homilies  expressly  deny  all  possible  ex- 
ceptions. TiUotson  had  a  plan  of  dropping  these 
old  compositions,  which  in  some  doctrinal  points, 
as  well  as  in  the  tenet  of  non-resistance,  do  not 
represent  the  sentiments  of  the  modem  Church, 
though,  in  a  general  way,  it  subscribes  to  them. 
But  the  times  were  not  ripe  for  this,  or  some  other 
of  that  good  prelate's  designs.  —  Wordsworth's 
Eccles.  Biog.,  vol.  vi.  The  quotations  from  the 
Homilies  and  other  approved  works  by  Sachever- 
ell's counsel  are  irresistible,  and  must  have  in- 
creased the  party  spirit  of  the  clergj-.  "  No  con- 
juncture of  circumstances  whatever,"  says  Bishop 
Sanderson,  "  can  make  that  expedient  to  be  done 
at  any  time  that  is  of  itself,  and  in  the  kind,  un- 
lawful ;  for  a  man  to  take  up  arms  offensive  or 
defensive  against  a  lawful  sovereign,  being  a  thing 
in  its  nature  simply  and  de  toto  genere  unlawfiil, 
may  not  be  done  by  any  man,  at  any  time,  in  any 
case,  upon  any  color  or  pretense  whatsoever."— 
State  Trials,  231. 


AiTNE,  Geo.  I.,  Geo.  II.]       FROM  HENRY  VII.  TO  GEORGE  II. 


605 


nominal  damages  sometimes  given  in  a  suit 
instituted  for  the  trial  of  a  great  right. 

The  shifting  combinations  of  party  in  the 
Rcvolutioa  reign  of  Anne,  which  affected  the 
istJy  under  ""giial  distinctions  of  "Whig  and 
Anne.  Tory,  though  generally  known, 
must  be  shortly  noticed.  The  queen,  whose 
understanding  and  fitness  for  government 
were  below  mediocrity,  had  been  attached 
to  the  Tories,  and  bore  an  antipathy  to  her 
predecessor.  Her  first  ministry,  her  first 
Parliament,  gave  presage  of  a  government 
to  be  wholly  conducted  by  that  party.  But 
this  prejudice  was  counteracted  by  the  per- 
suasions of  that  celebrated  favorite,  the  wife 
of  Marlborough,  who,  probably  from  some 
personal  resentments,  had  thrown  her  in- 
fluence into  the  scale  of  the  Whigs.  The 
well-known  records  of  their  conversation  and 
correspondence  present  a  strange  picture  of 
good-natured  feebleness  on  one  side,  and  of 
ungrateful  insolence  on  the  other.  But  the 
interior  of  a  court  will  rarely  endure  day- 
light. Though  Godolphin  and  Marlborough, 
in  whom  the  queen  reposed  her  entire  con- 
fidence, had  been  thought  Tories,  they  be- 
came gradually  alienated  from  that  party, 
and  communicated  their  own  feelings  to  the 
queen.  The  House  of  Commons  very  reas- 
onably declined  to  make  an  hereditaiy  grant 
to  the  latter  out  of  the  revenues  of  the  post- 
oflSce  in  1702,  when  he  had  performed  no 
exti'aordinary  services,  though  they  acceded 
to  it  without  hesitation  after  the  battle  of 
Blenheim.*  This  gave  some  offense  to 
Anne ;  and  the  chief  Tory  leaders  in  the 
cabinet,  Rochester,  Nottingham,  and  Buck- 
ingham, displaying  a  reluctance  to  carry  on 
the  war  with  such  vigor  as  Marlborough 
knew  to  be  necessary,  were  soon  removed 
from  ofl[ice.  Their  revengeful  attack  on  the 
queen,  in  the  address  to  invite  the  Princess 
Sophia,  made  a  return  to  power  hopeless 
for  several  years.  Anne,  however,  enter- 
tained a  desire  very  natm-al  to  an  English 
sovereign,  yet  in  which  none  but  a  weak  one 
wUl  expect  to  succeed,  of  excluding  chiefs 
of  parties  from  her  councils.  Disgusted 
with  the  Tories,  she  was  loth  to  admit  tlie 

*  Pari.  Hist.,  vi.,  57.  They  did  not  scruple, 
however,  to  say  what  cost  nothing  bat  veracity 
and  gratitude,  that  Marlborough  had  retrieved  the 
honor  of  the  nation.  This  was  justly  objected  to, 
as  reflecting  on  the  late  king,  bat  carried  by  180 
to  80.— Id.,  58.  Burnet. 


Whigs;  and  thus  Godolphin's  administra- 
tion, from  1704  to  1708,  was  rather  sullenly 
supported,  sometimes,  indeed,  thwarted,  by 
that  party.  Cowper  was  made  chancellor 
against  the  queen's  wishes  ;*  but  the  junto, 
as  it  was  called,  of  five  eminent  Whig  peers, 
Somers,  Halifax,  Wharton,  Oxford,  and 
Sunderland,  were  kept  out  through  the 
queen's  dislike,  and  in  some  measure,  no 
question,  through  Godolphin's  jealousy. 
They  forced  themselves  into  the  cabinet 
about  1708,  and  effected  the  dismissal  of 
Harley  and  St.  John,  who,  though  not  of  the 
regular  Tory  school  in  connection  or  princi- 
ple, had  already  gone  along  with  that  faction 
in  the  late  reign,  and  were  now  reduced  by 
their  dismissal  to  unite  with  it.f  The  Whig 
ministry  of  Queen  Anne,  so  often  talked  of, 
can  not,  in  fact,  be  said  to  have  existed  more 
than  two  years,  from  1708  to  1710;  her 
previous  administi'ation  having  been  at  first 
Tory,  and  afterward  of  a  motley  complexion, 
though  depending  for  existence  on  the  great 
Whig  interest  which  it  in  some  degree  pro- 
scribed. Every  one  knows  that  this  min- 
istiy  was  precipitated  from  power  through 
the  favorite's  abuse  of  her  ascendency,  be- 
come at  length  intolerable  to  the  most  for- 
bearing of  queens  and  mistresses,  conspiring 
with  another  inti-igue  of  the  bed-chamber, 
and  the  popular  clamor  against  Sacheverell's 
impeachment-t  It  seems  rather  a  humilia- 
ting proof  of  the  sway  which  the  feeblest 
prince  enjoys  even  in  a  limited  monarchy, 

*  Coxe's  Marlborough,  i.,  483.  Mr.  Smith  was 
chosen  speaker  by  248  to  205,  a  slender  majority ; 
but  some  of  the  ministerial  party  seem  to  have 
thought  him  too  much  a  Whig. — Id.,  485.  Pari. 
Hist.,  450.  The  Whig  pamplileteers  were  long 
hostile  to  Marlborough. 

t  Burnet  rather  gently  slides  over  these  jealou- 
sies between  Godolphin  and  the  Whig  junto  ;  and 
Tindal,  his  mere  copyist,  is  not  worth  mentioning. 
But  Cunningham's  history,  and,  still  more,  the  let- 
ters published  in  Coxe's  Life  of  Marlborough,  show 
better  the  state  of  party  intrigues  ;  which  the  Par- 
liamentary History  also  illustrates,  as  well  as  many 
pamphlets  of  the  time.  Somerville  has  carefully 
compiled  as  much  as  was  known  when  he  wrote. 

t  [If  we  may  believe  Swift,  the  queen  had  be- 
come alienated  from  the  Duchess  of  Marlborough 
as  far  back  as  her  accession  to  the  throne ;  the 
ascendant  of  the  latter  being  what  "  her  majesty 
had  neither  patience  to  bear  nor  spirit  to  subdue." 
—Memoirs  relating  to  the  Change  in  the  Ciueen's 
Ministry.  But  Coxe  seems  to  refer  the  com- 
mencement of  the  coldness  to  1706.— Life  of  Marl- 
borough, p.  151.— 1845.] 


606 


CONSTITUTIONAL  HISTORY  OT  ENGLAND 


[Chap.  XVL 


that  the  foitunes  of  Europe  should  have 
been  changed  by  nothing  more  noble  than 
the  insolence  of  one  waiting  woman  and  the 
cunning  of  another.  It  is  ti'ue  that  this  was 
effected  by  throwing  the  weight  of  the  crown 
into  the  scale  of  a  powerful  faction  ;  yet  the 
house  of  Bourbon  would  probably  not  have 
I'eigned  beyond  the  Pyrenees  but  for  Sarah 
and  Abigail  at  Queen  Anne's  toilet.* 

The  object  of  the  war,  as  it  is  commonly 
War  of  the  Called,  of  the  Grand  Alliance, 
Succession,  commenced  in  1702,  was,  as  ex- 
pressed in  an  address  to  the  House  of 
Commons,  for  preserving  the  liberties  of 
Europe  and  reducing  the  exorbitant  power 

*  ["  It  is  most  certain,  that  when  the  queen  first 
began  to  change  her  servants,  it  was  not  from  a 
dislike  of  things,  but  of  persons,  and  those  persons 
a  very  small  number." — Swift's  Inquiry  into  the 
Behavior  of  the  dueen's  last  Mmistry.  Though 
this  authority  is  not  always  trustworthy,  I  incline 
to  credit  what  is  here  said,  confirmed  by  his  pri- 
vate letters  to  Stella  at  this  time.  "  It  was  the 
issue,"  he  goes  on  to  inform  us,  "  of  SachevereU'g 
trial  which  encouraged  her  to  proceed  so  far.  She 
then  determined  to  dissolve  Parliament,  having 
previously  only  designed  to  turn  out  one  family. 
The  Whigs,  on  this,  resolved  to  resign,  which  she 
accepted  unwillingly  from  Somers  and  Cowper, 
both  of  whom,  especially  the  former,  she  esteemed 
as  much  as  her  nature  was  capable  of"  Her 
scheme  was  moderate  and  comprehensive,  from 
which  she  never  departed  till  near  her  death. 
She  became  very  difiBcult  to  advise  out  of  the 
opinion  of  having  been  too  much  directed,  "  so  that 
few  ministers  had  ever,  perhaps,  a  harder  game 
to  play,  between  the  jealousy  and  discontents  of 
his  [Oxford's]  friends  on  one  side,  and  the  man- 
agement of  the  queen's  temper  on  the  other." 
His  friends  were  anxious  for  further  changes,  with 
which  he  was  not  unwilling  to  comply,  had  not  the 
Duchess  of  Somerset's  influence  been  employed. 
The  queen  said,  if  she  might  not  choose  her  own 
ser\'ants,  she  could  not  see  what  advantage  she 
bad  got  from  the  change  of  ministry  ;  and  so  little 
was  her  heart  set  upon  a  Tory  administration,  that 
many  employments  in  court  and  country,  and  a 
great  majority  of  all  commissions,  remained  in  the 
hands  of  the  other  party.  She  lost  the  govern- 
ment the  vote  on  Lord  Nottingham's  motion,  and 
Beemed  so  little  displeased,  that  she  gave  her  hand 
to  Somerset  (who  had  voted  against  the  court)  to 
lead  her  out.  But  during  her  illness,  in  the  winter 
of  1713,  the  Whigs  were  on  the  alert,  which,  he 
says,  was  so  represented  to  her,  that  "  she  laid 
aside  all  schemes  of  reconciling  the  two  opposite 
interests,  and  entered  on  a  firm  resolution  of  ad- 
hering to  the  old  English  principles."  This  pass- 
age is  to  be  considered  with  a  view  to  what  we 
learn  from  other  quarters  about  the  "  old  English 
principles  ;"  which,  whether  Swift  was  aware  of 
it  or  no,  meant  with  many  nothing  less  than  the 
restoration  of  the  house  of  Stuart. — 1845.] 


of  France.*  The  occupation  of  the  Span- 
ish dominions  by  the  Duke  of  Anjou,  on 
the  authority  of  the  late  king's  will,  was 
assigned  as  its  justification,  together  with 
the  acknowledgment  of  the  pretended 
Prince  of  Wales  as  successor  to  his  father 
James.  Charles,  archduke  of  Austria,  was 
recognized  as  King  of  Spain  ;  and  as  early 
as  1705,  the  restoration  of  that  monarchy 
to  his  house  is  declared  in  a  speech  from 
the  throne  to  be  not  only  safe  and  advanta- 
geous, but  glorious  to  England.f  Louis 
XIV.  had  perhaps,  at  no  time,  much  hope 
of  retaining  for  his  grandson  the  whole  in- 
heritance he  claimed  ;  and  on  several  oc- 
casions made  overtures  for  negotiation,  but 
such  as  indicated  his  design  of  rather  sacri- 
ficing the  detached  possessions  of  Italy  and 
the  Netherlands  than  Spain  itself  and  the 
Indies. t  After  the  battle  of  Oudenarde, 
however,  and  the  loss  of  LiUe  in  the  cam- 
paign of  1708,  the  exhausted  state  of  France 
and  discouragement  of  his  court  induced 
him  to  acquiesce  in  the  cession  of  the  S  pan- 
ish  monarchy  as  a  basis  of  treaty.  In  the 
conferences  of  the  Hague  in  1709,  he  strug- 
gled for  a  time  to  preserve  Naples  and  Sic- 
ily, but  ultimately  admitted  the  terms  im- 
posed by  the  allies,  with  the  exception  of 
the  famous  thirty-seventh  article  of  the 
preliminaries,  binding  him  to  procure  by 
force  or  persuasion  the  resignation  of  the 
Spanish  crown  by  his  grandson  within  two 
months.  This  proposition  he  declared  to 
be  both  dishonorable  and  impracticable ;  and, 
the  allies  refusing  to  give  way,  the  negotia- 
tion was  broken  off.  It  was  renewed  the 
next  year  at  Gertruydenburg,  but  the  same 
obstacle  still  proved  insurmountable. § 

It  has  been  the  prevailing  opinion  in  mod- 
ern times  that  the  English  ministry,  rather 
against  the  judgment  of  their  allies  of  Hol- 
land, insisted  upon  a  condition  not  indis- 
pensable to  their  security,  and  too  igno- 
minious for  their  fallen  enemy  to  accept. 
Some  may,  perhaps,  incline  to  think  that, 
even  had  Philip  of  Anjou  been  suffered  to 
reign  in  Naples,  a  possession  rather  honor- 

*  Pari.  Hist.,  vi.,  4. 

t  Nov.  27.   PaiL  Hist.,  477. 

t  Coxe's  Marlborough,  i.,  453  ;  ii.,  110.  Cun- 
ningham, ii.,  52,  83. 

§  Memoires  de  Torcy,  vol.  ii.,  passim.  Coxe's 
Marlborough,  vol.  iii.  Bolingbroke's  Letters  on 
Historj',  and  Lord  Walpole's  Answer  to  them. 
Cunningham,  SomerviUe,  840. 


Anne,  Geo.  I.,  Geo.  II.]      FROM  HENRY  VII.  TO  GEORGE  II. 


607 


able  than  important,  the  balance  of  power 
would  not  have  been  seriously  affected,  and 
the  probability  of  durable  peace  been  in- 
creased. This,  however,  it  was  not  neces- 
saiy  to  discuss.  The  main  question  is  as 
to  the  power  which  the  allies  possessed  of 
securing  the  Spanish  monarchy  for  the 
archduke,  if  they  had  consented  to  waive 
the  thirty-seventh  article  of  the  prelimi- 
naries. If,  indeed,  they  could  have  been 
considered  as  a  single  potentate,  it  was 
doubtless  possible,  by  means  of  keeping  up 
great  armies  on  the  fi-ontier,  and  by  the 
deliveiy  of  cautionary  towns,  to  have  pre- 
vented the  King  of  France  from  lending  as- 
sistance to  his  grandson  ;  but,  self-interest- 
ed and  disunited  as  confederacies  generally 
are,  and  as  the  gi-and  alliance  had  long  since 
become,  this  appeared  a  very  dangerous 
course  of  policy,  if  Louis  should  be  playing 
an  underhand  game  against  his  engage- 
ments ;  and  this  it  was  not  then  unreason- 
able to  suspect,  even  if  we  should  believe, 
in  despite  of  some  plausible  authorities,  that 
he  was  really  sincere  in  abandoning  so  favor- 
ite an  interest.  The  obstinate  adherence 
of  Godolphin  and  Somers  to  the  prelimina- 
ries may  possibly  have  been  erroneous ;  but 
it  by  no  means  deserves  the  reproach  that 
has  been  unfairly  bestowed  on  it ;  nor  can 
the  Whigs  be  justly  charged  with  protract- 
ing the  war  to  enrich  Marlborough,  oi-  to 
secure  themselves  in  power.* 


*  The  late  biog:rapher  of  Marlborough  asserts 
that  he  was  against  breaking  oiF  the  conferences 
in  1709,  though  clearly  for  insisting  on  the  cession 
of  Spain  (iii.,  40).  Godolphin,  Somers,  and  the 
Whigs  in  general,  expected  Louis  XIV.  to  yield 
the  thirty-seventh  article.  Cowper,  however,  was 
always  doubtful  of  this. — Id.,  176. 

It  is  very  hard  to  pronounce,  as  it  appears  to 
me,  on  the  great  problem  of  Louis's  sincerity  in 
this  negotiation.  No  decisive  evidence  seems  to 
have  been  brought  on  the  contrary  side.  The  most 
remarkable  authority  that  way  is  a  passage  in  the 
M^moires  of  St.  Phelipe,  iii.,  263,  who  certainly  as- 
serts that  the  King  of  France  had,  without  the 
knowledge  of  any  of  his  ministers,  assured  his 
grandson  of  a  continued  support.  But  the  ques- 
tion returns  as  to  St.  Phelipe's  means  of  knowing 
so  important  a  secret.  On  the  other  hand,  I  can 
not  discover  in  the  long  correspondence  between 
Madame  de  Maintenon  and  Princesse  des  Ursins 
the  least  corroboration  of  these  suspicions,  but 
much  to  the  contrary  efiect ;  nor  does  Torcy  drop 
a  word,  though  writing  when  all  was  over,  by 
which  we  should  infer  that  the  court  of  Versailles 
had  any  other  hopes  left  in  1709  than  what  still 


The  conferences  at  Gertruydenburg 
were  broken  off  in  July,  1710,  rp^^^ty  of 
because  an  absolute  security  for  peace  bro- 
the  evacuation  of  Spain  by  Phil- 
ip  appeared  to  be  wanting ;  and  within  six 
months  a  fresh  negotiation  was  secretly  on 
foot,  the  basis  of  which  was  his  retention 
of  that  kingdom  ;  for  the  administration  pre- 
sided over  by  Godolphin.  had  fallen  mean- 
while ;  new  counselors,  a  new  Parliament, 
new  principles  of  government.  The  Tories 
had  from  the  beginning  come  very  reluct- 
antly into  the  schemes  of  the  grand  alliance; 
though  no  opposition  to  the  war  had  ever 
been  shown  in  Parliament,  it  was  very  soon 
perceived  that  the  majority  of  that  denomi- 
nation had  their  hearts  bent  on  peace.* 
But  instead  of  renewing  the  ne-  Renewed 
gotiation  in  concert  with  the  al-  the  To^y 
lies  (which,  indeed,  might  have  government, 
been  impracticable),  the  new  ministers  fell 
upon  the  course  of  a  clandestine  arrange- 
ment, in  exclusion  of  ail  the  other  powers, 

lingered  in  their  heart  from  the  determined  spirit 
of  the  Castilians  themselves. 

It  appears  by  the  Memoires  de  Noailles,  iii.,  10 
(edit.  1777),  that  Louis  wrote  to  PhiHp,  26th  of 
Nov.,  1708,  hinting  that  he  must  reluctantly  give 
him  up,  in  answer  to  one  wherein  the  latter  had 
declared  that  he  would  not  quit  Spain  while  he  had 
a  drop  of  blood  in  his  veins  ;  and  on  the  French  am- 
bassador at  Madrid,  Amelot,  remonstrating  against 
the  abandonment  of  Spain,  with  an  evident  intima- 
tion that  Philip  could  not  support  himself  alone, 
the  King  of  France  answered  that  he  must  end 
the  war  at  any  price. — 15th  of  April,  1709.  Id., 
34.  In  the  next  year,  after  the  battle  of  Saragosa, 
which  seemed  to  turn  the  scale  wholly  against 
Philip,  Noailles  was  sent  to  Madrid,  in  order  to 
persuade  that  prince  to  abandon  the  contest — Id., 
107.  There  were  some  in  France  who  would  even 
have  accepted  the  thirty-seventh  article,  of  whom 
Madame  de  Maintenon  seems  to  have  been. — P. 
117.  We  may  perhaps  think  that  an  explicit  offer 
of  Naples,  on  the  part  of  the  allies,  would  have 
changed  the  scene  ;  nay,  it  seems  as  if  Louis 
would  have  been  content  at  this  time  with  Sar- 
dinia and  Sicily. — P.  108. 

"  A  cotemporary  historian  of  remarkable  gravity 
observes,  "  It  was  strange  to  see  how  much  the 
desire  of  French  wine,  and  the  dearness  of  it, 
alienated  many  men  from  the  Duke  of  Marlbor- 
ough's friendship." — Cunningham,  ii.,  220.  The 
hard  drinkers  complained  that  they  were  poisoned 
by  port:  these  formed  almost  a  party ;  Dr.  Aldrich, 
dean  of  Christ  Church,  sumamed  the  priest  of  Bac- 
chus, Dr.  Ratcliff,  General  Churchill,  &c  ;  "  and  all 
the  bottle  companions,  many  physicians,  and  great 
numbers  of  the  lawyers  and  inferior  clergy,  and, 
in  fine,  the  loose  women  too,  were  united  together 
in  the  faction  against  the  Duke  of  Marlborough." 


608 


CONSTITUTIONAL  HISTORY  OV  ENGLAND 


[Chap.  XVI. 


which  led  to  the  signature  of  preliminaries 
in  September,  1711,  and  afterward  to  the 
public  congi-ess  of  Utrecht,  and  the  cele- 
brated treaty  named  from  that  town.  Its 
chief  provisions  are  too  well  known  to  be 
repeated. 

The  arguments  in  favor  of  a  treaty  of 
pacification,  which  should  abandon  the  great 
point  of  contest,  and  leave  Philip  in  pos- 
session of  Spain  and  America,  were  neither 
few  nor  inconsiderable.  1.  The  kingdom 
Arguments  been  impoverished  by  twenty 
for  and      years  of  uninterruptedly  augment- 

againstthe  *'  ,  ,  ,    .  , 

treaty  of  ed  taxation,  the  annual  burdens 
Utrecht.  being  triple  in  amount  of  those 
paid  before  the  Revolution.  Yet,  amid 
these  sacrifices,  we  had  the  mortification  of 
finding  a  debt  rapidly  increasing,  whereof 
the  mere  interest  far  exceeded  the  ancient 
revenues  of  the  crown,  to  be  bequeathed, 
like  an  hereditary  curse,  to  unborn  ages.* 
Though  the  supplies  had  been  raised  with 
less  difficulty  than  in  the  late  reign,  and  the 
condition  of  trade  was  less  unsatisfactory, 
the  landed  proprietors  saw  with  indignation 
the  silent  transfer  of  their  wealth  to  new 
men,  and  almost  hated  the  glory  that  was 
brought  by  their  own  degradation.!  Was 
it  not  to  be  feared  that  they  might  hate  also 
the  Revolution,  and  the  Protestant  succes- 
sion that  depended  on  it,  when  they  tasted 
these  fruits  it  had  borne  ?  Even  the  army 
had  been  recruited  by  violent  means  un- 
known to  our  Constitution,  yet  such  as  the 
continual  loss  of  men,  with  a  population  at 
Uie  best  stationary,  had  perhaps  rendered 
necessary. t 

*  [The  national  debt,  31st  of  Dec,  1714,  amount- 
ed, according  to  Chalmers,  to  i;50,644,306.  Sin- 
clair makes  it  £52,145,363.  But  about  half  of  this 
■was  temporary  annuities.  The  whole  expenses 
of  the  war  are  reckoned  by  the  former  writer  at 
i;65,853,799.  The  interest  of  the  debt  was,  as 
computed  by  Chalmers,  X2.81],903;  by  Sinclair, 
£3,351,358.-1845.] 

t  ["Power,"  says  Swift,  "which,  according  to 
the  old  maxim,  was  used  to  follow  land,  is  now 
gone  over  to  money  ;  so  that,  if  the  war  continue 
some  years  longer,  a  landed  man  will  be  little  bet- 
ter than  a  farmer  of  a  rack  rent  to  the  army  and 
to  the  public  funds." — Examiner,  No.  13,  Oct., 
1710.-1845.] 

t  A  bill  was  attempted  in  1704  to  recruit  the 
army  by  a  forced  conscription  of  men  from  each 
parish,  but  laid  aside  as  tmconstitutioual. — Boyer's 
Beign  of  aueen  Anne,  p.  123.  It  was  tried  again 
in  170Y  with  like  success.— P.  319.  But  it  was  re- 
solved instead  to  bring  in  a  bill  for  raising  a  snffi- 


2.  The  prospect  of  reducing  Spain  to  the 
archduke's  obedience  was  grown  unfavor- 
able. It  was  at  best  an  odious  work,  and 
not  very  defensible  on  any  maxims  of  na- 
tional justice,  to  impose  a  sovereign  on 
a  gi'eat  people  in  despite  of  their  own  re- 
pugnance, and  what  they  deemed  their 
loyal  obligation.  Heaven  itself  might  shield 
their  righteous  cause,  and  baffle  the  selfish 
rapacity  of  human  politics.  But  what  was 
the  state  of  the  war  at  the  close  of  1710  7 
The  surrender  of  7000  English  under 
Stanhope  at  Brihuega  had  ruined  the  af- 
fairs of  Charles,  which,  in  fact,  had  at  no 
time  been  truly  prosperous,  and  confined 
him  to  the  single  province  sincerely  at- 
tached to  him,  Catalonia.  As  it  was  cer- 
tain that  Philip  had  spirit  enough  to  con- 
tinue the  wai',  even  if  abandoned  by  his 
grandfather,  and  would  have  the  support 
of  almost  the  entire  nation,  what  remained 
but  to  carry  on  a  very  doubtful  contest  for 
the  subjugation  of  that  extensive  kingdom  ? 
In  Flanders,  no  doubt,  the  genius  of  Marl- 
borough kept  still  the  ascendant ;  yet 
France  had  her  Fabius  in  Villars  ;  and  the 
capture  of  three  or  four  small  fortresses  in 
a  whole  campaign  did  not  presage  a  rapid 
destruction  of  the  enemy's  power. 

3.  It  was  acknowledged  that  the  near 
connection  of  the  monarchs  on  the  thrones 
of  France  and  Spain  could  not  be  desired 
for  Europe ;  yet  the  experience  of  ages 
had  shown  how  little  such  ties  of  blood  de- 
termined the  policy  of  courts ;  a  Bourbon 
on  the  throne  of  Spain  could  not  but  assert 
the  honor,  and  even  imbibe  the  prejudices, 
of  his  subjects  ;  and  as  the  two  nations 
were  in  all  things  opposite,  and  must  clash 
in  their  public  interests,  there  was  little 
reason  to  fear  a  subserviency  in  the  cabinet 
of  Madrid,  which,  even  in  that  absolute 
monarchy,  could  not  be  displayed  against 
the  general  sentiment. 

4.  The  death  of  the  Emperor  Joseph, 
and  election  of  the  Archduke  Charles  in 
his  room,  which  took  place  in  the  spring 


cient  number  of  troops  out  of  such  persons  as  have 
no  lawful  calling  or  employment. — Stat.  4  Anne,  c. 
10.  Pari.  Hist,  335.  The  parish  officers  were 
thus  enabled  to  press  men  for  the  land  service ;  a 
method  hardly  more  unconstitutional  than  the  for- 
mer, and  liable  to  enormous  abuses.  The  act  was 
temporary,  but  renewed  several  times  during  the 
war.  It  was  afterward  revived  in  1757  (30  Geo 
11.,  c.  8),  but  never,  I  believe,  on  any  later  occasioa 


Anne,  Geo.  I.,  Geo.  11.]       FROM  HENIiY  VII.  TO  GEORGE  11. 


609 


of  1711,  changed  in  no  small  degree  the 
circumstances  of  Europe.  It  was  now  a 
struggle  to  unite  the  Spanish  and  Austrian 
monarchies  under  one  head.  Even  if  En- 
gland might  have  little  interest  to  prevent 
this,  could  it  be  indifferent  to  the  smaller 
states  of  Europe  that  a  family  not  less  am- 
bitious and  encroaching  than  that  of  Bour- 
bon should  be  so  enormously  aggi-andized  ? 
France  had  long  been  to  us  the  only  source 
of  apprehension ;  but  to  some  states,  to 
Savoy,  to  Switzerland,  to  Venice,  to  the 
principalities  of  the  empire,  she  might  just- 
ly appear  a  very  necessary  bulwark  against 
the  aggi-essions  of  Austria.  The  alliance 
could  not  be  expected  to  continue  faithful 
and  unanimous  after  so  important  an  alter- 
ation in  the  balance  of  power. 

5.  The  advocates  of  peace  and  adherents 
of  the  new  ministry  stimulated  the  national 
passions  of  England  by  vehement  reproach- 
es of  the  allies.  They  had  thrown,  it  was 
contended,  in  despite  of  all  treaties,  an  un- 
reasonable proportion  of  expense  upon  a 
country  not  directly  concerned  in  their 
quarrel,  and  rendered  a  negligent  or  crim- 
inal administration  their  dupes  or  accom- 
plices. We  were  exhausting  our  blood  and 
treasure  to  gain  kingdoms  for  the  house  of 
Austria  which  insulted,  and  the  best  towiis 
of  Flanders  for  the  States-General  who 
cheated  us.  The  barrier  treaty  oi  Lord 
Townshend  was  so  extravagant,  that  one 
might  wonder  at  the  presumption  of  Hol- 
land in  suggesting  its  articles,  much  more 
at  the  folly  of  our  government  in  acceding 
to  them.  It  laid  the  foundation  of  endless 
dissatisfaction  on  the  side  of  Austria,  thus 
reduced  to  act  as  the  vassal  of  a  little  re- 
public in  her  own  territories,  and  to  keep 
up  fortresses  at  her  own  expense  which 
others  were  to  occupy.  It  might  be  an- 
ticipated that,  at  some  time,  a  sovereign  of 
that  house  would  be  found  more  sensible 
to  ignominy  than  to  danger,  who  would  re- 
move this  badge  of  humiliation  by  disman- 
tling the  fortifications  which  were  thus  to  be 
defended.  Whatever  exaggeration  might 
be  in  these  clamors,  they  were  sure  to  pass 
for  undeniable  truths  with  a  people  jealous 
of  foreigners,  and  prone  to  believe  itself 
imposed  upon,  from  a  consciousness  of  gen- 
eral ignorance  and  credulity. 

These  arguments  were  met  by  answers 
not  less  confident,  though  less  successful  at 
Rr 


the  moment,  than  they  have  been  deemed 
convincing  by  the  majority  of  politicians  in 
later  ages.  It  was  denied  that  the  resour- 
ces of  the  kingdom  were  so  much  enfeebled ; 
the  sujiplies  were  still  raised  without  diffi- 
culty ;  commerce  had  not  declined ;  public 
credit  stood  high  under  the  Godolphin 
ministry  ;  and  it  was  especially  remarkable 
that  the  change  of  administration,  notwith- 
standing the  prospect  of  peace,  was  attend- 
ed by  a  great  fall  in  the  price  of  stocks. 
France,  on  the  other  hand,  was  notoriously 
reduced  to  the  utmost  distress ;  and,  though 
it  were  absurd  to  allege  the  misfortunes  of 
our  enemy  by  way  of  consolation  for  our 
own,  yet  the  more  exhausted  of  the  two 
combatants  was  naturally  that  which  ought 
to  yield  ;  and  it  was  not  for  the  honor  of 
our  free  government  that  we  should  be  out- 
done in  magnanimous  endurance  of  priva- 
tions for  tlie  sake  of  the  great  interests  of 
ourselves  and  our  posterity  by  the  despot- 
ism we  so  boastfully  scorned.*  The  King 
of  France  had  now  for  half  a  century  been 
pursuing  a  system  of  encroachment  on  the 
neighboring  states,  which  the  weakness  of 
the  two  branches  of  the  Austrian  house, 
and  the  perfidiousness  of  the  Stuarts,  not 
less  than  the  valor  of  his  troops  and  skill  of 
liis  generals,  had  long  rendered  successful. 
The  tide  had  turned  for  the  first  time  in 
the  present  war ;  victories  more  splendid 
than  were  recorded  in  modern  warfare  had 
illustrated  the  English  name.  Were  we 
spontaneously  to  relinquish  these  great  ad- 
vantages, and  two  years  after  Louis  had 
himself  consented  to  withdraw  his  forces 
from  Spain,  our  own  arms  having  been  in 
the  mean  time  still  successful  on  the  most 
important  scene  of  the  contest,  to  throw  up 
the  game  in  despair,  and  leave  him  far  more 
the  gainer  at  the  termination  of  this  calam- 
itous war  than  he  had  been  after  those  tri- 
umphant campaigns  which  his  vaunting 
medals  commemorate?  Spain  of  herself 
could  not  resist  the  confederates,  even  if 
united  in  support  of  Philip,  which  was  de- 

*  Every  cotemporary  writer  bears  testimony  to 
the  exhaustion  of  France,  rendered  still  more  de- 
plorable by  the  unfavorable  season  of  1709,  which 
produced  a  famine.  Madame  de  Maintenon's  let- 
ters to  the  Princesse  des  Ursins  are  full  of  the  pub- 
lic misery,  which  she  did  not  soften,  out  of  some 
vain  hope  that  her  inflexible  correspondent  might 
relent  at  length,  and  prevail  on  the  King  and 
Q.ueen  of  Spain  to  abandon  their  throne. 


610 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


nied  as  to  the  provinces  composing  the  king- 
dom of  Aragon,  and  certainly  as  to  Catalo- 
nia it  was  in  Flanders  that  Castile  was  to 
be  conquered  ;  it  was  France  that  we  were 
to  overcome  ;  and  now  that  her  iron  barrier 
had  been  broken  through,  when  Marlbor- 
ough was  preparing  to  pour  his  troops  upon 
the  defenseless  plains  of  Picardy,  could  we 
doubt  that  Louis  must  in  good  earnest  aban- 
don the  cause  of  his  grandson,  as  he  had  al- 
ready pledged  himself  in  the  conferences 
of  Gertruydenburg  ? 

2.  It  was  easy  to  slight  the  influence 
which  the  ties  of  blood  exert  over  kings. 
Doubtless  they  are  often  torn  asunder  by 
ambition  or  wounded  pride.  But  it  does 
not  follow  that  they  have  no  efficacy ;  and 
the  practice  of  courts  in  cementing  alliances 
by  intermarriage  seems  to  show  that  they 
are  not  reckoned  indifferent.  It  might,  how- 
ever, be  admitted,  that  a  king  of  Spain,  such 
as  she  had  been  a  hundred  years  before, 
would  probably  be  led  by  the  tendency  of 
his  ambition  into  a  course  of  policy  hostile 
to  France.  But  that  monarchy  had  long 
been  declining;  great  rather  in  name  and 
extent  of  dominion  than  intrinsic  resources, 
she  might  perhaps  rally  for  a  short  period 
under  an  enterpi-ising  minister ;  but  with 
such  inveterate  abuses  of  government,  and 
so  little  progressive  energy  among  the  peo- 
ple, she  must  gi-adually  sink  lower  in  the 
scale  of  Europe,  till  it  might  become  the 
chief  pride  of  her  sovereigns  that  they  were 
the  younger  branches  of  the  house  of  Bour- 
bon. To  cherish  this  connection  would  be 
the  policy  of  the  court  of  Versailles;  there 
would  result  from  it  a  dependent  relation, 
an  habitual  subserviency  of  the  weaker  pow- 
er, a  family  compact  of  perpetual  union,  al- 
ways opposed  to  Great  Britain.  In  distant 
ages,  and  after  fresh  combinations  of  the  Eu- 
ropean Commonwealth  should  have  seemed 
almost  to  efface  the  recollection  of  Louis 
XIV.  and  the  War  of  the  Succession,  the 
Bourbons  on  the  French  throne  might  still 
claim  a  sort  of  pi-imogenitaiy  right  to  pro- 
tect the  dignity  of  the  junior  branch  by  in- 
terference with  the  affairs  of  Spain  ;  and  a 
late  posterity  of  those  who  witnessed  the 
peace  of  Utrecht  might  be  entangled  by  its 
improvident  concessions. 

3.  That  the  accession  of  Charles  to  the 
empu"e  rendered  his  possession  of  the  Span- 
ish monarchy  in  some  degi'ee  less  desirable. 


need  not  be  disputed ;  though  it  would  not 
be  easy  to  prove  that  it  could  endanger  En- 
gland, or  even  the  smaller  states,  since  it 
was  agi'eed  on  all  hands  that  he  was  to  be 
master  of  Milan  and  Naples ;  but  against 
this,  perhaps  imaginary,  mischief  the  op- 
ponents of  the  treaty  set  the  risk  of  see- 
ing the  crowns  of  France  and  Spain  united 
on  the  head  of  Philip.  In  the  years  1711 
and  1712,  the  dauphin,  the  Duke  of  Bur- 
gundy, and  the  Duke  of  Berry  v/ere  swept 
away.  An  infant  stood  alone  between  the 
King  of  Spain  and  the  French  succession. 
The  latter  was  induced,  with  some  unwill- 
ingness, to  sign  a  renunciation  of  this  con- 
tingent inheritance  ;  but  it  was  notoriously 
the  doctrine  of  the  French  court  that  such 
renunciations  were  invalid  ;  and  the  suffer- 
ings of  Europe  were  chiefly  due  to  this 
tenet  of  indefeasible  royalty.  It  was  very 
possible  that  Spain  would  never  consent  to 
this  union,  and  that  a  fresh  league  of  the 
great  powers  might  be  formed  to  prevent 
it ;  but,  if  we  had  the  means  of  permanently 
separating  the  two  kingdoms  in  our  hands, 
it  was  strange  policy  to  leave  open  this  door 
for  a  renewid  of  the  quarrel. 

But,  whatever  judgment  we  may  be  dis- 
posed to  form  as  to  the  political 

*  Ihene^otia* 

necessity  of  leavmg  Spain  and 
Amevica  in  the  possession  of 
Philip,  it  is  impossible  to  justify  the  course 
of  that  negotiation  which  ended  in  the  peace 
of  Utrecht.  It  was,  at  best,  a  dangerous 
and  inauspicious  concession,  demanding  ev- 
ery compensation  that  could  be  devised,  and 
which  the  circumstances  of  the  war  enti- 
tled us  to  require.  France  was  still  our 
formidable  enemy;  the  ambition  of  Louis 
was  still  to  be  dreaded,  his  intrigues  to  be 
suspected.  That  an  English  minister  should 
have  thrown  himself  into  the  arms  of  this 
enemy  at  the  first  overture  of  negotiation ; 
that  he  should  have  renounced  advantages 
upon  which  he  might  have  insisted;  that 
he  should  have  restored  Lille,  and  almost 
attempted  to  procui-e  the  sacrifice  of  Tour- 
nay  ;  that  throughout  the  whole  correspond, 
cnce  and  in  all  personal  interviews  with 
Torcy  ho  should  have  shown  the  triumph- 
ant Queen  of  Great  Britain  more  eager  for 
peace  than  her  vanquished  adversary  ;  that 
the  two  courts  should  have  been  virtually 
conspiring  against  those  allies,  without 
whom  we  had  bound  ourselves  to  enter  on 


Anne,  Geo.  I.,  Geo.  U.]      TROM  HENRY  VII.  TO  GEORGE  II. 


611 


no  treaty;  that  we  should  have  withdiawn 
our  troops  in  the  midst  of  a  campaign,  and 
»>ven  seized  upon  the  towns  of  our  confed- 
erates while  we  left  them  exposed  to  be 
overcome  by  a  superior  force ;  that  we 
should  have  first  deceived  those  confeder- 
ates by  the  most  direct  falsehood  in  deny- 
ing our  clandestine  treaty,  and  then  dictated 
to  them  its  acceptance,  are  facts  so  disgrace- 
ful to  Bolingbroke,  and  in  somewhat  a  less 
degree  to  Oxford,  that  they  can  hardly  be 
palliated  by  establishing  the  expediency  of 
the  treaty  itself.* 

For  several  years  after  the  treaty  of  Rys- 
Intrigucs  of  wick  the  intrigues  of  ambitious 
the  Jacubites.  discontented  statesmen,  and 
of  a  misled  faction  in  favor  of  the  exiled 
family,  gi-ew  much  colder,  the  old  age  of 
James  and  the  infancy  of  his  son  being  alike 
incompatible  with  their  success.  The  Jac- 
obites yielded  a  sort  of  provisional  allegi- 
ance to  the  daughter  of  their  king,  deeming 
her,  as  it  were,  a  regent  in  the  heir's  mi- 
nority, and  willing  to  defer  the  considera- 
tion of  his  claim  till  he  should  be  competent 
to  make  it,  or  to  acquiesce  in  her  continu- 
ance upon  the  throne,  if  she  could  be  in- 
duced to  secure  his  reversion. f  Mean- 
while, under  the  name  of  Tories  and  High- 
Churchmen,  they  carried  on  a  more  diin- 
gerous  war  by  sapping  the  bulwarks  of  the 
Revolution  settlement.  The  disaffected 
clergy  poured  forth  sermons  and  libels  to 
impugn  the  principles  of  the  Whigs  or  tra- 
duce their  characters.  Twice  a  year  espe- 
cially, on  the  30th  of  January  and  29th  of 
May,  they  took  care  that  every  stroke  upon 
rebellion  and  usurpation  should  tell  against 
the  expulsion  of  the  Stuarts  and  the  Hano- 
ver succession.  They  inveighed  against 
the  Dissenters  and  the  Toleration.  They 
set  up  pretenses  of  loyalty  toward  the 


*  [Bolingbroke  owns,  in  his  Letters  on  the  Study 
of  Historj',  Letter  viii.,  that  the  peace  of  Utrecht 
was  not  what  it  should  have  been,  and  that  France 
should  have  given  up  more ;  but  singularly  lays 
the  blame  of  her  not  having  done  so  on  those  who 
opposed  the  peace.  It  appears,  on  the  contrary, 
from  his  con-espondence,  that  the  strength  of  this 
opposition  at  home  was  the  only  argument  he  used 
with  Torcy  to  save  Tonmay  and  other  places,  as 
far  as  he  cared  to  save  them  at  all. — 1845.] 

t  It  is  evident  from  Macpherson's  Papers  that 
all  hopes  of  a  present  restoration  in  the  reign  of 
Anne  were  given  up  in  England.  They  soon  re- 
vived, however,  as  to  Scotland,  and  grew  stronger 
about  the  time  of  the  Union. 


queen,  descanting  sometimes  on  her  he- 
reditary right,  in  oi'der  to  throw  a  slur  on 
the  settlement.  They  drew  a  transparent 
veil  over  their  designs,  which  might  screen 
them  from  prosecution,  but  could  not  im- 
pose, nor  was  meant  to  impose,  on  the  read- 
er. Among  these,  the  most  distinguished 
was  Leslie,  author  of  a  periodical  sheet 
called  the  Rehearsal,  printed  weekly  from 
1704  to  1708;  and  as  he,  though  a  non-ju- 
ror and  unquestionable  Jacobite,  held  only 
the  same  language  as  Sacheverell,  and  oth- 
ers who  affected  obedience  to  the  govern- 
ment, we  can  not  much  be  deceived  in  as- 
suming that  their  views  were  entirely  the 
same.* 

The  court  of  St.  Germain,  in  the  first 
years  of  the  queen,  preserved  a  gome  of  the 
secret  connection  with  Godol-  ministers  en- 
phin  and  Marlborough,  though  e»8« 
justly  distrustful  of  their  sincerity;  nor  is 
it  by  any  means  clear  that  they  made  any 
strong  professions. f    Their  evident  determ- 


*  The  Rehearsal  is  not  written  in  such  a  manner 
as  to  gain  over  many  proselytes.  The  scheme  of 
fighting  against  liberty  with  her  own  arms  had  not 
yet  come  into  vogue;  or,  rather,  Leslie  was  too 
mere  a  bigot  to  practice  it.  He  is  wholly  for  arbi- 
trary power ;  but  the  common  stuff  of  his  journal 
is  High-Church  notions  of  all  descriptions.  This 
could  not  win  many  in  the  reign  of  Anne. 

t  Macpherson,  i.,  COS.  If  Carte's  anecdotes  are 
true,  which  is  very  doubtful,  Godolphiu,  after  he 
was  turned  out,  declared  his  concern  at  not  having 
restored  the  king ;  that  he  thought  Harley  would 
do  it,  but  by  French  assistance,  which  he  did  not 
intend  ;  that  the  Tories  had  always  distressed  him, 
and  his  administration  had  passed  in  a  struggle 
with  the  Whig  junto. — Id.,  170.  SomerviUe  says, 
he  was  assured  that  Carte  was  reckoned  credulous 
and  ill-informed  ■  by  the  Jacobites. — P.  273.  It 
seems,  indeed,  by  some  passages  in  Macpherson's 
Papers,  that  the  Stuait  agents  either  kept  up  an 
intercourse  with  Godolphin.  or  pretended  to  do  so. 
— Vol.  ii.,  2,  et  post.  But  it  is  evident  that  they 
had  no  confidence  in  him. 

It  must  be  observed,  however,  that  Lord  Dart- 
mouth, in  his  notes  on  Burnet,  repeatedly  intimates 
that  Godolphin's  secret  object  in  his  ministry  was 
the  restoration  of  the  house  of  Stuart,  and  that  with 
this  view  he  suffered  the  Act  of  Security  in  Scot- 
land to  pass,  which  raised  such  a  clamor  that  he 
was  forced  to  close  with  the  Whigs  in  order  to 
save  himself.  It  is  said,  also,  by  a  very  good  au- 
thority, Lord  Hardwicke  (note  on  Burnet,  Oxf. 
edit.,  v.,  3.52),  that  there  was  something  not  easy 
to  be  accounted  for  in  the  conduct  of  the  ministry, 
preceding  the  attempt  on  Scotlaud  in  1708  ;  giving 
us  to  understand  in  the  subsequent  part  of  the  note 
that  Godolphin  was  suspected  of  connivance  with 
it ;  and  this  is  confirmed  by  Ker  of  Kersland,  who 


612 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVI. 


ination  to  reduce  the  power  of  France, 
their  approximation  toward  the  Whigs,  the 
Hverseness  of  the  duchess  to  Jacobite  prin- 
ciples, taught,  at  length,  that  unfortunate 
court  how  little  it  had  to  expect  from  such 
ancient  friends.  The  Scotch  Jacobites,  on 
the  other  hand,  were  eager  for  the  young 
king's  immediate  restoration  ;  and  their  as- 
surances finally  produced  his  unsuccessful 
expedition  to  the  coast  in  1708.*  This 
alarmed  the  queen,  who  at  least  had  no 
thoughts  of  giving  up  any  part  of  her  do- 
minions, and  pi'obably  exasperated  the  two 
ministers.!  Though  Godolphin's  partiality 
to  the  Stuart  cause  was  always  suspected, 
the  proofs  of  his  intercourse  with  their  em- 
issaries are  not  so  strong  as  against  Marl- 
borough, who,  so  late  as  1711,  declared  him- 
self more  positively  than  he  seems  hitherto 
to  have  done  in  favor  of  their  restoration, t 
but  the  extreme  selfishness  and  treachery 
of  his  character  makes  it  difficult  to  believe 
that  he  had  any  further  view  than  to  secure 
himself  in  the  event  of  a  revolution  which 
he  judged  probable.  His  interest,  which 
was  always  his  deity,  did  not  lie  in  that  di- 
rection, and  his  great  sagacity  must  havr 
perceived  it. 

A  more  promising  overture  had  by  this 
Just  alarm  time  been  made  to  the  young 
for  the  Han-  daimant  from  an  opposite  quar- 

over  succes-  '  r  » 

sion.  ter.    Mr.  Harley,  ixbout  the  end 

of  1710,  sent  the  Abbe  Gaultier  to  Marshal 
Berwick  (natural  son  of  James  II.  by  Marl- 
borough's sister),  with  authority  to  treat 
about  the  Restoration ;  Anne,  of  course,  re- 
taining the  cro^vn  for  her  life,  and  securities 
being  given  for  the  national  religion  and  lib- 
erties. The  conclusion  of  peace  was  a  nec- 
essary condition.  The  Jacobites  in  the 
English  Parliament  were  directed,  in  con- 
sequence, to  fall  in  with  the  court,  which 
rendered  it  decidedly  superior.  Harley 
promised  to  send  over  in  the  next  year  a 

directly  charges  the  treasurer  with  extreme  re- 
missness, if  not  something  worse. — Memoirs,  i.,  54. 
See,  also,  Lockhart's  Commentaries  (in  Lockhart 
Papers,  i.,  308).  Yet  it  seems  almost  impossible 
to  suspect  Godolphiu  of  such  treachery,  not  only 
toward  the  Protestant  succession,  but  his  mistress 
herself. 

*  Macpherson,  ii.,  74,  et  post.  Hooke's  Negotia- 
tions. Lockhart's  Commentaries.  Ker  of  Kers- 
land's  Memoirs,  i.,  45.  Burnet.  Cunningham. 
Somerville.  t  Bnmet,  502. 

t  Macpherson,  ii.,  158,  228,  283,  and  see  Somer- 
ville, 272. 


plan  for  carrying  that  design  into  effect; 
but  neither  at  that  time,  nor  during  the  re- 
mainder of  tile  queen's  life,  did  this  dissem- 
bling minister  take  any  further  measures, 
though  still  in  strict  connection  with  that 
party  at  home,  and  with  the  court  of  St. 
Germain.*  It  was  necessary,  he  said,  to 
proceed  gently,  to  make  the  army  their 
own,  to  avoid  suspicions  which  would  be 
fatal.  It  was  manifest  that  the  course  of 
his  administration  was  wholly  inconsistent 
with  his  professions ;  the  friends  of  the 
house  of  Stuart  felt  that  he  betrayed,  though 
he  did  not  delude  them  ;  but  it  was  the 
misfortune  of  this  minister,  or,  rather,  the 
just  and  natural  reward  of  crooked  counsels, 
that  those  he  meant  to  serve  could  neither 
believe  in  his  friendship,  nor  forgive  his  ap- 
pearances of  enmity.  It  is,  doubtless,  not 
easy  to  pronounce  on  the  real  intentions  of 
men  so  destitute  of  sincerity  as  Harley  and 
Marlborough ;  but,  in  believing  the  former 
favorable  to  the  Protestant  succession,  which 
he  had  so  eminently  contributed  to  establish, 
we  accede  to  the  judgment  of  those  cotem- 
poi'aries  who  were  best  able  to  form  one, 
nnd  especially  of  the  very  Jacobites  with 
whom  he  tampered.  And  this  is  so  pow- 
erfully confirmed  by  most  of  his  public 
measures,  his  averseness  to  the  high  Tories, 
and  their  consequent  hatred  of  him,  his  ir- 
reconcilable disagreement  with  those  of  his 
colleagues  who  looked  most  to  St.  Germain's, 
his  frequent  attempts  to  renew  a  connection 
with  the  Whigs,  his  contempt  of  the  Jaco- 
bite creed  of  government,  and  the  little  pros- 
pect he  could  have  had  of  retaining  power 
on  such  a  revolution,  that,  so  far,  at  least, 
as  may  be  presumed  from  what  has  hitherto 
become  public,  there  seems  no  reason  for 
counting  the  Earl  of  Oxford  among  those 
from  whom  the  house  of  Hanover  had  any 
enmity  to  apprehend. f 

*  Memoirs  of  Berwic's,  1778  (English  transla- 
tion) ;  and  compare  Lockhart's  Commentaries,  p. 
368.    Macpherson,  sub  ann.  1712  and  1713,  passim. 

t  The  pamphlets  on  Harley's  side,  and  probably 
written  under  his  inspection,  for  at  least  the  first 
year  after  his  elevation  to  power,  such  as  one  en- 
titled "Faults  on  both  Sides,"  ascribed  to  Richard 
Harley,  his  relation  (Somers  Tracts,  xii.,  678i, 
"  Spectator's  Address  to  the  "VVniigs  on  Occasion 
of  the  Stabbing  Mr.  Harley,"  or  the  "  Secret  Histo- 
ry of  the  October  Club,"  1711  (I  believe  by  De 
Foe),  seem  to  have  for  their  object  to  reconcile  as 
many  of  the  Whigs  as  possible  to  his  administra- 
tioa,  and  to  display  his  aversion  to  the  \'iolent 


Anne,  Geo.  I.,  Geo.  II.] 


FROM  HENIIY  VII.  TO  GEORGE  II. 


613 


The  Pretender,  meanwhile,  had  friends 
in  the  Tory  government  more  sincere,  prob- 
ably, and  zealous  than  Oxford.  In  the  year 
1712,  Lord  Bolingbroke,  the  Duke  of  Buck- 
ingham, president  of  the  council,  and  the 
Duke  of  Ormond,  were  engaged  in  this  con- 
nection.* The  last  of  these  being  in  the 
Tories.  There  can  be  no  doubt  tbat  his  first  project 
was  to  have  excluded  the  more  acrimouious  Whigs, 
such  as  Wharton  and  Sunderland,  as  well  as  the 
Duke  of  Marlborough  and  his  wife,  and  coalesced 
with  Cowper  and  Somers,  both  of  whom  were  also 
in  favor  of  the  queen.  But  the  steadiness  of  the 
Whig  party,  and  their  resentment  of  his  duplicity, 
forced  him  into  the  opposite  quarters,  though  he 
never  lost  sight  of  his  schemes  for  reconciliation. 

The  dissembling  nature  of  this  unfortunate  states- 
man rendered  his  designs  suspected.  The  Whigs, 
at  least  in  1713,  in  their  correspondence  with  the 
court  of  Hanover,  speak  of  him  as  entirely  in  the 
Jacobite  interest. — Macpherson,  ii.,  472,  509.  Cun- 
ningham, who  is  not,  on  the  whole,  unfavorable  to 
Harley,  says  that  "  men  of  all  parties  agreed  in 
concluding  that  his  designs  were  in  the  Pretender's 
favor;  and  it  is  certain  that  he  affected  to  have 
it  thought  so." — P.  303.  Lockhart  also  bears  wit- 
ness to  the  reliance  placed  on  him  by  the  Jacobites, 
and  argues  with  some  plausibihty  (p.  377)  that  the 
Duke  of  Hamilton's  appointment  as  ambassador  to 
France,  in  1712,  must  have  been  designed  to  fur- 
ther their  object ;  though  he  believed  that  the 
death  of  that  nobleman,  in  a  duel  with  Lord  Mo- 
hun,  just  as  he  was  setting  out  for  Paris,  put  a 
stop  to  the  scheme,  and  "questions  if  it  was  ever 
heartily  reassumed  by  Lord  Oxford."  "  This  I 
know,  that  his  lordship,  regretting  to  a  friend  of 
mine  the  duke's  death  next  day  after  it  happened, 
told  him  that  it  disordered  all  their  schemes,  see- 
ing Great  Britain  did  not  afford  a  person  capable 
to  discharge  the  trust  which  was  committed  to  his 
grace,  which  sure  was  somewhat  very  extraordi- 
nary ;  and  what  other  than  the  king's  restoration 
could  there  be  of  so  very  great  importance,  or  re- 
quire such  dexterity  in  managing,  is  not  easy  to 
imagine  ;  and,  indeed,  it  is  more  than  probable  that 
before  his  lordship  could  pitch  upon  one  he  might 
depend  on  in  such  weighty  matters,  the  discord 
and  division  which  happened  betwixt  him  and  the 
other  ministers  of  state  diverted  or  suspended  his 
design  of  serving  the  king."  ^ — Lockhart's  Com- 
mentaries, p.  410.  But  there  is  more  reason  to 
doubt  whether  this  design  to  serve  the  king  ever 
existed. 

*  If  we  may  trust  to  a  book  printed  in  1717,  with 
the  title,  "  Minutes  of  Monsieur  Mesnager's  Nego- 
tiations with  the  Court  of  England  toward  the 
Close  of  the  last  Reign,  written  by  himself,"  that 
agent  of  the  French  cabinet  entered  into  an  ar- 
rangement with  Bolingbroke  in  March,  1712,  about 
the  Pretender.  It  was  agreed  that  Louis  should 
ostensibly  abandon  hira,  but  should  not  be  obliged, 
in  case  of  the  queen's  death,  not  to  use  endeavors 
for  his  restoration.  Lady  Masham  was  wholly  for 
this ;  but  owned  "  the  rage  and  irreconcilable  aver- 
sion of  the  greatest  part  of  the  common  people  to 


command  of  the  army,  little  glory  as  that 
brought  hira,  might  become  aa  important 

her  (the  queen's)  brother  was  grown  to  a  height." 
But  I  must  confess  that,  although  Macpherson  has 
extracted  the  above  passage,  and  a  more  judicious 
writer,  Somerville,  quotes  the  book  freely  as  gen- 
uine (Hist,  of  Anne,  p.  581,  &c.),  I  found  in  reading 
it  what  seemed  to  me  the  strongest  grounds  of 
suspicion.  It  is  printed  in  England,  without  a 
word  of  preface  to  explain  how  such  important  se- 
crets came  to  be  divulged,  or  by  what  means  the 
book  was  brought  before  the  world ;  the  con-ect 
information  as  to  English  customs  and  persons  fre- 
quently betrays  a  native  pen  ;  the  truth  it  contains, 
as  to  Jacobite  intrigues,  might  have  transpired 
from  other  sources,  and  in  the  main  was  pretty 
well  suspected,  as  the  Report  of  the  Secret  Com- 
mittee on  the  Impeachments  in  1715  shows;  so 
that,  upon  the  whole,  I  can  not  but  reckon  it  a 
forgery  in  order  to  injure  the  Tory  leaders.  [In  a 
note  on  Swift's  Works,  vol.  xxv.,  p.  37  (1779),  it  is 
said,  on  the  authority  of  Savage,  that  "no  such 
book  was  ever  printed  in  the  French  tongue,  from 
which  it  is  impudently  said  to  be  translated  as 
Mesnager's  Negotiations."  And,  on  reference  to 
Savage's  poem,  entitled  False  Historians.  I  find 
this  couplet : 

■*  Some  usurp  names — an  English  garreteer, 
From  minutes  forg'd,  is  Monsieur  Mesnager." 

I  think  that  the  book  has  been  ascribed  to  De 
Foe.— 1845.] 

But,  however  this  may  be,  we  find  Bolingbroke 
in  con'espondenee  with  the  Stuart  agents  in  the 
latter  part  of  1712. — Macpherson,  366.  And  his 
own  coiTespondence  with  Lord  Stratford  shows  his 
dread  and  dislike  of  Hanover. — (Bol.  Con-.,  ii.,  487, 
et  alibi.)  The  Duke  of  Buckingham  wrote  to  St. 
Germain's  in  July  that  year,  with  strong  expres- 
sions of  his  attachment  to  the  cause,  and  pressing 
the  necessity  of  the  prince's  conversion  to  the 
Protestant  religion. — Macpherson,  327.  Ormond  is 
mentioned  in  the  Duke  of  Berwick's  letters  as  in 
correspondence  with  him  ;  and  Lockhart  says  there 
was  no  reason  to  make  the  least  question  of  his  af- 
fection to  the  king,  whose  friends  were  consequent- 
ly well  pleased  at  his  appointment  to  succeed 
Marlborough  in  the  command  of  the  army,  and 
thought  it  portended  some  good  designs  in  favor 
of  him.— Id.,  376. 

Of  Ormond's  sincerity  in  this  cause,  there  can, 
indeed,  be  little  doubt ;  but  there  is  almost  as  much 
reason  to  suspect  that  of  Bohngbroke  as  of  Oxford, 
except  that,  having  more  rashness  and  less  princi- 
ple, he  was  better  fitted  for  so  dangerous  a  coun- 
ter-revolution. But  in  reality  he  had  a  perfect 
contempt  for  the  Stuart  and  Tory  notions  of  gov- 
ernment, and  would  doubtless  have  served  the 
house  of  Hanover  with  more  pleasure,  if  his  pros- 
pects in  that  quarter  had  been  more  favorable.  It 
appears  that  in  the  session  of  1714,  when  he  had 
become  lord  of  the  ascendant,  he  disappointed  the 
zealous  Royalists  by  his  delays  as  much  as  his 
more  cautious  rival  had  done  before. — Lockhart, 
470.  This  writer  repeatedly  asserts  that  a  majori- 
ty of  the  House  of  Commons,  both  in  the  Parlia- 
ment of  1710  and  that  of  1713,  wanted  only  the 


614 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


auxiliaiy.  Harcourt,  the  chancellor,  though 
the  proofs  are  not,  I  believe,  so  direct,  has 
alwaj-s  been  reclioned  in  the  same  interest. 
Several  of  the  leading  Scots  peers,  with  lit- 
tle disguise,  avowed  their  adherence  to  it, 
especially  the  Duke  of  Hamilton,  who, 
luckily,  perhaps,  for  the  kingdom,  lost  his 
life  in  a  duel,  at  the  moment  when  he  was 
setting  out  on  an  embassy  to  France.  The 
rage  expressed  by  that  faction  at  his  death 
betrays  the  hopes  they  had  entertained  from 
him.  A  strong  phalanx  of  Tory  members, 
called  the  October  Club,  though  by  no 
means  entirely  Jacobite,  were  chiefly  influ- 
enced by  those  who  were  such.  In  the 
new  Parliament  of  1713,  the  queen's  pre- 
carious health  excited  the  Stuart  partisans 
to  press  forward  with  more  zeal.  The  mask 
was  more  than  half  drawn  aside  ;  and,  vain- 
ly urging  the  ministry  to  fulfill  their  promis- 
es while  yet  in  time,  thej'  cursed  the  insid- 
ious cunning  of  Harley  and  the  selfish  cow- 
ardice of  the  queen.  Upon  her  they  had 
for  some  years  relied.  Lady  Masham,  the 
bosom  favorite,  was  entirely  theirs  ;  and  ev- 
ery word,  every  look  of  the  sovereign,  had 
been  anxiously  obsei-ved,  in  the  hope  of 
some  indication  that  she  would  take  the  road 
which  afliection  and  conscience,  as  they  fond- 
ly argued,  must  dictate.  But,  whatever  may 
have  been  the  sentiments  of  Anne,  her  se- 
cret was  never  divulged,  nor  is  there,  as  I 
apprehend,  however  positively  the  contrary 
13  sometimes  asserted,  any  decisive  evidence 
least  encouragement  from  the  court  to  have  brought 
about  the  repeal  of  the  Act  of  Settlement.  But  I 
think  this  very  doubtful ;  and  I  am  quite  convinced 
that  the  nation  v^ould  not  have  acquiesced  in  it. 
Lockhart  is  sanguine,  and  ignorant  of  England. 

It  must  be  admitted  that  part  of  the  cabinet 
were  steady  to  the  Protestant  succession.  Lord 
Dartmouth,  Lord  Powlett,  Lord  Trevor,  and  the 
Bishop  of  London  were  certainly  so  ;  nor  can  there 
be  any  reasonable  doubt,  as  I  conceive,  of  the  Duke 
of  Shrewsbury.  On  the  other  side,  besides  Or- 
mond,  Harcourt,  and  Bolingbroke,  were  the  Duke 
of  Buckingham,  Sir  William  Wyndham,  and  prob- 
ably Mr.  Bromley.  [The  impression  which  Boliug- 
broke's  letter  to  Sir  WilUam  Wyndham  leaves  on 
the  mind  is,  that,  having  no  steady  principle  of 
action,  he  had  been  all  along  fluctuating  between 
Hanover  and  St.  Germain's,  according  to  the  pros- 
pect he  saw  of  standing  well  with  one  or  the  other, 
and  in  a  great  degree,  according  to  the  politics  of 
Oxford,  being  determined  to  take  the  opposite  line. 
But  he  had  never  been  able  to  penetrate  a  more 
dissembling  spirit  than  his  own.  This  letter,  as  is 
well  known,  though  written  in  1717,  was  not  pub- 
lished till  after  Bolingbroke's  death. — 1845.] 


I  whence  we  may  infer  that  she  ever  intend- 
ed her  brother's  restoration.*   The  weakest 


*  It  is  said  that  the  Duke  of  Leeds,  who  waa 
I  now  in  the  Stuart  interest,  had  sounded  her  in 
j  1711,  but  with  no  success  in  discovering  her  inten- 
tion.— Macpherson,  212.  The  Uuke  of  Bucking- 
ham pretended,  in  the  above-mentioned  letter  to 
St.  Germain's.  June,  1712,  that  he  had  often  pressed 
the  queen  on  the  subject  of  her  brother's  restora- 
tion, but  could  get  no  other  answer  than,  "  You  see 
he  does  not  make  the  least  step  to  oblige  me  ;"  or, 
'■  He  may  thank  himself  for  it:  he  knows  I  always 
loved  him  better  than  the  other." — Id.,  328.  This 
alludes  to  the  Pretender's  pertiuacit)',  as  the  writer 
thought  it,  in  adhering  to  his  religion ;  and  it  may 
be  very  questionable  whether  he  had  ever  such 
conversation  with  the  queen  at  all ;  bat  if  he  had, 
it  does  not  lead  to  the  supposition  that  under  all 
circumstances  she  meditated  his  restoration.  If 
the  book  under  the  name  of  Mesnager  is  genuine, 
which  I  much  doubt,  Mrs.  Masham  had  never  been 
able  to  elicit  any  thing  decisive  of  her  majesty's 
inclinations  ;  nor  do  any  of  the  Stuart  correspond- 
ents in  Macfjherson  pretend  to  know  her  inten- 
tions with  certainty.  The  following  passage  in 
Lockhart  seems  rather  more  to  the  purpose :  On 
his  coming  to  Parliament  in  1710,  with  a  "high 
monarchical  address,"  which  he  had  procured  from 
the  county  of  Edinburgh,  "the  queen  told  me, 
though  I  had  almost  always  opposed  her  meas- 
ures, she  did  not  doubt  of  my  affection  to  her  per- 
son, and  hoped  I  would  not  concur  in  the  design 
against  Mrs.  Masham,  or  for  bringing  over  the 
Prince  of  Hanover.  At  first  I  was  somewhat  sur- 
prised, but  recovering  myself,  I  assured  her  I 
should  never  be  accessary  to  the  imposing  any 
hardship  or  affront  upon  her;  and  as  for  the  Prince 
of  Hanover,  her  majesty  might  judge  from  the  ad- 
dress I  had  read  that  I  should  not  be  acceptable  to 
my  constituents  if  I  gave  my  consent  for  bringing 
over  any  of  that  family,  either  now  or  at  any  time 
hereafter.  At  that  she  smiled,  and  I  withdrew; 
and  then  she  said  to  the  duke  (Hamilton),  she  be- 
lieved I  was  an  honest  man  and  a  fair  dealer;  and 
the  duke  replied,  he  could  assure  her  I  liked  her 
majesty  and  all  her  father's  bairns.  ' — P.  317.  It 
appears  in  subsequent  parts  of  this  book  that  Lock- 
hart and  his  friends  were  confident  of  the  queen's 
inclinations  in  the  last  year  of  her  life,  though  not 
of  her  resolution. 

The  truth  seems  to  be  that  Anne  was  verj-  dis- 
sembling, as  Swift  repeatedly  says  in  his  private 
letters,  and  as  feeble  and  timid  persons  in  high 
station  generally  are  :  that  she  hated  the  house  of 
Hanover,  and  in  some  measure  feared  them ;  but 
that  she  had  no  regard  for  the  Pretender  (for  it  ia 
really  absurd  to  talk  like  Somer^ille  of  natural  af- 
fection under  all  the  circumstances),  and  feared 
liim  a  great  deal  more  than  the  other;  that  she 
had,  however,  some  scruples  about  his  right,  which 
were  counterbal.mced  by  her  attachment  to  the 
Church  of  England ;  consequently,  that  she  waa 
wavering  among  opposite  impulses,  but  with  a  pre- 
dominating timidity  which  would  have  probably 
kept  her  from  any  change. 


Anhe,  Geo.  I.,  Geo.  II.]       FROM  HENRY  VII.  TO  GEORGE  II. 


615 


of  mankind  have  generally  an  instinct  of 
self-preservation  which  leads  them  right, 
and  perhaps  more  than  stronger  minds  pos- 
sess ;  and  Anne  could  scarcely  help  perceiv- 
ing that  her  own  deposition  from  the  throne 
would  be  the  natural  consequence  of  once  ad- 
mitting the  reversionary  right  of  one  whose 
claim  was  equally  good  to  the  possession. 
The  assertors  of  hereditary  descent  could 
acquiesce  in  her  usurpation  no  longer  than 
they  found  it  necessary  for  their  object ;  if 
her  life  should  be  protracted  to  an  ordinary 
duration,  it  was  almost  certain  that  Scot- 
land first,  and  afterward  England,  would 
be  wrested  from  her  impotent  grasp.  Yet, 
though  I  believe  the  queen  to  have  been 
sensible  of  this,  it  is  impossible  to  pronounce 
with  certainty  that  either  through  pique 
against  the  house  of  Hanover,  or  inability 
to  resist  her  own  counselors,  she  might  not 
have  come  into  the  scheme  of  altering  the 
succession. 

But,  if  neither  the  queen  nor  her  lord- 
treasurer  were  inclined  to  take  that  vigor- 
ous course  which  one  party  demanded,  they 
Bt  least  did  enough  to  raise  just  alarm  in  the 
other ;  and  it  seems  strange  to  deny  that  the 
Protestant  succession  was  in  danger.  As 
Lord  Oxford's  ascendency  diminished,  the 
signs  of  impending  revolution  became  less 
equivocal.  Adherents  of  the  house  of  Stu- 
art were  placed  in  civil  and  military  trust ; 
an  Irish  agent  of  the  Pretender  was  received 
in  the  character  of  envoy  from  the  court  of 
Spain ;  the  most  audacious  manifestations 
of  disaffection  were  overlooked.*  Several 


*  The  Duchess  of  Gordon,  in  June,  1711,  sent  a 
silver  medal  to  the  faculty  of  advocates  at  Edin- 
burgh, with  a  head  on  one  side,  and  the  inscription 
Cujus  est;  on  the  other,  the  British  isles,  with  the 
word  Reddite.  The  dean  of  facultj',  Dundas  of 
Amiston,  presented  this  medal ;  and  there  seems 
reason  to  beUeve  that  a  majority  of  the  advocates 
voted  for  its  reception. — Somerville,  p.  452.  Bo- 
lingbrokc,  in  writing  on  the  subject  to  a  friend,  it 
must  be  owned,  speaks  of  tlie  proceeding  with  due 
disapprobation. — Bolingbroke  Con'espondence,  i., 
343.  No  measures,  however,  were  taken  to  mark 
the  court's  displeasure. 

"  Nothing  is  more  certain,"  says  Bolingbroke,  in 
his  letter  to  Sir  William  Wyndhara,  perhaps  the 
finest  of  his  writings,  "  than  this  truth,  that  there 
was  at  that  time  no  formed  design  in  the  party, 
whatever  views  some  particular  men  might  have, 
against  bis  majesty's  accession  to  the  throne." — P. 
22.  This  is,  in  effect,  to  confess  a  great  deal;  and 
in  other  parts  of  the  same  letter,  he  makes  admis- 
sions of  the  same  kind ;  though  he  says  that  he 


even  in  Parliament  spoke  with  contempt 
and  aversion  of  the  house  of  Hanover.*  It 
was  surely  not  unreasonable  in  the  Whig 
party  to  meet  these  assaults  of  the  enemy 
with  something  beyond  the  ordinary  weap- 
ons of  an  opposition.  They  affected  no 
apprehensions  that  it  was  absurd  to  enter- 
tain. Those  of  the  opposite  faction,  who 
wished  well  to  the  Protestant  interest,  and 
were  called  Hanoverian  Tories,  came  over 
to  their  side,  and  joined  them  on  motions 

and  other  Tories  had  determined,  before  the 
queen's  death,  to  have  no  connection  with  the 
Pretender,  on  account  of  his  religious  bigotry. — 
P. 111. 

*  Lockhart  gives  us  a  speech  of  Sir  William 
Whitelock  in  1714,  bitterly  inveighing  against  the 
Elector  of  Hanover,  who,  he  hoped,  would  never 
come  to  the  crown.  Some  of  the  Wliigs  cried  oat 
on  this  that  he  should  be  brought  to  the  bar,  when 
Whitelock  said  he  would  not  recede  an  inch ;  he 
hoped  the  queen  would  outlive  that  prince,  and  in 
comparison  to  her  he  did  not  value  all  the  princes 
of  Germany  one  farthing. — P.  469.  Swift,  in  "Some 
Free  Thoughts  upon  the  present  State  of  Affairs," 
1714,  speaks  with  much  contempt  of  the  house  of 
Hanover  and  its  sovereign,  and  suggests,  in  deri- 
sion, that  the  infant  son  of  the  electoral  prince 
might  be  invited  to  talie  up  his  residence  in  En- 
gland. He  pretends  in  this  tract,  as  in  all  his  writ- 
ings, to  deny  entirely  that  there  was  the  least  tend- 
ency toward  Jacobitism,  either  in  any  one  of  the 
ministry,  or  even  any  eminent  individual  out  of  it ; 
but  with  so  impudent  a  disregard  to  truth,  that  I 
am  not  perfectly  convinced  of  his  own  innocence 
as  to  that  intiigue.  Thus,  in  his  Inquiry  into  the 
Behavior  of  the  Queen's  last  Ministry,  he  says,  "I 
remember,  during  the  late  treaty  of  peace,  dis- 
coursing at  several  times  with  .some  very  eminent 
persons  of  the  opposite  side  with  whom  1  had  long 
acquaintance.  I  asked  them  seriously  whether 
they  or  any  of  their  friends  did  in  earnest  believe, 
or  suspect  the  queen  or  the  ministry  to  have  any 
favorable  regards  toward  the  Pretender  ?  They 
all  confessed  for  themselves,  that  they  believed 
nothing  of  the  matter,"  itc.  He  then  tells  us  that 
he  had  the  curiosity  to  ask  almost  every  person  in 
gieat  employment  whether  they  knew  or  had 
heard  of  any  one  particular  man,  except  professed 
non  jurors,  that  discovered  the  least  inclination  to- 
ward the  Pretender;  and  the  whole  number  they 
could  muster  up  did  not  amount  to  above  five  or 
six,  among  whom  one  was  a  certain  old  lord,  late- 
ly dead,  and  one  a  private  gentleman,  of  little  con- 
sequence and  of  a  broken  fortune,  &c. — (Vol.  xv., 
p.  94,  edit.  12mo,  1765.)  This  acute  observer  of 
mankind  well  knew  that  lying  is  frequently  suc- 
cessful in  the  ratio  of  its  effrontery  and  extrava- 
gance. There  are,  however,  some  passages  in  this 
tract,  as  in  others  written  by  Swift,  in  relation  to 
that  time,  which  serve  to  illustrate  the  obscure 
machinations  of  those  famous  last  years  of  the 
queen. 


616 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  XVL 


that  the  succession  was  in  danger.*  No 
one  hardly,  who  either  hoped  or  dreaded  the 
consequences,  had  any  doubts  upon  this 
score ;  and  it  is  only  a  few  moderns  who 
have  assumed  the  privilege  of  setting  aside 
the  persuasion  of  cotemporaries  upon  a  sub- 
ject which  cotemporaries  were  best  able  to 
understand. f  Are  we  then  to  censure  the 
Whigs  for  urging  on  the  Elector  of  Hano- 
ver, who,  by  a  strange  apathy  or  indiffer- 
ence, seemed  negligent  of  the  great  prize 
reserved  for  him,  or  is  the  bold  step  of  de- 
manding a  writ  of  summons  for  the  elector- 
al prince  as  Duke  of  Cambridge  to  pass  for 
a  factious  insult  on  the  queen,  because,  in 
her  imbecility,  she  was  leaving  the  crown 
to  be  snatched  at  by  the  first  comer,  even 
if  she  were  not,  as  they  suspected,  in  some 
conspiracy  to  bestow  it  on  a  proscribed 
heir?t    I  am  much  inclined  to  believe  that 

*  On  a  motion  in  the  House  of  Lords  that  the 
Protestant  succession  was  in  danger,  April  5,  1714, 
the  ministry  had  only  a  majority  of  76  to  69,  sev- 
eral bishops  and  other  Tories  voting  against  them. 
— Pari.  Hist.,  vi.,  1334.  Even  in  the  Commons  the 
division  was  but  256  to  208. — Id.,  1347. 

t  Somerville  has  a  separate  dissertation  on  the 
danger  of  the  Protestant  succession,  intended  to 
prove  that  it  was  in  no  danger  at  all,  except  through 
the  violence  of  the  Whigs  in  exasperating  the 
queen.  It  is  true  that  Lockhart's  Commentaries 
were  not  published  at  this  time ;  but  he  had  Mac- 
pherson  before  him,  and  the  Memoirs  of  Berwick, 
and  even  gave  credit  to  the  authenticity  of  Mcsna- 
ger,  wliich  I  do  not.  But  this  sensible,  and,  on  the 
whole,  impartial  writer,  had  contracted  an  excess- 
ive prejudice  against  the  Whigs  of  tliat  period  as 
a  party,  tliough  he  seems  to  adopt  their  principles. 
His  dissertation  is  a  labored  attempt  to  explain 
away  the  most  evident  facts,  and  to  deny  what  no 
one  of  either  party  at  that  time  would  probably 
have  in  private  denied. 

t  The  queen  was  very  ill  about  the  close  of 
1713 ;  in  fact,  it  became  evident,  as  it  had  long 
been  apprehended,  that  she  could  not  live  much 
longer.  The  Hanoverians,  both  Whigs  and  Tories, 
urged  that  the  electoral  prince  should  be  sent  for ; 
it  was  thought  that  whichever  of  the  competitors 
should  have  the  start  upon  her  death  would  suc- 
ceed in  securing  the  crown.— Macpherson,  365, 
546,  557,  et  ahbi.  Can  there  be  a  more  complete 
justification  of  this  measure,  which  Somerville 
and  the  Tory  writers  ti-eat  as  disrespectful  to  the 
queen?  The  Hanoverian  envoy,  Schutz,  demand- 
ed the  writ  for  the  electoral  prince  without  his 
master's  orders ;  but  it  was  done  with  the  advice 
of  ^11  the  Whig  leaders.  Id..  592,  and  with  the 
sanction  of  the  Electress  Sophia,  who  died  imme- 
diately after.  "All  who  are  for  Hanover  believe 
the  coming  of  the  electoral  prince  to  be  advanta- 
geous ;  all  those  against  it  are  frightened  at  it." — 
Id.,  596.    It  was  doubtless  a  critical  moment ;  and 


the  great  majority  of  the  nation  were  in 
favor  of  the  Protestant  succession ;  but  if 
the  princes  of  the  house  of  Brunswick  had 
seemed  to  retire  from  the  contest,  it  might 
have  been  impracticable  to  resist  a  predom- 
inant faction  in  the  council  and  in  Parlia- 
ment, especially  if  the  son  of  James,  listen- 
ing to  the  remonstrances  of  his  English  ad- 
herents, could  have  been  induced  to  renounce 
a  faith  which,  in  the  eyes  of  too  many,  was 
the  sole  pretext  for  his  exclusion,*  and  was 
at  least  almost  the  only  one  which  could 
have  been  publicly  maintained  with  much 
success  consistently  with  the  general  princi- 
ples of  our  Constitution.! 

the  court  of  Hanover  might  be  excused  for  pausing 
in  tlie  choice  of  dangers,  as  the  step  must  make 
the  queen  decidedly  their  enemy.  She  was  great- 
ly offended,  and  forbade  the  Hanoverian  minister 
to  appear  at  court.  Indeed,  she  wrote  to  the  elect- 
or on  May  19,  expressing  her  disapprobation  of 
the  prince's  coming  over  to  England,  and  "herde- 
tennination  to  oppose  a  project  so  contrarj-  to  her 
royal  authority,  however  fatal  the  consequences 
may  be." — Id.,  621.  Oxford  and  Bolingbroke  inti- 
mate the  same. — Id..  593  ;  and  see  Bolingbroke 
Correspondence,  iv.,  512,  a  very  strong  passage. 
The  measure  was  given  up,  whether  from  unwill- 
ingness on  the  part  of  George  to  make  the  queen 
irreconcilable,  or,  as  is  at  least  equally  probable, 
out  of  jealousy  of  his  sou.  The  former  certainly 
disappointed  his  adherents  by  more  apparent  apa- 
thy than  their  ardor  required,  which  will  not  be 
surpri.sing  when  we  reflect  that,  even  upon  the 
throne,  he  seemed  to  care  very  little  about  it. — 
Macpherson,  sub  arm.  1714,  passim. 

*  He  was  strongly  pressed  by  his  English  ad- 
herents to  declare  himself  a  Protestant.  He  wrote 
a  very  good  answer. — Macpherson,  436.  Madame 
de  Maintenon  says,  some  Catholics  urged  him  to 
the  same  course,  "  par  une  politique  poussee  un 
peu  trop  loin." — Lettres  a  la  Princesse  des  Ursins, 
ii.,  428.  [See,  also,  Bolingbroke's  Letter  to  Sir 
W.  Wyndham  :  "  I  can  not  forget,  nor  you  either, 
what  passed  when,  a  little  before  the  death  of  the 
queen,  letters  were  conveyed  from  the  chevalier 
to  several  persons,  to  myself  among  others.  In 
the  letter  to  me,  the  ai  ticle  of  religion  was  so 
awkwardly  handled,  that  he  made  the  principal 
motive  of  the  confidence  we  ought  to  have  iu  him 
to  consist  in  his  firm  resolution  to  adhere  to  popery. 
The  effect  which  this  epistle  had  on  me  was  the 
same  which  it  had  on  those  Tories  to  whom  I  com- 
municated it  at  that  time — it  made  us  resolve  to 
have  nothing  to  do  with  him."  It  seems  to  have 
been  a  sine  qua  non  with  the  Tory  leaders  that  the 
Pretender  should  become  a  Protestant.  But  others 
thought  this  an  unreasonable  demand.  He  would 
not  even  directly  engage  to  secure  the  churches  of 
England  and  Ireland,  if  we  may  believe  Boling- 
broke.—Id.— 1845.] 

t  [The  Whigs  relied  upon  the  army  in  case  of  a 
struggle.— Somerville,  565.    Swift,  in  his  Free 


Anne,  Geo.  I,  Geo.  II.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


617 


The  queen's  death,  which  came  at  last, 
Accession  of  I'ather  more  quickly  than  was 
(Jeorge  I.  foreseen,  broke  forever  the  fair 
prospects  of  her  family.  George  I.,  un- 
known and  absent,  was  proclaimed  without 
a  single  murmur,  as  if  the  crown  had  passed 
in  the  most  regular  descent.  But  this  was 
a  momentary  calm.  The  Jacobite  party, 
Whi-'s  come  recovering  from  the  first  conster- 
iuto  Jower.  nation,  availed  itself  of  its  usual 
arms,  and  of  those  with  which  the  new  king 
supplied  it.  Many  of  the  Tories,  who  would 
have  acquiesced  in  the  Act  of  Settlement, 
seem  to  have  looked  on  a  leading  share  in 
the  administration  as  belonging  of  right  to 
what  was  called  the  Church  party,  and  com- 
plained of  the  formation  of  a  ministry  on  the 
Whig  principle.  In  later  times,  also,  it  has 
been  not  uncommon  to  censure  George  I. 
for  governing,  as  it  is  called,  by  a  faction. 
Nothing  can  be  more  unreasonable  than  this 
reproach.  Was  he  to  select  those  as  his 
advisers  who  had  been,  as  we  know  and  as 
he  believed,  in  a  conspiracy  with  his  com- 
petitor ?  Was  Lord  Oxford,  even  if  the 
king  thought  him  faithful,  capable  of  uniting 
with  any  public  men,  hated  as  he  was  on 
each  side  ?  Were  not  the  Tories  as  truly 
a  faction  as  their  adversaries,  and  as  intol- 
erant during  their  own  power  ?*  Was  there 
not,  above  all,  a  danger  that,  if  some  of  one 

Thoughts  on  the  present  State  of  Affairs,  virittcn 
in  the  spring  of  1714,  spcalis  with  indignation  of 
the  disaffection  of  the  guards  toward  the  queen, 
taking  care,  at  the  same  time,  to  deny  the  least 
inclination  on  the  part  of  the  ministry  toward  a 
change  of  succession. — 1845.] 

*  The  rage  of  the  Tory  party  against  the  queen 
and  Lord  Oxford  for  retaining  Whigs  in  oflice  is 
notorious  from  Swift's  private  letters,  and  many 
other  authorities  ;  and  Bolinghroke,  in  his  letter  to 
Sir  William  Wyndhara,  veiy  fairly  owns  their  in 
tention  "  to  fill  the  employments  of  the  kingdom, 
down  to  the  meanest,  with  Tories."  "  We  imag- 
ined," he  proceeds,  "that  such  measures,  joined 
to  the  advantages  of  our  numbers  and  our  proper- 
ty, would  secure  us  against  all  attempts  during 
her  reign ;  and  that  we  should  soon  become  too 
considerable  not  to  make  our  terms  in  all  events 
which  might  happen  afterward;  concerning  which, 
to  speak  truly,  I  believe  few  or  none  of  us  had  any 
very  settled  resolution." — P.  11.  It  is  rather 
amusing  to  observe  that  those  who  called  them- 
selves the  Tory  or  Church  party  seem  to  have  fan- 
cied they  had  a  natural  right  to  power  and  profit, 
so  that  an  injury  was  done  them  when  these  re- 
wards went  another  way  ;  and  I  am  not  sure  that 
Bomething  of  the  same  prejudice  has  not  been  per- 
ceptible in  times  a  good  deal  later. 


denomination  were  drawn  by  pique  and  dis- 
appointment into  the  ranks  of  the  Jacobites, 
the  Whigs,  on  the  other  hand,  so  ungrate- 
fully and  perfidiously  recompensed  for  their 
arduous  services  to  the  house  of  Hanover, 
might  think  all  royalty  irreconcilable  with 
the  pi'inciples  of  freedom,  and  raise  up  a 
Republican  party,  of  which  the  scattered 
elements  were  sufficiently  discernible  in  the 
nation  7*  The  exclusion,  indeed,  of  the 
Whigs  would  have  been  so  monstrous,  both 
in  honor  and  policy,  that  the  censure  has 
generally  fallen  on  their  alleged  monopoly 
of  public  offices.  But  the  mischiefs  of  a 
disunited,  hybrid  ministry  had  been  suffi- 
ciently manifest  in  the  last  two  reigns ;  nor 
could  George,  a  stranger  to  his  people  and 
their  constitution,  have  undertaken  without 
ruin  that  most  difficult  task  of  balancing  par- 
ties and  persons,  to  which  the  great  mind 
of  William  had  proved  unequal.  Nor  is  it 
true  that  the  Tories,  as  such,  were  pro- 
scribed ;  those  who  chose  to  serve  the  court 
met  with  court  favor ;  and  in  the  very  out- 
set the  few  men  of  sufficient  eminence,  who 
had  testified  their  attachment  to  the  succes- 
sion, received  equitable  rewards  ;  but,  most 
happily  for  himself  and  the  kingdom,  most 
reasonably  according  to  the  principles  on 
which  alone  his  throne  could  rest,  the  first 
prince  of  the  house  of  Brunswick  guvo  a  de- 
cisive preponderance  in  his  favor  to  Walpole 
and  Townshend  above  Harcourt  and  Boling- 
broke. 

The  strong  symptoms  of  disaffection 
which  broke  out  in  a  few  months 

.  ,  Great  d:saf- 

atier  tlie  kmg's  accession,  and  fectioniuthe 
which  can  be  ascribed  to  no  gricv-  '""S'luf- 
ance,  unless  the  formation  of  a  Whig  min- 
istry was  to  be  termed  one,  prove  the  taint 
of  the  late  times  to  have  been  deep-seated 
and  extensive. f    The  clergy,  in  many  in- 

*  Though  no  Republican  party,  as  I  have  else- 
where observed,  could  with  any  propriety  bo  said 
to  exist,  it  is  easy  to  perceive  that  a  certain  de- 
gree of  provocation  from  the  crown  might  have 
brought  one  together  in  no  slight  force.  These 
two  propositions  are  perfectly  compatible. 

t  This  is  well  put  by  Bishop  Willis,  in  his 
speech  on  the  bill  against  Atterbury,  Pari.  Hist., 
viii.,  305.  In  a  pamphlet,  entitled  English  Advice 
to  the  Freeholders  (Somers  Tracts,  xiii.,  521),  as- 
cribed to  Atterbury  himself,  a  most  virulent  attack 
is  made  on  the  government,  merely  because  what 
he  calls  the  Church  paity  had  been  thrown  out  of 
office.  "  Among  all  who  call  themselves  Whigs." 
he  says,  "  and  are  of  any  consideration  as  such, 


618 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  XVI. 


stances,  peiTerted,  by  political  sermons, 
their  influence  over  the  people,  who,  while 
they  trusted  that  from  those  fountains  they 
could  draw  the  living  waters  of  truth,  be- 
came the  dupes  of  factious  lies  and  sophis- 
tiy.  Thus  encouraged,  the  heir  of  the  Stu- 
arts landed  in  Scotland  ;  and  the  spirit  of 
that  people  being  in  a  great  measure  Jaco- 
bite, and  very  generally  averse  to  the  Union, 
he  met  with  such  success  as,  had  their  in- 
dependence subsisted,  would  probably  have 
established  him  on  the  throne.  But  Scot- 
land was  now  doomed  to  wait  on  the  for- 
tunes of  her  more  powerful  ally ;  and,  on 
his  invasion  of  England,  the  noisy  partisans 
of  hereditary  right  discredited  their  faction 
by  its  cowardice.  Few  rose  in  arms  to  sup- 
port the  rebellion,  compared  with  those  who 
desired  its  success,  and  did  not  blush  to  see 
the  gallant  savages  of  the  Highlands  shed 
their  blood  that  a  supine  herd  of  priests  and 

name  me  the  man  I  can  not  prove  to  be  an  invet- 
erate enemy  to  the  Church  of  England,  and  I  will 
be  a  convert  that  instant  to  their  cause."  It  must 
be  owned,  perhaps,  that  the  Whig  ministry  niiglit 
better  have  avoided  some  reflections  on  the  late 
times  in  the  addresses  of  both  Houses ;  and  still 
more,  some  not  very  constitutional  recommenda- 
tions to  tlie  electors,  in  the  proclamation  calling  tlie 
new  Parliament  in  1714. — Pari.  Hist.,  vi.,  44,  ."jO. 
"  Never  was  prince  more  universally  well  received 
by  subjects  than  his  present  majesty  on  his  arrival, 
and  never  was  less  done  by  a  prince  to  create  a 
change  in  people's  affections.  But  so  it  is,  a  very 
observable  change  hath  happened.  Evil  infusions 
were  spread  on  the  one  hand  ;  and,  it  may  be,  there 
was  too  great  a  stoicism  or  contempt  of  popularity 
on  the  other.  " — Argument  to  prove  the  Affections 
of  the  People  of  England  to  be  the  best  Security 
for  the  Government,  p.  11  (1716).  This  is  the 
pamphlet  written  to  recommend  lenity  toward  the 
rebels,  which  Addison  has  answered  in  the  Free- 
holder. It  is  invidious,  and  perhaps  secretly  Jaco- 
bite. BoHugbroke  observes,  in  the  letter  already 
quoted,  that  the  Pretender's  journey  from  Bar,  in 
1714,  was  a  mere  farce,  no  party  being  ready  to 
receive  him;  but  "the  menaces  of  the  Whigs, 
backed  by  some  very  rash  declarations  [those  of 
the  king],  and  Uttle  circumstances  of  humor,  which 
frequently  offend  more  than  real  injuries,  and  by 
the  entire  change  of  all  persons  in  eraploj'ment, 
blew  up  the  coals." — P.  34.  Then,  he  owns,  the 
Tories  looked  to  Bar.  '•  The  violence  of  the  Whigs 
forced  them  into  the  arms  of  the  Pretender."  It 
is  to  be  remarked  on  all  this,  that,  by  Bolingbroke's 
own  account,  the  Tories,  if  they  had  no  "formed 
design"  or  "  settled  resolution"  that  way,  were 
not  very  detennined  in  their  repugnance  before 
the  queen's  death,  and  that  the  chief  violence  of 
which  they  complained  was,  that  George  chose  to 
employ  his  friends  rather  than  his  enemies. 


country  gentlemen  might  enjoy  the  victory. 
The  severity  of  the  new  government  after 
the  rebellion  has  been  often  blamed ;  but  I 
know  not  whether,  according  to  the  usual 
rules  of  policy,  it  can  be  proved  that  the  ex- 
ecution of  two  peers  and  thirty  other  per- 
sons, taken  with  arms  in  flagrant  rebellion, 
was  an  unwarrantable  excess  of  punishment. 
There  seems  a  latent  insinuation  in  those 
who  have  argued  on  the  other  side,  as  if  the 
Jacobite  rebellion,  being  founded  on  an  opin- 
ion of  right,  was  more  excusable  than  an 
ordinary  treason :  a  proposition  which  it 
would  not  have  been  quite  safe  for  the  reign- 
ing dynasty  to  acknowledge.  Clemency, 
however,  is  the  standing  policy  of  constitu- 
tional governments,  as  severity  is  of  des- 
potism ;  and  if  the  ministers  of  George  I. 
might  have  extended  it  to  part  of  the  in- 
ferior sufferers  (for  surely  those  of  higher 
rank  were  the  first  to  be  selected)  with  safety 
to  their  master,  they  would  have  done  well 
in  sparing  him  the  odium  that  attends  all  po- 
litical punishments.* 

It  will  be  admitted  on  all  hands,  at  the 
present  day,  that  the  charge  of  ,  ,  . 
high  treason  in  the  impeachments  of  Tory  min- 
against  Oxford  and  Bolingbroke 
was  an  intemperate  excess  of  resentment 
at  their  scandalous  dereliction  of  the  public 
honor  and  interest.  The  danger  of  a  san- 
guinary revenge  inflamed  by  party  spirit  is 
so  tremendous,  that  the  worst  of  men  ought 
perhaps  to  escape  rather  than  suffer  by  a 
retrospective,  or,  what  is  no  better,  a  con- 
structive extension  of  the  law.  The  par- 
ticular charge  of  treason  was,  that  in  the 
negotiation  for  peace  they  had  endeavored 
to  procure  the  city  of  Tournay  for  the  King 

*  The  trials  after  this  rebellion  were  not  con- 
ducted with  quite  that  appearance  of  impartiality 
which  we  now  exact  from  judges.  Chief-baron 
Montagu  reprimanded  a  jury  for  acquitting  some 
persons  indicted  for  treason;  andTindal,  a  histori- 
an very  sti-ongly  on  the  court  side,  admits  that  the 
dying  speeches  of  some  of  the  sufferers  made  an 
impression  on  the  people,  so  as  to  increase  rather 
than  lessen  the  number  of  Jacobites. — Continuation 
of  Rapin,  p.  501  (folio  edit.).  There  seems,  how- 
ever, upon  the  whole,  to  have  been  greater  and 
less  necessarj*  severity  after  the  rebellion  in  1745 ; 
and  upon  this  latter  occasion  it  is  impossible  not  to 
reprobate  the  execution  of  Mr.  Ratcliffe  (brotherof 
that  Earl  of  Derwentwater  who  had  lost  his  head 
in  1716).  after  an  absence  of  thirty  years  from  bit 
country,  to  the  sovereign  of  which  he  had  never 
professed  allegiance,  nor  could  owe  any,  except  by 
the  fiction  of  our  law. 


Anjje,  Geo.  I.,  Geo.  II.]      FROM  HENRY  VII.  TO  GEORGE  II. 


619 


of  France,  which  was  maintained  to  be  an 
adhering  to  the  queen's  enemies  within  the 
statute  of  Edward  III.  ;*  but  as  this  con- 
struction could  hardly  be  brought  within  the 
spirit  of  that  law,  and  the  motive  was  cer- 
tainly not  treasonable  or  rebellious,  it  would 
have  been  incomparably  more  constitutional 
to  ti'eat  so  gross  a  breach  of  duty  as  a  mis- 
demeanor of  the  highest  kind.  This  angry 
temper  of  the  Commons  led  ultimately  to 
the  abandonment  of  the  whole  impeachment 
against  Lord  Oxford;  the  Upper  House, 
though  it  had  committed  Oxford  to  the 
Tower,  which  seemed  to  prejudge  the  ques- 
tion as  to  the  treasonable  character  of  the 
imputed  offense,  having  two  years  afterward 
resolved  that  the  charge  of  treason  should 
be  first  determined,  before  they  would  enter 
on  the  articles  of  less  importance ;  a  de- 
cision with  which  the  Commons  were  so  ill 
satisfied,  that  they  declined  to  go  forward 
with  the  prosecution.  The  resolution  of 
the  peers  was  hardly  conformable  to  prece- 
dent, to  analogy,  or  to  the  dignity  of  the 
House  of  Commons,  nor  will  it,  perhaps,  be 
deemed  binding  on  any  future  occasion  ;  but 
the  ministers  prudently  suffered  themselves 
to  be  beaten,  rather  than  aggravate  the  fever 
of  the  people  by  a  prosecution  so  full  of  deli- 
cate and  hazardous  questions.} 

One  of  these  questions,  and  by  no  means 
the  least  important,  would  doubtless  Imve 
arisen  upou  a  mode  of  defense  alleged  by 
the  Earl  of  Oxford  in  the  House  when  the 


"  Pari.  Hist.,  73.  It  was  carried  against  Ox- 
ford by  247  to  127,  Sir  Joseph  Jekyll  strongly  op- 
posing it,  though  he  had  said  before  (Id.,  G7)  that 
they  had  more  than  sufficient  evidence  against  Bo- 
lingbroke  on  the  statute  of  Edward  III.  A  motion 
was  made  in  the  Lords  to  consult  the  judges  wheth- 
er the  articles  amounted  to  treason,  but  lost  by  84 
to  52. — Id.,  154.  Lord  Cowpcr  on  this  occasion 
challenged  all  the  lawyers  in  England  to  disprove 
that  proposition.  The  proposal  of  reference  to  the 
judges  was  perhaps  premature;  but  the  House 
must  surely  have  done  this  before  their  final  sen- 
tence, or  shown  themselves  more  passionate  than 
in  the  case  of  Lord  Strafford. 

t  Pari.  Hist.,  vii.,  48C.  The  division  was  88  to 
^6.  There  was  a  schism  in  the  Whig  party  at  this 
time ;  yet  I  should  suppose  the  ministers  might 
liave  prevented  this  defeat,  if  tlicy  had  been  anx- 
ious to  do  so.  It  seems,  however,  by  a  letter  in 
Coxe's  Memoirs  of  Walpole,  vol.  ii.,  p.  123,  that 
the  government  were  for  dropping  the  charge  of 
treason  against  Oxford,  "  it  being  vci-y  certain  that 
there  is  not  sufficient  evidence  to  convict  hira  of 
tliat  crime,"  but  for  pressing  those  of  misdemeanor. 


articles  of  impeachment  were  brought  up. 
"  My  lords,"  he  said,  "  if  ministers  of  state, 
acting  by  the  immediate  commands  of  their 
sovereign,  are  afterward  to  be  made  account- 
able for  their  proceedings,  it  may,  one  day 
or  other,  be  the  case  of  all  the  members  of 
this  august  assembly."*  It  was,  indeed,  un- 
deniable that  the  queen  had  been  veiy  de- 
sirous of  peace,  and  a  party,  as  it  were,  to 
all  the  counsels  that  tended  to  it.  Though 
it  was  made  a  charge  against  the  impeaclied 
lords  that  the  instructions  to  sign  the  secret 
preliminaries  of  1711  with  M.  Mesnager,  the 
French  envoy,  were  not  under  the  great 
seal,  nor  countersigned  by  any  minister,  they 
were  certainly  under  the  queen's  signet,  and 
had  all  the  authority  of  her  personal  com- 
mand. This  must  have  brought  on  the  yet 
unsettled  and  very  delicate  question  of  min- 
isterial responsibility  in  matters  where  the 
sovereign  has  interposed  his  own  command ; 
a  question  better  reserved,  it  might  then  ap- 
pear, for  the  loose  generalities  of  debate  than 
to  be  determined  with  the  precision  of  crim- 
inal law.  Each  party,  in  fact,  had  in  its 
turn  made  use  of  the  queen's  personal  au- 
thority as  a  shield  ;  the  Whigs  availed  them- 
selves of  it  to  parry  the  attack  made  on  their 
ministry,  after  its  fall,  for  an  alleged  mis- 
management of  the  war  in  Spain  before  the 
battle  of  Almanza  ;f  and  the  modern  consti- 

*  Pari.  Hist.,  vii.,  105. 

t  Pari.  Hist.,  vi.,  972.  Burnet,  560,  makes  some 
observations  on  the  vote  passed  on  this  occasion, 
censuring  the  late  ministers  for  advising  au  offens- 
ive war  in  Spain.  "  A  resolution  in  council  is 
only  the  sovereign's  act,  who,  upon  hearing  his 
counselors  deliver  their  opinions,  fonus  his  own 
resolution  ;  a  counselor  may  indeed  be  liable  to  cen- 
sure for  what  he  may  say  at  that  board  ;  but  the 
resolution  taken  there  has  been  hitherto  treated 
with  a  silent  respect ;  but  by  that  precedent  it 
will  be  hereafter  subject  to  a  Parliamentary  inqui- 
ry." Speaker  Onslow  justly  remarks,  that  these 
general  and  indefinite  sentiments  are  liable  to 
much  exception,  and  that  the  bishop  did  not  try 
them  by  his  Whig  principles.  The  first  instance 
where  I  find  the  responsibility  of  some  one  for  ev- 
ery act  of  the  crown  sti'ongly  laid  down  is  in  a 
speech  of  the  Duke  of  Argyle  in  1739. — Paj-I.  Hist., 
ix.,  1138.  "  It  is  true,"  he  saj-s,  "  the  nature  of  our 
Constitution  requires  that  public  acts  should  be  is- 
sued out  in  his  majesty's  name ;  but  for  all  that, 
my  lords,  he  is  not  the  author  of  thera."  [But  in  a 
much  earlier  debate,  .Tan.  12, 1711,  the  Earl  of  Roch- 
ester said,  "For  several  years  they  have  been  told 
that  the  queen  was  to  answer  for  every  thing  ;  but 
he  hoped  that  time  was  over;  that,  according  to 
the  fundamental  constitution  of  this  kingdom,  the 


620 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


tutional  theory  was  by  no  means  so  estab-  , 
lished  in  public  opinion  as  to  bear  the  mde  i 
brunt  of  a  legal  argument.  Anne  herself, 
like  all  her  predecessors,  kept  in  her  own 
hands  the  reigns  of  power;  jealous,  as  such 
feeble  characters  usuaUy  are,  of  those  in 
whom  she  was  forced  to  confide  (especially 
after  the  ungrateful  return  of  the  Duchess 
of  Marlborough  for  the  most  affectionate 
condescension),  and  obstinate  in  her  judg- 
ment, from  the  very  consciousness  of  its 
weakness,  she  took  a  share  in  all  business, 
frequently  presided  in  meetings  of  the  cab- 
inet, and  sometimes  gave  directions  without 
their  advice.*  The  defense  set  up  by  Lord 
Oxford  would  undoubtedly  not  be  tolerated 
at  present,  if  alleged  in  direct  terms,  by 
either  house  of  Parliament,  however  it  may 
sometimes  be  deemed  a  sufficient  apology 
for  a  minister,  by  those  whose  bias  is  to- 
ward a  compliance  with  power,  to  insinuate 
that  he  must  either  obey  against  his  con- 
science, or  resign  against  his  will. 

Upon  this  prevalent  disaffection,  and  the 
general  dangers  of  the  establish- 

BiU  for  Sep.  &  *  /•       j   j  , 

teniiiai  Par-  ed  government,  was  lounded  that 
liaruents.  measure  so  frequently  arraigned 
in  later  times,  the  substitution  of  septennial 
for  triennial  Parliaments. f    The  ministry 


ministers  are  accoantable  for  all,  and  thei'efore  he 
lioped  nobody  would — nay,  nobody  durst — name 
the  queen  in  this  debate." — Pari.  Hist.,  vi.,  472.  So 
much  does  the  occasional  advantage  of  urging  an 
argument  in  debate  lead  men  to  speak  against 
their  own  principles,  for  nothing  could  be  more  re- 
pugnant to  those  of  the  high  Tories,  wlio  reckoned 
Rochester  their  chief,  than  such  a  theory  of  the 
Constitution  as  he  here  advances. — 184.'5.] 

*  "  Lord  Bolmgbroke  used  to  say  that  the  re- 
straining orders  to  the  Duke  of  Onnond  were  pro- 
posed iu  the  cabinet  council,  in  the  queen's  pres- 
ence, by  the  Earl  of  Oxford,  who  had  not  commu- 
nicated his  intention  to  the  rest  of  the  ministers ; 
and  that  Lord  Bolingbroke  was  on  the  point  of 
giving  liis  opinion  against  it,  when  the  queen,  with- 
out suflering  the  matter  to  be  debated,  directed 
these  orders  to  be  sent,  and  broke  up  the  council. 
This  stoi-y  was  told  by  the  late  Lord  Bolingbroke 
to  my  father." — Note  by  Lord  Hardwicke  on  Bur- 
net (Oxf.  edit,  vi.,  119).  The  noble  annotator  has 
(riven  us  the  same  anecdote  in  the  Hardwicke 
State  Papers,  ii.,  480;  but  with  this  variance,  that 
Lord  Bolingbroke  there  ascribes  the  orders  to  the 
queen  herself,  though  he  conjectured  them  to  have 
proceeded  from  Lord  Oxford.  [This  fact  is  men- 
tioned by  Bolingbroke  himself,  in  the  Letters  on 
the  Study  of  History. — Bolingbroke's  Works,  vol. 
iv.,  p.  129.— 1845.] 

t  ["Septeimial  Parliaments  were  at  first  a  direct 


deemed  it  too  perilous  for  their  master,  cer 
tainly  for  themselves,  to  encounter  a  gen- 
eral election  in  1717;  but  the  arguments 
adduced  for  the  alteration,  as  it  was  meant 
to  be  permanent,  were  drawn  from  its  per- 
manent expediency.  Nothing  can  be  more 
extravagant  than  what  is  sometimes  confi- 
dently pretended  by  the  ignorant,  that  the 
Legislature  exceeded  its  rights  by  this  en- 
actment ;  or,  if  that  can  not  legally  be  ad- 
vanced, that  it  at  least  violated  the  trust  of 
the  people,  and  broke  in  upon  the  ancient 
Constitution.  The  law  for  triennial  Parlia- 
ments was  of  little  more  than  twenty  years' 
continuance.  It  was  an  experiment,  which, 
as  was  argued,  had  proved  unsuccessful ;  it 
was  subject,  like  eveiy  other  law,  to  be  re- 
pealed entirely,  or  to  be  modified  at  discre- 
tion.* As  a  question  of  constitutional  ex- 
pediency, the  Septennial  Bill  was  doubtless 
open  at  the  time  to  one  serious  objection. 
Every  one  admitted  that  a  Parliament  sub- 
sisting indefinitely  during  a  king's  life,  but 
;  exposed  at  all  times  to  be  dissolved  at  his 
pleasure,  would  become  far  too  little  inde- 
pendent of  the  people,  and  far  too  much  so 
upon  the  crown.  But  if  the  period  of  its 
continuance  should  thus  be  extended  from 
three  to  seven  years,  the  natural  course  of 
encroachment,  or  some  momentous  circum- 
stances like  the  present,  might  lead  to  fi-esh 
prolongations,  and  graduallj'  to  an  entire  re- 
peal of  what  had  been  thought  so  important 
a  safeguard  of  its  purity.  Time  has  happily 
put  an  end  to  apprehensions,  which  are  not. 
on  that  account,  to  be  reckoned  unreason- 
able.f 

usurpation  of  the  rights  of  the  people  ;  for  by  the 
same  authoritj'  that  one  Parliament  prolonged  their 
own  power  to  seven  years,  they  might  have  con- 
tinued it  to  twice  seven,  or,  like  the  Parliament  of 
1641,  have  made  it  perpetuah"' — Priestley  on  Gov- 
ernment, 1771,  p.  20.  Similar  assertions  were  com 
mon,  grounded  on  the  ignorant  assumption  that  the 
Septennial  Act  prolonged  the  original  duration  of 
Parliament,  whereas  it  in  fact  only  limited,  though 
less  than  the  Triennial  Act  which  it  repealed,  the 
old  prerogative  of  the  crown  to  keep  the  same  Par- 
liament during  the  life  of  the  reigning  king. — 1845.] 
*  [The  whole  Tory  party,  according  to  Boling- 
broke, had  become  avowedly  Jacobite  by  the  sum- 
mer of  1715.  He  lays  this  as  far  as  he  can  on  the 
impeachments  of  himself  and  others.  But,  though 
these  measures  were  too  violent,  and  calculated  to 
exasperate  a  fallen  party,  we  have  abundant  proofs 
of  the  increase  of  Jacobitism  in  the  preceding  year. 
—1845.] 

t  Pari.  Hist.,  vii.,  292.    The  apprehension  that 


Anne,  Geo.  L,  Geo.  II.]        FROM  HENRY  VII.  TO  GEORGE  II. 


G21 


Many  attempts  have  been  made  to  obtain  : 
a  return  to  triennial  Parliainent.s,  the  most  : 
considerable  of  which  was  in  1733,  when  ^ 
the  powerful  talents  of  Walpole  and  his  op- 
ponents were  arrayed  on  this  great  question. 
It  has  been  less  debated  in  modern  times 
than  some  others  connected  with  Parlia- 
mentary reformation.    So  long,  indeed,  as 
the  sacred  duties  of  choosing  the  repre- 
sentatives of  a  free  nation  shall  be  per- 
petually disgraced  by  tumultuary  excess, 
or,  what  is  far  worse,  by  gross  corruption 
and  ruinous  profusion  (evils  which  no  ef- 
fectual pains  are  taken  to  redress,  and 
which  some  apparently  desire  to  perpetu- 
ate, were  it  only  to  throw  discredit  upon 
the  popular  part  of  the  Constitution),  it 
would  be  evidently  inexpedient  to  curtail 
the  present  duration  of  Parliament.  But, 
even  independently  of  this  not  insuperable 
objection,  it  may  well  be  doubted  whether 
triennial  elections  would  make  much  per- 
ceptible difference  in  the  course  of  govern- 
ment, and  whether  that  difference  would, 
on  the  whole,  be  beneficial.    It  will  be 
found,  I  believe,  on  a  retrospect  of  the  last 
hundred  years,  that  the  House  of  Com- 
mons would  have  acted,  in  the  main,  on 
the  same  principles,  had  the  elections  been 
more  frequent ;  and  certainly  the  effects 
of  a  dissolution,  when  it  has  occmred  in 
the  regular  order,  have  seldom  been  very 
important.    It  is  also  to  be  considered, 
whether  au  assembly  which  so  much  takes 
to  itself  the  character  of  a  deliberative 
council  on  aU  matters  of  policy,  ought  to 
follow  with  the  pi-ecision  of  a  weather-glass 
the  unstable  prejudices  of  the  multitude. 
There  are  many  who  look  too  exclusively 
at  the  functions  of  Parliament,  as  the  pro- 
tector of  civil  liberty  against  the  crown  ; 
functions,  it  is  true,  most  important,  yet  not 
more  indispensable  than  those  of  steering 
a  firm  course  in  domestic  and  external  af- 
fairs, with  a  circumspectness  and  provi- 
dence for  the  future  which  no  wholly  dem- 
ocratical  government  has  ever  yet  displayed. 
It  is  by  a  middle  position  between  nn  oli- 
garchical senate  and  a  popular  assembly 
that  the  House  of  Commons  is  best  pre- 
Parliament,  having  taken  this  step,  might  go  ou 
still  farther  to  protract  its  own  duration,  was  not 
quite  idle.    We  find  from  Coxe's  Memoirs  of  Wal- 
pole, ii.,  217,  that  in  ]720,  when  the  first  septenni- 
al House  of  Commons  had  nearly  run  its  term,  there 
was  a  project  of  once  more  prolonging  its  life. 


served  both  in  its  dignity  and  usefulness, 
subject,  indeed,  to  swerve  toward  either 
character  by  that  continual  variation  of 
forces  which  act  upon  the  vast  machine 
of  our  Commonwealth.  But  what  seems 
more  impoitant  than  the  usual  term  of  du- 
ration is,  that  this  should  be  permitted  to 
take  its  course,  except  in  cases  where  some 
great  change  of  national  policy  may  perhaps 
justify  its  abridgment.  The  crown  would 
obtain  a  very  serious  advantage  over  the 
House  of  Commons  if  it  should  become  an 
ordinary  thing  to  dissolve  Parliament  for 
some  petty  ministerial  interest,  or  to  avert 
some  unpalatable  resolution.  Custom  ap- 
pears to  have  established,  and  with  some 
convenience,  the  substitution  of  six  for  seven 
years  as  the  natural  life  of  a  House  of  Com- 
mons ;  but  an  habitual  irregularity  in  this 
respect  might  lead  in  time  to  consequences 
that  most  men  would  deprecate  ;  and  it 
may  here  be  permitted  to  express  a  hope 
that  the  necessary  dissolution  of  Parliament 
within  six  months  of  a  demise  of  the  crown 
will  not  long  be  thought  congenial  to  the 
spirit  of  our  modern  government. 

A  far  more  unanimous  sentence  has  been 
pronounced  by  posterity  upon  an-  peerage 
other  great  constitutional  question 
that  arose  under  George  I.  Lord  Sunder- 
land persuaded  the  king  to  renounce  his 
important  prerogative  of  making  peers  ;  and 
a  bill  was  supported  by  the  ministry,  limit- 
ing the  House  of  Lords,  after  the  creation 
of  a  very  few  more,  to  its  actual  numbers. 
The  Scots  were  to  have  twenty-five  hered- 
itary, instead  of  sixteen  elective,  members 
of  the  House  ;  a  provision  neither  easily 
reconciled  to  the  Union,  nor  required  by 
the  general  tenor  of  the  bill.  This  measure 
was  carried  with  no  difficulty  through  the 
Upper  House,  whose  interests  were  so 
manifestly  concerned  in  it.  But  a  similar 
motive,  concun-ing  with  the  efforts  of  a 
powerful  malcontent  party,  caused  its  re- 
jection by  the  Commons.*  It  was  justly 
thought  a  proof  of  the  king's  ignorance  or 
indifference  in  every  thing  that  concerned 
his  English  crown,  that  he  should  have 
consented  to  so  momentous  a  sacrifice  :  and 
Sunderland  was  reproached  for  so  audacious 
an  endeavor  to  strengthen  his  private  fac- 
tion at  the  expense  of  the  fundamental  laws 
of  the  monarchy.  Those  who  maintained 
*  Pari.  Hist.,  vii.,  589. 


622 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


the  expediency  of  limiting  the  peerage  bad 
recourse  to  uncertain  theories  as  to  the 
ancient  Constitution,  and  denied  this  pre- 
rogative to  have  been  originally  vested  in 
the  crown.  A  more  plausible  argument 
was  derived  from  the  abuse,  as  it  was  then 
generally  accounted,  of  creating  at  once 
twelve  peers  in  the  late  reign,  for  the  sole 
end  of  establishing  a  majority  for  the  court ; 
a  resource  which  would  be  always  at  the 
command  of  successive  factions,  till  the 
British  nobility  might  become  as  numerous 
and  venal  as  that  of  some  European  states. 
It  was  argued  that  there  was  a  fallacy  in 
concluding  the  collective  power  of  the 
House  of  Lords  to  be  augmented  by  its 
limitation,  though  every  single  peer  would 
evidently  become  of  more  weight  in  the 
kingdom  ;  that  the  wealth  of  the  whole 
body  must  bear  a  less  proportion  to  that  of 
the  nation,  and  would  possibly  not  exceed 
that  of  the  Lower  House,  while  on  the 
other  hand  it  might  be  indefinitely  multi- 
plied by  fresh  creations  ;  that  the  crown 
would  lose  one  great  engine  of  comipt  in- 
fluence over  the  Commons,  which  could 
never  be  truly  independent  while  its  prin- 
cipal members  were  looking  on  it  as  a  step- 
ping-stone to  hereditary  honors.* 

Though  these  reasonings,  however,  are 
not  destitute  of  considerable  weight,  and 
the  unlimited  prerogative  of  augmenting  the 
peerage  is  liable  to  such  abuses,  at  least  in 
theory,  as  might  overthrow  our  form  of 
government,  while,  in  the  opinion  of  some, 
whether  erroneous  or  not,  it  has  actually 
been  exerted  with  too  little  discretion,  the 
arguments  against  any  legal  limitation  seem 
more  decisive.  The  crown  has  been  care- 
fully restrained  by  statutes,  and  by  the  re- 
sponsibility of  its  advisers  ;  the  Commons, 
if  they  transgress  their  boundaries,  are  an- 
nihilated by  a  proclamation  ;  but  against  the 
ambition,  or,  what  is  much  more  likely,  the 
perverse  haughtiness  of  the  aristocracy,  the 
Constitution  has  not  furnished  such  direct 
securities ;  and,  as  this  would  be  prodig- 
iously enhanced  by  a  consciousness  of  their 
power,  and  by  a  sense  of  self-importance 
which  eveiy  peer  would  derive  from  it 
after  the  limitation  of  their  numbers,  it 
might  break  out  in  pretensions  very  galling 

*  The  arguments  on  this  side  are  urged  by  Ad- 
diFon  in  the  Old  Whig,  and  by  the  author  of  a 
tract  entitled  Six  duestions  Stated  and  Answered. 


to  the  people,  and  in  an  oppressive  exten- 
sion of  privileges  which  were  already  suf- 
ficiently obnoxious  and  arbitrary.  It  is  true 
that  the  resource  of  subduing  an  aristocrat- 
ical  faction  by  the  creation  of  new  peers 
could  never  be  constitutionally  employed, 
except  in  the  case  of  a  nearly  equal  bal- 
ance ;  but  it  might  usefully  hang  over  the 
heads  of  the  whole  body,  and  deter  them 
from  any  gross  excesses  of  faction  or  oli- 
garchical spirit.  The  nature  of  our  govern- 
ment requires  a  general  harmony  between 
the  two  houses  of  Parliament ;  and,  indeed, 
any  systematic  opposition  between  them 
would  of  necessity  bring  on  the  subordina- 
tion of  one  to  the  other  in  too  marked  a 
manner ;  nor  had  there  been  wanting  with- 
in the  memory  of  man  several  instances  of 
such  jealous  and  even  hostile  sentiments  as 
could  only  be  allayed  by  the  inconvenient 
remedies  of  a  prorogation  or  a  dissolution. 
These  animosities  were  likely  to  revive 
with  more  bitterness  when  the  country 
gentlemen  and  leaders  of  the  Commons 
should  come  to  look  on  the  nobility  as  a 
class  into  which  they  could  not  enter,  and 
the  latter  should  forget  more  and  more,  in 
their  inaccessible  dignity,  the  near  approach 
of  that  gentry  to  themselves  in  respectabil- 
ity of  birth  and  extent  of  possessions.* 

These  innovations  on  the  part  of  the  new 
government  were  maintained  on  the  score 
of  its  unsettled  state,  and  want  of  hold  on 
the  national  sentiment.  It  may  seem  a  re- 
proach to  the  house  of  Hanover  that,  con- 
nected as  it  ought  to  have  been  with  the 
names  most  dear  to  English  hearts,  the 
Protestant  religion  and  civil  liberty,  it  should 
have  been  driven  to  tiy  the  resources  of 
tyranny,  and  to  demand  more  authority,  to 
exercise  more  contro/,  than  had  been  neces- 
sary for  the  worst  of  their  predecessors. 
Much  of  this  disaffection  was  owing  to  the 

*  The  speeches  of  Walpole  and  others,  in  the 
Parliamentary  Debates,  contain  the  whole  force  of 
the  arguments  against  the  Peerage  Bill.  Steele, 
in  the  Plebeian,  opposed  his  old  friend  and  coadju- 
tor, Addison,  who  has  been  thought  by  Johnson  to 
have  forgotten  a  little  in  party  and  controversy  their 
ancient  friendship. 

Lord  Sunderland  held  out,  by  way  of  induce- 
ments to  the  bill,  that  the  Lords  would  part  with 
scandalum  magnatum,  and  permit  the  Commons  to 
administer  an  oath  ;  and  that  the  king  would  give  up 
the  prerogative  of  pardoning  after  an  impeachment. 
— Coxe's  Walpole,  ii.,  172.  Mere  trifles,  in  con: 
parison  with  the  innovations  projected. 


AssE,  Geo.  I.,  Geo.  II.]        FKOM  HENRY  VII.  TO  GEORGE  II. 


623 


cold  reserve  of  George  I.,  ignorant  of  the 
language,  alien  from  the  prejudices  of  his 
people,  and  continually  absent  in  his  elect- 
oral dominions,  to  which  ho  seemed  to 
sacrifice  the  nation's  interest  and  the  secu- 
rity of  his  own  crown.  It  is  certain  that 
the  acquisition  of  the  duchies  of  Bremen 
and  Verden  for  Hanover  in  1716*  exposed 
Great  Britain  to  a  very  serious  danger,  by 
provoking  the  King  of  Sweden  to  join  in  a 
league  for  the  restoration  of  the  Pretender.f 
It  might  have  been  impossible  (such  was 
the  precariousness  of  our  Revolution  settle- 
ment) to  have  made  the  abdication  of  the 
electorate  a  condition  of  the  house  of  Bruns- 
wick's succession  ;  but  the  consequences  of 
that  connection,  though  much  exaggerated 
by  the  factious  and  disaffected,  were  in 
various  manners  detrimental  to  English  in- 
terests during  these  two  reigns ;  and  not 
the  least,  in  that  they  estranged  the  affec- 
tions of  the  people  from  sovereigns  whom 
they  regarded  as  still  foreign. t   The  Tory 

*  [These  duchies  had  been  conquered  from  Swe- 
den by  Denmark,  who  ceded  them  to  George  1., 
as  elector  of  Hanover,  though  they  had  never  been 
resigned  by  Charles  XII.  This  is  not  consonant 
to  the  usage  of  nations,  and  at  least  was  an  act 
of  hostiUty  in  George  I.  against  a  power  who  had 
not  injured  hira.  Yet  Townshend  affected  to  de- 
fend it,  as  beneficial  to  English  interests ;  though 
the  contraiy  is  most  evident,  as  it  provoked  Charles 
to  espouse  the  Pretender's  cause. — Coxc's  Wal- 
pole,  vol.  i.,  p.  87.— 1845.] 

t  The  letters  in  Coxe's  Memoirs  of  Walpole,  vol. 
ii.,  abundantly  show  the  German  nationality,  the 
hnpolicy  and  neglect  of  his  duties,  the  rapacity  and 
petty  selfishness  of  George  I.  The  Whigs  were 
much  dissatisfied ;  but  fear  of  losing  their  places 
made  them  his  slaves.  Nothing  can  be  more  de- 
monstrable than  that  the  king's  cViaracter  was  the 
main  cause  of  preserving  Jacobitism,  as  that  of  hi^ 
competitor  was  of  weakening  it. 

The  habeas  corpus  was  several  times  suspended 
in  this  reign,  as  it  had  been  in  that  of  William. 
Though  the  perpetual  conspiracies  of  the  Jacobites 
afforded  a  sufficient  apology  for  this  measure,  it 
was  invidiously  held  up  as  inconsistent  with  a 
government  which  professed  to  stand  on  tlie  prin- 
ciples of  liberty.— Pari.  Hist.,  v.,  153,  267,  604  ;  vii., 
276;  viii.,  38.  But  some  of  these  suspensions  were 
too  long,  especially  the  last,  from  October,  1722,  to 
October,  1723.  Sir  Joseph  Jekyll,  with  his  usual 
zeal  for  liberty,  moved  to  reduce  the  time  to  six 
montlis. 

t  [Tlic  Regent  Duke  of  Orleans  not  only  assist- 
ed the  Pretender  in  his  invasion  of  Scotland  in  1715, 
but  was  concerned  in  the  scheme  of  Charles  XII. 
to  restore  him  by  aims  in  the  next  year,  as  appears 
by  a  dispatch  from  the  Baion  de  Besenval,  French 
envoy  at  Warsaw,  dated  February  2,  1716,  which 


and  Jacobite  factions,  as  I  have  observed, 
were  powerful  in  the  Church,  j^^^^,^,,,^ 
This  had  been  the  case  ever  among  ihe 
since  the  Revolution.  The  avow-  "'"'S^' 
ed  non-jurors  were  busy  with  the  press,  and 
poured  forth,  especially  during  the  encour- 
agement they  received  in  part  of  Anne's 
reign,  a  multitude  of  pamphlets,  some- 
times argumentative,  more  often  virulently 
libelous.  Their  idle  ciy  that  the  Church 
was  in  danger,  which  both  Houses  in  1704 
thought  fit  to  deny  by  a  formal  vote,  alarm- 
ed a  senseless  multitude.  Those  who  took 
the  oaths  were  frequently  known  partisans 
of  the  exiled  family  ;  and  those  who  affected 
to  disclaim  that  cause,  defended  the  new 
settlement  with  such  timid  or  faithless  arms 
as  served  only  to  give  a  triumpli  to  the 
adversary.*  About  the  end  of  William's 
reign  grew  up  the  distinction  of  High  and 
Low  Churchmen  ;  the  first  distinguished 
by  great  pretensions  to  sacerdotal  power, 
both  spiritual  and  temporal,  by  a  repug- 
nance to  toleration,  and  by  a  firm  adherence 
to  Tory  principle  in  the  state  ;  the  latter 
by  the  opposite  characteristics.  These 
were  pitched  against  each  other  in  the  two 
houses  of  Convocation,  an  assembly  which 
virtually  ceased  to  exist  under  George  I. 

The  Convocation  of  the  province  of  Can- 
terbury (for  that  of  York  seems 

\         ,  .  .  Convocation. 

never  to  have  been  miportant)  is 
summoned  by  the  archbishop's  writ,  under 
the  king's  direction,  along  with  every  Par- 
liament, to  which  it  bears  analogy  both  in 
its  constituent  parts  and  in  its  primary 
functions.  It  consists  (since  the  Reforma- 
tion) of  the  suffragan  bishops,  forming  the 
Upper  House  ;  of  the  deans,  archdeacons, 
a  proctor  or  proxy  for  each  chapter,  and 
is  printed  from  the  Depot  des  Affaires  Etrangeres, 
in  Mem.  de  Besenval  (his  descendant),  vol.  i.,  p. 
102.  So  much  was  Voltaire  mistaken  in  his  asser- 
tion, that  the  regent,  having  discovered  this  intrigue 
through  his  spies,  communicated  it  to  George  I. 
It  was  his  own  plot,  though  he  soon  afterward  allied 
himself  to  England,  a  remnant  of  the  policy  of  1715. 
But  Sunderland  and  Stanhope,  though  too  obsequi- 
ous to  their  master's  German  views,  had  the  merit 
of  bringing  over  Dubois  to  a  steady  regard  for  the 
house  of  Hanover,  which  influenced  the  court  of 
Versailles  for  many  years. — 1845.] 

*  [The  practice  of  using  a  collect  before  the  ser- 
mon, instead  of  the  form  prescribed  by  the  55th 
canon,  seems  to  have  originated  with  the  Jacobite 
clergy,  to  avoid  praying  for  the  king.  It  is  pro- 
hibited by  a  royal  proclamation  of  Dec.  11,  1714. — 
Hist.  Reg.,  i.,  78.— 1845.] 


624 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


two  from  each  diocese,  elected  by  the  pa- 
rochial clergy,  who  together  constitute  the 
Lower  House.  In  this  assembly  subsidies 
were  granted,  and  ecclesiastical  canons  en- 
acted. In  a  few  instances  under  Henry 
VIII.  and  Elizabeth,  they  were  consulted 
as  to  momentous  questions  affecting  the 
national  religion  ;  the  supremacj^  of  the 
former  was  approved  in  1533,  the  Articles 
of  Faith  were  confirmed  in  1562,  by  the 
Convocation.  But  their  power  to  enact 
fresh  canons  without  the  king's  license  was 
expressly  taken  away  by  a  statute  of  Henry 
VIII. ;  and  even  subject  to  this  condition, 
is  limited  by  several  later  acts  of  Parliament 
(such  as  the  Acts  of  the  Uniformity  under 
Elizabeth  and  Charles  II.,  that  confirming, 
and  therefore  rendering  unalterable,  the 
Thirty-nine  Articles,  those  relating  to  non- 
residence  and  other  Church  matters),  and 
still  more,  perhaps,  by  the  doctrine  gi-adu- 
ally  established  in  Westminster  Hall,  that 
new  ecclesiastical  canons  are  not  binding 
on  the  laity,  so  greatly  that  it  will  ever  be 
impossible  to  exercise  it  in  any  effectual 
manner.  The  Convocation  accordingly, 
with  the  exception  of  1603,  when  they 
established  some  regulations,  and  of  1640 
(an  unfortunate  precedent),  when  they  at- 
tempted some  more,  had  little  business  but 
to  grant  subsidies,  which,  however,  were 
fi-om  the  time  of  Henry  VIII.  always  con- 
firmed by  an  act  of  Parliament ;  an  intima- 
tion, no  doubt,  that  the  Legislature  did  not 
wholly  acquiesce  in  their  power  even  of 
binding  the  clergy  in  a  matter  of  property. 
This  practice  of  ecclesiastical  taxation  was 
discontinued  in  1664,  at  a  time  when  the 
authority  and  pre-eminence  of  the  Church 
stood  veiy  high,  so  that  it  could  not  then 
have  seemed  the  abandonment  of  an  im- 
portant privilege.  From  this  time  the 
clergy  have  been  taxed  at  the  same  rate 
and  in  the  same  manner  with  the  laity.* 

'  Paj-1.  Hist.,  iv.,  310.  "It  was  first  settled  by 
a  verbal  agreement  between  Archbishop  Sheldeu 
and  the  Lord-chancellor  Clarendon,  and  tacitly 
given  into  by  the  clergy  in  general  as  a  great  ease 
to  them  in  taxations.  The  first  public  act  of  any 
kind  relating  to  it  was  an  act  of  Parliament  in  1 663, 
by  which  the  clergy  were,  in  common  with  the 
laity,  charged  with  the  tax  given  in  that  act,  and 
were  discharged  from  the  payment  of  the  snbsidies 
they  had  granted  before  in  Convocation;  but  in 
this  act  of  Parliament  of  1663  there  is  an  express 
saving  of  the  right  of  the  clergy  to  tax  themselves 
in  Convocation,  if  they  tliink  fit ;  but  that  has  been 


It  was  the  natural  consequence  of  this 
cessation  of  all  business,  that  the  Convoca- 

never  done  since,  nor  attempted,  as  I  know  of,  and 
the  clergy  have  been  constantly  from  that  time 
charged  with  the  laity  in  all  public  aids  to  the 
crown  by  the  House  of  Commons.  In  consequence 
of  this  (but  from  what  period  I  can  not  say),  with- 
out the  intervention  of  any  particular  law  for  it, 
except  what  I  shall  mention  presently,  the  clergy 
(who  are  not  lords  of  Parliament)  have  assumed, 
and  without  any  objection  enjoyed,  the  privilege 
of  voting  in  the  election  of  members  of  tffe  House 
of  Commons,  in  virtue  of  their  ecclesiastical  free- 
holds. This  has  constantly  been  practiced  from  the 
time  it  first  began ;  there  are  two  acts  of  Parlia- 
ment which  suppose  it  to  be  now  a  right.  The 
acts  are  10  Anrre,  c.  23 ;  18  Geo.  11.,  c.  18.  Gib- 
son, bishop  of  London,  said  to  me,  that  this  (the 
taxation  of  the  clergy  out  of  Convocation)  was  the 
greatest  alteration  in  the  Constitution  ever  made 
without  an  express  law." — Speaker  Onslow's  note 
on  Burnet  (Oxf  edit,  iv.,  508). 

[In  respect  to  this  taxation  of  the  clergy  by 
Parliament,  and  not  by  Convocation,  it  is  to  be  re- 
membered that  by  far  the  greater  part  of  modern 
taxes,  being  indirect,  must  necessarily  fall  on  them 
in  common  with  the  laity.  The  Convocation,  like 
the  Parliament,  were  wont  to  grant  tenths  and 
fifteenths  at  fixed  rates,  supposed  to  arise  fi-om 
movable  property.  These  being  wholly  disused 
from  1665  inclusive,  other  modes  of  taxation  have 
supplied  their  place.  But  the  clergy  are  charged 
to  the  land-tax  for  their  benefices,  and  to  the  win- 
dow-tax for  their  parsonages,  as  well  as  to  occa- 
sional income-taxes.  Exclusive  of  these,  it  does 
not  appear  that  any  imposts  can  be  said  to  fall  on 
them  from  which  they  could  have  been  exempt  by 
retaining  the  right  of  Convocation.  The3'  have  not 
been  losers  in  any  manner  by  the  alteration.  The 
position  of  Speaker  Onslow,  that  the  clergy  have 
enjoyed  the  privilege  of  voting  at  county  elections 
in  virtue  of  their  ecclesiastical  freeholds  only  since 
their  separate  taxation  has  been  discontinued,  may 
be  questioned :  proo.%  of  its  exercise,  as  far  as  I 
remember,  can  be  traced  higher.  In  a  conference 
between  the  two  houses  of  Parliament  in  167],  on 
the  subject  of  the  Lords'  right  to  alter  a  money 
bill,  it  is  said  "  the  clergy  have  a  right  to  tax  them- 
selves, and  it  is  part  of  the  privilege  of  their  estate. 
Doth  th^  Upper  Convocation  House  alter  what  the 
Lower  grant  ?  Or  do  the  Lords  or  Commons  ever 
abate  any  part  of  their  gift?  Yet  they  have  a 
power  to  reject  the  whole.  But,  if  abatement 
should  be  made,  it  would  insensibly  go  to  a  raising, 
and  deprive  the  clergy  of  their  ancient  right  to 
tax  themselves.'' — HatseU's  Precedents,  iii.,  390. 
Thus  we  perceive  that  the  change  alleged  to  have 
taken  place  in  1663  was  only  de facto,  and  that  the 
ancient  practice  of  taxation  by  the  Convocation 
was  not  understood  to  be  abrogated.  The  essen- 
tial change  was  made  by  the  introduction  of  new 
methods  of  raising  money.  In  1665,  the  sum  of 
£2,477,000  was  granted,  to  be  raised  in  three  years, 
by  an  assessment  in  each  county  on  real  and  per- 
sonal property  of  all  kinds ;  but  the  old  rates  of 
subsidy  are  not  mentioned  in  this  or  in  any  later 


ASNE,  Geo.  I.,  Geo.  II.]       FUOM  HENRY  VII.  TO  GEORGE  II. 


62a 


tion,  after  a  few  formalities,  either  adjourned 
itself  or  was  prorogued  by  a  royal  writ ;  nor 
had  it  ever,  with  the  few  exceptions  above 
noticed,  sat  for  more  than  a  few  days,  till  its 
supply  could  bo  voted.  But,  about  the  time 
of  the  Revolution,  the  party  most  adverse 
to  the  new  order  sedulously  propagated  a 
doctrine  that  the  Convocation  ought  to  be 
advised  with  upon  all  questions  affecting  the 
Church,  and  ought  even  to  watch  over  its 
interests  as  the  Parliament  did  over  those 
of  the  kingdom.*  The  Commons  had  so 
far  encouraged  this  faction  as  to  refer  to  the 
Convocation  the  great  question  of  a  reform 
in  the  Liturgy  for  the  sake  of  comprehen- 
sion, as  has  been  mentioned  in  the  last  chap- 
ter; and  thus  put  a  stop  to  the  king's  de- 
sign. It  was  not  suffered  to  sit  much  di'ring 
the  rest  of  that  reign,  to  the  great  discontent 
of  its  ambitious  leaders.  The  most  celebra- 
ted of  these,  Atterbury,  published  a  book, 
entitled  the  Rights  and  Privileges  of  an  En- 
glish Convocation,  in  answer  to  one  by  Wake, 
afterward  Archbishop  of  Canterbury.  The 
speciousness  of  the  former,  sprinkled  with 
competent  learning  on  the  subject,  a  gi'ace- 
ful  style,  and  an  artful  employment  of  top- 
ics, might  easily  delude,  at  least  the  willing 
reader.  Nothing,  indeed,  could,  on  reflec- 
tion, appear  more  inconclusive  than  Atter- 
bury's  ai'guments.  Were  we  even  to  admit 
the  perfect  analogy  of  a  Convocation  to  a 
Parliament,  it  could  not  be  doubted  that  the 
king  may,  legally  speaking,  prorogue  the 
latter  at  his  pleasure ;  and  that,  if  neither 
money  were  required  to  be  granted  nor  laws 
to  be  enacted,  a  session  would  be  veiy  short. 
The  Church  had,  by  prescription,  a  right  to 

tax-bill.  Probably  the  arrangement  with  Arch- 
bishop Shelden  was  founded  on  the  practical  diffi- 
calty  of  ascertaining  the  proportion  which  the  grant 
of  the  clergy  ought  to  bear  to  the  whole  in  the  new 
mode  of  assessment. — See  Statutes  of  the  Realm, 
16  &  17  Car.  II.,  c.  1.— 1845.] 

*  The  first  authority  I  have  observed  for  this 
pretension  is  an  address  of  the  House  of  Lords, 
Nov.  19,  1673,  to  the  throne,  for  the  frequent  meet- 
ing of  the  Convocation,  and  that  they  do  make  to 
the  king  such  representations  as  may  be  for  the 
safety  of  the  religion  established. — Lords'  Jour- 
nals. This  address  was  renewed  February  22, 
1677.  But  what  took  place  in  consequence  I  am 
not  apprised.  It  shows,  however,  some  degree  of 
diflsatisfaction  on  the  part  of  the  bishops,  who  must 
be  presumed  to  have  set  forward  these  addresses, 
at  the  virtual  annihilation  of  their  synod,  which 
naturally  followed  from  its  relinquisluuent  of  self- 
taxation. 

S  9 


be  summoned  in  Convocation ;  ji,  encroach- 
but  no  prescription  could  be  set  "'ents- 
up  for  its  longer  contiimance  than  the  crown 
thought  expedient ;  and  it  was  too  much  to 
•expect  that  William  III.  was  to  gratify  his 
half-avowed  enemies  with  a  privilege  of  re- 
monstrance and  interposition  they  had  nev- 
er enjoyed.  In  the  year  1701  the  lower 
house  of  Convocation  pretended  to  a  right 
of  adjourning  to  a  different  day  from  that 
fixed  by  the  upper,  and,  consequently,  of 
holding  separate  sessions.  They  set  up  oth- 
er unprecedented  claims  to  independence, 
which  were  checked  by  a  prorogation.* 
Their  aim  was  in  all  respects  to  assimilate 
themselves  to  the  House  of  Commons,  and 
thus  both  to  set  up  the  Convocation  itself 
as  an  assembly  collateral  to  Parliament,  and 
in  the  main  independent  of  it,  and  to  main- 
tain their  co-ordinate  power  and  equality  in 
sy nodical  dignity  to  the  prelates'  house. 
The  succeeding  reign,  however,  began  un- 
der Toiy  auspices,  and  the  Convocation  was 
in  more  activity  for  some  years  than  at  any 
former  period.  The  lower  house  of  that 
assembly  still  distinguished  itself  by  the  most 
factious  spirit,  and  especially  by  insolence 
toward  the  bishops,  who  passed  in  general 
for  Whigs,  and  whom,  while  pretending  to 
assert  the  divine  rights  of  Episcopacy,  they 
labored  to  deprive  of  that  pi-e-eminenco  in 
the  Anglican  synod  which  the  ecclesiastical 
constitution  of  the  kingdom  had  bestowed 
on  them.f  None  was  more  prominent  in 
their  debates  than  Atterbury  himself,  whom, 
in  the  zenith  of  Tory  influence,  at  the  close 
of  her  reign,  the  queen  reluctantly  promoted 
to  the  See  of  Rochester. 

The  new  government  at  first  permitted 
the  Convocation  to  hold  its  sittings. 
But  they  soon  excited  a  flame  which 
consumed  themselves  by  an  attack  on  Hoad- 
ley,  bishop  of  Bangor,  who  had  preached  a 
sermon  abounding  with  those  principles  con- 
cerning religious  liberty,  of  which  he  had 
long  been  the  courageous  and  powerful  as- 
sertor.J    The  lower  house  of  Convocation 

*  Kennet,  799,  842.  Burnet,  280.  This  assem- 
bly had  been  suffered  to  sit,  probably,  in  conse- 
quence of  the  Tory  maxims  which  the  ministry  of 
that  year  professed. 

t  Wilkins's  Concilia,  iv.  Burnet,  passim.  Bey- 
er's Life  of  dueen  Anno,  225.    Somerville,  82, 124. 

t  The  lower  house  of  Convocation,  in  the  late 
reign,  among  their  other  vagaries,  had  requested 
"  that  some  synodical  notice  might  be  taken  of  the 


626 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[CHAr.  XVJ. 


thought  fit  to  denounce,  through  the  report 
of  a  committee,  the  dangerous  tenets  of  this 
discourse,  and  of  a  work  not  long  before 
published  by  the  bishop.  A  long  and  cele- 
brated war  of  pens  instantly  conmienced, 
known  by  the  name  of  the  Eangorian  Con- 
troversy, managed,  perhaps  on  both  sides, 
with  all  the  chicanery  of  polemical  writers, 
and  disgusting  both  from  its  tediousness,  and 
from  the  manifest  unwillingness  of  the  dis- 
putants to  speak  ingenuously  what  they 
meant  ;*  but  as  the  principles  of  Hoadley 
and  his  advocates  appeared,  in  the  main, 
little  else  than  those  of  Protestantism  and 
toleration,  the  sentence  of  the  laity,  in  the 
temper  that  was  then  gaining  ground  as  to 
ecclesiastical  subjects,  was  soon  pronounced 
in  their  favor ;  and  the  High-Church  party 
discredited  themselves  by  an  opposition  to 
what  now  pass  for  the  incontrovertible  tru- 
isms of  religious  liberty.  In  the  ferment  of 
that  age,  it  was  expedient  for  the  state  to 
_  scatter  a  little  dust  over  the  an- 

Convooation 

noiongersuf-  gry  insects ;  the  Convocation  was 

fered  to  sit.  j-     i  j    •  nr^tr* 

accordingly  prorogued  m  1717, 

dishonor  done  to  the  Church  by  a  sermon  preached 
by  Mr.  Benjamin  Hoadley,  at  St.  Lawrence  Jewry, 
Sept.  29,  1705,  containing  positions  contrai-y  to  the 
doctiine  of  the  Church,  expressed  in  the  first  and 
second  parts  of  the  Homily  against  Disobedience 
and  willful  Rebellion."- — Williins,  iv.,  634. 

*  These  qualities  are  so  apparent,  that  after 
turning  over  some  forty  or  fifty  tracts,  and  consum- 
ing a  good  many  hours  on  the  Bangorian  Contro- 
versy, I  should  find  some  difficulty  in  stating  with 
precision  the  propositions  in  dispute.  It  is,  how- 
ever, evident  that  a  dislike,  not,  perhaps,  exactly 
to  the  house  of  Brunswick,  but  to  the  tenor  of 
George  I.'s  administration,  and  to  Hoadley  him- 
eelf,  as  an  eminent  advocate  for  it,  who  had  been 
rewarded  accordingly,  was  at  the  bottom  a  leading 
motive  with  most  of  the  Church  part5' ;  some  of 
whom,  such  as  Hare,  though  originally  of  a  Whig 
connection,  might  have  had  disappointments  to  ex- 
asperate them. 

There  was  nothing  whatever  in  Hoadley's  ser- 
mon injurious  to  the  established  endowments  and 
privileges,  nor  to  the  discipline  and  government, 
of  the  English  Church,  even  in  theory.  If  this  had 
been  the  case,  he  might  be  reproached  with  some 
inconsistency  in  becoming  so  large  a  jjartaker  of 
her  honors  and  emoluments.  He  even  admitted 
the  usefulness  of  censures  for  open  immoralities, 
though  denying  all  Church  authority  to  oblige  any 
one  to  external  communion,  or  to  pass  any  sen- 
tence which  should  detennine  the  condition  of 
men  with  respect  to  the  favor  or  displeasure  of 
God. — Hoadley's  Works,  ii.,  465,  493..  Another 
great  question  in  this  controversy  was  that  of  re- 
ligions liberty,  as  a  civil  right,  which  the  Convoca- 
tion explicitly  denied ;  and  another  related  to  the 


and  has  never  again  sat  for  any  business.* 
Those  who  are  imbued  with  high  notions  of 
sacerdotal  power  have  sometimes  deplored 
this  extinction  of  the  Anglican  great  councD; 
and  though  its  necessity,  as  I  have  already 
observed,  can  not  possibly  be  defended  as  an 
ancient  part  of  the  Constitution,  there  are 
not  wanting  specious  arguments  for  the  ex- 
pediency of  such  a  synod.  It  might  bo 
urged  that  the  Church,  considered  only  as 
an  integral  member  of  the  Commonwealth, 
and  the  greatest  corporation  within  it,  might 
justly  claim  that  right  of  managing  its  own 
affairs  which  belongs  to  every  other  associa- 
tion ;  that  the  argument  from  abuse  is  not 
sufficient,  and  is  rejected  Avith  indignation 
when  applied,  as  historically  it  might  be,  to 
representative goveraments and  to  civilliber- 
ty  ;  that  in  the  present  state  of  things,  no  ref- 
ormation even  of  secondaiy  importance  can 
be  effected  without  difficulty,  nor  any  looked 
for  in  greater  matters,  both  from  the  indif- 
ference of  the  Legislature,  and  the  reluct- 
ance of  the  clergy  to  admit  its  interposition. 

It  is  answered  to  these  suggestions,  that 
we  must  take  experience  when  we  possess 
it,  rather  than  analogy,  for  our  guide  ;  that 
ecclesiastical  assemblies  have  in  all  ages  and 
countries  been  mischievous,  where  they 
have  been  powerful,  which  that  of  our 
wealthy  and  numerous  clergy  must  always 
be  ;  that  if,  notwithstanding,  the  Convoca- 
tion could  be  brought  under  the  management 
of  the  state  (which,  by  the  nature  of  its 
component  parts,  might  seem  not  unlikely), 
it  must  lead  to  the  promotion  of  servile  men, 
and  the  exclusion  of  merit  still  more  than  at 
present;  that  the  severe  remark  of  Claren- 
don, who  obseiTes  that  of  all  mankind  none 
form  so  bad  an  estimate  of  human  affairs  as 
churchmen,  is  abundantly  confirmed  by  ex- 
perience ;  that  the  representation  of  the 
Church  in  the  House  of  Lords  is  sufficient 
for  the  protection  of  its  interests  ;  that  the 
clergy  have  an  influence  which  no  other  cor- 
poration enjoys  over  the  bulk  of  the  nation, 
and  may  abuse  it  for  the  purposes  of  undue 
ascendency,  unjust  restraint,  or  factious 
ambition;  that  the  hope  of  any  real  good  in 

much-debated  exercise  of  private  judgment  in  re- 
ligion, which,  as  one  party  meant  virtually  to  take 
away,  so  the  other,  perhaps,  unreasonably  exag- 
gerated. Some  other  disputes  arose  in  the  course 
of  the  combat,  particularly  the  delicate  problem  of 
the  value  of  sincerity  as  a  plea  for  material  errors. 
*  Tindal,  539. 


Akne.  Geo.  I.,  Geo.  U.]        FROM  HENRY  Vn.  TO  GEORGE  II. 


627 


reformation  of  the  Church  by  its  own  assem- 
blies, to  whatever  sort  of  reform  we  may 
look,  is  utterly  chimerical ;  finally,  that  as 
the  laws  now  stand,  which  few  would  in- 
cline to  alter,  the  ratification  of  Parliament 
must  be  indispensable  for  any  material 
change.  It  seems  to  admit  of  no  doubt  that 
these  reasonings  ought  much  to  outweigh 
those  on  the  opposite  side. 

In  the  last  four  years  of  the  queen's  reign, 
Infiinge-  sonie  inroads  had  been  made  on 
mentsoftho  the  toleration  granted  to  Dis- 

toleratioa  by  ,         f  _    ^,  , 

statutes  un-  seuters,  whom  the  High-Church 
der  Aune.  pgj.fy  j^^j^j  abhorrence.  They 
had  for  a  long  time  inveighed  against  what 
was  called  occasional  conformity,  or  the 
compliance  of  Dissenters  with  the  provisions 
of  the  Test  Act  in  order  merely  to  qualify 
themselves  for  holding  office,  or  entering  into 
corporations.  Nothing  could,  in  the  eyes 
of  sensible  men,  be  more  advantageous  to 
the  Church,  if  a  reunion  of  those  who  had 
separated  from  it  were  advantageous,  than 
this  practice.  Admitting,  even,  that  the 
motive  was  self-interested,  has  an  estab- 
lished government,  in  Church  or  State,  any 
better  ally  than  the  self-interestedness  of 
mankind  ?  Was  it  not  what  a  Presbyterian 
or  Independent  minister  would  denounce  as 
a  base  and  worldly  sacrifice  7  and  if  so,  was 
not  the  interest  of  the  Anglican  clergy  ex- 
actly in  an  inverse  proportion  to  this  ?  Any 
one  competent  to  judge  of  human  affairs 
would  predict,  what  has  turned  out  to  be 
the  case,  that  when  the  barrier  was  once 
taken  down  for  the  sake  of  convenience,  it 
would  not  be  raised  again  for  conscience  ; 
that  the  most  latitudinarian  theory,  the  most 
lukewarm  dispositions  in  religion,  must  be 
prodigiously  favorable  to  the  reigning  sect; 
and  that  the  Dissenting  clergy,  though  they 
might  retain,  or  even  extend,  their  influence 
over  the  multitude,  would  gradually  lose  it 
with  those  classes  who  could  be  affected  by 
the  Test ;  but,  even  if  the  Tory  faction  had 
been  cool-headed  enough  for  such  reflec- 
tions, it  has,  unfortunately,  been  sometimes 
less  the  aim  of  the  clergy  to  reconcile  those 
who  differ  from  them  than  to  keep  them  in 
a  state  of  dishonor  and  depression.  Hence, 
in  the  first  Parliament  of  Anne,  a  bill  to  pre- 
vent occasional  conformity  more  than  once 
passed  the  Commons  ;  and  on  its  being  re- 
jected by  the  Lords,  a  great  majority  of 
William's  bishops  voting  against  the  meas- 


ure, an  attempt  was  made  to  send  it  up 
again  in  a  very  reprehensible  manner,  tack- 
ed, as  it  was  called,  to  a  grant  of  money; 
so  that,  according  to  the  pretension  of  the 
Commons  in  respect  to  such  bills,  the  Up- 
per House  must  either  refuse  the  supply, 
or  consent  to  what  they  disapproved.*  This, 
however,  having  miscarried,  and  the  next 
Parliament  being  of  better  principles,  noth- 
ing further  was  done  till  1711,  when  Lord 
Nottingham,  a  vehement  High-Churchman, 
having  united  with  the  Whigs  against  the 
treaty  of  peace,  they  were  injudicious 
enough  to  gratify  him  by  concurring  in  a 
bill  to  prevent  occasional  conformity. f  This 
was  followed  up  by  the  ministry  in  a  more 
decisive  attack  on  the  Toleration,  an  act  for 
preventing  the  gi'owth  of  schism,  which  ex- 
tended and  confirmed  one  of  Charles  II., 
enforcing  on  all  schoolmasters,  and  even  on 
all  teachers  in  private  families,  a  declaration 
of  conformity  to  the  Established  Church,  to 
be  made  before  the  bishop,  from  whom  a  li- 
cense for  exercising  that  profession  was  also 
to  be  obtained. t  It  is  impossible  to  doubt 
for  an  instant,  that  if  the  queen's  life  had 
preserved  the  Tory  government  for  a  few 
years,  eveiy  vestige  of  the  Toleration  would 
have  been  effaced. 

These  statutes,  records  of  their  adver- 
saries' power,  the  Whigs,  now  ^ 

,     .      /-   ,  ,  ,  .       They  are 

fords  ot  tfie  ascendant,  determm-  repealed  by 
ed  to  abrogate.  The  Dissenters  ^'''S'' 
were  unanimously  zealous  for  the  house  of 
Hanover  and  for  the  ministiy;  the  Church 
of  very  doubtful  loyalty  to  the  crown,  and 
still  less  affection  to  the  Whig  name.  In 
the  session  of  1719,  accordingly,  the  act 
against  occasional  conformity,  and  that  re- 
straining education,  were  repealed. §  It 

*  Pari.  Hist.,  vi.,  362.  t  10  Anne,  c.  2. 

t  12  Anne,  c.  7.  Pari.  Hist.,  vi.,  1349.  The 
Schism  Act,  according  to  Lockhart,  was  promoted 
by  Bolingbroke,  in  order  to  gratify  the  high  Tories, 
and  to  put  Lord  Oxford  under  the  necessity  of  de- 
claring himself  one  way  or  other.  "  Though  the 
Earl  of  Oxford  voted  for  it  himself,  be  concurred 
with  tliose  who  endeavored  to  restrain  some  parts 
whicli  they  reckoned  too  severe  ;  and  his  friends 
in  both  Houses,  particularly  his  brother.  Auditor 
Harley,  spoke  and  voted  against  it  very  earnest- 
ly."—P.  462. 

5  5  Geo.  I  ,  c.  4.  The  Whigs  out  of  power, 
among  whom  was  Walpole,  factiously  and  incon- 
sistently opposed  the  repeal  of  the  Schism  Act,  so 
t!iat  it  passed  with  much  difficulty — Pari.  Hist., 
vii.,  569. 


628 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


had  beea  the  intention  to  have  also  re- 
pealed the  Test  Act ;  but  the  disunion  then 
prevailing  among  the  Whigs  had  caused  so 
formidable  an  opposition  even  to  the  former 
measures,  that  it  was  found  necessary  to 
abandon  that  project.  Walpole,  more  cau- 
tious and  moderate  than  the  ministry  of 
1719,  perceived  the  advantage  of  reconciling 
the  Church  as  far  as  possible  to  the  royal 
family  and  to  his  own  government ;  and  it 
seems  to  have  been  an  article  in  the  tacit 
compromise  with  the  bishops,  who  were 
not  backward  in  exerting  their  influence  for 
the  crown,  that  he  should  make  no  attempt 
to  abrogate  the  laws  which  gave  a  monopoly 
of  power  to  the  Anglican  community.  We 
may  presume,  also,  that  the  prelates  under- 
took not  to  obstruct  the  acts  of  indemnity 
passed  from  time  to  time  in  favor  of  those 
who  had  not  duly  qualified  themselves  for 
the  offices  they  held  ;  and  which,  after  some 
time  becoming  regular,  have  in  effect  thrown 
open  the  gates  to  Protestant  Dissenters, 
though  still  subject  to  be  closed  by  either 
house  of  Parliament,  if  any  jealousies  should 
induce  them  to  refuse  their  assent  to  this 
annual  enactment.* 

Meanwhile,  the  principles  of  religious  lib- 
Principles  of  erty,  in  all  senses  of  the  word, 
faiireuab-  g^'^ed  Strength  by  this  eager 
lished.  controversy,  naturally  pleasing  as 
they  are  to  the  proud  independence  of  the 
English  character,  and  congenial  to  those 
of  civil  freedom,  which  both  parties,  Tory 
as  much  as  Whig,  had  now  learned  sedu- 
lously to  maintain.  The  non-juring  and 
High-Church  factions  among  the  clergy 
produced  few  eminent  men;  and  lost  cred- 
it, not  more  by  the  folly  of  their  notions 
than  by  their  general  want  of  scholarship 
and  disregard  of  their  duties.  The  Uni- 
versity of  Oxford  was  tainted  to  the  core 
with  Jacobite  prejudices ;  but  it  must  be 

*  The  first  act  of  this  kind  appears  to  have  been 
in  1727. — 1  Geo.  II.,  c.  23.  It  was  repeated  next 
year,  intermitted  the  next,  and  afterward  renewed 
in  every  year  of  that  reign  except  the  fifth,  the 
seventeenth,  the  twenty-second,  the  twenty-third, 
the  twenty-sixth,  and  the  thirtieth.  Whether 
these  occasional  interruptions  were  intended  to 
prevent  the  Non-conformists  from  relying  upon  it, 
or  were  caused  by  some  accidental  circumstance, 
must  be  left  to  conjecture.  I  believe  that  the  re- 
newal has  been  regular  every  year  since  the  ac- 
cession of  George  III.  It  is  to  be  remembered 
that  the  present  work  was  first  published  before 
the  repeal  of  the  Test  Act  in  1828. 


added  that  it  never  stood  so  low  in  respect- 
ability as  a  place  of  education.*  The  gov- 
ernment, on  the  other  hand,  was  studious 
to  promote  distinguished  men :  and  doubt- 
less the  hierarchy  in  the  first  sixty  years 
of  the  eighteenth  century  might  very  ad- 
vantageously be  compared,  in  point  of  con- 
spicuous ability,  with  that  of  an  equal  peri- 
od that  ensued.  The  maxims  of  persecu- 
tion were  silently  abandoned,  as  well  as  its 
practice  ;  Warburton,  and  others  of  less 
name,  taught  those  of  toleration  with  as 
much  boldness  as  Hoadley,  but  without  some 
of  his  more  invidious  tenets ;  the  more  pop- 
ular writers  took  a  liberal  tone  ;  the  names 
of  Locke  and  Montesquieu  acquired  im- 
mense authority  ;  the  courts  of  justice  dis- 
countenanced any  endeavor  to  revive  op- 
pressive statutes ;  and,  not  long  after  the 
end  of  George  the  Second's  reign,  it  was 
adjudged  in  the  House  of  Lords,  upon  the 
broadest  principles  of  toleration  laid  down 
by  Lord  Mansfield,  that  non-conformity 
with  the  Established  Church  is  recognized 
by  the  law,  and  not  an  offense  at  w^hich  it 
connives. 

*  We  find  in  Gutch's  Collectanea  Curiosa,  vol. 
i.,  p.  53,  a  plan  ascribed  to  Lord-chancellor  Mac- 
clesfield, for  taking  away  the  election  of  heads  of 
colleges  from  the  fellows,  and  vesting  the  nomina- 
tion in  the  great  officers  of  state,  in  order  to  cure 
the  disafiection  and  want  of  discipline  which  was 
justly  complained  of  This  remedy  would  have 
been,  perhaps,  the  substitution  of  a  permanent  for 
a  temporary  evil.  It  appears,  also,  that  Archbish- 
op Wake  wanted  to  have  had  a  bill,  in  1716,  for 
asserting  the  royal  supremacy,  and  better  regula- 
ting the  clergy  of  the  two  universities  (Coxe's 
Walpole,  ii.,  122) ;  but  I  do  not  know  that  the  pre- 
cise nature  of  this  is  any  where  mentioned.  I  can 
scarcely  quote  Amherst's  Terrae  Filius  as  authori- 
ty ;  it  is  a  very  clever,  though  rather  libelous,  in- 
vective against  the  University  of  Oxford  at  that 
time ;  but  from  internal  evidence,  as  well  as  the 
confirmation  which  better  authorities  afibrd  it,  I 
have  no  doubt  that  it  contains  much  truth. 

Those  who  have  looked  much  at  the  ephemeral 
literature  of  these  two  reigns  must  be  aware  of 
many  publicarions  fixing  the  charge  of  prevalent 
disaffection  on  this  University  down  to  the  death 
of  George  II. ;  and  Dr.  King,  the  famous  Jacobite 
master  of  St.  Mary  Hall,  admits  that  some  were 
left  to  reproach  him  for  apostasy  in  going  to  court 
on  the  accession  of  the  late  king  in  1760.  The 
general  reader  will  remember  the  Isis,  by  Mason, 
and  the  triumph  of  Isis,  by  Warton  ;  the  one  a  se- 
vere invective,  the  other  an  indignant  vindication ; 
but  in  this  instance,  notwithstanding  the  advanta- 
ges which  satire  is  supposed  to  have  over  pane- 
gyric, we  must  award  the  laurel  to  the  worst  cause, 
and,  what  ia  more  extraordinary,  to  the  worse  poet. 


Amke,  Geo.  I.,  Gko.  IL]       FEOM  HENRY  VII.  TO  GEORGE  II. 


629 


Atterbury,  bishop  of  Rochester,  the  most 
lianishment  distinguished  of  the  party  denom- 
of  Atterbury.  jnated  High-Church,  became  the 
victim  of  his  restless  character  and  implaca- 
ble disafiection  to  the  house  of  Hanover. 
The  pretended  king,  for  some  years  after 
his  competitor's  accession,  had  fair  hopes 
from  different  powers  of  Europe — France, 
Sweden,  Russia,  Spain,  Austria — (each  of 
whom,  in  its  turn,  was  ready  to  make  use 
of  this  instrument),  and  from  the  powerful 
faction  who  panted  for  his  restoration. 
This  was,  unquestionably,  very  numerous, 
though  we  have  not,  as  yet,  the  means  of 
fixing  with  certainty  on  more  than  compar- 
atively^ a  small  number  of  names.  But  a 
conspiracy  for  an  invasion  from  Spain  and  a 
simultaneous  rising  was  detected  in  1722, 
which  imphcated  three  or  four  peers,  and 
among  them  the  Bishop  of  Rochester.* 
The  evidence,  however,  though  tolerably 
convincing,  being  insufficient  for  a  verdict  at 
law,  it  was  thought  expedient  to  pass  a  bill 
of  pains  and  penalties  against  this  prelate, 
as  well  as  others  against  two  of  his  accom- 
plices. The  proof,  besides  many  corrobo- 
rating circumstances,  consisted  in  three  let- 
ters relative  to  the  conspiracy,  supposed  to 
be  written  by  his  secretary  Kelly,  and  ap- 
pearing to  be  dictated  by  the  bishop.  He 
was  deprived  of  his  see,  and  banished  the 
kingdom  for  hfe.f    This  met  with  strong 


*  Layer,  who  suffered  on  account  of  this  plot, 
had  accused  several  peers,  among  others  Lord 
Cowper,  who  complained  to  the  House  of  the  pub- 
lication of  his  name  ;  and,  indeed,  though  he  was 
at  that  time  strongly  in  opposition  to  the  court,  the 
charge  seems  wholly  incredible.  Lord  Strafford, 
however,  was  probably  guilty ;  Lords  North  and 
Orrery  certainly  so. — Pari.  Hist.,  viii.,  203.  There 
is  even  ground  to  suspect  that  Sunderland,  to  use 
Tindal's  words,  "  in  the  latter  part  of  his  life,  had 
entered  into  correspondences  and  designs  which 
would  have  been  fatal  to  himself  or  to  the  public." 
— P.  657.  This  is  mentioned  by  Coxe,  i.,  16.5,  and 
certainly  confirmed  by  Lockhart,  ii.,  68,  70.  But 
the  reader  will  hardly  give  credit  to  such  a  story 
as  Horace  Walpole  has  told,  that  he  coolly  con- 
salted  Sir  Robert,  his  pohtical  rival,  as  to  the  part 
they  should  take  on  the  king's  death. — Lord  Ox- 
ford's Works,  iv.,  287. 

t  State  Trials,  xvi.,  324.  Pari.  Hist.,  viii.,  195, 
et  post.  Most  of  the  bishops  voted  against  their 
restless  brother;  and  Willis,  bishop  of  Salisbury, 
made  a  very  good  but  rather  too  acrimonious  a 
speech  on  the  bill. — Id.,  298.  Hoadley,  who  was 
no  orator,  published  two  letters  in  the  newspaper, 
«igned  Britannicus,  in  answer  to  Atterbury's  de- 
fense ;  which,  after  all  that  had  passed,  he  might 


opposition,  not  limited  to  the  enemies  of 
the  royal  family,  and  is  open  to  the  same 
objection  as  the  attainder  of  Sir  John  Fen- 
wick  ;  the  danger  of  setting  aside  those  pre- 
cious securities  against  a  wicked  government 
which  the  liiw  of  treason  has  furnished. 
As  a  vigorous  assertion  of  the  state's  au- 
thority over  the  Church,  we  may  commend 
the  policy  of  Atterbury's  deprivation;  but 
perhaps  this  was  ill  purchased  by  a  mis- 
chievous precedent.  It  is,  however,  the 
last  act  of  a  violent  nature  in  any  important 
matter  which  can  be  charged  against  the 
English  Legislature. 

No  extensive  conspiracy  of  the  Jacobite 
faction  seems  ever  to  have  been  Decline  of 
in  agitation  after  the  fall  of  At-  Jacob'te'- 
terbury.  The  Pfetender  had  his  emissa- 
ries perpetually  alert ;  and  it  is  understood 
that  an  enormous  mass  of  letters  from  his 
English  friends  is  in  existence;*  but  very 
few  had  the  courage,  or  rather  folly,  to 
plunge  into  so  desperate  a  course  as  rebell- 
ion. Walpole's  prudent  and  vigilant  admin- 
istration, without  transgressing  the  bounda- 
ries of  that  free  Constitution  for  which  alone 
the  house  of  Brunswick  had  been  preferred, 
kept  in  check  the  disaffected.  He  wisely 
sought  the  friendship  of  Cardinal  Fleury, 
aware  that  no  other  power  in  Europe  than 
France  could  effectually  assist  the  banished 
family.  After  his  own  fall  and  the  death 
of  Fleuiy,  new  combinations  of  foreign  pol- 
icy arose ;  his  successors  returned  to  the 
Austrian  connection ;  a  war  with  France 


better  have  spared.  Atterbury's  own  speech  is 
certainly  below  his  fame,  especially  the  perora- 
tion.—Id.,  267. 

No  one,  I  presume,  will  affect  to  doubt  the  real- 
ity of  Atterbury's  connections  with  the  Stuart  fam- 
il3',  either  before  his  attainder  or  during  his  exile. 
The  proofs  of  the  latter  were  published  by  Lord 
Hailes  in  1768,  and  may  be  found,  also,  in  Nicholls's 
edition  of  Atterbury's  Correspondence,  i.,  148.  Ad- 
ditional evidence  is  furnished  by  the  Lockhart  Pa- 
pers, vol.  ii.,  passim. 

*  The  Stuart  papers  obtained  lately  from  Rome, 
and  now  in  his  majesty's  possession,  are  said  to 
furnish  copious  evidence  of  the  Jacobite  intrigues, 
and  to  affect  some  persons  not  hitherto  suspected. 
We  have  reason  to  hope  that  they  will  not  be  long 
withheld  from  the  public,  every  motive  for  conceal- 
ment being  wholly  at  an  end.— 1827.  Lord  Mahon 
has  communicated  some  information  from  these 
papers,  in  his  history  of  England  ;  but  the  number 
of  persons  engaged  in  connection  with  the  Pre- 
tender is  rather  less  than  had  been  expected. — 1841 . 

It  is  said  that  there  were  not  less  than  fifty 
Jacobites  in  the  Parliament  of  1728. — Coxe,  ii.,  294. 


630 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


broke  out ;  the  grandson  of  James  II.  be- 
came master,  for  a  moment,  of  Scotland, 
and  even  advanced  to  the  center  of  this 
peaceful  and  unprotected  kingdom.  But 
this  was  hardly  more  ignominious  to  the 
government  than  to  the  Jacobites  them- 
selves ;  none  of  them  joined  the  standard 
of  their  pretended  sovereign  ;  and  the  re- 
bellion of  1745  was  conclusive,  by  its  own 
temporary  success,  against  the  possibility 
of  his  restoration.*  From  this  time  the 
government,  even  when  in  search  of  pre- 
texts for  alarm,  could  hardly  affect  to  dread 
a  name  grown  so  contemptible  as  that  of 
the  Stuart  party.  It  survived,  however,  for 
the  rest  of  the  reign  of  George  II.  in  those 
magnanimous  compotations  which  had  al- 
waj's  been  the  best  evidence  of  its  courage 
and  fidelity. 

Though  the  Jacobite  paity  had  set  before 
Prejudices  its  eyes  an  object  most  danger- 
«,g'mng''^  ous  to  the  public  tranquillity,  and 
family.  which,  could  it  have  been  attain- 
ed,, would  have  brought  on  again  the  con- 

*  The  Tories,  it  is  observed  in  the  MS.  journal 
of  Mr.  Yorke  (second  Earl  of  Hardwicke),  showed 
no  sign  of  affection  to  the  government  at  the  time 
when  the  invasion  was  expected  in  1743,  but 
treated  it  all  with  indifference. — Pari.  Hist.,  xiii., 
6G8.  In  fact,  a  disgracefal  apathy  pervaded  the 
nation  ;  and,  according  to  a  letter  from  Mr.  Fox  to 
Mr.  Wiunington  in  1745,  which  I  only  quote  from 
recollection,  it  seemed  perfectly  uncertain,  from 
this  general  passiveness,  whether  the  Revolution 
might  not  be  suddenly  brought  about.  Yet  very 
few  comparatively,  I  am  persuaded,  bad  the  slight- 
est attachment  or  prejudice  in  favor  of  the  house 
of  Stuart ;  bat  the  continual  absence  from  England, 
and  the  Hanoverian  predilections  of  the  two 
Georges,  the  feebleness  and  factiousness  of  their 
administration,  and  of  public  men  in  general,  and 
an  indefinite  opinion  of  misgovemment,  raised 
through  the  press,  though  certainly  without  op- 
pression or  aibitrary  acts,  had  gradually  alienated 
the  mass  of  the  nation.  But  this  would  not  lead 
men  to  expose  their  lives  and  fortunes  :  and  hence 
the  people  of  England,  a  thing  almost  incredible, 
lay  quiet  and  nearly  unconcerned,  while  the  httle 
arm}'  of  HigUanders  came  every  day  nearer  to  the 
capital.  It  is  absurd,  however,  to  suppose  that 
they  could  have  been  really  successful  by  march- 
ing onward,  though  their  defeat  might  have  been 
more  glorious  at  Finchley  than  at  CuUoden.— 1827. 
I  should  not  have  used,  of  course,  the  word  absurd, 
if  Lord  Mahon's  History  had  been  published,  in 
which  that  acute  and  impartial  writer  inclines  to 
the  opinion  of  Charles  Edward's  probable  success. 
I  am  still,  however,  persuaded  that  either  the  Duke 
of  Cumberland  must  have  overtaken  him  before  he 
reached  London,  or  that  his  small  army  would  have 
been  beaten  by  the  king. — 1842. 


tention  of  the  seventeenth  century ;  though, 
in  taking  oaths  to  a  government  against 
which  they  were  in  conspiracy,  they  show- 
ed a  systematic  disregard  of  obligation,  and 
were  as  little  mindful  of  allegiance,  in  the 
years  171.5  and  174.5,  to  the  prince  they 
owned  in  their  hearts  as  they  had  been  to 
him  whom  they  had  professed  to  acknowl- 
edge, it  ought  to  be  admitted  that  they  were 
rendered  more  numerous  and  formidable 
than  was  necessary  by  the  faults  of  the 
reigning  kings  or  of  their  ministers.  They 
were  not  latterly  actuated,  for  the  most  part 
(perhaps  with  veiy  few  exceptions),  by  the 
slavish  principles  of  indefeasible  right,  much 
less  by  those  of  despotic  power.*  They 
had  been  so  long  in  opposition  to  the  court, 
they  had  so  often  spoken  the  language  of 
liberty,  that  we  may  justly  believe  them  to 
have  been  its  friends.  It  was  the  jeaioosyof 
policy  of  Walpole  to  keep  alive  the  '^'^ 
strongest  prejudice  in  the  mind  of  George 
II.,  obstinately  retentive  of  prejudice,  as 
such  narrow  and  passionate  minds  always 
are,  against  the  whole  body  of  the  Tories. 
They  were  ill  received  at  court,  and  gener- 
ally excluded,  not  only  from  those  depart- 


*  [Even  in  1715  this  was  not  the  case  with  the 
Jacobite  aristocracy.  "  When  you  were  first  driv- 
en into  this  interest,"  says  Bolingbroke  to  Sir  W. 
Wyndham,  "  I  may  appeal  to  you  for  the  notion 
which  the  party  had.  You  thought  of  restoring 
him  by  the  strength  of  the  Tories,  and  of  opposing 
j  a  Tory  king  to  a  Whig  king.  You  took  him  up  as 
I  the  instrument  of  your  revenge  and  of  yoar  ambi- 
tion. You  looked  on  him  as  yoar  creature,  and 
never  once  doubted  of  making  what  terms  you 
pleased  with  liira.  This  is  so  true  that  the  same 
language  is  still  held  to  the  catechumens  in  Jaco- 
bitism.  Were  the  contrary  to  be  avowed  even 
now,  the  party  in  England  would  soon  disunite. 
Instead  of  making  the  Pretender  their  tool,  tbey 
are  his.  Instead  of  having  in  view  to  restore  him 
on  their  own  terms,  they  are  laboring  to  do  it  with- 
out any  terms  ;  that  is,  to  speak  properly,  they  are 
ready  to  receive  him  on  his,"  &c.  This  was  writ- 
ten in  1717,  and  seems  to  indicate  that  the  real 
Jacobite  spirit  of  hereditarj-  right  was  verj'  strong 
among  the  people ;  and  this  continued  through  the 
reign  of  George  I.,  as  I  should  infer  from  the  press. 
But  Bolingbroke  himself  had  great  influence  in 
subduing  it  afterward,  and,  though  of  course  not 
obliterated,  we  trace  it  less  and  less  down  to  the 
extinction  of  the  Jacobite  party  in  the  last  years 
of  George  II.  Leslie's  writings  would  have  been 
received  with  scoi-n  by  the  young  Jacobites  of 
1750.  Church  mobs  were  frequent  in  1715;  but 
we  scarcely.  I  think,  find  much  of  them  afterward. 
In  London  and  the  chief  towns,  the  populace  were 
chiefly  Whig.— 1845.] 


Anne,  Gbo.  I.,  Geo.  II  ]       FROM  HENRY  VII.  TO  GEORGE  II. 


631 


ments  of  office  which  the  dominant  party 
have  a  right  to  keep  in  their  power,  but 
from  the  commission  of  the  peace,  and  ev- 
ery other  subordinate  trust.*  This  illiber- 
al and  selfish  course  retained  many,  no 
doubt,  in  the  Pretender's  camp,  who  must 
have  perceived  both  the  improbability  of  his 
restoration,  and  the  difficulty  of  reconciling 
it  with  the  safety  of  our  Constitution.  He 
was,  indeed,  as  well  as  his  son,  far  less  wor- 
thy of  respect  than  the  cotemporary  Bruns- 
wick kings  :  without  absolutely  wanting  ca- 
pacity or  courage,  he  gave  the  most  unde- 
niable evidence  of  his  legitimacy  by  con- 
stantly resisting  the  counsels  of  wise  men, 
and  yielding  to  those  of  priests  ;f  while  his 
son,  the  fugitive  of  Culloden,  despised  and 
deserted  by  his  own  part3%  insulted  by  the 
court  of  France,  lost  with  the  advance  of 
years  even  the  respect  and  compassion 
which  wait  on  unceasing  misfortune,  the 
last  sad  inheritance  of  the  house  of  Stuart.J 

*  See  Pari.  Hist.,  xiii.,  1244  ;  and  other  proofs 
might  be  brought  from  the  same  work,  as  well  as 
from  miscellaneous  authorities  of  the  age  of 
George  II. 

t  [Bolingbroke's  character  of  James  is  not  whol- 
ly to  be  trusted.  "  He  is  naturally  inclined  to  be- 
lieve the  worst,  which  I  take  to  be  a  certain  mark 
of  a  mean  spirit  and  a  wicked  soul ;  at  least  I  am 
8ure  that  the  contrary  quality,  when  it  is  not  due 
to  weakness  of  understanding,  is  the  fruit  of  a  gen- 
erous temper  and  an  honest  heart.  Prone  to  judge 
ill  of  all  mankind,  he  will  rarely  be  seduced  by  his 
credulity ;  but  I  never  knew  a  man  so  capable  of 
being  the  babble  of  his  distrust  and  jealousy." — 
Letter  to  Sir  W.  Wyndham.  Thus  Bolingbroke, 
ander  the  sting  of  his  impetuous  passions,  threw 
away  the  scabbard  when  he  quarreled  with  the 
house  of  Stuart,  as  he  had  done  with  the  Whigs 
at  home.  But  James  was  not  a  man  altogether 
without  capacity  :  his  private  letters  are  well  and 
sensibly  written.  Like  his  father,  he  had  a  nar- 
row and  obstinate,  but  not  a  weak,  understanding. 
His  son,  Charles  Edward,  appears  to  me  inferior 
to  him  in  this  respect,  as  well  as  in  his  moral  prin- 
ciple.—1845.] 

t  See  in  the  Lockhart  Papers,  ii.,  565,  a  curious 
relation  of  Charles  Edward's  behavior  in  refusing 
to  quit  France  after  the  peace  of  Aix  la  Chapelle. 
It  was  so  insolent  and  absurd  that  the  government 
was  provoked  to  aiTest  him  at  the  opera,  and  lit- 
erally to  order  him  to  be  bound  hand  and  foot ;  an 
outrage  which  even  his  preposterous  conduct  could 
hardly  excuse. 

Dr.  King  was  in  correspondence  with  this  prince 
for  some  years  after  the  latter's  foolish,  though 
courageous  visit  to  London  in  September,  1750, 
which  he  left  again  in  five  days,  on  finding  him- 
self deceived  by  some  sanguine  friends.  King 
«ays  be  was  wholly  ignorant  of  our  history  and 


But  they  were  little  known  in  England,  and 
from  unknown  princes  men  are  prone  to 

Constitution.  "I  never  heard  him  express  any 
noble  or  benevolent  sentiment,  the  certain  indica- 
tions of  a  great  soul  and  good  heart,  or  discover 
any  sorrow  or  compassion  for  the  misfortune  of  so 
many  worthy  men  who  had  suffered  in  his  cause." 
—Anecdotes  of  his  own  Times,  p.  201.  He  goes 
on  to  charge  him  with  love  of  money  and  other 
faults  ;  but  his  great  folly  in  keeping  a  mistress, 
Mrs.  W alkinshaw,  whose  sister  was  housekeeper 
atLeicester  House, alarmed  the  Jacobites.  "These 
were  all  men  of  fortune  and  distinction,  and  many 
of  them  persons  of  the  first  quality,  who  attached 
themselves  to  the  Pretender  as  to  a  person  who 
they  imagined  might  be  made  the  instrament  of 
saving  tlieir  country.  They  were  sensible  that  by 
Walpole's  administration  the  English  government 
was  become  a  system  of  corraption  ;  and  that  Wal- 
pole's successors,  who  pursued  his  plan  without 
any  of  his  abilities,  had  reduced  us  to  such  a  de- 
plorable situation  that  our  commercial  interest  was 
sinking,  our  colonies  in  danger  of  being  lost,  and 
Great  Britain,  which,  if  her  powers  were  properly 
exerted,  as  they  were  afterward  in  Mr.  Pitt's  ad- 
ministiation,  was  able  to  give  laws  to  other  na- 
tions, was  become  the  contempt  of  all  Europe." — • 
P.  208.  This  is,  in  truth,  the  secret  of  the  contin- 
uance of  Jacobitism.  But  possibly  that  party  were 
not  sony  to  find  a  pretext  for  breaking  off  so  hope- 
less a  connection,  which  they  seem  to  have  done 
about  1753.  Mr.  Pitt's  great  successes  reconciled 
them  to  the  administi-ntion,  and  his  liberal  conduct 
brought  back  those  who  had  been  disgusted  by  an 
exclusive  policy.  On  the  accession  of  a  new  king 
they  flocked  to  St.  James's,  and  probably  scarcely 
one  person  of  the  rank  of  a  gentleman  south  of  the 
Tweed  was  found  to  dispute  the  right  of  the  house 
of  Brunswick  after  17C0.  Dr.  King  himself,  it  may 
be  obsei-ved,  laughs  at  the  old  passive  obedience 
doctrine  (page  193)  ;  so  far  was  he  from  being  a 
Jacobite  of  that  school. 

A  few  non-juring  congregations  lingered  on  far 
into  the  reign  of  George  HI.,  presided  over  by  the 
successors  of  some  bishops  whom  Lloyd  of  Nor- 
wich, the  last  of  those  deprived  at  the  Revolution, 
had  consecrated  in  order  to  keep  up  the  schism. 
A  list  of  these  is  given  in  D'03'ly's  Life  of  San- 
croft,  vol.  ii.,  p.  34,  whence  it  would  appear  that 
the  last  of  them  died  in  1779.  I  can  trace  the  line 
a  little  further:  a  bishop  of  that  separation,  named 
Cartwright,  resided  at  Shrewsbury  in  1793,  carry- 
ing on  the  business  of  a  surgeon. — State  Trials, 
xxiii.,  1073.  I  have  heard  of  similar  congregations 
in  the  west  of  England  still  later.  He  had,  how- 
ever, become  a  very  loyal  subject  to  King  George  : 
a  singular  proof  of  that  tenacity  of  life  by  which 
religious  sects,  after  dwindling  down  through  neg- 
lect, excel  frogs  and  tortoises  ;  and  that  even  when 
they  have  become  almost  equally  cold-blooded  !  [A 
late  publication,  Lathbury's  History  of  the  Non-ju- 
rors, gives  several  names  of  non-juring  bishops, 
down  to  the  close  of  the  century,  though  it  does 
not  absolutely  follow  that  all  who  frequented  their 
congregations  would  have  refused  the  Oath  of  Al- 


632 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  XVL 


hope  much :  if  some  could  anticipate  a  re- 
dress of  every  evil  from  Frederic,  prince 
of  Wales,  whom  they  might  discover  to  be 
destitute  of  respectable  qualities,  it  can  not 
be  wondered  at  that  others  might  draw 
equally  flattering  prognostics  from  the  ac- 
cession of  Charles  Edward.  It  is  almost 
certain  that,  if  either  the  claimant  or  his 
son  had  embraced  the  Protestant  religion, 
and  had  also  manifested  any  superior 
strength  of  mind,  the  German  prejudices 
of  the  reigning  family  would  have  cost  them 
the  throne,  as  they  did  the  people's  affec- 
tions. Jacobitism,  in  the  great  majority, 
was  one  modification  of  the  spirit  of  liberty 
burning  strongly  in  the  nation  at  this  peri- 
od. It  gave  a  rallying-point  to  that  indef- 
inite discontent,  which  is  excited  by  an  ill 
opinion  of  rulers,  and  to  that  disinterested, 
though  ignorant  patriotism  which  boils  up 
in  youthful  minds.  The  government  in 
possession  was  hated,  not  as  usurped,  but 
as  corrupt ;  the  banished  line  was  demand- 
ed, not  so  much  because  it  was  legitimate, 
but  because  it  was  the  fancied  means  of  re- 
dressing grievances  and  regenerating  the 
Constitution.  Such  notions  were  doubtless 
absurd;  but  it  is  undeniable  that  they  were 
common,  and  had  been  so  almost  from  the 
Revolution.  I  speak  only,  it  will  be  ob- 
served, of  the  English  Jacobites ;  in  Scot- 
land the  sentiments  of  loyalty  and  national 
pride  had  a  vital  energy,  and  the  Highland 
chieftains  gave  their  blood,  as  freely  as  their 
southern  allies  did  their  wine,  for  the  cause 
of  their  ancient  kings.* 

legiance.  Of  such  strict  Jacobites,  there  were,  as 
I  have  said,  but  few  left  south  of  the  Tweed  after 
the  accession  of  George  III.  Still  some  there  may 
have  been,  UDluiown  by  name,  in  the  middling 
ranks  ;  and  Mr.  Lathbury  has  quoted  Jacobite 
pamphlets  as  late  as  1759,  and  probably  the  au- 
thors of  these  did  not  renounce  their  opinions  in 
the  next  year.  One  or  two  writers  in  this  strain 
have  met  my  observation  rather  later.  The  last  is 
in  1774,  when  an  absurd  letter  against  the  Revo- 
lution having  been  inadvertently  admitted  into  the 
Morning  Chronicle  and  Public  Advertiser,  Mr.  Fox, 
with  less  good  nature  than  belonged  to  him,  in- 
duced the  House  of  Commons  to  direct  a  prosecu- 
tion of  the  printers  by  the  attorney-general ;  and 
they  were  sentenced  to  three  months'  imprison- 
ment.— Pari.  Hist.,  xvii.,  1054.  Armual  Register, 
1774,  p.  164.— 1845.] 

*  [Lord  Mahon  printed  in  1842,  but  only  for  the 
Roxburghe  Club,  some  extracts  from  dispatches 
(in  the  State  Paper  Office)  of  the  British  envoy  at 
Florence,  containing  information,  from  time  to  time. 


No  one  can  have  looked  in  the  most  cur- 
sory manner  at  the  political  writings  of  these 
two  reigns,  or  at  the  debates  of  Parliament, 
without  being  struck  by  the  continual  pre- 
dictions that  our  liberties  were  on  the  point 
of  extinguishment,  or  at  least  by  apprehen- 
sions of  their  being  endangered.  It  might 
seem  that  little  or  nothing  had  been  gained 
by  the  Revolution,  and  by  the  substitution 
of  an  elective  dynasty.  This,  doubtless,  it 
was  the  interest  of  the  Stuart  party  to  main- 
tain or  insinuate  ;  and  in  the  conflict  of  fac- 
tions, those  who,  with  far  opposite  views, 
had  separated  from  the  court,  seemed  to 
lend  them  aid.  The  declamatory  exagger- 
ations of  that  able  and  ambitious  body  of  men 
who  co-operated  against  the  ministry  of  Sir 
Robert  Walpole  have  long  been  rejected; 
and  perhaps,  in  the  usual  reflux  of  popular 
opinion,  his  domestic  administration  (for  in 
foreign  policy  his  views,  so  far  as  he  was 
permitted  to  act  upon  them,  appear  to  have 
been  uniformly  judicious)  has  obtained  of 
late  rather  an  undue  degree  of  favor.  I 
have  already  observed  that,  for  the  sake  of 
his  own  ascendency  in  the  cabinet,  he  kept 
up  unnecessarily  the  distinctions  of  the 
Whig  and  Tory  parties,  and  thus  impaired 
the  stability  of  the  royal  house,  which  it  was 
his  chief  care  to  support ;  and,  though  his 
government  was  so  far  from  any  thing  op- 
pressive or  arbitrary  that,  considered  either 
relatively  to  any  former  times,  or  to  the  ex- 
tensive disaffection  known  to  subsist,  it  was 


as  to  the  motions  and  behavior  of  Charles  Edward. 
Were  it  not  for  the  difficulty  under  which  our  min- 
ister at  that  court  must  generally  labor  to  iind  any 
materials  for  a  letter  to  tlie  secretary  of  state,  we 
might  feel  some  wonder  at  the  gravity  with  which 
Sir  Horace  Mann  seems  to  treat  the  table-talk  and 
occasional  journeys  of  the  poor  old  exile,  even 
down  to  1786.  It  may  be  said  that  his  excessive 
folly  might  render  him  capable  of  any  enterprise, 
however  extravagant,  as  long  as  he  had  bodily 
strength  left ;  and  that  he  is  supposed  to  have  kept 
up  some  connection  with  the  Irish  priesthood  to 
the  end  of  his  life,  so  as  to  recommend  bishops  to 
the  court  of  Rome.  But  though  Sir  Horace  Mann, 
in  a  letter  of  the  date  Nov.  11, 1783,  is  "  every  day 
more  convinced  that  something  of  importance  is 
carrying  on  between  the  court  of  France  and  the 
Pretender,  and  has  reason  to  suspect  that  the  lat- 
ter either  has  a  connection  with  the  King  of  Swe- 
den, or  is  endeavoring  to  gain  his  friendship,"  he 
soon  after  discovers  that  this  important  matter  wa« 
only  an  application  to  France  for  a  pension,  which 
Gustavus  III.,  then  in  Italy,  would,  out  of  compas- 
sion, have  been  glad  to  promote. — 1845.] 


AXNE,  Geo.  I.,  Geo.  II.]       FROM  HENRY  VII.  TO  GEORGE  11. 


633 


uncommonly  moderate ;  yet,  feeling  or  feign- 
ing alarm  at  the  Jacobite  intrigues  on  the 
one  hand,  at  the  democratic  tone  of  public 
sentiment  and  of  popular  writings  on  tlie 
other,  he  labored  to  preserve  a  more  narrow 
and  oligarchical  spirit  than  was  congenial  to 
so  great  and  brave  a  people,  and  trusted  not 
enough,  as  indeed  is  the  general  fault  of 
ministers,  to  tlie  sway  of  good  sense  and 
honesty  over  disinterested  minds ;  but,  as 
he  never  had  a  complete  influence  over  his 
master,  and  knew  that  those  who  opposed 
him  had  little  else  in  view  than  to  seize  the 
reigns  of  power  and  manage  them  worse, 
his  deviations  from  the  straight  course  are 
more  pardonable. 

The  clamorous  invectives  of  this  opposi- 
tion, combined  with  the  subsequent  derelic- 
tion of  avowed  principles  by  many  among 
them  when  in  power,  contributed  more  than 
any  thing  else  in  our  history  to  cast  obloquy 
and  suspicion,  or  even  ridicule,  on  the  name 
and  occupation  of  patriots.  Men  of  sordid 
and  venal  characters  always  rejoice  to  gen- 
eralize so  convenient  a  maxim  as  the  non- 
existence of  public  virtue.  It  may  not,  how- 
ever, be  improbable,  that  many  of  those  who 
took  a  part  in  this  long  contention  were  less 
insincere  than  it  has  been  the  fashion  to 
believe,  though  led  too  far  at  the  moment 
by  their  own  passions,  as  well  as  by  the  ne- 
cessity of  coloring  highly  a  pictiire  meant 
for  the  multitude,  and  reduced  afterward 
to  the  usual  compromises  and  concessions, 
without  which  power  in  this  country  is  ever 
unattainable  ;  but,  waving  a  topic  too  gener- 
ally historical  for  the  present  chapter,  it 
will  be  worth  while  to  consider  what  sort  of 
ground  there  might  be  for  some  prevalent 
subjects  of  declamation,  and  whether  the 
power  of  government  had  not,  in  several 
respects,  been  a  good  deal  enhanced  since 
the  beginning  of  the  century.  By  the  power 
of  government  I  mean  not  so  much  the  per- 
sonal authority  of  the  sovereign  as  that  of 
his  ministers,  acting,  perhaps,  without  his 
directions ;  which,  since  the  reign  of  Will- 
iam, is  to  be  distinguished,  if  we  look  at  it 
analytically,  from  the  monarchy  itself. 

I.  The  most  striking  acquisition  of  power 
Chani^cs  in  cown  in  the  new  model 

the  Constitu-  of  government,  if  I  may  use  such 

tion  whfre'in  .       .  , 

it  was  fouud-  an  expression,  is  the  permanence 
of  a  regular  military  force.  The 
reader  can  not  need  to  be  reminded  that  no 


army  existed  before  the  civil  war;  that  the 
guards  in  the  reign  of  Charles  II.  were 
about  5000  men  ;  that  in  the  breathing-time 
between  the  peace  of  Ryswick  and  the  war 
of  the  Spanish  succession,  the  Commons 
could  not  be  brought  to  keep  up  more  than 
7000  troops.  Nothing  could  be  more  re- 
pugnant to  the  national  prejudices  than  a 
standing  army.  The  Tories,  partly  from 
regard  to  the  ancient  usage  of  the  Constitu- 
tion, partly,  no  doubt,  from  a  factious  or  dis- 
affected spirit,  were  unanimous  in  protest- 
ing against  it.  The  most  disinterested  and 
zealous  lovers  of  liberty  came  with  gi'eat 
suspicion  and  reluctance  into  what  seemed 
so  perilous  an  innovation.  But  the  court, 
after  the  accession  of  the  house  of  Hanover, 
had  many  reasons  for  insisting  upon  so  great 
an  augmentation  of  its  power  and  security. 
It  is  remarkable  to  perceive  by  what  stealthy 
advances  this  came  on.  Two  long  wars  had 
rendered  the  army  a  profession  for  men  in 
the  higher  and  middling  classes,  and  famil- 
iarized the  nation  to  their  dress  and  rank ; 
it  had  achieved  great  honor  for  itself  and 
the  English  name  ;  and  in  the  nature  of  man- 
kind the  patriotism  of  gloiy  is  too  often  an 
overmatch  for  that  of  liberty.  The  two 
kings  were  fond  of  warlike  policy,  the  sec- 
ond of  war  itself ;  their  schemes,  and  those 
of  their  ministers,  demanded  an  imposing 
attitude  in  negotiation,  which  an  army,  it 
was  thought,  could  best  give ;  the  cabinet 
was  for  many  years  entangled  in  alliances, 
shifting  sometimes  rapidly,  but  in  each  com- 
bination liable  to  produce  the  interruption 
of  peace.  In  the  new  system  which  ren- 
dered the  houses  of  Parliament  partakers 
in  the  executive  administration,  they  were 
drawn  themselves  into  the  approbation  of 
eveiy  successive  measure,  either  on  the 
propositions  of  ministers,  or,  as  often  hap- 
pens more  indirectly,  but  hardly  less  effect- 
ually, by  passing  a  negative  on  p^,„„„g„, 
those  .of  their  opponents.  The  military 
number  of  troops  for  which  a  vote 
was  annually  demanded,  after  some  varia- 
tions, in  the  first  years  of  George  I.,  was, 
during  the  whole  administration  of  Sir  Rob- 
ert Walpole,  except  when  the  state  of  Eu- 
rope excited  some  apprehension  of  disturb- 
ance, rather  more  than  17,000  men,  inde- 
pendent of  those  on  the  Irish  establishment, 
but  including  the  garrisons  of  Minorca  and 
Gibraltar ;  and  this  continued  with  little  al- 


634 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVX 


teration  to  be  our  standing  army  m  time  of 
peace  during  the  eighteenth  century. 

This  army  was  always  understood  to  be 
Apprehen-  ^^P^  on  foot,  as  it  is  stUl  express- 
Bionsfrumit.  preamble  of  every  Mu- 

tiny Bill,  for  better  preserving  the  balance 
of  power  in  Europe.  The  Commons  vrould 
not  for  an  instant  admit  that  itwas  necessary 
as  a  permanent  force,  in  order  to  maintain 
the  government  at  home.  There  can  be  no 
question,  however,  that  the  court  saw  its 
advantage  in  this  light ;  and  I  am  not  per- 
fectly sure  that  some  of  the  multiplied  ne- 
gotiations on  the  Continent  in  that  age  were 
not  intended  as  a  pretext  for  keeping  up  the 
army,  or  at  least  as  a  means  of  exciting  alarm 
for  the  security  of  the  established  govern- 
ment. In  fact,  there  would  have  been  re- 
bellions in  the  time  of  George  I.,  not  only 
in  Scotland,  which  perhaps  could  not  other- 
wise have  been  preserved,  but  in  many 
parts  of  the  kingdom,  had  the  Parliament 
adhered  with  too  pertinacious  bigotry  to 
their  ancient  maxims ;  yet  these  had  such 
influence  that  it  was  long  before  the  army 
was  admitted  by  every  one  to  be  perpetual ; 
and  I  do  not  know  that  it  has  ever  been  rec- 
ognized as  such  in  our  statutes.  Mr.  Pul- 
teney,  so  late  as  1732,  a  man  neither  disaf- 
fected nor  democratical,  and  whose  views 
extended  no  further  than  a  change  of  hands, 
declared  that  he  "  always  had  been,  and 
always  would  be,  against  a  standing  army 
of  any  kind  ;  it  was  to  him  a  terrible  thing, 
whether  under  the  denomination  of  Par- 
liamentary or  any  other.  A  standing  army 
is  still  a  standing  army,  whatever  name  it  be 
called  by ;  they  are  a  body  of  men  distinct 
from  the  body  of  the  people  ;  they  are  gov- 
erned by  different  laws ;  blind  obedience  and 
an  entire  submission  to  the  orders  of  their 
commanding  officer  is  their  only  principle. 
The  nations  around  us  are  already  enslaved, 
and  have  been  enslaved  by  those  very  means ; 
by  means  of  their  standing  armies  they  have 
eveiy  one  lost  their  liberties  ;  it  is,  indeed, 
impossible  that  the  liberties  of  the  people 
can  be  preserved  in  any  countiy  where  a 
numerous  standing  amiy  is  kept  up."* 

This  wholesome  jealousy,  though  it  did 
not  prevent  what  was,  indeed,  for  many 
reasons,  not  to  be  dispensed  with,  the  es- 
tablishment of  a  regulai'  force,  kept  it  within 
bounds  which  possibly  the  administi-ation,  if 
'  *  Pari.  Hist.,  viii.,  904. 


left  to  itself,  would  have  gladly  overleaped. 
A  clause  in  the  Mutiny  Bill,  first  inserted  in 
1718,  enabling  couits-martial  to  punish  ma- 
tiny  and  desertion  with  death,  which  bad 
hitherto  been  only  cognizable  as  capital  of- 
fenses by  the  civil  magistrate,  was  carried 
by  a  very  small  majority  in  both  houses.* 
An  act  was  passed  in  1735,  directing  that 
no  troops  should  come  within  two  miles  of 
any  place,  except  the  capital  or  a  gairisoned 
town,  during  an  election  ;f  and  on  some  oc- 
casions, both  the  Commons  and  the  courts 
of  justice  showed  that  they  had  not  forgotten 
the  maxims  of  their  ancestors  as  to  the  su- 
premacy of  the  civil  power.t  A  more  im- 
portant measure  was  projected  by  men  of 
independent  principles,  at  once  to  secure  the 
kingdom  against  attack,  invaded  as  it  had 
been  by  rebels  in  1745,  and  thrown  into  the 
most  ignominious  panic  on  the  rumors  of  a 
French  armament  in  1756,  to  take  away  the 
pretext  for  a  large  standing  force,  and  per- 
haps to  furnish  a  guarantee  against  any  evil 
purposes  to  which  in  future  times  it  might 
be  subservient,  by  the  establish-  Establishment 
ment  of  a  national  militia,  under  miiitia. 
the  sole  authority,  indeed,  of  the  crown,  but 
commanded  by  gentlemen  of  sufficient  es- 
tates, and  not  liable,  except  in  wur,  to  be 
marched  out  of  its  proper  county.  This 
favorite  plan,  with  some  reluctance  on  the 
part  of  the  government,  was  adopted  in 
1757. §  But  though,  during  the  long  pe- 
riods of  hostilities  which  have  unfortunately 
ensued,  this  embodied  force  has  doubtless 
placed  the  kingdom  in  a  more  respectable 

*  Pari.  Hist,  vii.,  536. 

t  8  Geo.  11,  c.  30.    Pari.  Hist,  viii.,  fc83. 

I  The  miUtary  having  been  called  in  to  quell  an 
alleged  riot  at  Westminster  election  in  1741,  it 
was  resolved,  Dec.  22,  "  that  the  presence  of  a 
regular  body  of  armed  soldiers  at  an  election  of 
members  to  serve  in  Parliament  is  a  high  infringe- 
ment of  the  liberties  of  the  subject,  a  manifest  vio- 
lation of  the  freedom  of  elections,  and  an  open  de- 
fiance of  the  laws  and  constitution  of  this  king- 
dom." The  persons  concerned  in  this,  having  been 
ordered  to  attend  the  House,  received  on  their 
knees  a  very  severe  reprimand  from  the  speaker. 
— Pari.  Hist.,  ix.,  326.  Upon  some  occasion,  the 
circumstances  of  which  I  do  not  recollect,  Chief- 
justice  Willes  uttered  some  laudable  sentiments 
as  to  the  subordination  of  military  power. 

§  Lord  Hardwicke  threw  out  the  Militia  Bill  in 
1756.  thinking  some  of  its  clauses  rather  too  Re- 
publican, and,  in  fact,  being  adverse  to  the  scheme. 
— Pari.  Hist.,  xv.,  704.  H.  Walpole's  Memoirs,  ii., 
45.    Coxe's  Memoirs  of  Lord  Walpole,  450. 


Anne,  Geo.  I.,  Geo.  11.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


G35 


state  of  security,  it  has  not  much  contributed 
to  diminish  the  number  of  our  regular  forces ; 
and,  from  some  defects  in  its  constitution, 
arising  out  of  too  great  attention  to  our  an- 
cient local  divisions,  and  of  too  indiscriminate 
a  dispensation  with  personal  service,  which 
has  filled  the  ranks  with  the  refuse  of  the 
community,  the  militia  has  grown  unpopular 
and  burdensome,  rather  considered  of  late 
by  the  government  as  a  means  of  recruiting 
the  army  than  as  worthy  of  preservation  in 
itself,  and  accordingly  thrown  aside  in  time 
of  peace,  so  that  the  person  who  acquired 
great  popularity  as  the  author  of  this  insti- 
tution, lived  to  see  it  worn  out  and  gone  to 
decay,  and  the  principles,  above  all,  upon 
which  he  had  brought  it  forward,  just 
enough  remembered  to  be  turned  into  ridi- 
cule. Yet  the  success  of  that  magnificent 
organization  which,  in  our  own  time,  has 
been  established  in  France,  is  sufficient  to 
evince  the  possibility  of  a  national  militia; 
and  wo  know  with  what  spirit  such  a  force 
was  kept  up  for  some  years  in  this  country, 
under  the  name  of  volunteers  and  yeoman- 
ry, on  its  only  real  basis,  that  of  property, 
and  in  such  local  distribution  as  convenience 
pointed  out. 

Nothing  could  be  more  idle,  at  any  time 
since  the  Revolution,  than  to  suppose  that 
the  regular  army  would  pull  the  speaker 
out  of  his  chair,  or  in  any  manner  be  em- 
ployed to  confirm  a  despotic  power  in  the 
crown.  Such  power,  I  think,  could  never 
have  been  the  waking  dream  of  either  king 
or  minister;  but  as  the  slightest  inroads 
upon  private  rights  and  liberties  are  to  be 
guarded  against  in  any  nation  that  deserves 
to  be  called  free,  we  should  always  keep  in 
mind  not  onl}'  that  the  military  power  is 
subordinate  to  the  civil,  but,  as  this  subor- 
dination must  cease  where  the  former  is 
frequently  employed,  that  it  should  never 
be  called  upon  in  aid  of  the  peace  without 
sufficient  cause.  Nothing  would  more  break 
down  this  notion  of  the  law's  supremacy 
than  the  perpetual  interference  of  those 
who  are  really  governed  by  another  law  ; 
for  the  doctrine  of  some  judges,  that  the 
soldier,  being  still  a  citizen,  acts  only  in 
preservation  of  the  ]mblic  peace,  as  anoth- 
er citizen  is  bound  to  do,  must  be  felt  as  a 
sophism,  even  by  those  who  can  not  find 
an  answer  to  it;  and,  even  in  slight  circum- 
8taDces,  it  is  not  conformable  to  the  prin- 


ciples of  our  government  to  make  that  vain 
display  of  military  authority  which  disgusts 
us  so  much  in  some  Continental  kingdoms. 
But,  not  to  dwell  on  this,  it  is  more  to  our 
immediate  purpose  that  the  executive  pow- 
er has  acquired  such  a  coadjutor  in  the 
regular  army,  that  it  can,  in  no  probable 
emergency,  have  much  to  apprehend  from 
popular  sedition.  The  increased  facilities 
of  transport,  and  several  improvements  in 
military  art  and  science,  which  will  occur 
to  the  reader,  have  in  later  times  greatly 
enhanced  this  advantage. 

II.  It  must  be  apparent  to  every  one 
that  since  the  Restoration,  and  especially 
since  the  Revolution,  an  immense  power 
has  been  thrown  into  the  scale  of  both 
houses  of  Parliament,  though  practically  in 
more  frequent  exercise  by  the  Lower,  in 
consequence  of  their  annual  session  during 
several  months,  and  of  their  almost  luilim- 
ited  rights  of  investigation,  discussion,  and 
advice.  But  if  the  crown  should  by  any 
means  become  secure  of  an  as-  inUuen^.a 
cendency  in  this  assembly,  it  is  ""ef  Paf- 

.  ,  ,  ,  ,         ,     ,  liameiit  by 

evident  that,  although  the  prerog-  places  and 
ative,  technically  speaking,  might  P'^"^"'"'- 
be  diminished,  the  power  might  be  the 
same,  or  even  possibly  more  efficacious ; 
and  that  this  result  must  be  proportioned 
to  the  degree  and  security  of  such  an  as- 
cendency. A  Parliament  absolutely,  and  in 
all  conceivable  circumstances,  under  the 
control  of  the  sovereign,  whether  through 
intimidation  or  comipt  subservience,  could 
not,  without  absurdity,  be  deemed  a  co- 
ordinate power,  or,  indeed,  in  any  sense,  a 
restraint  upon  his  will.  This  is,  however, 
an  extreme  supposition,  which  no  man,  un- 
less both  giossly  factious  and  ignorant,  will 
ever  pretend  to  have  been  realized.  But, 
as  it  would  equally  contradict  notorious 
truth  to  assert  that  eveiy  vote  has  been 
disinterested  and  independent,  the  degree 
of  influence  which  ought  to  be  permitted, 
or  which  has  at  anj'  time  existed,  becomes 
one  of  the  most  important  subjects  in  our 
Constitutional  policy. 

I  have  mentioned  in  the  last  chapter  both 
the  provisions  inserted  in  the  Act  Attempts  to 
of  Settlement,  with  the  design  of  ^strain  it. 
excluding  altogether  the  possessors  of  pub- 
lic office  from  the  House  of  Commons,  and 
the  modifications  of  them  by  several  acts  of 
the  queen.    These  were  deemed  by  the 


636 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Cha?.  XVI. 


country  party  so  inadequate  to  restrain  the  1 
dependents  of  power  from  overspreading 
the  benches  of  the  Commons,  that  perpetual 
attempts  were  made  to  carry  the  exclusive 
principle  to  n  far  gre.ater  length.  In  the 
next  two  reigns,  if  we  can  tnist  to  the  un- 
contradicted language  of  debate,  or  even  to 
the  descriptions  of  individuals  in  the  lists  of 
each  Parliament,  we  must  conclude  that  a 
very  undue  proportion  of  dependents  on  the 
favor  of  government  were  made  its  censors 
and  counselors.  There  was  still,  however, 
so  much  left  of  an  independent  spirit,  that 
bills  for  resti'icting  the  number  of  placemen, 
or  excluding  pensioners,  met  alwjiys  with 
countenance  ;  they  were  sometimes  reject- 
ed by  very  slight  majorities  ;  and,  after  a 
time.  Sir  Robert  Walpole  found  it  expedi- 
ent to  reserve  his  opposition  for  the  surer 
field  of  the  other  House.*  After  his  fall, 
it  was  imputed  with  some  justice  to  his 
successors,  that  they  shrunk  in  power  from 
the  bold  reformation  which  they  had  so 
frequently  endeavored  ;  the  king  was  in- 
dignantly averse  to  all  retrenchment  of  his 
power,  and  they  wanted  probably  both  the 
inclination  and  the  influence  to  cut  off  all 
corruption.  Yet  we  owe  to  this  rainistiy 
Place  Bill  Place  Bill  of  1743,  which,  de- 
of  1743.  rided  as  it  was  at  the  time,  seems 
to  have  had  a  considerable  effect ;  exclud- 
ing a  great  number  of  inferior  officers  from 

*  By  the  act  of  6  Anne,  c.  7,  all  persons  holding 
pensions  from  the  crown  during  pleasore  were 
made  incapable  of  sitting  in  the  House  of  Com- 
mons; which  was  extended  by  1  Geo.  I.,  c.  56,  to 
those  who  held  them  for  any  term  of  years.  But 
the  difficulty  was  to  ascertain  the  fact,  the  govern- 
ment refusing  information.  Mr.  Sandys  accord- 
ingly proposed  a  bill  in  1730,  by  which  every 
member  of  the  Commons  was  to  take  an  oath  that 
he  did  not  hold  any  such  pension,  and  that,  in  case 
of  accepting  one,  he  would  disclose  it  to  the  House 
within  fourteen  days.  This  was  carried  by  a  small 
majority  through  the  Commons,  but  rejected  in  the 
other  House  ;  which  happened  again  in  1734  and  in 
1740.— Pari.  Hist.,  viii.,  789 ;  ix.,  369  ;  xi.,  510. 
The  king,  in  an  angry  note  to  Lord  Townshend,  on 
the  first  occasion,  calls  it  '  this  villanous  bill." — 
Coxe's  Walpole,  ii.,  537,  673.  A  bill  of  the  same 
gentleman  to  limit  the  number  of  placemen  in  the 
House  had  so  far  worse  success,  that  it  did  not 
reach  the  Serbonian  bog. — Pari.  Hist.,  xi.,  328. 
Bishop  Sherlock  made  a  speech  against  the  pre- 
vention of  corrupt  practices  by  the  Pension  Bill, 
■which,  whether  justly  or  not,  ex'cited  much  indig- 
nation, and  even  gave  rise  to  the  proposal  of  a  bill 
for  putting  an  end  to  the  translation  of  bishops. — 
Id.,  viii.,  847. 


the  House  of  Commons,  which  has  never 
since  contained  so  revolting  a  list  of  court- 
deputies  as  it  did  in  the  age  of  Walpole.* 

But,  while  this  acknowledged  influence 
of  lucrative  office  might  be  pre-  secret  cor- 
sumed  to  operate  on  many  stanch 
adherents  of  the  actual  administration,  there 
was  always  a  sti-ong  suspicion,  or,  rather,  a 
general  certainty,  of  absolute  corruption. 
The  proofs  in  single  instances  could  never, 
perhaps,  be  established  ;  which,  of  course, 
is  not  surprising.  But  no  one  seriously 
called  in  question  the  reality  of  a  system- 
atic distribution  of  money  by  the  crown  to 
the  representatives  of  the  people  ;  nor  did 
the  corrupters  themselves,  in  whom  the 
crime  seems  always  to  be  deemed  less 
heinous,  disguise  it  in  private. f  It  is  true 
that  the  appropriation  of  supplies,  and  the 
established  course  of  the  Exchequer,  render 
the  greatest  part  of  the  public  revenue  secure 
from  misapplication ;  but,  under  the  head 
of  secret  service  money,  a  very  large  sum 
was  annually  expended  without  account, 
and  some  other  parts  of  the  civil  list  were 
equally  free  from  all  public  examination.! 
The  committee  of  secrecy  appointed  after 
the  resignation  of  Sir  Robert  Walpole  en- 
deavored to  elicit  some  distinct  evidence  of 
this  misapplication  ;  but  the  obscurity  nat- 
ural to  such  transactions,  and  the  guilty 

*  25  Geo.  II.,  c.  22.  The  king  came  very  re- 
luctantly into  this  measure :  in  the  preceding  ses- 
sion of  1742,  Sandys,  now  become  chancellor  of  the 
Exchequer,  had  opposed  it,  though  originally  his 
own ;  alleging  in  no  very  Parliamentary  mamier 
that  the  new  ministrj-  bad  not  yet  been  able  tore- 
move  his  majesty's  prejudices. — Pari.  Hist.,  xii., 
896. 

t  Mr.  Fox  declared  to  the  Duke  of  Newcastle, 
when  the  office  of  secretary  of  state,  and  what  was 
called  the  management  of  the  House  of  Commons, 
was  oflfered  to  him,  "  that  he  never  desired  to  toach 
a  penny  of  the  secret  ser\  ice  money,  or  to  know 
the  disposition  of  it,  further  than  was  necessary  to 
enable  him  to  speak  to  the  members  mlhout  being 
ridiculous." — Dodington's  Diary,  15th  of  March, 
1754.  H.  Walpole  confirms  this  in  nearly  the  same 
words. — Mem.  of  Last  Ten  Years,  i.,  332. 

}  In  Coxe's  Memoirs  of  Sir  R.  Walpole,  iii.,  60J^ 
we  have  the  draught,  by  that  minister,  of  an  in- 
tended vindication  of  himself  after  his  retirement 
from  office,  in  order  to  show  the  impossibility  of 
misapplying  public  money,  which,  however,  he 
does  not  show ;  and  his  elaborate  account  of  the 
method  by  which  payments  are  made  out  of  the 
Exchequer,  tliough  valuable  in  some  respects, 
seems  rather  intended  to  lead  aside  the  unprac- 
ticed  reader. 


Anne,  Geo.  I,  Geo.  II.]      FROM  HENRY  Vn.  TO  GEORGE  II. 


637 


collusion  of  subaltern  accomplices,  who 
shrouded  themselves  in  the  protection  of 
the  law,  defeated  every  hope  of  punish- 
ment, or  even  pereonal  disgrace.*  This 
practice  of  direct  bribei-y  continued,  beyond 
doubt,  long  afterward,  and  is  generally  sup- 
posed to  have  ceased  about  the  termination 
of  the  American  war. 

There  is  hardly  any  doctrine  with  re- 
spect to  our  government  more  in  fashion, 
than  that  a  considerable  influence  of  the 
crown  (meaning,  of  course,  a  cori'upt  influ- 
ence) in  both  houses  of  Parliament,  and  es- 
pecially in  the  Commons,  has  been  render- 
ed indispensable  by  the  vast  enhancement 
of  their  own  power  over  the  public  admin- 
istration.   It  is  doubtless  most  expedient 
that  many  servants  of  the  crown  should  be 
also  servants  of  the  people  ;  and  no  man 
who  values  the  Constitution  would  separate 
the  functions  of  ministers  of  state  from 
those  of  legislators.  The  glory  that  waits  on 
wisdom  and  eloquence  in  the  Senate  should 
always  be  the  great  prize  of  an  English 
statesman,  and  his  high  road  to  the  sover- 
eign's favor.    But  the  maxim  that  private 
vices  are  public  benefits  is  as  sophistical  as 
it  is  disgusting ;  and  it  is  self-evident,  both 
that  the  expectation  of  a  clandestine  recom- 
pense, or  what,  in  effect,  is  the  same  thing, 
of  a  lucrative  olBce,  can  not  be  the  motive 
of  an  upright  man  in  his  vote,  and  that  if 
an  entire  Parliament  should  be  composed 
of  such  venal  spirits,  there  would  be  an  end 
of  all  conti-ol  upon  the  crown.   There  is  no 
real  cause  to  apprehend  that  a  virtuous  and 
enlightened  government  would  find  difficulty 
in  resting  upon  the  reputation  justly  due  to 
it,  especially  when  we  throw  into  the  scale 
that  species  of  influence  which  must  ever 
subsist,  the  sentiment  of  respect  and  loyalty 
to  a  sovereign,  of  friendship  and  gratitude 
to  a  minister,  of  habitual  confidence  in  those 
intrusted  with  power,  of  averseness  to  con- 
fusion and  untried  change,  which  have,  in 
fact,  more  extensive  operation  than  any 
*  This  secret  committee  were  checked  at  every 
step  for  want  of  snfRcient  powers.    It  is  absurd  to 
assert,  like  Mr.  Coxe,  that  they  advanced  accusa- 
tions which  they  could  not  prove,  when  the  means 
of  proof  were  withheld.    Sorope  and  Paxton,  the 
one  secretary,  the  other  solicitor,  to  the  treasury, 
being  examined  about  very  large  sums  traced  to 
their  hands,  and  other  matters,  refused  to  answer 
questions  that  might  criminate  themselves  ;  and  a 
bill  to  indemnify  evidence  was  lost  in  the  Upper 
Hoase. — Pari.  Hist.,  xii.,  625,  et  post. 


sordid  motives,  and  which  must  almost  al- 
ways I'onder  them  unnecessary. 

III.  The  co-operation  of  both  houses  of 
Parliament  with  the  executive  Commit- 
government  enabled  the  latter  to  "r^aeh  of 
convert  to  its  own  purpose  what  privilege- 
had  often,  in  former  times,  been  employed 
against  it,  the  power  of  inflicting  punishment 
for  bi-each  of  privilege.  But  as  the  subject 
of  Parliamentary  privilege  is  of  no  slight 
importance,  it  will  be  convenient  on  this 
occasion  to  bring  the  whole  before  the  read- 
er in  as  concise  a  summary  as  possible,  dis- 
tinguishing the  power,  as  it  relates  to  of- 
fenses committed  by  members  of  either 
House,  or  against  them  singly,  or  the  hous- 
es of  Parliament  collectively,  or  against  the 
government  and  the  public. 

1.  It  has  been  the  constant  practice  of 
the  House  of  Commons  to  repress  disor- 
derly or  indecent  behavior  by  a  censure  de- 
livered through  the  speaker.  Instances  of 
this  are  even  noticed  in  the  Journals  under 
Edward  VI.  and  Mary  ;  and  it  is,  in  fact, 
essential  to  the  regular  proceedings  of  any 
assembly.  In  the  former  reign  they  also 
committed  one  of  their  members  to  the 

Tower ;  but  in  the  famous  case  of  , 

'  of  mem- 

Arthur  Hall  in  1581,  they  estab-  bcrs  for 

lished  the  first  precedent  of  pun-  ""^""'^ 
ishing  one  of  their  own  body  for  a  printed 
libel  derogatory  to  them  as  a  part  of  the 
Legislature ;  and  they  inflicted  the  three- 
fold penalty  of  imprisonment,  fine,  and  ex- 
pulsion.* From  this  time  forth  it  was  un- 
derstood to  be  the  law  and  usage  of  Parlia- 
ment, that  the  Commons  might  commit  to 
prison  any  one  of  their  members  for  mis- 
conduct in  the  House,  or  relating  to  it.f 
The  right  of  imposing  a  fine  was  veiy  rarely 
asserted  after  the  instance  of  Hall ;  but  that 
of  expulsion,  no  eariier  precedent  whereof 

*  See  ante,  p.  160. 

t  [In  the  case  of  Mr.  Manley,  committed  Nov.  9, 
1696,  for  saying,  in  the  debate  on  Sir  John  Fen- 
wick's  attainder,  that  it  would  not  be  the  first  time 
people  have  repented  of  making  their  court  to  tha 
government  at  the  hazard  of  the  liberties  of  the 
people,  the  speaker  issued  his  warrant  to  the 
lieutenant  of  the  Tower  to  receive  him. — Commons' 
Journals.  It  will  be  remembered,  that  in  1810,  on 
the  committal  of  Sir  F.  Burdett,  the  governor  of 
the  Tower  required  the  speaker's  warrant  to  be 
backed  by  the  secretary  of  state  ;  with  which  tha 
Commons  thought  fit  to  put  up,  though  it  cut  at  the 
root  of  the  privilege  of  imprisoning  ;>ropno  ^'are. — 
1845.] 


638 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVI. 


has  been  recorded,  became  as  indubitable 
as  frequent  and  unquestioned  usage  could 
render  it.  It  was  carried  to  a  great  excess 
by  the  Long  Parliament,  and  again  in  the 
year  1G80.  These,  however,  were  times 
of  extreme  violence  ;  and  the  prevailing 
faction  had  an  apology  in  the  designs  of  the 
court,  which  required  an  energy  beyond 
tlie  law  to  counteract  them.  The  offenses, 
too,  which  the  Whigs  thus  punished  in 
1680  were,  in  their  effect,  against  the  pow- 
er and  even  existence  of  Parliament.  The 
privilege  was  far  more  unwarrantably  ex- 
erted by  the  opposite  party  in  1714,  against 
Sir  Richard  Steele,  expelled  the  House  for 
writing  the  Crisis,  a  pamphlet  reflecting  on 
the  ministry.  This  was,  perhaps,  the  first 
instance  wherein  the  House  of  Commons 
so  identified  itself  with  the  executive  ad- 
ministration, independently  of  the  sover- 
eign's person,  as  to  consider  itself  libeled 
by  those  who  impugned  its  measures.* 

In  a  few  instances  an  attempt  was  made 
to  cany  this  further,  by  declaring  the  party 
incapable  of  sitting  in  Parliament.  It  is 
hardly  necessary  to  remark,  that  upon  this 
rested  the  celebrated  question  of  the  Mid- 
dlesex election  in  1769.  If  a  few  prece- 
dents, and  those  not  before  the  year  1680, 
were  to  determine  all  controversies  of  con- 
stitut'onal  law,  it  is  plain  enough  from  the 
Journals  that  the  House  have  assumed  the 
power  of  incapacitation.  But  as  such  an 
authority  is  highly  dangerous  and  unneces- 
sary for  any  good  purpose,  and  as,  accord- 
ing to  all  legal  rules,  so  extraordinary  a 
power  could  not  be  supported  except  by  a 
sort  of  prescription  which  can  not  be  shown, 
the  final  resolution  of  the  House  of  Com- 
mons, which  condemned  the  votes  passed 
in  times  of  great  excitement,  appears  far 
more  consonant  to  just  principles. 

2.  The  power  of  each  house  of  Parlia- 
of  strangers  ment  Over  those  who  do  not  be- 
for  offenses  j(.  jg  gj-  ^  niore  extensive 

agaiust  » 

ineiiiiiers,  consideration,  and  has  lain  open, 
in  some  respects,  to  more  doubt  than  that 
over  its  own  members.  It  has  been  exer- 
cised, in  the  first  place,  very  frequently, 
and  from  an  early  period,  in  order  to  pro- 

*  Pari.  Hist.,  vi.,  1265.  Walpole  says,  in  speak- 
ing for  Steele,  "  the  liberty  of  the  press  is  un- 
restrained ;  how,  then,  shall  a  part  of  the  Legisla- 
tore  dare  to  punish  that  as  a  crime  which  is  not 
declared  to  be  so  by  any  law  framed  by  the  whole?" 


tect  the  members  personally,  and  in  their 
properties,  from  any  thing  which  has  been 
construed  to  interfere  with  the  discharge  of 
their  functions.  Every  obstruction  in  these 
duties,  by  assaulting,  challenging,  insulting 
any  single  representative  of  the  Commons, 
has  from  the  middle  of  the  sixteenth  centu- 
ly  downward,  that  is,  from  the  beginning 
of  their  regular  Journals,  been  justly  deemed 
a  breach  of  privilege,  and  an  offense  against 
the  whole  body.  It  has  been  punished 
generally  by  commitment,  either  to  the  cus- 
tody of  the  House's  officer,  the  sergeant-at- 
arms,  or  to  the  king's  prison.  This  sum- 
mary proceeding  is  usually  defended  by  a 
technical  analogy  to  what  are  called  attach- 
ments for  contempt,  by  which  every  court 
of  record  is  entitled  to  punish  by  imprison- 
ment, if  not  also  by  fine,  any  obstruction 
to  its  acts  or  contumacious  resistance  of 
them ;  but  it  tended  also  to  raise  the  dignity 
of  Parliament  in  the  eyes  of  the  people,  at 
times  when  the  government,  and  even  the 
courts  of  justice,  were  not  greatly  inclined 
to  regard  it ;  and  has  been  also  a  necessary 
safeguard  against  the  insolence  of  power. 
The  majority  are  bound  to  respect,  and,  in- 
deed, have  respected,  the  rights  of  every 
member,  however  obnoxious  to  them,  on  all 
questions  of  privilege.  Even  in  the  case 
most  likely  to  occur  in  the  present  age,  that 
of  libels,  which  by  no  unreasonable  stretch 
come  under  the  head  of  obstructions,  it 
would  be  unjust  that  a  patriotic  legislator, 
exposed  to  calumny  for  his  zeal  in  the  pub- 
lic cause,  should  be  necessarily  driven  to  a 
troublesome  and  uncertain  process  at  law, 
when  the  offense  so  manifestly  affects  the 
real  interests  of  Parliament  and  the  nation. 
The  application  of  this  principle  must  of 
course  require  a  discreet  temper,  which 
was  not,  perhaps,  always  obsen^ed  in  former 
times,  especially  in  the  reign  of  William  HI. 
Instances,  at  least,  of  punishment  for  breach 
of  privilege  by  personal  reflections,  are  nev- 
er so  common  as  in  the  Journals  of  that  tur- 
bulent period. 

The  most  usual  mode,  however,  of  in- 
curring the  animadversion  of  the     ,  _ 

o  or  for  orfeM- 

House  was  by  molestations  in  es  uninst 
)-egard  to  property.    It  was  the  ''^^  House, 
most  ancient  privilege  of  the  Commons  to 
be  free  from  all  legal  process  during  the 
term  of  the  session,  and  for  forty  days  be- 
fore and  after,  except  on  charges  of  treason. 


Anne,  Geo.  I.,  Geo.  II.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


639 


felony,  or  bveach  of  the  peace.  I  have  else- 
where mentioned  the  great  case  of  Ferrers, 
under  Henry  VIIL,  wherein  the  House 
first,  as  far  as  we  know,  exerted  the  power 
of  committing  to  prison  those  who  had  been 
concerned  in  aiTesting  one  of  its  members ; 
and  have  shown  that,  after  some  little  inter- 
mission, this  became  their  recognized  and 
custouiiiry  right.  Numberless  instances  oc- 
cur of  its  exercise.  It  was  not  only  abroach 
of  privilege  to  serve  any  sort  of  process 
upon  them,  but  to  put  them  under  the  ne- 
cessity of  seeking  redress  at  law  for  any 
civil  injury.  Thus  abundant  cases  are  found 
in  the  Journals  where  persons  have  been 
committed  to  prison  for  entering  on  the 
estates  of  members,  carrying  away  timber, 
lopping  trees,  digging  coal,  fishing  in  their 
waters.  Their  servants,  and  even  their 
tenants,  if  the  trespass  were  such  as  to  af- 
fect the  landlord's  property,  had  the  same 
protection.*  The  grievance  of  so  unpai'al- 
ieled  an  immunity  must  have  been  notori- 
ous, since  it  not  only  suspended  at  least  the 
redress  of  creditors,  but  enabled  rapacious 
men  to  establish,  in  some  measure,  unjust 
claims  in  respect  of  property,  the  alleged 
trespasses  being  generally  founded  on  some 
disputed  right.  An  act,  however,  was 
passed,  rendering  the  members  of  both 
Houses  liable  to  civil  suits  during  the  pro- 
rogation of  Parliament. f  But  they  long 
continued  to  avenge  the  private  injuries, 
real  or  pretended,  of  their  members.  On  a 
complaint  of  breach  of  privilege  by  trespass- 
ing on  a  fishery  (Jan.  25,  1768,  they  heard 
evidence  on  both  sides,  and  determined  that 
no  breach  of  privilege  had  been  committed  ; 
thus  indirectly  taking  on  them  the  decision 
of  a  freehold  right.  A  few  days  after  they 
came  to  a  resolution  "  that  in  case  of  any 
complaint  of  a  breach  of  privilege,  hereafter 
to  be  made  by  any  member  of  this  House, 
if  the  House  shall  adjudge  there  is  no  ground 
for  such  a  complaint,  the  House  will  order 
satisfaction  to  the  person  complained  of  for 
his  costs  and  expenses  incurred  by  reason 
of  such  complaint. "t    But  little  opportunity 

*  The  instances  are  so  numerous,  that  to  select 
a  few  woulii^perhaps  give  an  inadequate  notion  of 
the  vast  extension  which  privilege  received.  In 
fact,  hardly  any  thing  could  be  done  disagreeable 
to  a  member,  of  which  he  might  not  inform  the 
House  and  cause  it  to  be  punished. 

t  12  Will.  III.,  c.  3. 

t  Journals,  11th  of  Feb.    It  had  been  originally 


was  given  to  try  the  effect  of  this  resolution, 
an  act  having  passed  in  two  years  afterward, 
which  has  altogether  taken  away  the  ex- 
emption from  legal  process,  except  as  to  the 
immunity  from  personal  aiTest,  which  still 
continues  to  be  the  privilege  of  both  houses 
of  Parliament.* 

3.  A  more  important  class  of  offenses 
against  privilege  is  of  such  as  affect  either 
house  of  Parliament  collectively.  In  the 
reign  of  Elizabeth  we  have  an  instance  of 
one  committed  for  disrespectful  words 
against  the  Commons.  A  few  others,  ei- 
ther for  words  spoken  or  published  libels, 
occur  in  the  reign  of  Charles  I.,  even  before 
the  Long  Parliament  ;  but  those  of  1641 
can  have  little  weight  as  precedents,  and  we 
may  say  nearly  the  same  of  the  unjustifia- 
ble proceedings  in  1680.  Even  since  the 
Revolution,  we  find  too  many  proofs  of  en- 
croaching pride  or  intemperate  passion,  to 
which  a  numerous  assembly  is  always  prone, 
and  which  the  prevalent  doctrine  of  the 
House's  absolute  power  in  matters  of  priv- 
ilege has  not  contributed  much  to  restrain. 
The  most  remarkable  may  be  briefly  noticed. 

The  Commons  of  1701,  wherein  a  Tory 
spirit  was  strongly  predominant,  by  what 
was  deemed  its  factious  delays  in  voting 
supplies,  and  in  seconding  the  measures  of 
the  king  for  the  security  of  Europe,  had 
exasperated  all  those  who  saw  the  nation's 
safety  in  vigorous  preparations  for  war,  and 
provoked  at  last  the  Lords  to  the  most  an- 
gry resolution  which  one  house  of  Parlia- 
ment in  a  matter  not  affecting  its  privileges 
has  ever  recorded  against  the  other,  f  Tiie 
grand-jury  of  Kent,  and  other  freeholders 

proposed  that  the  member  making-  the  complaint 
should  pay  the  party's  costs  and  expenses  ;  which 
was  amended,  I  presume,  in  consequence  of  some 
doubt  as  to  the  power  of  the  House  to  enforce  it. 
*  10  G.  III.,  c.  50. 

t  Resolved,  That  whatever  ill  consequences  may 
arise  from  the  so  long  deferring  the  supplies  for  the 
year's  service,  are  to  be  attributed  to  the  fatal 
counsel  of  putting  off  the  meetingof  a  Parliament  so 
long,  and  to  unnecessary  delays  of  the  House  of 
Commons. — Lords'  Journals,  23d  of  June,  1701. 
The  Commons  had  previously  come  to  a  vote,  that 
all  the  ill  consequences  which  may  at  this  time  at- 
tend the  delay  of  the  supplies  granted  by  the 
Commons  for  the  preserving  the  public  peace,  and 
maintaining  the  balance  of  Europe,  are  to  be  im- 
puted to  those  who,  to  procure  an  indemnity  for 
their  own  enormous  crimes,  have  used  their  utmost 
endeavors  to  make  a  breach  between  the  two 
Houses. — Commons'  Journals,  20th  of  June. 


9 


640 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


Kentish  °^  county,  presented  accordingly 
peiiticm  a  petition  on  the  8th  of  May,  1701, 
imploring  them  to  turn  their  loyal 
addresses  into  bills  of  supply  (the  only  phrase 
in  the  whole  petition  that  could  be  construed 
into  disrespect),  and  to  enable  his  majesty 
to  assist  his  allies  before  it  should  be  too 
late.  The  Tory  faction  was  wrought  to 
fury  by  this  honest  remonstrance.  They 
voted  that  the  petition  was  scandalous,  in- 
solent, and  seditious,  tending  to  destroy  the 
constitution  of  Parliament,  and  to  subvert 
the  established  government  of  this  realm  ; 
and  ordered  that  Mr.  Colepepper,  who  had 
been  most  forward  in  presenting  the  peti- 
tion, and  all  others  conceraed  in  it,  should 
be  taken  into  custody  of  the  sergeant.* 
Though  no  attempt  was  made  on  this  occa- 
sion to  call  the  authority  of  the  House  into 
question  by  habeas  corpus  op  other  legal 
rerqedy,  it  was  discussed  in  pamphlets  and 
in  general  conversation,  with  little  advantage 
to  a  power  so  arbitrary,  and  so  evidently 
abused  in  the  immediate  instance.! 

*  Journals,  8th  of  May.  Pari.  Hist.,  v.,  1250. 
Ralph,  947.  This  historian,  who  generally  affects 
to  take  the  popular  side,  inveighs  against  this  peti- 
tion, because  the  Tories  had  a  majority  in  the 
Commons.  His  partiality,  arising  out  of  a  dislike 
to  the  king,  is  very  manifest  throughout  the  second 
volume.  He  is  forced  to  admit  afterward  that  the 
House  disgusted  the  people  by  their  votes  on  this 
occasion. — P.  976.  [Colepepper  having  escaped 
from  the  custody  of  the  sergeant,  the  House  of 
Commons  addressed  the  king  to  cause  him  to  be 
apprehended  ;  upon  which  he  surrendered  himself. 
In  the  next  Parliament,  which  met  30th  of  Dec, 
1701,  he  had  been  a  candidate  for  Maidstone,  and 
another  being  returned,  petitioned  the  House,  who, 
having  resolved  first  in  favor  of  the  opposite  party, 
proceeded  to  vote  Colepepper  giiilty  of  "scandal- 
ous, villanous,  and  groundless  reflections  upon  the 
late  House  of  Commons ;  and  having  committed 
him  to  Newgate,  directed  the  attorney-general  to 
prosecute  him  for  the  said  offenses. — ParL  Hist., 
v.,  1339.  Ralph,  1015.  Colepepper  gave  way  to 
this  crushing  pressure  ;  and  having  not  long  after- 
ward (Pari.  Hist.,  vi.,  95)  petitioned  the  House, 
and  acknowledged  himself  at  the  bar  sorry  for  the 
scandalous  and  seditious  practices  by  him  acted 
against  the  honor  and  privileges  of  that  House,  Sec, 
they  addressed  the  queen  to  stop  proceedings 
against  him.  But  a  resolution  was  passed,  16th 
of  Feb.,  1702,  at  the  same  time  with  others  direct- 
ed against  Colepepper,  That  it  is  the  undoubted 
right  of  the  people  of  England  to  petition  or  address 
the  kin;;,  for  the  calling,  sitting,  or  dissolving  of 
Parliaments,  or  for  the  redressing  of  grievances. — 
Pari.  Hist.,  v.,  1340.— 1845.] 

t  History  of  the  Kentish  Petition.  Somers 
Tracts,  xi.,  212.   Legion's  Paper.    Id.,  264.  Vin- 


A  very  few  years  after  this  high  exercise 
of  authority,  it  was  called  forth  in  another 

dication  of  the  Rights  of  the  Commons  (either  by 
Harley  or  Sir  Humphrey  Mackworth).  Id.,  276. 
This  contains,  in  many  respects,  constitutional  prin- 
ciples ;  but  the  author  holds  very  strong  language 
about  the  right  of  petitioning.  After  quoting  the 
statute  of  Charles  II.  against  tumults  on  pretense 
of  presenting  petitions,  he  says  :  "  By  this  statute 
it  may  be  observed,  that  not  only  the  number  of 
persons  is  restrained,  but  the  occasion,  also,  for 
which  they  may  petition  ;  which  is  for  the  altera- 
tion of  matters  established  in  Church  or  State,  for 
want  whereof  some  inconvenience  may  arise  to 
that  county  from  which  the  petition  shall  be 
brought ;  for  it  is  plain,  by  the  express  words  and 
meaning  of  that  statute,  that  the  grievance  or  mat- 
ter of  the  petition  must  arise  in  the  same  county 
as  the  petition  itself.  They  may,  indeed,  petition 
the  king  for  a  Parliament  to  redress  their  griev- 
ances ;  and  they  may  petition  that  Parliament  to 
make  one  law  that  is  advantageous,  and  repeal 
another  that  is  prejudicial  to  the  trade  or  interest 
of  that  county ;  but  they  have  no  power  by  this 
statute,  nor  by  the  constitution  of  the  English  gov- 
ernment, to  direct  the  Parliament  in  the  general 
proceedings  concerning  the  whole  kingdom ;  for 
the  law  declares  that  a  general  consultation  of  all 
the  wise  representatives  of  Parliament  is  more  for 
the  safety  of  England  than  the  hasty  advice  of  a 
number  of  petitioners  of  a  private  county,  of  a 
grand-jury,  or  of  a  few  justices  of  the  peace,  who 
seldom  have  a  true  state  of  the  case  represented 
to  them."— P.  313. 

These  are  certainly  what  must  appear  in  the 
present  day  very  strange  limitations  of  the  sub- 
ject's right  to  petition  either  house  of  ParUament 
But  it  is  really  true  that  such  a  right  was  not  gen- 
erally recognized,  nor  frequently  exercised,  in  so 
large  an  extent  as  is  now  held  unquestionable. 
We  may  search  whole  volumes  of  the  Joamals, 
while  the  most  animating  topics  were  in  discussion, 
without  finding  a  single  instance  of  such  an  inter- 
position of  the  constituent  with  the  representative 
body.  In  this  particular  case  of  the  Kentish  peti- 
rion.  the  words  in  the  resolution,  that  it  tended  to 
destroy  the  constitution  of  Parliament  and  subvert 
the  established  government,  could  be  founded  on 
no  pretense  but  its  unusual  interference  with  the 
counsels  of  the  Legislature.  With  this  exception. 
I  am  not  aware  (stating  this,  however,  with  some 
diffidence)  of  any  merely  polirical  petition  before 
the  Septennial  Bill  in  1717,  against  which  several 
were  presented  from  corporate  towns,  one  of  which 
was  rejected  on  account  of  language  that  the 
House  thought  indecent ;  and  as  to  these  it  may 
be  observed,  that  towns  returning  members  to 
Parliament  had  a  particular  concern  in  the  measure 
before  the  House.  They  relate,  however,  no  doubt, 
to  general  policy,  and  seem  to  establish  a  popular 
principle  which  stood  on  little  authoritj'.  I  do  not, 
of  course,  include  the  petitions  to  the  Long  Parlia- 
ment in  1640,  nor  one  addressed  to  the  Couvention 
in  1689,  from  the  inhabitants  of  London  and  West- 
minster, pressing  their  declaration  of  William  and 


Anne,  Geo.  I.,  Geo.  II.]      FROM  HENRY  VII.  TO  GEORGE  II. 


641 


Dispute  with  case,  still  more  remarkable  and 
Lordsabout        „  jggg   warrantable.  The 

Aylesbury 

election.       House  of  Commons  had  an  un- 


Mary ;  both  in  times  too  critical  to  furnish  regular 
precedents.  [It  may  be  mentioned,  however,  that, 
a  few  months  after  the  Revolution,  the  city  of 
London  added  to  a  petition  to  have  tlieir  ancient 
right  of  choosing  their  sheriflTs  restored  to  them,  a 
prayer  tliat  the  king  might  be  enabled  to  make  use 
of  the  service  of  all  his  Protestant  subjects ;  that 
is,  that  the  Test  might  be  abrogated. — Pari.  Hist., 
v.,  359.  It  was  carried  by  174  to  147  that  this 
petition  should  be  read. — 1845.]  But  as  the  popu- 
lar principles  of  government  gi'cw  more  established, 
tho  right  of  petitioning  on  general  grounds  seems 
to  have  been  better  recognized  ;  and  instances 
may  be  found,  during  the  administration  of  Sir 
Robert  Walpole,  though  still  by  no  meaiis  fre<iuent. 
— Pari.  Hist.,  xii.,  119.  [In  the  South  Sea  crisis, 
1721,  many  petitions  were  presented,  praying  for 
justice  on  the  directors. — Pari.  Hist,  vii.,  763. — 
1845.]  The  city  of  London  presented  a  petition 
against  the  bill  for  naturalization  of  the  Jews  in 
1753,  as  being  derogatory  to  the  Christian  religion 
as  well  as  detrimental  to  trade. — Id.,  xiv.,  1417. 
It  caused,  however,  some  animadversion ;  for  Mr. 
Northey,  in  the  debate  next  session  on  the  pro- 
posal to  repeal  this  bill,  alluding  to  this  very  peti- 
tion, and  to  the  comments  Mr.  Pelham  made  on  it,  as 
"  so  like  the  famous  Kentish  petition,  that  if  they 
had  been  tieated  in  the  same  manner  it  would 
have  been  what  they  deserved,"  observes  in  reply, 
that  the  "right  of  petitioning  either  the  king  or 
the  Parliament  in  a  decent  and  submissive  manner, 
and  without  any  riotous  appearance,  against  any 
thing  they  think  may  affect  their  religion  and  lib- 
erties, will  never,  I  hope,  be  taken  from  the  sub- 
ject."— Id.,  XV..  149  ■,  see.  also,  376.  And  it  is 
^•ery  remarkable  that,  notwithstanding  the  violent 
clamor  excited  by  that  unfortunate  statute,  no 
petitions  for  its  repeal  are  to  be  found  in  the  Jour- 
nals. They  are  equally  silent  with  regard  to  the 
Marriage  Act,  another  topic  of  popular  obloquy. 
Some  petitions  appear  to  have  been  presented 
against  the  bill  for  naturalization  of  foreign  Prot- 
estants, but  probably  on  the  ground  of  its  injurious 
effect  on  the  parties  themselves.  The  great  mul- 
tiplication of  petitions  on  matters  wholly  uncon- 
nected with  particular  interests  can  not,  I  believe, 
be  traced  liigher  than  those  for  the  abolition  of  the 
slave-trade  in  1787,  though  a  few  were  presented 
for  reform  about  the  end  of  the  American  war, 
which  would  undoubtedly  have  been  rejected  with 
indignation  in  any  earlier  stage  of  our  Constitution. 
It  may  be  remarked,  also,  that  petitions  against 
bills  imposing  duties  are  not  received,  probably  on 
the  principle  that  they  are  intended  fo.'  tlie  gen- 
eral interests,  though  affecting  the  parties  who 
thus  complain  of  them. — Hatsell,  iii..  200. 

The  convocation  of  public  meetings  for  the  de- 
bate of  political  questions,  as  preparatory  to  such 
addresses  or  petitions,  is  still  less  according  to  the 
practice  and  precedents  of  our  ancestors  ;  nor  does 
it  appear  that  the  sheriffs  or  other  magistrates  are 
more  invested  with  a  rieht  of  convening  or  presid- 
T  T 


doubted  riglit  of  determining  all  disputed 
returns  to  the  writ  of  election,  and,  conse- 
quently, of  judging  upon  the  right  of  every 
vote ;  but  as  the  House  could  not  pretend 
that  it  had  given  this  right,  or  that  it  was 
not,  like  any  other  franchise,  vested  in  the 
possessor  by  a  legal  title,  no  pretext  of  reas- 
on or  analogy  could  be  set  up  for  denying 
that  it  might  also  come,  in  an  indirect  man- 
ner at  least,  before  a  court  of  justice,  and  bo 
judged  by  the  common  principles  of  law. 
One  Ashby,  however,  a  burgess  of  Ayles- 
bury, having  sued  the  returning  officer  for 
refusing  his  vote,  and  three  judges  of  the 
King's  Bench,  against  the  opinion  of  Chief- 
justice  Holt,  having  determined  for  differ- 
ent reasons  that  it  did  not  lie,  a  writ  of  error 
was  brought  in  the  House  of  Lords,  when 
the  judgment  was  reversed.  The  House 
of  Commons  took  this  up  indignantly,  and 
passed  various  resolutions,  asserting  their 
exclusive  right  to  take  cognizance  of  all  mat- 
ters relating  to  the  election  of  their  mem- 
bers. The  Lords  repelled  these  by  contra- 
ry resolutions :  That  by  the  known  laws  of 
this  kingdom,  every  person  having  a  right 
to  give  his  vote,  and  being  willfully  denied 
by  the  officer  who  ought  to  receive  it,  may 
maintain  an  action  against  such  officer  to  re- 
cover damage  for  the  injury;  that  the  cou- 
trary  assertion  is  destructive  of  the  property 
of  the  subject,  and  tends  to  encourage  cor- 
ruption and  partiality  in  returning  officers; 
that  the  declaring  persons  guilty  of  breach 
of  privilege  for  prosecuting  such  actions,  or 
for  soliciting  and  pleading  in  them,  is  a  man- 
ifest assuming  a  power  to  control  the  law. 
and  hinder  the  course  of  justice,  and  sub- 
ject the  property  of  E  nglishmen  to  the  ar- 
bitrary votes  of  the  House  of  Commons. 
They  oixiered  a  copy  of  these  resolutions  to 
be  sent  to  all  the  sheriffs,  and  to  be  commu- 
nicdted  by  them  to  all  the  boroughs  in  their 
respective  counties. 

A  prorogation  soon  afterward  followed, 
but  served  only  to  give  breathing  time  to  tho 
exasperated  parties ;  for  it  must  be  observed, 

ing  in  assemblies  of  this  nature  than  any  other 
persons,  tlioagh  within  the  bounds  of  the  public 
peace  it  would  not,  perhaps,  be  contended  that 
they  have  ever  been  unlawful ;  but  that  their  origin 
can  bo  distinctly  traced  higher  than  the  yeai-  1769, 
I  am  not  prepared  to  assert.  It  will,  of  course,  be 
understood,  that  this  note  is  merely  historical,  and 
without  reference  to  the  expediency  of  that  change 
in  our  constitutional  theory  which  it  illustrates. 


642 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVI. 


that  though  a  sense  of  dignity  and  privilege 
no  doubt  swelled  the  majorities  in  each 
house,  the  question  was  very  much  involved 
in  the  general  Whig  and  Tory  course  of 
politics.     But  Ashby,  during  the  recess, 
having  proceeded  to  execution  on  his  judg- 
ment, and  some  other  actions  having  been 
brought  against  the  returning  officer  of 
Aylesbury,  the  Commons  again  took  it  up, 
and  committed  tlie  parties  to  Newgate. 
They  moved  the  Court  of  King's  Bench  for 
a  habeas  corpus  ;  upon  the  return  to  which, 
thS judges,  except  Holt,  thought  themselves 
not  warranted  to  set  them  at  liberty  against 
the  commitment  of  the  House.*    It  was 
threatened  to  bring  this  by  writ  of  error  be- 
fore the  Lords ;  and,  in  the  disposition  of 
that  assembly,  it  seems  probable  that  they 
would  have  inflicted  a  severe  wound  on  the 
privileges  of  the  Lower  House,  which  must, 
in  all  probability,  have  turned  out  a  sort  of 
suicide  upon  their  own.    But  the  Commons 
interposed  by  resolving  to  commit  to  prison 
the  counsel  and  agents  concerned  in  prose- 
cuting the  habeas  corpus,  and  by  addressing 
the  queen  not  to  grant  a  writ  of  error.  The 
queen  properly  answered,  that  as  this  mat- 
ter, relating  to  the  course  of  judicial  pro- 
ceedings, was  of  the  highest  consequence, 
she  thought  it  necessary  to  weigh  very  care- 
fuDy  what  she  should  do.     The  Lords 
came  to  some  important  resolutions  :  That 
neither  house  of  Parliament  hath  any  pow- 
er by  any  vote  or  declaration  to  create  to 
themselves  any  new  privilege  that  is  not 
warranted  by  the  known  laws  and  customs 
of  Parliament ;  that  the  House  of  Commons, 
in  committing  to  Newgate  certain  persons 
for  prosecuting  an  action  at  law,  upon  pre- 
tense that  their  so  doing  was  contrary  to  a 
declaration,  a  contempt  of  the  jurisdiction, 
and  a  breach  of  the  privileges  of  that  House, 
have  assumed  to  themselves  alone  a  legisla- 
tive power,  by  pretending  to  attribute  the 
force  of  law  to  their  declaration,  have  claimed 
a  jurisdiction  not  wan'anted  by  the  Consti- 
tution, and  have  assumed  a  new  privilege, 
to  which  they  can  show  no  title  by  the  law 
and  custom  of  Parliament ;  and  have  there- 
by, as  far  as  in  them  lies,  subjected  the 
rights  of  Englishmen,  and  the  freedom  of 
their  persons,  to  the  arbitrary  votes  of  the 
House  of  Commons;  that  every  English- 
man, who  is  imprisoned  by  any  authority 
■  •^ate^Triala,  xiv.,  849. 


whatsoever,  has  an  undoubted  right  to  a 
writ  of  habeas  corpus,  in  order  to  obtain  his 
liberty  by  the  due  course  of  law ;  that  for 
the  House  of  Commons  to  punish  any  per- 
son for  assisting  a  prisoner  to  procure  such 
a  writ  is  an  attempt  of  dangerous  conse- 
quence, and  a  breach  of  the  statutes  provid- 
ed for  the  liberty  of  the  subject ;  that  a  writ 
of  error  is  not  of  grace,  but  of  right,  and 
ought  not  to  be  denied  to  the  subject  when 
duly  applied  for,  though  at  the  request  of 
either  house  of  Parliament. 

These  vigorous  resolutions  produced  a 
conference  between  the  Houses,  which  was 
managed  with  more  temper  than  might  have 
been  expected  from  the  tone  taken  on  both 
sides.    But,  neither  of  them  receding  in  the 
slightest  degree,  the  Lords  addressed  the 
queen,  requesting  her  to  issue  the  writs  of 
eiTor  demanded  upon  the  refusal  of  the 
King's  Bench  to  discharge  the  parties  com- 
mitted ftom  the  House  of  Commons.  The 
queen  answered  the  same  day  that  she 
should  have  granted  the  writs  of  error  de- 
sired by  them,  but,  finding  an  absolute  ne- 
cessity of  putting  an  immediate  end  to  the 
session,  she  was  sensible  there  could  have 
been  no  further  proceeding  upon  them. 
The  meaning  of  this  could  only  be,  that  by 
a  prorogation  all  commitments  by  order  of 
the  lower  house  of  Parliament  are  determ- 
ined, so  that  the  parties  could  stand  in  no 
need  of  a  habeas  corpus ;  but  a  great  con- 
stitutional question  was  thus  wholly  eluded.* 
We  may  reckon  the  proceedings  against 
Mr.  Alexander  Murray,  in  1751,  proceedings 
among  the  instances  wherein  the  ^I^rray^' 
House  of  Commons  has  been  hur-  1751. 
ried  by  passion  to  an  undue  violence.  This 
gentleman  had  been  active  in  a  contested 
Westminster  election,  on  an  anti-ministe- 
i-ial  and  perhaps  Jacobite  interest.    In  the 
course  of  an  inquiry  before  the  House, 
founded  on  a  petition  against  the  return,  the 
high-bailiff  named  Mr.  Murray  as  having  in- 
sulted him  in  the  execution  of  his  duty. 
The  House  resolved  to  hear  Murray  by 
counsel  in  his  defense,  and  the  high-bailiff 
also  by  counsel  in  support  of  the  charge,  and 
ordered  the  former  to  give  bail  for  his  ap- 
pearance from  time  to  time.    These,  es- 
pecially the  last,  were  innovations  on  the 
practice  of  Parliament,  and  were  justly  op- 


Pari.  Hist.,  vi.,  225,  et  post.  State  Trials,  xiv., 
695,  et  post. 


Akke,  6ko.  I,  Geo.  II.]       FROM  HENRY  VII.  TO  GEORGE  II. 


643 


posed  by  the  move  cool-headed  men.  After 
hearing  witnesses  on  both  sides,  it  was  re- 
solved that  Mun-ay  should  be  committed  to 
Newgate,  and  should  receive  this  sentence 
upon  his  knees.  This  command  he  steadily 
refused  to  obey,  and  thus  drew  on  himself 
a  storm  of  wrath  at  such  insolence  and  au- 
dacity. But  the  times  were  no  more  when 
the  Commons  could  inflict  whippings  and 
pillories  on  the  refractory ;  and  they  were 
forced  to  content  themselves  with  oi'dering 
that  no  person  should  be  admitted  to  him  in 
prison,  which,  on  account  of  his  ill  health, 
they  soon  afterward  relaxed.  The  public 
voice  is  never  favorable  to  such  arbitrary  ex- 
ertions of  mere  power  :  at  the  expiration  of 
the  session,  Mr.  Murray,  thus  grown  from 
an  intriguing  Jacobite  into  a  confessor  of 
popular  liberty,  was  attended  home  by  a 
sort  of  tinumphal  procession  amid  the  ap- 
plause of  the  people.  In  the  next  session 
he  was  again  committed  on  the  same  charge  ; 
a  proceeding  extremely  violent  and  arbi- 
trary.* 

It  has  been  always  deemed  a  most  im- 
portant and  essential  privilege  of  the  houses 
of  Parliament,  that  they  may  punish  in  this 
summary  manner  by  commitment  all  those 
who  disobey  their  orders  to  attend  as  wit- 
nesses, or  for  any  purposes  of  their  consti- 
tutional duties.  No  inquii-y  could  go  for- 
ward before  the  House  at  large  or  its  com- 
mittees without  this  power  to  enforce  obe- 
dience, especially  when  the  information  is 
to  be  extracted  from  public  oflicers  against 
the  secret  wishes  of  the  court.  It  is  equally 
necessary  (or,  rather,  more  so,  since  evi- 
dence not  being  on  oath  in  the  Lower 
House,  there  can  be  no  punishment  in  the 
course  of  law)  that  the  contumacy  or  pre- 
varication of  witnesses  should  incur  a  simi- 
lar penalty.  No  man  would  seek  to  take 
away  this  authority  from  Parliament,  unless 
he  is  either  very  ignorant  of  what  has  oc- 
curred in  other  times  and  his  own,  or  is  a 
slave  in  the  fetters  of  some  general  theory. 

But  far  less  can  be  advanced  for  several 
Commitments  exertions  of  power  on  record  in 
for  offenses     {he  Joumals,  wliicli,  under  the 

uaconnected  «...  ,  , 

•with  the  name  of  pnvilege,  must  be  reck- 
House.  oned  by  impartial  men  irregular- 
ities and  encroachments,  capable  only  at 


*  Pari.  Hist.,  xiv.,  888,  et  post,  1063.  Walpole's 
Memoirs  of  the  last  Ten  Years  of  George  II.,  i.,  15, 
et  post. 


some  periods  of  a  kind  of  apology  from  the 
unsettled  state  of  the  Constitution.  The 
Commons  began,  in  the  famous  or  infamous 
case  of  Floyd,  to  arrogate  a  power  of  ani- 
madverting upon  political  offenses,  which 
was  then  wrested  from  them  by  the  Up- 
per House  ;  but  in  the  first  Parliament  of 
Charles  I.  they  committed  Montagu  (after- 
ward the  noted  semi-popish  bishop)  to  the 
sergeant  on  account  of  a  published  book  con- 
taining doctrines  they  did  not  approve  ;*  for 
this  was  evidently  the  main  point,  though 
he  was  also  charged  with  reviling  two  per- 
sons who  had  petitioned  the  House,  which 
bore  a  distant  resemblance  to  a  contempt. 
In  the  Long  Parliament,  even  from  its  com- 
mencement, every  boundary  was  swept 
away ;  it  was  sufficient  to  have  displeased 
the  majority  by  act  or  word ;  but  no  prec- 
edents can  be  derived  from  a  crisis  of  force 
struggling  against  force.  If  we  descend  to 
the  reign  of  William  III.,  it  will  be  easy  to 
discover  instances  of  commitments,  laudable 
in  their  purpose,  but  of  such  doubtful  le- 
gality and  dangerous  consequence,  that  no 
regard  to  the  motive  should  induce  us  to 
justify  the  precedent.  Graham  and  Burton, 
the  solicitors  of  the  ti'easury  in  all  the  worst 
state  prosecutions  under  Charles  and  James, 
and  Jenner,  a  baron  of  the  Exchequer,  were 
committed  to  the  Tower  by  the  council  im- 
mediately after  the  king's  proclamation,  witli 
an  intention  of  proceeding  criminally  against 
them.  Some  months  afterward  the  suspen- 
sion of  the  habeas  corpus,  which  had  taken 
place  by  bill,  having  ceased,  they  moved  the 
King's  Bench  to  admit  them  to  bail ;  but  the 
House  of  Commons  took  this  up,  and,  after 
a  report  of  a  committee  as  to  precedents, 
put  them  in  custody  of  the  sergeant-at- 
arms.f  On  complaints  of  abuses  in  victual- 
ing the  navy,  the  commissioners  of  that  de- 
partment were  sent  for  in  the  sergeant's 
custody,  and  only  released  on  bail  ten  days 
afterward. t  But  without  minutely  consid- 
ering the  questionable  instances  of  privilege 
that  we  may  regret  to  find,  I  will  select  one 
wherein  the  House  of  Commons  appear  to 
have  gone  far  beyond  either  the  reasonable 
or  customary  limits  of  privilege,  and  that 
with  very  little  pretext  of  public  necessity. 
In  the  reign  of  George  I.,  a  newspaper  called 


*  Journals,  vii.,  9th  of  July,  1725. 

t  Commons'  Joumals,  25th  of  Oct.,  1689. 

{  Id.,  5th  of  Dec. 


644 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVI. 


Mist's  .Journal  was  notorious  as  the  organ 
of  the  .Jacobite  faction.  A  passage  full  of 
the  most  impudent  longings  for  the  Pre- 
tender's restoration  having  been  laid  before 
the  House,  it  was  resolved,  May  28,  1721, 
"  That  the  said  paper  is  a  false,  malicious, 
scandalous,  infamous,  and  traitorous  libel, 
tending  to  alienate  the  affections  of  his  maj- 
esty's subjects,  and  to  excite  the  people  to 
sedition  and  rebellion,  with  an  intention  to 
subvert  the  present  happy  establishment, 
and  to  introduce  popeiy  and  arbitrary  pow- 
er." They  went  on  after  this  resolution  to 
commit  the  printer.  Mist,  to  Newgate,  and 
to  address  the  king  that  the  authors  and  pub- 
lishers of  the  libel  might  be  prosecuted.*  It 
is  to  be  observed  that  no  violation  of  privilege 
either  was,  or,  indeed,  could  be  alleged  as 
the  ground  of  this  commitment,  which  seems 
to  imply  that  the  House  conceived  itself  to 
be  invested  with  a  general  power,  at  least 
in  all  political  misdemeanors. 

I  have  not  observed  any  case  more  recent 
than  this  of  Mist,  wherein  any  one  has  been 
committed  on  a  charge  which  could  not  pos- 
sibly be  interpreted  as  a  contempt  of  the 
House,  or  a  breach  of  its  privilege.  It  bo- 
came,  however,  the  practice,  without  pi-e- 
viously  addressing  the  king,  to  direct  a  pros- 
ecution by  the  attorney-general  for  offenses 
of  a  public  nature,  which  the  Commons  had 
learned  in  the  course  of  any  inquiry,  or 
which  had  been  formally  laid  before  them.f 
This  seems  to  have  been  introduced  about 
the  beginning  of  the  reign  of  Anne,  and  is 
undoubtedly  a  far  more  constitutional  course 
than  that  of  arbiti'aiy  punishment  by  over- 
straining their  privilege.  In  some  instances, 
libels  have  been  publicly  burned  by  the  order 
of  one  or  other  house  of  Parliament. 

I  have  principally  adverted  to  the  powers 
exei'ted  by  the  lower  house  of  Parliament 
in  punishing  those  guilty  of  violating  their 
privileges.  It  will,  of  course,  be  understood, 
that  the  Lords  are  at  least  equal  in  author- 
ity ;  in  some  respects,  indeed,  they  have 
gone  beyond.  I  do  not  mean  that  they 
would  be  supposed  at  present  to  have  cog- 
nizance of  any  offense  whatever,  upon  which 
the  Commons  could  not  animadvert.  Not- 
withstanding what  they  claimed  in  the  case 
of  Floyd,  the  subsequent  denial  by  the  Com- 

*  Pari.  Hist.,  vii.,  803. 

t  Lords'  Journals,  10th  of  Jan.,  1702.  Pari.  Hist., 
v\.,  21. 


mons,  and  abandonment  by  themselves,  of 
any  original  jurisdiction,  must  stand  in  the 
way  of  their  assuming  such  authority  over 
misdemeanors,  more  extensively,  at  least, 
than  the  Commons,  as  has  been  shown,  have 
in  some  instances  exercised  it.  But  while 
the  latter  have,  with  very  few  exceptions, 
and  none  since  the  Restoration,  contented 
themselves  with  commitment  during  the 
session,  the  Lords  have  sometimes  imposed 
fines,  and,  on  some  occasions  in  the  reign 
of  George  II.,  as  well  as  later,  have  adjudged 
parties  to  imprisonment  for  a  certain  time. 
In  one  instance,  so  late  as  that  reign,  they 
sentenced  a  man  to  the  pillory  ;  and  this  had 
been  done  several  times  before.  The  judg- 
ments, however,  of  earlier  ages  give  far  less 
credit  to  the  jurisdiction  than  they  take  from 
it.  Besides  the  ever-memorable  case  of 
Floyd,  one  John  Blount,  about  the  same 
time  (27th  of  Nov.,  1621),  was  sentenced 
by  the  Lords  to  imprisonment  and  hard  la- 
bor in  Bridewell  during  life.* 

It  may  surprise  those  who  have  heard 
of  the  happy  balance  of  the  English  Consti- 
tution, of  the  responsibility  of  eveiy  man  to 
the  law,  and  of  the  security  of  the  subject 
iVom  all  unlimited  power,  especially  as  to 
personal  freedom,  that  this  power  of  award- 
ing punishment  at  discretion  of  the  houses 
of  Parliament  is  generally  re-  privileges  of 
puted  to  be  universal  and  uncon-  the  House 
trollable.  This,  indeed,  was  by  bie  by'courts 
no  means  received  at  the  time  o'^'*"- 
when  the  most  violent  usurpations  under 
the  name  of  privilege  were  first  made ;  the 
power  was  questioned  by  the  Royalist  party 
who  became  its  victims,  and,  among  others, 
by  the  gallant  Welshman,  Judge  Jenkins, 
whom  the  Long  Parliament  had  shut  up  in 
the  Tower.  But  it  has  been  several  times 
brought  into  discussion  before  the  ordinary 
ti-ibunals;  and  the  result  has  been,  that  if 
the  power  of  Parliament  is  not  unlimited  in 
right,  there  is  at  least  no  remedy  provided 
against  its  excesses. 

The  House  of  Lords  in  1677  committed  to 


*  Hargrave's  Juridical  ArsTiments,  vol.  i.,  p.  1, 
&c.  [In  1677,  the  Lords  having  committed  one 
Dr.  Carj'  for  sending  to  the  press  a  libel,  asserting 
the  illegality  of  the  late  prorogation,  it  was  taken 
up  wai-mly  by  the  opposition  commoners,  on  the 
ground  that  offenses  against  the  government  could 
not  be  prosecuted  in  Parliament.  Nothing,  how- 
ever, was  done  by  the  House,  so  that  the  Lords 
gained  a  victory.— Pari.  Hist.,  iv.,  837.— 1845.] 


Anne,  Gko.  I.,  Geo.  II.]       FROM  HENRY  VII.  TO  GEORGE  II. 


645 


die  Tower  four  peers,  among  whom  was  the 
Earl  of  Shaftesbury,  for  a  high  contempt; 
that  is,  for  calling  iu  question,  during  a  de- 
bate, the  legal  continuance  of  Parliament 
after  a  prorogation  of  more  than  twehe 
mouths.  Shaftesbury  moved  the  Court  of 
King's  Bench  to  release  him  upon  a  writ  of 
habeas  corpus  ;  but  the  judges  were  unani- 
mously of  opinion  that  they  had  no  jurisdic- 
tion to  inquire  into  a  commitment  by  the 
Lords  of  one  of  their  body,  or  to  discharge 
the  party  during  the  session,  even  though 
there  might  be,  as  appears  to  have  been  the 
case,  such  technical  informality  on  the  face 
of  the  commitment  as  would  be  sufficient  in 
an  ordinary  case  to  set  it  aside.* 

Lord  Shaftesbury  was  at  this  time  in  ve- 
hement opposition  to  the  court.  Without 
insinuating  that  this  had  any  effect  upon  the 
judges,  it  is  certain  that  a  few  years  after- 
ward they  were  less  inclined  to  magnify  the 
privileges  of  Parliament.  Some  who  had 
been  committed,  very  wantonly  and  oppress- 
wely,  by  the  Commons  in  1680,  under  the 
name  of  abhorrers,  brought  actions  for  false 
imprisonment  against  Topham,  the  sergeant- 
«t-arms.  In  one  of  these  he  put  in  what  is 
called  a  plea  to  the  jurisdiction,  denying  the 
competence  of  the  Court  of  King's  Bench, 
inasmuch  as  the  alleged  trespass  had  been 
done  by  order  of  the  knights,  citizens,  and 
Durgesses  of  Parliament;  but  the  judges 
overruled  this  plea,  and  ordered  him  to  plead 
in  bar  to  the  action.  We  do  not  find  that 
Topham  complied  with  this  ;  at  least  judg- 
ments appear  to  have  passed  against  him  in 
these  actions.!  The  Conmions,  after  the 
Revolution,  entered  on  the  subject,  and 
summoned  two  of  the  late  judges,  Peniber- 
ton  and  Jones,  to  their  bar.  Pemberton 
answered  that  he  remembered  little  of  the 
case  ;  but  if  the  defendant  should  plead  that 
he  did  arrest  the  plaintiff  by  order  of  the 
House,  and  should  plead  that  to  the  juris- 
diction of  the  King's  Bench,  ho  thought, 
with  submission,  he  could  satisfy  the  House 
that  such  a  plea  ought  to  be  overruled,  and 
that  he  took  the  law  to  be  so  very  clearly. 
The  House  pressed  for  his  reasons,  which 
he  rather  declined  to  give.  But  on  a  sub- 
sequent day  he  fully  admitted  that  the  order 
of  the  House  was  sufficient  to  take  any  one 
into  custody,  but  that  it  ought  to  be  pleaded 

,  *  State  Trials,  vi.,  13C9.    1  Modern  Reports,  159 
t  State  Trials,  xii.,  822.    T.  Jones,  Reports,  208. 


in  bar,  and  not  to  the  jurisdiction,  which 
would  be  of  no  detriment  to  the  party,  nor 
affect  his  substantial  defense.  It  did  not  ap- 
pear, however,  that  he  had  given  any  inti- 
mation from  the  bench  of  so  favoiable  a 
leaning  toward  the  rights  of  Parliament ; 
and  his  present  language  might  not  unchari- 
tably be  ascribed  to  the  change  of  times. 
The  House  lesolved  that  the  orders  and 
])roceedings  of  this  House  being  pleaded  to 
the  jurisdiction  of  the  Court  of  King's  Bench 
ought  not  to  be  overruled  ;  that  the  judges 
had  been  guilty  of  a  breach  of  privilege,  and 
should  be  taken  into  custody.* 

I  have  already  mentioned  that,  in  the 
course  of  the  controversy  between  the  two 
Houses  on  the  case  of  Ashby  and  White, 
the  Commons  had  sent  some  persons  to 
Newgate  for  suing  the  returning  officer  of 
Aylesbury  in  defiance  of  their  resolutions; 
and  that,  on  their  application  to  the  King's 
Bench  to  be  discharged  on  their  habeas  cor- 
pus, the  majority  of  the  judges  had  refused 
it.  Three  judges,  Powis,  Gould,  and  Pow- 
ell, held  that  the  courts  of  Westminster 
Hall  could  have  no  powor  to  judge  of  the 
commitments  of  the  houses  of  Parliament; 
that  they  had  no  means  of  knowing  what 
were  the  privileges  of  the  Commons,  and, 
consequently,  could  not  know  their  bounda- 
ries ;  that  the  law  and  custom  of  Parliament 
stood  on  its  own  basis,  and  was  not  to  be  de- 
cided by  the  general  rules  of  law';  that  no 
one  had  ever  been  discharged  from  such  a 
commitment,  which  was  au  argument  that 
it  could  not  be  done.  Holt,  the  chief-just- 
ice, on  the  other  hand,  maintained  that  no 
privilege  of  Parliament  could  destroy  a 
man's  right,  such  as  that  of  bringing  an  ac- 
tion for  a  civil  injury ;  that  neither  house 
of  Parliament  could  separately  dispose  of 
the  liberty  and  property  of  the  people,  which 
could  only  be  done  by  the  whole  Legisla- 
ture ;  that  the  judges  were  bound  to  take 
notice  of  the  customs  of  Parliament,  because 
they  are  part  of  the  law  of  the  land,  and 
might  as  well  be  learned  as  any  other  part 
of  the  law.  "  It  is  the  law,"  he  said,  "  that 
gives  the  queen  her  prerogative ;  it  is  the 
law  gives  jurisdiction  to  the  House  of  Lords, 
as  it  is  the  law  limits  the  jurisdiction  of  the 
House  of  Commons."  The  eight  other 
judges  having  been  consulted,  though  not 
judicially,  are  stated  to  have  gone  along 
"^*^oumals,Toth7l2th,  and  19th  of  July,  1689. 


646 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


with  the  majonty  of  the  court,  in  holding 
that  a  commitineDt  by  either  house  of  Par- 
liament was  not  cognizable  at  law.  But 
from  some  of  the  resolutions  of  the  Lords 
on  this  occasion  which  I  have  quoted  above, 
it  may  seem  probable  that,  if  a  writ  of  error 
had  been  ever  heard  before  them,  they 
would  have  learned  the  docti'ine  of  Holt, 
unless,  indeed,  withheld  by  the  reflection 
that  a  similar  principle  might  easily  be  ex- 
tended to  themselves.* 

It  does  not  appear  that  any  commitment 
for  breach  of  privilege  was  disputed  until 
the  year  1751,  when  Mr.  Alexander  Mur- 
ray, of  whom  mention  has  been  made,  caused 
himself  to  be  brought  before  the  Court  of 
King's  Bench  on  a  habeas  corpus ;  but  the 
judges  were  unanimous  in  refusing  to  dis- 
charge him.  "  The  House  of  Commons," 
said  Mr.  Justice  Wright,  "  is  a  high  court, 
and  it  is  agreed  on  all  hands  that  they  have 
power  to  judge  of  their  own  privileges;  it 
need  not  appear  to  us  what  the  contempt 
is  for ;  if  it  did  appear,  we  could  not  judge 
thereof."  "  This  court,"  said  Mr.  Justice 
Denison,  "has  no  jurisdiction  in  the  pres- 
ent case.  We  gi-anted  the  habeas  corpus, 
not  knowing  what  the  commitment  was; 
but  now  it  appears  to  be  for  a  contempt  of 
the  privileges  of  the  House  of  Commons. 
What  the  privileges  of  either  House  are 
we  do  not  know ;  nor  need  they  tell  us 
what  the  contempt  was,  because  we  can 
not  judge  of  it;  for  I  must  call  this  court 
inferior  to  the  Commons  with  respect  to 
judging  of  their  privileges,  and  contempts 
against  them."  Mr.  Justice  Foster  agreed 
with  the  two  others,  that  the  House  could 
commit  for  a  contempt,  which,  he  said.  Holt 
had  never  denied  in  such  a  case  as  this  be- 
fore them.f  It  would  be  unnecessary  to 
produce  later  cases  which  have  occurred 
since  the  reign  of  George  II.,  and  elicited 
still  stronger  expressions  from  the  judges  of 
their  incapacity  to  take  cognizance  of  what 
may  be  done  by  the  houses  of  Parliament. 

Notwithstanding  such  imposing  authori- 
_        ,    ties,  there  have  not  been  wanting 

Danger  of  i         ,       ,  , 

stretching  some  who  have  thought  that  the 
this  too  far.  jog^.jne  of  uncontrollable  privilege 
is  both  eminently  dangerous  in  a  free  coun- 
try, and  repugnant  to  the  analogy  of  our 
Constitution.  The  manly  language  of  Lord 
Holt  has  seemed  to  rest  on  better  princi- 
"  State  Trials,  xiv.,  849.        t  Ibid.,  viii.,  30. 


pies  of  public  utility,  and  even,  perhaps,  of 
positive  law.*  It  is  not,  however,  to  be  in- 
ferred, that  the  right  of  either  house  of  Par- 
liament to  commit  persons,  even  not  of  their 
own  body,  to  prison,  for  contempts  or  breach- 
es of  privilege,  ought  to  be  called  in  ques- 
tion. In  some  cases  this  authority  is  as 
beneficial,  and  even  indispensable,  as  it  is 
ancient  and  established.  Nor  do  I  by  any 
means  pretend  that  if  the  warrant  of  com- 
mitment merely  recites  the  party  to  have 
been  guilty  of  a  contempt  or  breach  of  priv- 
ilege, the  truth  of  such  allegation  could  bo 
examined  upon  a  return  to  a  writ  of  habeas 
corpus,  any  more  than  in  an  ordinary  case 
of  felony.  Whatever  injustice  may  thus 
be  done  can  not  have  redress  by  any  legal 
means ;  because  the  House  of  Commons 
(or  the  Lords,  as  it  may  be)  are  the  fit  judg- 
es of  the  fact,  and  must  be  presumed  to  have 
determined  it  according  to  right.  But  it  is 
a  more  doubtful  question,  whether,  if  they 
should  pronounce  an  offense  to  be  a  breach 
of  privilege,  as  in  the  case  of  the  Aylesbury 
men,  which  a  court  of  justice  should  per- 
ceive to  be  clearly  none,  or  if  they  should 
commit  a  man  on  a  charge  of  misdemeanor, 
and  for  no  breach  of  privilege  at  all,  as  in 
the  case  of  Mist,  the  printer,  such  excesses 
of  jurisdiction  might  not  legally  be  restiviin- 
ed  by  the  judges.  If  the  resolutions  of  the 
Lords  in  the  business  of  Ashby  and  White 
are  constitutional  and  true,  neither  house 
of  Parliament  can  create  to  itself  any  new 
privilege  ;  a  proposition  surely  so  consonant 
to  the  rules  of  English  law,  which  require 

*  This  is  very  elaborately  and  dispassionately 
argued  by  Mr.  Hargrave  in  his  Juridical  Argu- 
ments, above  cited ;  also,  vol.  ii.,  p.  183.  "  I  un- 
derstand it,"  he  says,  "  to  be  clearly  part  of  the 
law  and  custom  of  Parliament  that  each  house  of 
Parliament  may  inquire  into  and  imprison  for 
breaches  of  privilege."  But  this  he  thinks  to  be 
limited  by  law ;  and  after  allowing  it  clearly  in 
cases  of  obstruction,  arrest,  assault,  &c.,  on  mem- 
bers, admits  also  that  "  the  judicative  power  as  to 
writing,  speaking,  or  publishing,  of  gross  reflec- 
tions upon  the  whole  Parliament  or  upon  either 
House,  though  perhaps  originally  questionable, 
seems  now  of  too  long  a  standing  and  of  too  mnch 
frequency  in  practice  to  be  well  counteracted." 
But  after  mentioning  the  opinions  of  the  judges  in 
Crosby's  case,  Mr.  H.  observes  :  "  I  am  myself  far 
from  being  convinced  that  commitment  for  con- 
tempts by  a  house  of  Parliament,  or  by  the  high- 
est court  of  judicature  in  Westminster  Hall,  either 
ought  to  be,  or  are  thus  wholly  priWlejed  from  all 
examination  and  appeal." 


Anne,  Geo.  I.,  Geo.  II.]       FROM  HENIIY  VIL  TO  GEOEGE  U. 


G47 


prescription  or  statute  as  the  basis  for  ev- 
ery right,  that  few  will  dispute  it ;  and  it 
must  be  still  less  lawful  to  exercise  a  juris- 
diction over  misdemeanors,  by  committing 
a  party  who  would  regularly  be  only  held 
to  bail  on  such  a  charge.  Of  this  I  am  veiy 
certain,  that  if  Mist,  in  the  year  1721,  had 
applied  for  his  discharge  on  a  habeas  cor- 
pus, it  would  have  been  far  more  difficult 
to  have  opposed  it  on  the  score  of  precedent 
or  of  constitutional  right,  than  it  was  for  the 
attorney-general  of  Charles  I.,  nearly  one 
hundred  years  before,  to  resist  the  famous 
arguments  of  Selden  and  Littleton  in  the 
case  of  the  Buckinghamshire  gentlemen 
committed  by  the  council.  If  a  few  scat- 
tered acts  of  power  can  make  such  prece- 
dents as  a  court  of  justice  must  take  as  its 
rule,  I  am  sure  the  decision,  neither  in  this 
case  nor  in  that  of  ship-inooey,  was  so  un- 
constitutional as  we  usually  suppose  :  it  was 
by  dwelling  on  all  authorities  in  favor  of  lib- 
ertj',  and  by  setting  a,side  those  which  made 
against  it,  that  our  ancestors  overthrew  the 
claims  of  unbounded  prerogative.  Nor  is 
this  parallel  less  striking  when  we  look  at 
the  tone  of  implicit  obedience,  respect,  and 
confidence  with  which  the  judges  of  the 
eighteenth  century  have  spoken  of  the 
houses  of  Parliament,  as  if  their  sphere 
were  too  low  for  the  cognizance  of  such  a 
transcendent  authoritj'.*  The  same  lan- 
guage, almost  to  the  words,  was  heard  from 
the  lips  of  the  Hydes  and  Berkleys  in  the 
preceding  age,  in  reference  to  the  king  and 
to  the  privy  council.  Bat  as,  when  the 
spirit  of  the  government  was  almost  wholly 
monarchical,  so  since  it  has  turned  chiefly 
to  an  aristocracy,  the  courts  of  justice  have 
been  swayed  toward  the  predominant  influ- 
ence ;  not,  in  general,  by  any  undue  mo- 

*  Mr.  Justice  Gould,  in  Crosby's  case,  as  report- 
ed by  Wilson,  observes  :  "  It  is  true  this  court  did, 
in  tlie  instance  alluded  to  by  tlie  counsel  at  the 
bar  (Wilkes's  case,  2  Wilson,  151),  determine 
opon  the  privilege  of  Parliament  in  the  case  of  a 
libel ;  but  then  that  privilege  was  promulged  and 
known  ;  it  existed  in  records  and  law-books,  and 
was  allowed  by  Parliament  itself.  But  cren  in 
that  case  ue  note  kitoio  that  we  n  ere  mistaken ;  for 
the  House  of  Commons  have  since  determined  that 
privilege  does  not  extend  to  matters  of  libel."  It 
appears,  therefore,  that  Mr.  Justice  Gould  thought 
a  declaration  of  the  Hoase  of  Commons  was  better 
authority  than  a  decision  of  tlie  Court  of  Common 
Pleas,  as  to  a  privilege  which,  as  he  says,  existed 
in  records  and  law-books. 


1  tives,  but  because  it  is  natural  for  them  to 
support  power,  to  shun  offense,  and  to  shel- 
ter themselves  behind  precedent.  They 
i  have  also  sometimes  had  in  view  the  analo- 
I  gy  of  Parliamentaiy  commitments  to  their 
own  power  of  attachment  for  contempt, 
I  which  they  hold  to  be  equally  uncontrolla- 
1  ble ;  a  doctiine  by  no  means  so  dangerous 
;  to  the  subject's  liberty,  but  liable,  also,  to  no 
trifling  objections.* 

The  consequences  of  this  utter  iirespons- 
ibility  in  each  of  the  two  Houses  will  appear 
still  more  serious  when  we  advert  to  the 
unlimited  power  of  punishment  ^Yhich  it 
draws  with  it.  The  Commons,  indeed,  do 
'  not  pretend  to  impnson  beyond  the  session  ; 
but  the  Lords  have  imposed  fines  and  defin- 
ite imprisonment ;  and  attempts  to  resist 
these  have  been  unsuccessful. f  If  the  mat- 
ter is  to  rest  upon  precedent,  or  upon  what 
overrides  precedent  itself,  the  absolute  fail- 
ure of  jurisdiction  in  the  ordinaiy  courts, 
there  seems  nothing  (decency  and  discre- 
tion excepted)  to  prevent  dieir  repeating 
the  sentences  of  James  I.'s  reign,  whipping, 
branding,  hard  labor  for  life.  Nay,  they 
might  order  the  usher  of  the  black  rod  to 
take  a  man  from  their  bar,  and  hang  him 
up  in  the  lobby.  Such  things  would  not 
be  done,  and,  being  done,  would  not  be  en- 
dured ;  but  it  is  much  that  any  sworn  min- 
isters of  the  law  should,  even  by  indefinite 
''language,  have  countenanced  the  legal  pos- 
sibility of  tyrannous  power  in  England. 
The  temper  of  government  itself,  in  modern 
times,  has  generally  been  mild ;  and  this  is 
probably  the  best  ground  of  confidence  in 
the  discretion  of  Parliament;  but  popular, 
that  is,  numerous  bodies,  are  always  prone 
to  excess,  both  from  the  reciprocal  influen- 
ces of  their  passions,  and  the  consciousness 
of  iiTesponsibility ;  for  which  reasons  a  de- 

*  "  I  am  far  from  subscribing  to  all  the  latitude 
of  the  doctrine  of  attachments  for  contempts  of  the 
king's  courts  of  Westminster,  especially  the  King's 
Bench,  as  it  is  sometimes  stated,  and  it  has  been 
sometimes  practiced." — Hargrave,  ii.,  213. 

"  The  principle  upon  which  attachments  issne 
for  libels  on  courts  is  of  a  more  enlarged  and  im- 
portant nature ;  it  is  to  keep  a  blaze  of  glory  around 
them,  and  to  deter  people  from  attempting  to  ren- 
der them  contemptible  in  the  eyes  of  the  people." 
— Wilmot's  Opinions  and  Judgments,  p.  270.  Yet 
the  king,  who  seems  as  much  entitled  to  this  blaze 
of  glory  as  his  judges,  is  driven  to  the  verdict  of  a 
jury  before  the  most  libelous  insult  on  him  can  be 
punished.  t  Hargrave,  ubi  supra. 


648 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVI. 


mocracy,  that  is,  the  absolute  government  < 
of  the  majority,  is  in  general  the  most  ty-  i 
rannical  of  any.    Public  opinion,  it  is  true,  1 
in  this  country,  imposes  a  considerable  re-  I 
straint ;  yet  this  check  is  somewhat  less  1 
powerful  in  that  branch  of  the  Legislature  ' 
which  has  gone  the  furthest  in  chastising 
breaches  of  privilege.    I  would  not  be  un- 
derstood, however,  to  point  at  any  more  re- 
cent discussions  on  this  subject;  were  it 
not,  indeed,  beyond  the  limits  prescribed  to 
me,  it  might  be  shown  that  the  House  of 
Commons,  in  asserting  its  jurisdiction,  has 
receded  from  much  of  the  arbitrarj'  power 
which  it  once  arrogated,  and  which  some 
have  been  disposed  to  bestow  upon  it.* 
IV.  It  is  commonly  and  justly  said  that 

*  [This  important  topic  of  Parliamentary  priv- 
ilege has  been  fully  discussed,  since  the  first  pub- 
lication of  the  present  volumes,  in  the  well-known 
proceedings  to  which  the  action,  Stockdale  v.  Han- 
sard, gave  rise.  In  trying  this  case,  Lord  Den- 
man  told  the  jury  that  tlie  order  of  the  House  of 
Commons  was  not  a  justification  for  any  man  to 
publish  a  private  libel.  In  consequence  of  this  de- 
cision, the  House  of  Commons  resolved,  May  30, 
1837,  That,  by  the  law  and  privilege  of  Parliament, 
this  House  has  the  sole  and  exclusive  jurisdiction 
to  detennine  upon  the  existence  and  extent  of  its 
privileges,  and  that  the  institution  or  prosecution 
of  any  action,  suit,  or  other  proceeding,  for  the  pur- 
pose of  bringing  them  into  discussion  or  decision, 
before  any  court  or  tribunal  elsewhere  than  in  par- 
liament, is  a  high  breach  of  such  privilege,  and 
renders  all  parties  concerucd  therein  amenable  to 
its  just  displeasure,  and  to  the  punishment  conse- 
quent thereon.  And,  That  for  any  court  or  tribunal 
to  assume  to  decide  upon  matters  of  privilege  in- 
consistent with  the  determination  of  either  house 
of  Parliament,  is  contrary  to  the  law  of  Parliament, 
and  is  a  breach  and  contempt  of  the  privileges  of 
Parliament. 

Of  these  resolutions,  which,  as  is  obvious,  go  far  ' 
beyond  what  the  particular  case  of  Stockdale  re- 
quired, it  has  been  well  said,  in  an  excellent  pam- 
plilet  by  Mr.  Pemberton  Leigh,  which  really  ex- 
hausts the  subject,  and  was  never  so  much  as  tol- 
erably answered,  that  "  The  question  now  is, 
whether  each  house  of  Parliament  has  exclusive 
authority  to  decide  upon  the  existence  and  extent 
of  its  own  privileges,  to  pronounce  at  its  pleasure 
upon  the  breach  of  those  privileges,  to  bind  by  its 
declaration  of  law  all  the  queen's  subjects,  be- 
tween whom  in  a  court  of  justice  a  question  as  to 
privilege  may  arise,  and  to  punish  at  its  discretion 
all  persons,  suitors,  attorneys,  counsel,  and  judges, 
who  may  be  concerned  in  bringing  those  privileges 
into  discussion  in  a  court  of  justice  directly  or  in- 
directly."— Pemberton's  Letter  to  Lord  Langdale, 
p.  4.-1 837. 

In  the  debates  which  ensued  in  the  House  of 
Commons,  those  who  contended  for  unlimited  priv- 


civil  liberty  is  not  only  consistent  with,  bat 
in  its  terms  implies,  the  resh'ictive  limita- 
tions of  natural  liberty  which  are  imposed 
by  law.  But,  as  these  are  not  the  less  real 
limitations  of  liberty,  it  can  hardly  be  main- 
tained that  the  subject's  condition  is  not  im- 
paired by  vciy  numerous  restraints  upon 
his  will,  even  without  reference  to  their  ex- 
pediency. The  price  may  be  well  paid ; 
but  it  is  still  a  pi-ice  that  it  costs  some  sac- 
rifice to  pay .  Our  statutes  have  been  grow- 
ing in  bulk  and  multiplicity  with  the  regular 
session  of  Parliament,  and  with  the  new 
sy.stem  of  government;  aU  abounding  with 
prohibitions  and  penalties,  which  every  man 
is  presumed  to  know,  but  which  no  man, 
the  judges  themselves  included,  can  really 
know  with  much  exactness.  We  literally 
walk  amid  the  snares  and  pitfalls  of  the  law. 
The  veiy  doctrine  of  the  more  rigid  casu- 
ists, that  men  are  bound  in  conscience  to 
observe  all  the  laws  of  their  country,  has 

ilege  fell  under  two  classes  ;  such  as  availed  them- 
selves of  the  opinions  of  the  eleven  judges  who 
dissented  from  Holt,  in  Ashby  v.  White,  and  of 
some  later  dicta ;  and  such  as,  apparently  indiffer- 
ent to  what  courts  of  justice  may  have  held,  rested 
upon  some  paramount  sovereignty  of  the  booses 
of  Parliament,  some  uncontrollable  right  of  exer- 
cising discretion arj'  power  for  the  public  good, 
analogous  to  what  was  once  supposed  to  be  vest- 
ed in  the  crown.  If  we  but  substitute  prerogative 
of  the  crown  for  privileges  of  ParUament  in  the 
resolutions  of  1837,  we  may  ask  whether,  in  the 
worst  times  of  the  Tudors  and  Stuarts,  such  a  doc- 
trine was  ever  laid  down  in  express  terms  by  any 
grave  authority.  With  these  there  could  be  no 
argument ;  the  others  had  certainly  as  much  right 
to  cite  legal  authorities  in  their  favor  as  their  op- 
ponents. 

The  commitment  of  the  sheriffs  of  London,  in 
t  1840,  for  executing  a  writ  of  the  dueen's  Bench, 
is  recent  in  our  remembrance,  as  well  as  that  the 
immediate  question  was  set  at  rest  by  a  statute, 
3  &  4  Vict.,  c.  9,  which  legaHzes  publicarions  un- 
der the  authority  of  either  house  of  Parliament, 
leaving,  by  a  special  proviso,  their  privileges  as 
before.  But  the  main  dispute  between  arbitrary 
and  limited  power  is  by  no  means  determined ; 
and,  while  great  confidence  may  be  placed  in  the 
caution  which  commonly  distinguishes  the  leaders 
of  parties,  there  will  always  be  found  many  who, 
possessing  individually  a  small  fraction  of  despotic 
power,  win  not  abandon  it  on  any  principle  of  re- 
specting public  Ubert}'.  It  is  observable,  though 
easily  to  be  accounted  for,  and  conformable  to  what 
occurred  in  the  Long  Parliament,  that  among  the 
most  strenuous  asserters  of  unmeasured  privilege 
are  generally  found  many  not  celebrated  for  any 
peculiar  sympathy  with  the  laws,  the  crown,  and 
the  Constitution.— 1845.] 


Anne,  Geo.  I.,  Geo.  II.]       FROM  HENRY  VII.  TO  GEORGE  II. 


649 


become  impracticable  through  their  com- 
plexity and  inconvenience ;  and  most  of  us 
are  content  to  shift  off  their  penalties  in  the 
mala  prohibila  with  as  little  scruple  as  some 
feel  in  risking  those  of  graver  offenses.  But 
what  more  peculiarly  belongs  to  the  pres- 
ent subject  is  the  systematic  encroachment 
upon  ancient  constitutional  principles,  which 
has  for  a  long  time  been  made  through  new 
enactments,  proceeding  from  the  crown, 
chiefly  in  respect  to  the  revenue.*  These 
may  be  traced,  indeed,  in  the  statute-book, 
at  least  as  high  as  the  Restoration,  and  re- 
ally began  in  the  arbiti'aiy  times  of  revolu- 
tion which  preceded  it.  They  have,  how- 
ever, been  gradually  extended  along  with 
the  public  burdens,  and  as  the  severity  of 
these  has  prompted  fresh  artifices  of  eva- 
sion. It  would  be  curious,  but  not  within 
the  scope  of  this  work,  to  analyze  our  im- 
mense fiscal  law,  and  to  trace  the  history 
of  its  innovations.  These  consist,  partly 
in  taking  away  the  cognizance  of  offenses 
against  the  revenue  from  juries,  whose  par- 
tiality in  such  cases  there  was,  in  truth, 
much  reason  to  apprehend,  and  vesting  it 
either  in  commissioners  of  the  revenue  it- 
self or  in  magistrates  ;  partly  in  anomalous 
and  somewhat  arbitrary  powers  with  regard 

*  This  effect  of  continual  new  statutes  is  well 
])ointed  out  in  a  speech  ascribed  to  Sir  William 
Wyndham  in  1734  :  "  The  learned  gentleman  spoke 
(he  says)  of  the  prerogative  of  the  crown,  and  asked 
us  if  it  had  lately  been  extended  beyond  the  bounds 
prescribed  to  it  by  law.  Sir,  I  will  not  say  that 
there  have  been  lately  any  attempts  to  extend  it  be- 
yond the  bounds  prescribed  bylaw  ;  bat  I  will  say 
that  these  bounds  have  been  of  late  so  vastly  en- 
larged, that  there  seems  to  be  no  great  occasion  for 
any  such  attempt.  What  are  the  many  penal  laws 
made  within  these  forty  years,  but  so  many  exten- 
sions of  the  prerogative  of  the  crown,  and  as  many 
diminutions  of  theliberty  of  the  subject  ?  And  what- 
ever the  necessity  was  that  brought  us  into  the  en- 
octing  of  such  laws,  it  was  a  fatal  necessity  ;  it  has 
greatly  added  to  the  power  of  the  crown,  and  partic- 
ular care  ought  to  be  taken  not  to  throw  any  more 
weight  into  that  scale." — Pari.  Hist.,  ix.,  463. 

Among  the  modern  statutes  which  have  strength- 
ened the  hands  of  the  executive  power,  we  should 
mention  the  Riot  Act,  1  Geo.  I.,  stat.  2,  c.  5,  where- 
by all  persons  tumultuously  assembled  to  the  dis- 
turbance of  the  public  peace,  and  not  dispersing 
within  one  hour  after  proclamation  made  by  a  sin- 
gle magistrate,  are  made  guilty  of  a  capital  felony. 
I  am  by  no  means  controverting  the  expediency 
of  this  law ;  but  especially  when  combined  with 
the  prompt  aid  of  a  military  force,  it  is  surely  a 
compensation  for  much  that  may  seem  to  have 
been  thrown  into  the  popular  scale. 


to  the  collection ;  partly  in  deviations  from 
the  established  rules  of  pleading  and  evi- 
dence, by  throwing  on  the  accused  party  in 
fiscal  causes  the  burden  of  proving  his  inno- 
cence, or  by  superseding  the  necessity  of 
rigorous  proof  as  to  matters  wherein  it  is 
ordinarily  required  ;  and  partly  in  shielding 
the  officers  of  the  crown,  as  far  as'possible, 
from  their  responsibility  for  illegal  actions, 
by  permitting  special  circumstances  of  just- 
ification to  be  given  in  evidence  Avithout  be- 
ing pleaded,  or  by  throwing  impediments  of 
various  kinds  in  the  way  of  the  prosecutor, 
or  by  subjecting  him  to  unusual  costs  in  the 
event  of  defeat. 

These  restraints  upon  personal  liberty, 
and,  what  is  worse,  these  en-  Extension  of 
deavors,  as  they  seem,  to  pre-  i'""^' 
vent  the  fair  administration  of  justice  be- 
tween the  crown  and  the  subject,  have  in 
general,  more  especially  in  modern  times, 
excited  little  regard  as  they  have  passed 
through  the  houses  of  Parliament.  A  sad 
necessity  has  overruled  the  maxims  of  an- 
cient law  ;  nor  is  it  my  business  to  censure 
our  fiscal  code,  but  to  point  out  that  it  is  to 
be  counted  as  a  set-off  against  the  advant- 
ages of  the  Eevolution,  and  has,  in  fact, 
diminished  the  freedom  and  justice  which 
we  claim  for  our  polity  ;  and  that  its  pro- 
visions have  sometimes  gone  so  far  as  to 
give  alarm  to  not  very  susceptible  minds, 
may  be  shown  from  a  remarkable  debate 
in  the  year  1737.  A  bill  having  been 
brought  in  by  the  ministers  to  prevent 
smuggling,  which  contained  some  unusual 
clauses,  it  was  strongly  opposed,  among 
other  peers,  by  Lord-chancellor  Talbot, 
himself,  of  course,  in  the  cabinet,  and  by 
Lord  Hardwicke,  then  chief  justice,  a  reg- 
ularly bred  crown-lawyer,  and  in  his  whole 
life  disposed  to  hold  very  high  the  author- 
ity of  government.  They  objected  to  a 
clause  subjecting  any  three  persons  travel- 
ing with  arms  to  the  penalty  of  transporta- 
tion, on  proof  by  two  witnesses  that  their 
intention  was  to  assist  in  the  clandestine 
landing,  or  carrying  away  prohibited  or  un- 
customed goods.  "  We  have  in  our  laws," 
said  one  of  the  opposing  lords,  "  no  such 
thing  as  a  crime  by  implication,  nor  can  a 
malicious  intention  ever  be  proved  by  wit- 
nesses. Facts  only  are  admitted  to  be 
proved,  and  from  those  facts  the  judge  and 
jury  are  to  determine  with  what  intention 


650 


CONSTITUTIONAL  HISTOttY  OF  ENGLAND 


[Chap.  XVL 


they  were  committed ;  but  no  judge  or  jury 
can  ever,  by  our  laws,  suppose,  much  less 
determine,  that  an  action,  in  itself  innocent 
or  indifferent,  was  attended  with  a  criminal 
and  malicious  intention.  Another  security 
for  our  liberties  is,  that  no  subject  can  be 
imprisoned  unless  some  felonious  and  high 
crime  bo  sworn  against  him.  This,  with 
respect  to  private  men,  is  the  very  founda- 
tion stone  of  all  our  liberties;  and  if  wo 
remove  it,  if  we  but  knock  off  a  corner,  we 
may  probably  overturn  the  whole  fabric. 
A  third  guard  for  our  liberties  is  that  right 
which  every  subject  has,  not  only  to  pro- 
vide himself  with  arms  proper  for  his  de- 
fense, but  to  accustom  himself  to  the  use 
of  those  arms,  and  to  travel  with  them 
whenever  he  has  a  mind."  But  the  clause 
in  question,  it  was  contended,  was  repug- 
nant to  all  the  maxims  of  free  government. 
No  presumption  of  a  crime  tould  bo  drawn 
from  the  mere  wearing  of  arms,  an  act  not 
only  innocent,  but  liighly  commendable  ; 
and,  therefore,  the  admitting  of  witnesses 
to  prove  that  any  of  these  men  were  arme<l, 
in  order  to  assist  in  smuggling,  would  be 
the  admitting  of  witnesses  to  prove  an  in- 
tention, which  was  inconsistent  with  the 
whole  tenor  of  our  laws.*  They  objected 
to  another  provision,  subjecting  a  party 
against  whom  information  should  be  given 
that  he  intended  to  assist  in  smuggling,  to 
imprisonment  without  hail,  thougli  the  of- 
fense itself  were  in  its  nature  bailable  ;  to 
nnother  which  made  informations  for  as- 
sault upon  officers  of  the  revenue  triable  in 
any  county  of  England  ;  and  to  a  yet  more 
startling  protection  thrown  round  the  same 
favored  class,  that  the  magistrates  should 
be  bound  to  admit  them  to  bail  on  charges 
of  killing  or  wounding  any  one  in  the  exe- 
cution of  their  duty.  The  bill  itself  was 
caiTied  by  no  great  majority  ;  and  the  pro- 
visions subsist  at  this  day,  or,  perhaps,  have 
received  a  further  extension. 

It  will  thus  appear  to  every  man  who 
takes  a  comprehensive  view  of  our  consti- 
tutional history,  that  the  executive  govern- 
ment, though  shorn  of  its  lustre,  has  not 
lost  so  much  of  its  real  efficacy  by  the  con- 
sequences of  the  Revolution  as  is  often  sup- 

•  9  Geo.  II.,  c.  35,  sect.  10,  13.  Pari.  Hist.,  ix., 
1229.  I  quote  this  as  I  find  it;  bat  probably  the 
expressions  are  not  quite  correct,  for  the  reason- 
ing is  not  80. 


posed  ;  at  least,  that  with  a  regular  army 
to  put  down  insurrection,  and  an  influence 
sufficient  to  obtain  fresh  statutes  of  restric- 
tion, if  such  should  ever  bo  deemed  neces- 
sary, it  is  not  exposed,  in  the  ordinary 
course  of  affairs,  to  any  serious  hazard. 
But  wo  must  here  distinguish  the  execu- 
tive government,  using  that  word  in  its 
largest  sense,  from  the  crown  itself,  or  the 
personal  authority  of  the  sovereign.  This 
is  a  matter  of  rather  delicate  inquiry,  but 
too  material  to  be  passed  by. 

The  real  power  of  the  prince,  in  the 
most  despotic  monarchy,  must  D  iniinution 
have  its  limits  from  nature,  and  aulhorTt^lf 
bear  some  proportion  to  his  cour-  'he  crown, 
age,  his  activity,  and  his  intellect.  The 
tyrants  of  the  Kast  become  puppets  or 
slaves  of  their  viziers  ;  or  it  turns  to  a  game 
of  cunning,  wherein  the  winner  is  he  who 
shall  succeed  in  tying  the  bow.string  round 
the  other's  neck.  After  some  ages  of  fee- 
ble monarchs,  tlio  titular  royalty  is  found 
wholly  separated  from  the  power  of  com- 
mand, and  glides  on  to  posterity  in  its  lan- 
guid channel,  till  some  usurper  or  conqueror 
stops  up  the  stream  forever.  In  the  civil- 
ized kingdoms  of  Europe,  those  very  insti- 
tutions which  secure  the  permanence  of 
roj-al  families,  and  afford  them  a  guarantee 
against  manifest  subjection  to  a  minister, 
take  generally  out  of  the  hands  of  caoief 
the  sovereign  the  practical  govern-  "f'hu. 
ment  of  his  people.  Unless  liis  capncities 
are  above  the  level  of  ordinary  kings,  he 
must  repose  on  the  wisdom  and  diligence 
of  the  statesmen  he  employs,  with  the  sac- 
rifice, perhaps,  of  his  own  prepossessions 
in  policy,  and  against  the  bent  of  his  person- 
al affections.  The  power  of  a  King  of  En- 
gland is  not  to  be  compared  with  an  ideal 
absoluteness,  but  with  that  which  could  be 
enjoyed  in  the  actual  state  of  society  by 
the  same  person  in  a  less  bounded  mon- 
archy. 

The  descendants  of  William  the  Con- 
queror on  the  English  throne,  down  to  the 
end  of  the  seventeenth  century,  have  been 
a  good  deal  above  the  average  in  those 
qualities  which  enable,  or  at  least  induce, 
kings  to  take  on  themselves  a  large  share 
of  the  public  administration,  as  will  appear 
by  comparing  their  line  with  that  of  the 
house  of  Capet,  or  perhaps  most  others 
during  an  equal  period.     Without  going 


Anne,  Geo.  I.,  Geo.  II.]       FROM  HKNRY  VII.  TO  GEORGE  II. 


651 


further  back,  we  know  that  Henry  VII., 
Henry  VIII.,  Elizabeth,  the  four  kings  of 
the  house  of  Stuart,  though  not  always 
with  as  much  ability  as  diligence,  were  the 
master-movers  of  their  own  policy,  not 
very  susceptible  of  advice,  and  always  suf- 
ficiently acquainted  with  the  details  of  gov- 
ernment to  act  without  it.  This  was  emi- 
nently the  case,  also,  with  William  III., 
who  was  ti'uly  his  own  minister,  and  much 
better  fitted  for  that  office  than  those  who 
served  him.  The  king,  according  to  our 
Constitution,  is  supposed  to  be  present  in 
council,  and  was,  in  fact,  usually,  or  very 
frequentlj%  present,  so  long  as  the  council 
remained  as  a  deliberative  body  for  matters 
of  domestic  and  foreign  policy.  But  when 
a  junto  or  cabinet  came  to  supersede  that 
ancient  and  responsible  body,  the  king  him- 
self ceased  to  preside,  and  received  their 
advice  separately,  according  to  their  re- 
spective functions  of  treasurer,  secretary, 
or  chancellor,  or  that  of  the  whole  cabinet 
through  one  of  its  leading  members.  This 
change,  however,  was  gradual ;  for  cabinet 
councils  were  sometimes  held  in  the  pres- 
ence of  William  and  Anne  ;  to  which  other 
counselors,  not  strictly  of  that  select  num- 
ber, were  occasionally  summoned. 

But  on  the  accession  of  the  house  of 
Hanover,  this  personal  superintendence  of 
the  sovereign  necessarily  came  to  an  end. 
The  fact  is  hardly  credible  that,  George  I. 
being  incapable  of  speaking  English,  as  Sir 
Robert  Walpole  was  of  conversing  in 
French,  the  monarch  and  his  minister  held 
discourse  with  each  other  in  Latin.*  It  is 
impossible  that,  witii  so  defective  a  means 
of  communication  (for  Walpole,  though  by 
no  means  an  illiterate  man,  can  not  be  sup- 
posed to  have  spoken  readily  a  language 
very  little  familiar  in  this  country),  George 
could  have  obtained  much  insight  into  his 
domestic  affairs,  or  been  much  acquainted 
with  the  characters  of  his  subjects.  We 
know,  in  truth,  that  he  nearly  abandoned 
the  considei'ation  of  both,  and  trusted  his 
ir.inisters  with  the  entire  management  of 

*  Coxc's  Walpole,  i.,  296.  H.Walpole's  Works, 
iv.,  476.  The  former,  however,  seems  to  rest  on 
H.  Walpole's  verbal  communication,  whose  want 
of  accuracy,  or  veracity,  or  both,  is  so  palpable, 
that  no  great  stress  can  be  laid  on  his  testimony. 
But  I  believe  that  the  fact  of  George  I.  and  his 
minister  conversing  in  Latin  may  be  proved  on 
other  authority. 


his  kingdom,  content  to  employ  its  great 
name  for  the  promotion  of  his  electoral  in- 
terests. This  continued  in  a  less  degree  to 
be  the  case  with  his  son,  who,  though  bet- 
ter acquainted  with  the  language  and  cir- 
cumstances of  Great  Britain,  and  more  jeal- 
ous of  his  prerogative,  was  conscious  of  his 
incapacity  to  determine  on  matters  of  domes- 
tic government,  and  reserved  almost  his 
whole  attention  for  the  politics  of  Germany. 

The  broad  distinctions  of  party  contribu- 
ted to  weaken  the  real  supremacy  partycon- 
of  the  sovereign.  It  had  been  us-  "eciions. 
ual  before  the  Revolution,  and  in  the  two 
succeeding  reigns,  to  select  ministers  indi- 
vidually at  discretion ;  and,  though  some 
might  hold  themselves  at  liberty  to  decline 
office,  it  was  by  no  means  deemed  a  point 
of  honor  and  fidelity  to  do  so.  Hence  men 
in  the  possession  of  high  posts  had  no  strong 
bond  of  union,  and  frequently  took  opposite 
sides  on  public  measures  of  no  light  moment. 
The  queen,  particularly,  was  always  loth 
to  discard  a  servant  on  account  of  his  vote 
in  Parliament ;  a  conduct  generous,  per- 
haps, but  feeble,  inconvenient,  when  can-ied 
to  such  excess,  in  our  Constitution,  and  in 
effect  holding  out  a  reward  to  ingratitude 
and  treachery.  But  the  Whigs  having  come 
exclusively  into  office  under  the  line  of 
Hanover  (which,  as  I  have  elsewhere  ob- 
served, was  inevitable),  formed  a  sort  of  phal- 
anx, which  the  crown  was  not  always  able 
to  break,  and  which  never  could  have  been 
broken  but  for  that  internal  force  of  l  epul- 
sion  by  which  personal  cupidity  aud  ambi- 
tion are  ever  tending  to  separate  the  ele- 
ments of  factions.  It  became  the  point  of 
honor  among  public  men  to  fight  uniformly 
under  the  same  banner,  though  not,  per- 
haps, for  the  same  cause,  if,  indeed,  there 
was  any  cause  really  fought  for  but  the  ad- 
vancement of  a  party.  In  this  prefeience 
of  certain  denominations,  or  of  certain  lead- 
ers, to  the  real  principles  which  ought  to 
be  the  basis  of  political  consistency,  there 
was  an  evident  deviation  from  the  true 
standard  of  public  virtue  ;  but  the  ignominy 
attached  to  the  dereliction  of  friends  for  the 
sake  of  emolument,  though  it  was  every 
day  incurred,  must  have  tended  gradually 
to  purify  the  general  character  of  Parlia- 
ment. Meanwhile,  the  crown  lost  all  that 
party  attachments  gained  :  a  truth  indispu- 
table  on  reflection ;    though,   while  the 


652 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVL 


crown  and  the  party  in  power  act  in  the 
same  direction,  the  relative  efficiency  of 
the  two  forces  is  not  immediately  estima- 
ted. It  was  seen,  however,  very  manifest- 
ly in  the  year  1746,  when,  after  long  bick- 
ering between  the  Pelhanis  and  Lord  Gian- 
ville,  the  king's  favorite  minister,  the  for- 
mei',  in  conjunction  with  a  majority  of  the 
cabinet,  threw  up  their  offices,  and  com- 
pelled the  king,  after  an  abortive  effort  at  a 
new  administration,  to  sacrifice  his  favorite, 
and  replace  those  in  power  whom  he  could 
not  exclude  from  it.  The  same  took  place 
in  a  later  period  of  his  reign,  when,  after 
many  struggles,  he  submitted  to  the  as- 
cendency of  Mr.  Pitt.* 


*  H.  Walpole's  Memoirs  of  the  last  Ten  Years. 
Lord  Waldegi'ave's  Memoirs.  la  this  well-written 
little  book,  the  character  of  George  II.  in  reference 
to  his  constitutional  position  is  thus  delicately 
drawn:  "  He  has  more  knowledge  of  foreign  affairs 
than  most  of  his  ministers,  and  has  good  general 
notions  of  the  Constitution,  strength,  and  interest 
of  this  country  ;  but,  being  past  thirty  when  the 
Hanover  succession  took  place,  and  having  since 
experienced  the  violence  of  partj%  the  injustice  of 
popular  clamor,  the  coiTuption  of  Parliaments,  and 
the  selfish  motives  of  pretended  patriots,  it  is  not 
surprising  that  he  should  have  contracted  some 
prejudices  in  favor  of  those  governments  where 
the  royal  autliority  is  under  less  restraint.  Yet 
prudence  has  so  far  prevailed  over  these  prejudices, 
that  they  have  never  influenced  Iiis  conduct ;  on 
the  contrarj',  many  laws  have  been  enacted  in 
favor  of  public  liberty  ;  and  in  the  course  of  a  long 
reign  there  has  not  been  a  single  attempt  to  ex- 
tend the  prerogative  of  the  crown  beyond  its 
proper  limits.  He  has  as  much  personal  braveiy 
as  any  man,  though  his  political  courage  seems 
somewhat  problematical  ;  liowever,  it  is  a  fault  on 
the  right  side  ;  for  had  he  always  been  as  firm  and 
undaunted  in  the  closet  as  he  sliowed  himself  at 
Oudenarde  and  Dettingen,  lie  might  not  have 
proved  quite  so  good  a  king  in  this  limited  mon- 
archy."— P.  5.    Tliis  was  written  in  1757. 

The  real  Tories — those,  I  mean,  who  adliered  to 
the  principles  expressed  by  that  name — thought 
the  constitutional  prerogative  of  the  crown  im- 
paired by  a  conspiracy  of  its  servants.  Their  no- 
tions are  expressed  in  some  Letters  on  the  English 
Nation,  published  about  1756,  under  the  name  of 
Battista  Augeloni,  by  Dr.  Shebbeare,  once  a  Jac- 
obite, and  still  so  bitter  an  enemy  of  William  III. 
and  George  I.  that  lie  stood  in  the  pillory,  not  long 
afterward,  for  a  libel  on  those  princes  (among  other 
things) ;  on  which  Horace  Walpole  justly  animad- 
verts, as  a  stretch  of  the  law  by  Lord  Mansfield 
destructive  of  all  historical  truth. — Memoirs  of  the 
last  Ten  Years,  ii.,  328.  Shebbeare,  however,  was 
afterward  pensioned,  along  with  Johnson,  by  Lord 
Bute,  and  at  the  time  when  these  letters  were 
written,  may  possibly  have  been  in  the  Leicester-  | 


It  seems  difficult  for  any  king  of  England, 
however  conscientiously  observairt  of  the 
lawful  rights  of  his  subjects,  and  of  the  lim- 
itations they  impose  on  his  prerogative,  to 
rest  always  very  content  with  this  practical 
condition  of  the  monarchy.  The  choice  of 
his  counselors,  the  conduct  of  government, 
are  intrusted,  he  will  be  told,  by  the  Con- 
stitution to  his  sole  pleasure.  Yet  both  as 
to  the  one  and  the  other  he  finds  a  perpetual 
disposition  to  restrain  his  exercise  of  pow- 
er; and,  though  it  is  easy  to  demonstrate 
that  the  public  good  is  far  better  promoted 
by  the  virtual  control  of  Parliament  and  the 
nation  over  the  whole  executive  govern- 
ment than  by  adhering  to  the  letter  of  the 
Constitution,  it  is  not  to  be  expected  that 
the  argument  will  be  conclusive  to  a  royal 
undei  standing.  Hence  he  may  be  tempted 
to  play  rather  a  petty  game,  and  endeavor 
to  regain,  by  intrigue  and  insincerity,  that 
power  of  acting  by  his  own  will,  which  he 
thinks  unfairly  wrested  from  him.  A  King 
of  England,  in  the  calculations  of  politics,  is 
little  moi-e  than  one  among  the  public  men 
of  the  day ;  taller,  indeed,  like  Saul  or  Aga- 
memnon, by  the  head  and  shoulders,  and, 
therefore,  with  no  slight  advantages  in  the 
scramble ;  but  not  a  match  for  the  many, 
unless  he  can  bring  some  dexterity  to  sec- 
ond his  strength,  and  make  the  best  of  the 
self-intevest  and  animosities  of  those  witli 
whom  he  has  to  deal ;  and  of  this  there 
will  generally  be  so  much,  that  in  the  long 
run  he  will  be  found  to  succeed  in  the 
greater  part  of  his  desires.  Thus  George 
I.  and  George  II.,  in  whom  the  personal 
authority  seems  to  have  been  at  the  lowest 
point  it  has  ever  reached,  drew  their  min- 
isters, not  always  willingly,  into  that  course 
of  Continental  politics  which  was  supposed 
to  serve  the  purposes  of  Hanover  far  better 
than  of  England.  It  is  well  known  that  the 
Walpoles  and  the  Pelhams  condemned  in 
private  this  excessive  predilection  of  their 
masters  for  their  native  countiy,  which 


House  interest.  Certain  it  is  that  the  self-inter- 
ested cabal  who  belonged  to  that  little  court  en- 
deavored too  successfully  to  persuade  its  chief  and 
her  son  that  the  crown  was  reduced  to  a  state  of 
vassalage,  from  which  it  ought  to  be  emancipated ; 
and  the  government  of  the  Duke  of  Newcastle,  as 
strong  in  party  connection  as  it  was  contemptible 
in  ability  an"d  reputation,  afforded  them  no  bad  ar- 
gument. The  consequences  are  well  known,  but 
do  not  enter  into  the  plan  of  this  work. 


AsNE,  Geo.  I.,  Geo.  IL] 


FROM  HENRY  VII.  TO  GEORGE  11. 


653 


alone  could  endanger  their  English  throne;* 
yet  after  the  two  latter  brothers  had  in- 
veighed against  Lord  Granville,  and  di-iven 
him  out  of  pow^er  for  seconding  the  king's 
pertinacity  in  continuing  the  war  of  1743, 
they  went  on  themselves  in  the  same  track 


*  Many  proofs  of  this  occur  in  the  correspond- 
ence published  by  Mr.  Cose.  Thus  Horace  Wal- 
pole,  writing  to  his  brother  Sir  Robert  in  1739, 
saj'S  :  "  King  William  had  no  other  object  but  the 
liberties  and  balance  of  Europe;  but,  good  God  ! 
what  is  the  case  now  ?  I  will  tell  you  in  con- 
fidence ;  little,  low,  partial,  electoral  notions  are 
able  to  stop  or  confound  the  best-conducted  project 
for  the  public." — Memoirs  of  Sir  R.  Walpole,  iii., 
535.  The  Walpoles  had,  some  years  before,  dis- 
approved the  policy  of  Lord  Townshend  on  account 
of  his  favoring  the  king's  Hanoverian  prejudices. 
— Id.,  i.,  334.  And  in  the  preceding  reign,  both 
these  Whig  leaders  were  extremely  disgusted 
with  the  Germanism  and  continual  absence  of 
George  I.— Id.,  ii.,  116,  297— though  first  Town- 
shend, and  afterward  Walpole,  according  to  the 
necessity,  or  supposed  necessity,  which  controls 
statesmen  (that  is,  the  fear  of  losing  their  places), 
became,  in  appearance,  the  passive  instruments  of 
royal  pleasure. 

It  is  now,  however,  known  that  George  II.  had 
been  induced  by  Walpole  to  come  into  a  scheme, 
by  which  Hanover,  after  his  decease,  was  to  be 
separated  from  England.  It  stands  on  the  indis- 
putable authority  of  Speaker  Onslow.  "  A  little 
while  before  Sir  Robert  Walpole's  fall  (and  as  a 
popular  act  to  save  himself,  for  he  went  very  un- 
willingly out  of  his  offices  and  power),  he  took  me 
one  day  aside,  and  said,  'What  will  you  say, 
speaker,  if  this  hand  of  mine  shall  bring  a  message 
from  the  king  to  the  House  of  Commons,  declaring 
his  consent  to  having  any  of  his  family,  after  his 
death,  to  be  made,  by  act  of  Parliament,  incapable 
of  inheriting  and  enjoying  the  crown,  and  possess- 
ing the  electoral  dominions  at  the  same  time  V 
My  answer  was,  '  Sir,  it  *ill  be  as  a  message  from 
heaven.'  He  replied,  '  It  will  be  done.'  Bat  it 
was  not  done  ;  and  I  have  good  reason  to  believe 
it  would  have  been  opposed,  and  rejected  at  that 
time,  because  it  came  from  him,  and  by  the  means 
of  those  who  had  always  been  most  clamorous  for 
it;  and  thus,  perhaps,  the  opportunity  was  lost: 
when  will  it  come  again?  It  was  said  that  the 
prince  at  that  juncture  would  have  consented  to  it, 
if  he  could  have  had  tlie  credit  and  popularity  of 
the  measure,  and  that  some  of  his  friends  were  to 
Lave  moved  it  in  Parliament,  but  that  the  design 
at  St.  James's  prevented  it.  Notwithstanding  all 
this,  I  have  had  some  thoughts  that  neither  court 
ever  really  intended  the  thing  itself,  but  that  it 
came  on  and  went  off  by  a  jealousy  of  each  other 
in  it,  and  that  both  were  equally  pleased  that  it 
did  so,  from  an  equal  fondness  (very  natural)  for 
their  own  native  country." — Notes  on  Burnet  (iv., 
490,  Oxf  edit.)  This  story  has  been  told  before, 
but  not  in  such  a  manner  as  to  preclude  doubt  of 
its  authenticity. 


for  at  least  two  years,  to  the  imminent  haz- 
ard of  losing  forever  the  Low  Countries 
and  Holland,  if  the  French  government,  so 
indiscriminately  charged  with  ambition,  had 
not  displayed  cxtraoi-dinary  moderation  at 
the  treaty  of  Aix  la  Chapelle.  The  twelve 
years  that  ensued  gave  more  abundant 
proofs  of  the  submissiveness  with  which 
the  schemes  of  George  IL  for  the  good  of 
Hanover  were  received  by  his  ministers, 
though  not  by  his  people  ;  but  the  most 
striking  instance  of  all  is  the  abandonment 
by  Mr.  Pitt  himself  of  all  his  former  pro- 
fessions in  pouring  troops  into  Germany. 
I  do  not  inquire  whether  a  sense  of  nation- 
al honor  might  not  render  some  of  these 
measures  justifiable,  though  none  of  them 
were  advantageous ;  but  it  is  certain  that 
the  strong  bent  of  the  king's  partiality 
forced  them  on  against  the  repugnance  of 
most  statesmen,  as  well  as  of  the  great  ma- 
jority in  Parliament  and  out  of  it. 

Comparatively,  however,  with  the  state 
of  prerogative  before  the  Revolution,  we 
can  hardly  dispute  that  there  has  been 
a  systematic  diminution  of  the  reigning 
prince's  control,  which,  though  it  may  be 
compensated  or  concealed  in  ordinary  times 
by  the  general  influence  of  the  executive 
administration,  is  of  material  importance  in 
a  constitutional  light.  Independently  of 
other  consequences  which  might  be  pointed 
out  as  probable  or  contingent,  it  afibrds  a 
real  security  against  endeavors  bj^  the 
crown  to  subvert  or  essentially  impair  the 
other  parts  of  our  government ;  for  though 
a  king  may  believe  himself  and  his  posteri- 
ty to  be  interested  in  obtaining  arbitrary 
power,  it  is  far  less  likely  that  a  minister 
should  desire  to  do  so — I  mean  arbitrary, 
not  in  relation  to  temporary  or  partial 
abridgments  of  the  subject's  liberty,  but 
to  such  projects  as  Charles  I.  and  James 
II.  attempted  to  execute.  What,  indeed, 
might  be  effected  by  a  king  at  once  able, 
active,  popular,  and  ambitious,  should  such 
ever  unfortunately  appear  in  this  countiy, 
it  is  not  easy  to  predict ;  certainly  his  reign 
would  be  dangerous,  on  one  side  or  other, 
to  the  present  balance  of  the  Constitution. 
But  against  this  contingent  evil,  or  the  far 
more  probable  encroachments  of  ministers, 
which,  though  not  going  the  full  length  of 
despotic  power,  might  slowly  undenuine 
and  contract  the  rights  of  the  people,  no 


654 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVI, 


positive  statutes  can  be  devised  so  effectual 
as  the  vigilance  of  the  people  themselves 
and  their  increased  means  of  knowing  and 
estimating  the  measures  of  their  govern- 
ment. 

The  publication  of  regular  newspapers, 
,  ,        ,  not  merely  designed  for  the  com- 

lunuence  of  _      _  ®  _ 

political  munication  of  intelligence,  but  for 
writings.  discussion  of  political  topics, 

may  be  referred  to  the  latter  part  of  the 
reign  of  Anne,  when  they  obtained  great 
circulation,  and  became  the  accredited  or- 
gans of  different  factions.*  The  Tory  min- 
istei's  were  annoyed  at  the  vivacity  of  the 
press  both  in  periodical  and  other  writings, 
which  led  to  a  stamp  duty,  intended  chiefly 
to  diminish  their  number,  and  was  nearly 
producing  more  pernicious  restrictions,  such 
as  renewing  the  Licensing  Act,  or  compell- 
ing authors  to  acknowledge  their  names. f 
These,  however,  did  not  take  place,  and 
the  government  more  honorably  coped  with 
their  adversaries  in  the  same  warfare  ;  nor, 
with  Swift  and  Bolingbroke  on  their  side, 
could  they  require,  except,  indeed,  through 
the  badness  of  theii"  cause,  any  aid  fi-om  the 
arm  of  power. f 

In  a  single  hour,  these  two  great  mas- 
ters of  language  were  changed  from  advo- 
cates of  the  crown  to  tribunes  of  the  peo- 
ple ;  both  more  distinguished  as  writers  in 
this  altered  scene  of  their  fortunes,  and 

*  Upon  examination  of  the  valuable  scries  of 
newspapers  in  the  British  Museum,  I  find  very 
little  expression  of  political  feehngs  till  1710,  after 
the  trial  of  Sacheverell,  and  change  of  ministrj-. 
The  Daily  Courant  and  Postman  then  begin  to  at- 
tack the  Jacobites,  and  the  Postboy  the  Dissenters. 
But  these  newspapers  were  less  important  than 
the  periodical  sheets,  such  as  the  Examiner  and 
Medley,  which  were  solely  devoted  to  party  con- 
troversy. 

t  A  bill  was  brought  in  for  this  purpose  in  1712, 
which  Swift,  in  his  History  of  the  Last  Four  Years, 
who  never  printed  any  thing  with  his  name,  natu- 
rally blames.  It  miscamed,  probably  on  account  of 
this  provision. — Pari.  Hist.,  vi.,  1141.  But  the 
queen,  on  opening  the  session  in  April,  1713,  rec- 
ommended some  new  law  to  check  the  licentious- 
ness of  the  press. — Id.,  1173.  Nothing,  however, 
was  done  in  consequence. 

i  Bolingbroke's  letter  to  the  Examiner,  in  1710, 
excited  so  much  attention,  that  it  was  answered 
by  Lord  Cowper,  then  chancellor,  in  a  letter  to  the 
Tatler. — Somers  Tracts,  xiii.,  75 ;  where  Sir  Wal- 
ter Scott  justly  obsers'es,  that  the  fact  of  two  such 
Etatesmen  becoming  the  correspondents  of  period- 
ical publications  shows  the  influence  they  must 
have  acquired  over  the  public  mind. 


certainly  among  the  first  political  combat- 
ants with  the  weapons  of  the  press  whom 
the  world  has  ever  known.  Bolingbroke's 
influence  was  of  course  greater  in  England; 
and,  with  all  the  signal  faults  of  his  public 
character,  with  all  the  factiousness  which 
dictated  most  of  his  writings,  and  the  indef- 
inite declamation  or  shallow  reasoning  which 
they  frequently  display,  they  have  merits 
not  always  sufficiently  acknowledged.  He 
seems  first  to  have  made  the  Tories  reject 
their  old  tenets  of  exalted  prerogative  and 
hereditary  right,  and  scorn  the  High- 
Church  theories  which  they  had  maintain- 
ed under  William  and  Anne.  His  Disser- 
tation on  Parties,  and  Letters  on  the  His- 
tory of  England,  are  in  fact  written  on 
Whig  principles  (if  I  know  what  is  meant 
by  that  name),  in  their  general  tendency  ; 
however  a  politician,  who  had  always  some 
particular  end  in  view,  may  have  fallen  into 
several  inconsistencies.*  The  same  char- 
acter is  due  to  the  Craftsman  and  to  most 
of  the  temporary  pamphlets  directed  against 
Sir  Robert  Walpole.  They  teemed,  it  is 
true,  with  exaggerated  declamations  on  the 
side  of  liberty ;  but  that  was  the  side  they 
took;  it  was  to  generous  prejudices  they 
appealed ;  nor  did  they  ever  advert  to  the 
times  before  the  Revolution  but  with  con- 
tempt or  abhorrence.  Libels  they  were, 
indeed,  of  a  different  cla.ss,  proceeding  from 
the  Jacobite  school ;  but  these  obtained  lit- 
tle regard ;  the  Jacobites  themselves,  or 
such  as  affected  to  be  so,  having  more  fre- 
quently espoused  that  cause  from  a  sense 
of  dissatisfaction  with  the  conduct  of  the 
reigning  family  than  fi-om  much  regard  to 
the  pretensions  of  the  other.  Upon  the 
whole  matter,  it  must  be  evident  to  every 
person  who  is  at  all  conversant  with  the 
publications  of  George  H.'s  reign,  with  the 
poems,  the  novels,  the  essays,  and  almost 
all  the  literature  of  the  time,  that  what  are 
called  the  popular  or  liberal  doctrines  of  gov- 
ernment were  decidedly  prevalent.  The 
supporters  themselves  of  the  Walpole  and 
Pelham  administrations,  though  professedly 
Whigs,  and  tenacious  of  Revolution  princi- 
ples, made  complaints,  both  in  Parliament 
*  ["  A  King  of  Great  Britain,"  he  says  in  his 
seventh  Letter  on  the  History  of  England,  "is 
that  supreme  magistrate  who  has  a  negative  voice 
iu  the  Legislature." — This  was  in  1731.  Nothing 
can  be  more  unlike  the  original  tone  of  Tor\'ism. — 
1845.] 


Anne,  Geo.  I.,  Geo.  II.]        PROM  HENRY  VII.  TO  GEORGE  II. 


655 


and  in  pamphlets,  of  the  democratical  spirit, 
the  insubordination  to  authority,  the  tend- 
ency to  Republican  sentiments,  which  they 
alleged  to  have  gained  ground  among  the 
people.  It  is  certain  that  the  tone  of  popu- 
lar opinion  gave  some  countenance  to  these 
assertions,  though  much  exaggerated,  in  or- 
der to  create  alarm  in  the  aristocratical 
classes,  and  furnish  arguments  against  re- 
dress of  abuses. 

The  two  houses  of  Parliament  are  sup- 
Publication  posed  to  deliberate  with  closed 
of  debates,  doors.  It  is  always  competent 
for  any  one  member  to  insist  that  strangers 
be  excluded ;  not  on  any  special  ground, 
but  by  merely  enforcing  the  standing  order 
for  that  purpose.  It  has  been  several  times 
resolved  that  it  is  a  high  breach  of  privilege 
to  publish  any  speeches  or  proceedings  of 
the  Commons,*  though  they  have  since  di- 
rected their  own  votes  and  resolutions  to  be 
printed.  Many  persons  have  been  punished 
by  commitment  for  this  offense  ;  and  it  is 
still  highly  iiTegular,  in  any  debate,  to  allude 
to  the  reports  in  newspapers,  except  for  the 
purpose  of  animadverting  on  the  breach  of 
privilege,  f  Notwithstanding  this  pretend- 
ed strictness,  notices  of  the  more  interest- 

*  [The  first  instance  seems  to  be  Dec.  27tli, 
1694,  when  it  is  resolved  that  no  news  letter  writ- 
ers do,  in  their  letters  or  other  papers  wliich  they 
disperse,  presume  to  intcnneddle  with  the  debates 
or  other  proceedings  of  this  House. — Joum. — 1845.] 

t  It  was  resolved,  nem.  con.,  Feb.  26th,  1729, 
That  it  is  an  indignity  to,  and  a  breach  of  the  privi- 
lege of,  tliis  House,  for  any  person  to  presume  to 
give,  in  written  or  printed  newspapers,  any  account 
or  minutes  of  the  debates,  or  other  proceedings  of 
this  House,  or  of  any  committee  thereof;  and  that 
upon  discovery  of  the  authors,  &c.,  this  House  will 
proceed  against  the  offenders  with  the  utmost 
severity. — Pari.  Hist.,  viii.,  683.  There  are  former 
resolutions  to  the  same  effect.  The  speaker  hav- 
ing himself  brought  the  subject  under  consideration 
some  years  afterward,  in  1738,  the  resolution  was 
repeated  in  nearly  the  same  words,  but  after  a 
debate  wherein,  though  no  one  undertook  to  defend 
the  practice,  the  danger  of  impairing  the  liberty  of 
the  press  was  more  insisted  upon  than  would  for- 
merly have  been  usual ;  and  Sir  Robert  Walpole 
took  credit  to  himself,  justly  enough,  for  respect- 
ing it  more  than  his  predecessors. — Id.,  x.,  800. 
Coxe's  Walpole,  i.,  572.  Edward  Cave,  the  well- 
known  editor  of  the  Gentleman's  Magazine,  and 
the  publisher  of  another  Magazine,  was  brought  to 
the  bar,  April  30th,  1747,  for  publishing  the  House's 
debates  ;  when  the  former  denied  that  he  retained 
any  person  in  pay  to  make  the  speeches,  and  after 
expressing  his  contrition,  was  discharged  on  pay- 
ment of  fees. — Id.,  xiv.,  57. 


ing  discussions  were  frequently  made  pub- 
lic ;  and  entire  speeches  were  sometimes 
circulated  by  those  who  had  sought  popular- 
ity in  delivering  them.  After  the  accession 
of  George  I.  we  find  a  pretty  regular  account 
of  debates  in  an  annual  publication,  Boj^er's 
Historical  Register,  which  was  continued 
to  the  year  1737.  They  were  afterward 
.published  monthly,  and  much  more  at 
length,  in  the  London  and  the  Gentleman's 
Magazines ;  the  latter,  as  is  well  known, 
improved  by  the  pen  of  Johnson,  yet  not  so 
as  to  lose  by  any  means  the  leading  scope 
of  the  arguments.  It  follows,  of  course, 
that  the  restriction  upon  the  presence  of 
strangers  had  been  almost  entirely  dispens- 
ed with.  A  transparent  veil  was  thrown 
over  this  innovation  by  disguising  the  names 
of  the  speakers,  or  more  commonly  by 
printing  only  initial  and  final  letters.  This 
ridiculous  affectation  of  concealment  waa 
extended  to  many  other  words  in  political 
writings,  and  had  not  wholly  ceased  in  the 
American  war. 

It  is  almost  impossible  to  overrate  the  value 
of  this  regular  publication  of  proceedings  in 
Parliament,  carried  as  it  has  been  in  our 
own  time  to  nearly  as  great  copiousness  and 
accuracy  as  is  probably  attainable.  It  tends 
manifestly  and  powerfully  to  keep  within 
bounds  the  supineness  and  negligence,  the 
partiality  and  coiTuption,  to  which  every 
Parliament,  either  from  the  nature  of  its 
composition  or  the  frailty  of  mankind,  must 
more  or  less  be  liable.  Perhaps  the  Con* 
stitution  would  not  have  stood  so  long,  or, 
rather,  would  have  stood  like  a  useless  and 
untenanted  mansion,  if  this  unlawful  means 
had  not  kept  up  a  perpetual  intercourse,  a 
reciprocity  of  influence  between  the  Parlia- 
ment and  the  people.  A  stream  of  fresh 
air,  boisterous,  perhaps,  sometimes  as  the 
winds  of  the  north,  yet  as  healthy  and  in- 
vigorating, flows  in  to  renovate  the  stag- 
nant atmosphere,  and  to  prevent  that  ma- 
laria which  self-interest  and  oligarchical 
exclusiveness  are  always  tending  to  gener- 
ate. Nor  has  its  importance  been  less  per- 
ceptible in  affording  the  means  of  vindica- 
ting the  measures  of  government,  and  se- 
curing to  them,  when  just  and  reasonable, 
the  approbation  of  the  majority  among  the 
middle  ranks,  whose  weight  in  the  scale  has 
been  gradually  increasing  during  the  last 
and  present  centuries. 


656 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XVL 


This  augmentation  of  the  democratical 
Increased  influence,  using  that  term  as  ap- 
of^hraiM-  P'is'l  the  commercial  and  in- 
die ranks,  dustrious  classes  in  contradistinc- 
tion to  the  territorial  aristocracy,  was  the 
slow  but  certain  effect  of  accumulated 
wealth  and  diffused  knowledge,  acting, 
however,  on  the  traditional  notions  of  free- 
dom and  equality  which  had  ever  prevailed 
in  the  English  people.  The  nation,  ex- 
hausted by  the  long  wars  of  William  and 
Anne,  recovered  sti'ength  iu  thirty  j-ears  of 
peace  that  ensued ;  and  in  that  period,  es- 
pecially under  the  prudent  lule  of  Walpole, 
the  seeds  of  our  commercial  gi-eatness  were 
gradually  ripened.  It  was  evidently  the 
most  prosperous  season  that  England  had 
ever  experienced ;  and  the  progression, 
though  slow,  being  uniform,  the  reign,  per- 
haps, of  George  II.  might  not  disadvanta- 
geously  be  compared,  for  the  real  happi- 
ness of  the  community,  with  that  more 
brilliant  but  uncertain  and  oscillatory  condi- 
tion which  has  ensued.  A  distinguished 
writer  has  observed  that  the  laborer's 
wages  have  never,  at  least  for  many  ages, 
commanded  so  large  a  portion  of  subsistence 
as  in  this  part  of  the  eighteenth  century.* 
The  public  debt,  though  it  excited  alarms 
from  its  magnitude,  at  which  we  are  now 
accustomed  to  smile,  and  though  too  little 
care  was  taken  for  redeeming  it,  did  not 
press  veiy  heavily  on  the  nation  ;  as  the 
low  rate  of  interest  evinces,  the  government 
securities  at  three  per  cent,  having  gener- 
ally stood  above  par.  In  the  war  of  1743, 
which,  from  the  selfish  practice  of  relying 
wholly  on  loans,  did  not  much  retard  the 
immediate  advance  of  the  countiy,  and  still 
more  after  the  peace  of  Aix  la  Chapelle,  a 
striking  increase  of  wealth  became  percep- 
tible, f  This  was  shown  in  one  circum- 
stance directly  affecting  the  character  of 
the  Constitution.  The  smaller  boroughs, 
which  had  been  from  the  earliest  time  un- 
der the  command  of  neighboring  peers  and 
gentlemen,  or  sometimes  of  the  crown, 
were  attempted  by  rich  capitalists,  with  no 
other  connection  or  recommendation  than 
one  which  is  generally  sufficient.t  This 

*  Malthas,  Principles  of  Pol.  Econ.  (1820),  p.  279. 

t  Macpherson  (or  Anderson),  Hist,  of  Commerce. 
Chalmers's  Estimate  of  Strength  of  Great  Britain. 
Sinclair's  Hist,  of  Revenae,  cum  mullis  aliis. 

X  [The  practice  of  treating  at  elections,  not  with 


appears  to  have  been  first  observed  in  the 
general  elections  of  1747  and  1754  ;*  and 
though  the  prevalence  of  bribeiy  is  attested 
by  the  Statute  Book,  and  the  Journals  of 
Parliament  from  the  Revolution,  it  seems 
not  to  have  broken  down  all  floodgates  till 
near  the  end  of  the  reign  of  George  II. 
But  the  sale  of  seats  in  Parliament,  like  any 
other  transferable  property,  is  never  men- 
tioned in  any  book  that  I  remember  to  have 
seen  of  an  earlier  date  than  17C0.  We 
may  dispense,  therefore,  with  the  inquirj- 
in  what  manner  this  extraordinary  traffic 
has  affected  the  Constitution,  observing 
only  that  its  influence  must  have  tended  to 
counteract  that  of  the  territorial  aristocra- 
cy, which  is  still  sufficiently  predominant. 
The  country  gentlemen,  who  claimed  to 
themselves  a  character  of  more  independ- 
ence and  patriotism  than  could  be  found  in 
any  other  class,  had  long  endeavored  to 
protect  their  ascendency  by  excluding  the 
rest  of  the  community  from  Parliament. 
This  was  the  principle  of  the  bill,  which, 
after  being  frequently  attempted,  passed 
into  a  law  during  the  Tory  administration 
of  Anne,  requiring  eveiy  member  of  tlie 
Commons,  except  those  for  the  universi- 
ties, to  possess,  as  a  qualification  for  his 
seat,  a  landed  estate,  above  all  incum- 
the  view  of  obtaining  votes,  but  as  joyous  hospital- 
ity, though  carried  to  a  ruinous  extent,  began  with 
the  country  gentlemen  themselves,  and  is  com- 
plained of  soon  after  the  Restoration.  Perhaps  it 
was  not  older,  at  least  so  as  to  attract  notice. 
Evelyn  tells  us  of  a  county  election  which  cost 
£2000  in  mere  eating  and  drinking.  The  Treating 
Act,  7  Wm.  III.,  c.  4,  is  very  stringent  in  its  pro- 
^^sions,  and  has  dispossessed  many  of  their  seats 
on  petition.  Bribery  came  from  a  different  quar- 
ter. Swift  speaks,  in  the  Examiner,  of  "  influenc- 
ing distant  boroughs  by  powerful  motives  from  the 
city."— 1845.] 

*  Tindal,  apud  Pari.  Hist.,  xiv.,  66.  I  have  read 
the  same  in  other  books,  but  know  not  at  present 
where  to  search  for  the  passages.  Hogarth's  pic- 
tures of  the  election  are  evidence  to  the  corruption 
in  his  time ;  so,  also,  are  some  of  Smollett's  novels. 
Addison,  Swift,  and  Pope  would  not  have  neglected 
to  lash  this  vice  if  it  had  been  glaring  in  their  age, 
which  shows  that  the  change  took  place  about  the 
time  I  have  mentioned.  [This  is  not  quite  accu- 
rately stated  ;  both  the  election  of  strangers  by 
boroughs,  and  its  natural  concomitant,  bribery,  had 
begun  to  excite  complaint  by  their  increasing  fre- 
quency as  early  as  the  reign  of  George  I.,  and  led 
to  the  act  rendering  elections  void,  and  inflicting 
severe  penalties  for  bribery,  in  17-28.  But  still  it 
is  true  that  in  the  general  election  of  1747  much 
more  of  it  took  place  than  ever  before. — 1845.J 


Scotlakd] 


FEOM  HENKY  V; 


II.  TO  GEORGE  II. 


657 


brances,  of  <j£300  a  year.*  By  a  later  act 
of  George  II.,  with  which  it  was  thought 
expedient,  by  the  government  of  the  day, 
to  gratify  the  landed  interest,  this  property 
must  be  stated  on  oath  by  every  member 
on  taking  his  seat,  and,  if  required,  at  his 
election.!  The  law  is,  however,  notori- 
ously evaded;  and  though  much  might  be 
urged  in  favor  of  rendering  a  competent  in- 
come the  condition  of  eligibility,  few  ivould 
be  found  at  present  to  maintain  that  the 
freehold  qualification  is  not  required  both 


unconstitutionally,  according  to  the  ancient 
theory  of  representation,  and  absurdly,  ac- 
cording to  the  present  state  of  property  in 
England.  But  I  am  again  admonished,  as 
I  have  frequently  been  in  writing  these  last 
pages,  to  break  off  from  subjects  that  might 
cany  me  too  far  away  from  the  business  of 
this  history,  and,  content  with  compiling 
and  selecting  the  records  of  the  past,  to 
shun  the  difficult  and  ambitious  office  of 
judging  the  present,  or  of  speculating  upon 
the  future. 


CHAPTER  XVII. 


ON  THE  CONSTITUTION  OF  SCOTLAND. 


Early  State  of -^<^<''^*'''^- — Introduction  of  Feudal 

System.  f^ots  Parliament. — Povrer  of  the  Aris- 

tocracv  -Royal  Influence  in  Parliament. — Judi- 
cial ruwer. — Court  of  Session. — Reformation. — 
Pover  of  the  Presbyterian  Clergy. — Their  At- 
sjmpts  at  Independence  on  the  State. — Andrew 
Melville. — Success  of  James  VI.  in  restraining 
them. — Establishment  of  Episcopacy.— Innova- 
tions of  Charles  I. — Arbitrary  Government. — 
Civil  War. — TjTannical  Government  of  Charles 

II.  — Reign  of  James  VII. — Revolution  and  Es- 
tablishment of  Presbytery. — Reigu  of  William 

III.  —  Act  of  Security.  —  Union.  —  Gradual  De- 
cline of  Jacobitism. 

It  is  not  very  profitable  to  inquire  into 
Early  state  constitutional  antiquities  of  a 
of  Scotland,  countiy  whicli  furnishes  no  au- 
thentic historian,  nor  laws,  nor  charters,  to 
guide  our  research,  as  is  the  case  with 
Scotland  before  the  twelfth  century.  The 
latest  and  most  laborious  of  her  antiquaries 
appears  to  have  proved  that  her  institutions 
were  wholly  Celtic  until  that  era,  and  great- 
ly similar  to  those  of  Ireland. t  A  total, 
though  probably  gradual,  change  must  there- 
fore have  taken  place  in  the  next  age,  brought 
about  by  means  which  have  not  been  satis- 


*  9  Anne,  c.  5.  A  bill  for  this  purpose  had 
passed  the  Commons  in  1696,  the  city  of  London 
and  several  other  places  petitioning  against  it. — 
Journals,  Nov.  21,  &c.  The  House  refused '(|d  let 
some  of  these  petitions  be  read,  I  suppose  on  the 
ground  that  they  related  to  a  matter  of  general 
policy.  These  towns,  however,  had  a  very  fair 
pretext  for  alleging  that  they  were  interested ; 
and,  in  fact,  a  rider  was  added  to  the  bill,  that  any 
merchant  might  serve  for  a  place  where  he  should 
be  himself  a  voter,  on  making  oath  that  he  was 
worth  £5000.— Id.,  Dec.  19. 

t  33  Geo.  n.,  c.  20. 

t  Chalmers's  Caledonia,  vol.  i.,  passim. 

Uu 


factorily  explained.  The  crown  became 
strictly  hereditary,  the  governors  , 

•'  °  Introduction 

01  districts  took  the  appellation  nf  feudal 
of  earls,  the  whole  kingdom  was 
subjected  to  a  feudal  tenure,  the  Anglo- 
Norman  laws,  tribunals,  local  and  municipal 
magistracies  were  introduced  as  far  as  the 
royal  influence  could  pi'evail ;  above  all,  a 
surprising  number  of  families,  chiefly  Nor- 
man, but  some  of  Saxon  or  Flemish  descent, 
settled  upon  estates  granted  by  the  kings  of 
Scotland,  and  became  the  founders  of  its 
aristocracy.  It  was,  as  truly  as  some  time 
afterward  in  Ireland,  the  encroachment  of  a 
Gothic  and  feudal  polity  upon  the  inferior 
civilization  of  the  Celts,  though  accomplished 
with  far  less  resistance,  and  not  quite  so 
slowly.  Yet  the  Highland  tribes  long  ad- 
hered to  their  ancient  usages ;  nor  did  the 
laws  of  English  origin  obtain  in  some  other 
districts,  two  or  three  centuries  after  their 
establishment  on  both  sides  of  the  Forth.* 
It  became  almost  anecessary  consequence 
from  this  adoption  of  the  feudal  g^ots  Parlia- 
system,  and  assimilation  to  the  "^nt. 
English  institutions,  that  the  kings  of  Scot- 
land would  have  their  general  council  or 
Parliament  upon  nearly  the  same  model  as 
that  of  the  Anglo-Norman  sovereigns  they 
so  studiously  imitated.  If  the  statutes  as- 
cribed to  William  the  Lion,  cotemporary 
with  our  Heniy  II.,  are  genuine,  they  were 
enacted,  as  we  should  expect  to  find,  with 
the  concun-ence  of  the  bishops,  abbots,  bar- 
ons, and  other  good  men  (probi  homines)  of 


*  Id.,  500,  et  post.  Dalrymple's  Annals  of  Scot- 
land, 28,  30,  &c. 


658 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XVII 


the  land  ;  meaning,  doubtless,  the  inferior 
tenants  in  capita.*  These  laws,  indeed, 
are  questionable,  and  there  is  a  gi-eat  want 
of  unequivocal  records  till  almost  the  end 
of  the  thirteenth  century.  The  represent- 
atives of  boroughs  are  first  distinctly  men- 
tioned in  1326,  under  Robert  I.,  though  some 
have  been  of  opinion  that  vestiges  of  their 
appearance  in  Parliament  may  be  traced 
higher ;  but  they  are  not  enumerated  among 
the  classes  present  in  one  held  in  1315. f 
In  the  ensuing  reign  of  David  II.,  the  three 
estates  of  the  realm  are  expressly  mentioned 
as  the  legislative  advisers  of  the  crown.  J 

A  Scots  Parliament  resembled  an  En- 
glish one  in  the  mode  of  convocation,  in  the 
ranks  that  composed  it,  in  the  enacting  pow- 
ers of  the  king,  and  the  necessaiy  consent 
of  the  three  estates,  but  differed  in  several 
very  important  respects.  No  freeholders, 
except  tenants  in  capite,  had  ever  any  right 
of  suffrage ;  which  may,  not  improbably, 
have  been  in  some  measure  owing  to  the 
want  of  that  Anglo-Saxon  institution,  the 
county  court.  These  feudal  tenants  of  the 
crown  came  in  person  to  Parliament,  as 
they  did  in  England  till  the  reign  of  Henry 
III.,  and  sat  together  with  the  prelates  and 
barons  in  one  chamber.  A  prince  arose  in 
Scotland  in  the  first  part  of  the  fifteenth 
century,  resembling  the  English  Justinian  in 
his  politic  regard  to  strengthening  his  own 
prerogative  and  to  maintaining  public  order. 
It  was  enacted  by  a  law  of  James  I.,  in 
1427,  that  the  smaller  barons  and  free  ten- 
ants "  need  not  to  come  to  Parliament,  so 
that  of  eveiy  sheriffdom  there  be  sent  two  or 
more  wise  men,  chosen  at  the  head  court," 
to  represent  the  rest.  These  were  to  elect 
a  speaker,  tlu-ough  whom  they  were  to 
communicate  with  the  king  and  other  es- 
tates.§  This  was  evidently  designed  as  an 
assimilation  to  the  English  House  of  Com- 
mons. But  the  statute  not  being  impera- 
tive, no  regard  was  paid  to  this  permission, 
and  it  is  not  till  1587  that  we  find  the  rep- 
resentation of  the  Scots  counties  finally  es- 

*  Chalmers,  741.  Wight's  Law  of  Election  in 
Scotland,  28. 

t  Id.,  25.  Dalrymple's  Annals,  i.,  139,  235,  283; 
ii.,  55,  116.  Chahners,  743.  Wight  thinks  they 
might,  perhaps,  only  have  had  a  voice  in  the  im- 
position of  taxes. 

i  Dali-ymple,  ii.,  241.    Wight,  26. 

ij  Statutes  of  Scotland,  1427.  Pinkerton's  His- 
tory of  Scotland,  i.,  120.    Wight,  30. 


tablished  by  law;  though  one  important 
object  of  James's  policy  was  never  attained, 
the  different  estates  of  Parliament  having 
always  voted  promiscuously,  as  the  spiritual 
and  temporal  lords  in  England. 

But  no  distinction  between  the  national 
f^ouncils  of  the  two  kingdoms  was  p„„.„  tj,, 
more  essential  than  what  appears  aristocracy, 
to  have  been  introduced  into  the  Scots  Par- 
liament under  David  II.  In  the  year  1367, 
a  Parliament  having  met  at  Scone,  a  com- 
mittee was  chosen  by  the  three  estates,  who 
seem  to  have  had  full  powers  delegated  to 
them,  the  otheis  returning  home  on  account 
of  the  advanced  sea«oti.  The  same  was  done 
in  one  held  next  year,  without  any  assigned 
pretext ;  but  in  1369  fei;,  committee  was 
chosen  only  to  prepare  all  -^latters  determ- 
inable in  Parliament,  or  fit  »,  be  therein 
treated  for  the  decision  of  the  tu-gg  estates 
on  the  last  day  but  one  of  the  tr,ssion.* 
The  former  scheme  appeared  posjbly, 
even  to  those  careless  and  unwilling  legUsj. 
tors,  too  complete  an  abandonment  of  theii 
function  ;  but,  even  modified  as  it  was  in 
1369,  it  tended  to  devolve  the  whole  busi- 
ness of  Parliament  on  this  elective  commit- 
tee, subsequently  known  by  the  appellation 
of  lords  of  the  articles.  It  came  at  last  to 
be  the  general  practice,  though  some  excep- 
tions to  this  rule  may  be  found,  that  nothing 
was  laid  before  Parliament  without  their 
previous  recommendation  ;  and  there  seems 
reason  to  think  that  in  the  first  Parliament 
of  James  I.,  in  1424,  such  full  powers  were 
delegated  to  the  committee  as  had  been 
granted  before  in  1367  and  1368,  and  that 
the  three  estates  never  met  again  to  sanc- 
tion their  resolutions.!  The  preparatory 
committee  is  not  uniformly  mentioned  in 
the  preamble  of  statutes  made  during  the 
reign  of  this  prince  and  his  next  two  suc- 
cessors ;  but  there  may  be  no  reason  to  in- 
fer from  thence  that  it  was  not  appointed. 
From  the  reign  of  James  IV.  the  lords  of 
articles  are  regularly  named  in  the  records 
of  every  Parliament.! 

*  Dalrymple,  ii.,  261.  Stuart  on  Public  Law  of 
Scotland,  344.  Robertson's  Historj-  of  Scotland,  i., 
84-  t  Wight,  62,  65. 

t  Id.,  69.  [A  remarkable  proof  of  the  trust  vest- 
ed in  the  lords  of  articles  will  be  fbond  in  the  Scots 
Statutes,  vol.  ii.,  p.  340,  which  is  not  noticed  by 
Pinkerton.  Power  was  given  to  the  lords  of  arti- 
cles, after  a  prorogation  of  Parliament  in  1535,  "  to 
make  acts,  statutes,  and  constitutions  for  good  roIC: 


Scotland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


659 


It  is  said  that  a  Scots  Parliament,  about 
the  middle  of  the  fifteenth  centuiy,  consist- 
ed of  near  one  hundred  and  ninety  persons.* 
We  do  not  find,  however,  that  more  than 
half  this  number  usually  attended.  A  list 
of  those  present  in  1472  gives  l)ut  fourteen 
bishops  and  abbots,  twenty-two  earls  and 
barons,  thirty-four  lairds  or  lesser  tenants  in  1 
capite,  and  eight  deputies  of  boroughs. f  ! 
The  royal  boroughs  entitled  to  be  represent-  j 
ed  in  Parliament  were  above  thirty ;  but  it 
was  a  common  usage  to  choose  the  deputies  j 
of  otlier  towns  as  their  proxies. t  The  great 
object  with  them,  as  well  as  with  the  lesser 
barons,  was  to  save  the  cost  and  trouble  of 
attendance.  It  appears,  indeed,  that  they 
formed  rather  an  insignificant  portion  of  the 
legislative  body.  They  are  not  named  as 
consenting  parties  in  several  of  the  statutes 
of  James  III. ;  and  it  seems  that  on  some 
occasions  they  had  not  been  summoned  to 
Parliament,  for  an  act  was  passed  in  1504 
"that  the  commissaries  and  headsmen  of 
the  burghs  be  wai  ned  when  taxes  or  con- 
stitutions are  given,  to  have  their  advice 
therein,  as  one  of  the  three  estates  of  the 
realm. "§  This,  however,  is  an  express 
recognition  of  their  right,  though  it  might 
have  been  set  aside  by  an  irregular  exercise 
of  power. 

It  was  a  natural  result  from  the  coustitu- 
Royai  influ-  *  Scots  Parliament,  to- 

ence  in  Par-  gether  with  the  general  state  of 
liament.  society  in  that  kingdom,  that  its 
efforts  were  almost  uniformly  directed  to 
augment  and  invigorate  the  royal  authority. 

jastice,  and  policy,  conform  to  the  articles  to  be 
given  by  the  king's  grace,  and  as  shall  please  any 
other  to  give  and  present  to  them.  And  whatever 
they  ordain  or  statute,  to  liave  the  same  form, 
strength,  and  effect  as  if  the  same  were  made  and 
statute  hy  all  the  three  estates  being  personally 
present.  And  if  any  greater  matter  occurs,  that 
please  his  grace  to  have  the  greatest  of  his  pre- 
lates and  barons  counsel,  he  shall  advertise  them 
thereof,  by  his  special  writings,  to  convene  such 
day  and  place  as  be  shall  think  most  expedient." 
These  lords  of  articles  even  granted  a  tax. — 1845.] 
*  Pinkerton,  i.,  373. 

t  Id..  360.  [In  1478,  we  find  24  spiritual  and  32 
temporal  lords,  with  22  tenants  in  capite,  or  lairds, 
and  201  commissioners  of  burghs.  This  was  unu- 
sually numerous.  But,  as  Robertson  observes,  in 
the  reign  of  i  ames  III.,  public  indignation  brought 
to  Parliament  many  lesser  barons  and  burgesses 
who  were  wont  to  stay  away  in  peaceable  times. 
—Hist,  of  Scotland,  i.,  246.— 1845.] 

t  Id.,  372.  §  Pinkerton,  ii.,  53. 


Their  statutes  afford  a  remarkable  contrast 
to  those  of  England  in  the  absence  of  pro- 
visions against  the  exorbitances  of  preroga- 
tive.* Robertson  has  observed  that  the 
kings  of  Scotland,  from  the  time  at  least  of 
James  I.,  acted  upon  a  steady  system  of 
repressing  the  aristocracy ;  and  though  this 
has  been  called  too  refined  a  supposition,  and 
attempts  have  been  made  to  explain  other- 
wise their  conduct,  it  seems  strange  to  deny 
the  operation  of  a  motive  so  natural,  and  so 
readily  to  be  inferred  from  their  measures. 
The  causes  so  well  pointed  out  by  this  his- 
torian, and  some  that  might  be  added ;  the 
defensible  nature  of  great  part  of  the  coun- 
try ;  the  extensive  possessions  of  some  pow- 
erful families  ;  the  influence  of  feudal  ten- 
ure and  Celtic  clanship;  the  hereditaiy  ju- 
risdictions, hardly  controlled,  even  in  theory, 
by  the  supreme  tribunals  of  the  crown  ;  the 
custom  of  entering  into  bonds  of  association 
for  mutual  defense  ;  the  frequent  minorities 
of  the  reigning  princes  ;  the  necessary  aban- 
donment of  any  strict  regard  to  monarch- 
ical supremacy,  during  the  struggle  for  in- 
dependence against  England ;  the  election 
of  one  gi-eat  nobleman  to  the  crown  and  it.s 
devolution  upon  another ;  the  residence  of 
the  first  two  of  the  Stuart  name  in  their 

*  In  a  statute  of  James  II.  (1440),  "the  three 
estates  conclude  that  it  is  speedful  that  our  sover- 
eign lord  the  king  ride  tliroughout  the  realm  incon- 
tinent as  shall  be  seen  to  the  council  where  any 
rebellion,  slaughter,  burning,  robbery,  outrage,  or 
theft  has  happened,"  &c. — Statutes  of  Scotland,  ii., 
32.  Puikerton  (i.,  102),  leaving  out  the  words  in 
italics,  has  argued  on  false  premises.  "  In  this 
singular  decree  we  find  the  legislative  body  re- 
garding the  king  in  the  modem  light  of  a  chief- 
magistrate,  bound  equally  with  the  meanest  subject 
to  obedience  to  the  laws,"  &c.  It  is  evident  that 
the  estates  spoke  in  this  instance  as  counselors, 
not  as  legislators.  This  is  merely  an  oversight  of 
a  very  well  informed  historian,  who  is  by  no  means 
in  the  trammels  of  any  political  theoiy. 

A  remarkable  expression,  however,  is  found  in 
a  statute  of  the  same  king  in  1430,  which  enacts 
that  any  man  rising  in  war  against  the  king,  or  re- 
ceiving such  as  have  committed  treason,  or  holding 
houses  against  the  king,  or  assaulting  castles  or 
places  where  the  king's  power  shall  happen  to  be, 
u-itlioxil  the  consent  of  the  three  estates,  shall  be  pun- 
i.shed  as  a  traitor. — Pinkerton,  i..  213.  I  am  in- 
clined to  think  that  the  legislators  had  in  view  the 
possible  recurrence  of  what  had  very  lately  hap- 
pened, that  an  ambitious  cabal  might  get  llie  king's 
person  into  their  power.  The  peculiar  circumstau- 
ces  of  Scotland  are  to  be  taken  into  account  w]>eu 
we  consider  these  statutes,  which  are  not  to  be 
looked  at  as  mere  insulated  texts. 


660 


COXSTITLTIONAL  HISTORY  OF  ENGLAXD 


[Chap.  XVII. 


own  remote  domains ;  the  want  of  any  such  '  aristocracy  whom  the  statute  was  designed 
effective  counterpoise  to  the  aristocracy  as  to  restrain.*  The  next  reign  was  the  strug- 
the  sovereigns  of  England  possessed  in  its  ;  gle  of  an  imprudent,  and,  as  far  as  his  means 
yeomanry  and  commercial  towns — all  these  I  extended,  despotic  prince,  against  the  spirit 
together  placed  the  kings  of  Scotland  in  a  '  of  his  subjects.  In  a  Parliament  of  1487. 
situation  which  neither  for  their  own  nor  we  find  almost  a  solitary  instance  of  a  stat- 
the  people's  interest  they  could  be  expected  ute  that  appears  to  have  been  directed 
to  endure.  But  an  impatience  of  submitting  iigainst  some  illegal  proceedings  of  the  gov- 
to  the  insolent  and  encroaching  temper  of  ernment.  It  is  provided  that  all  civil  suits 
their  nobles  drove  James  I.  (before  whose  shall  be  determined  by  the  ordinaiy  judges, 
time  no  settled  scheme  of  reviving  the  roy-  and  not  before  the  king's  council.f  James 
al  authority  seems  to  have  been  conceived)  III.  was  killed  the  next  year  in  attempting 
and  his  next  two  descendants  into  some  to  oppose  an  extensive  combination  of  the 
courses  which,  though  excused  or  extenu-  rebellious  nobility.  In  the  reign  of  James 
ated  by  the  difficulties  of  their  position,  IV.,  the  influence  of  the  aristocracy  shows 
were  rather  too  precipitate  and  violent,  and  itself  rather  more  in  legislation;  and  two 
redounded  at  last  to  their  own  destruction,  peculiarities  deserve  notice,  in  which,  as  it 
The  reign  of  James  IV.,  from  his  accession  is  said,  the  legislative  authority  of  a  Scots 
in  1468  to  his  unhappy  death  at  Flodden  in  Parliament  was  far  higher  than  that  of  our 
1513,  was  the  first  of  tolerable  prosperity,  own.  They  were  not  only  often  consulted 
the  crown  having  by  this  time  obtained  no  about  peace  or  war,  which  in  some  instan- 
inconsidei-able  strength,  and  the  course  of  ces  was  the  case  in  England,  but,  at  least  in 
law  being  somewhat  more  established,  the  sixteenth  centuiy,  their  approbation 
though  the  aristocracy  were  abundantly  ca-  seems  to  have  been  necessary.f  This, 
pable  of  withstanding  any  material  encroach-  though  not  consonant  to  our  modem  no- 
ment  upon  their  privileges.  tions,  was  certainly  no  more  than  the  ge- 

Though  subsidies  were  of  course  occ:;-  -lius  of  the  feudal  system  and  the  character 
sionally  demanded,  yet  from  the  poverty  of  a  great  deliberative  council  might  lead  us 
of  the  realm,  and  the  extensive  domains  to  expect ;  but  a  more  remarkable  singular- 
which  the  crown  retained,  they  were  much 
less  fi-equent  than  iu  England,  and  thus  one 
principal  source  of  difference  was  removed  ; 
nor  do  we  read  of  any  opposition  in  Parlia- 
ment to  what  the  lords  of  articles  thought 
fit  to  propound.  Those  who  disliked  the 
government  stood  aloof  from  such  meetings, 
where  the  sovereign  was  iu  his  vigor,  and 
had  sometimes  crashed  a  leader  of  faction 
by  a  sudden  stroke  of  power ;  confident  that 
they  could  better  frastrate  the  execution  of 
laws  than  their  enactment,  and  that  ques- 
tions of  right  and  privilege  could  never  be 
tried  so  advantageously  as  in  the  field. 
Hence  it  is,  as  I  have  already  observed, 
that  we  must  not  look  to  the  statute-book 
of  Scotland  for  many  limitations  of  mon- 
archy. Even  in  one  of  James  II.,  which 
enacts  that  none  of  the  royal  domains  shall 
for  the  future  be  alienated,  and  that  the 
king  and  his  successors  shall  be  sworn  to  ob- 
seiTe  this  law,  it  may  be  conjectured  that  a 
provision  rather  derogatory  in  semblance  to 
the  king's  dignity  was  introduced  by  his 
own  suggestion,  as  an  additional  security 
against  the  importunate  soUcitations  of  the 


ity  was,  that  what  had  been  propounded  by 
the  lords  of  articles,  and  received  the  ratifi- 
cation of  the  three  estates,  did  not  require 
the  king's  consent  to  give  it  complete  valid- 
ity. Such,  at  least,  is  said  to  have  been  the 
Scots  Constitution  in  the  time  of  James  VI.  -. 
though  we  may  demand  very  fuU  proof  of 
such  an  anomaly,  which  the  language  of 
their  statutes,  expressive  of  the  king's  en- 
acting power,  by  no  means  leads  us  to  infer.§ 
The  kings  of  Scotland  had  always  their 
aula  or  curia  regis,  claiming  a  su-  jadiciai 
preme  judicial  authority,  at  least  in  power, 
some  causes,  though  it  might  be  difficult  to 
determine  its  boundaries,  or  how  far  they 
were  respected.  They  had  also  bailiffs  to 
administer  justice  in  their  own  domains,  and 
sheriffs  in  every  county  for  the  same  pur- 
pose, wherever  grants  of  regality  did  not 
exclude  their  jurisdiction.  These  regalities 
were  hereditary  and  teiritorial ;  they  ex- 
tended to  the  infliction  of  capital  punish- 

'  Pinkerton,  i.,  234. 

t  Statutes  of  Scotland,  ii.,  177. 

t  Pinkerton,  ii.,  266. 

$  Pinkerton,  ii.,  400.    Lain?,  iii.,  32. 


Scotland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


661 


ment;  the  lord  possessing  them  might  re- 
claim or  repledge  (as  it  was  called,  from  the 
surety  he  was  obliged  to  give  that  he  would 
himself  do  justice)  any  one  of  his  vassals 
who  was  accused  before  another  jurisdic- 
tion. The  barons,  who  also  had  cognizance 
of  most  capital  offenses,  and  the  royal  bor- 
oughs, enjoyed  the  same  privilege.  An  ap- 
peal lay,  in  civil  suits,  from  the  baron's 
court  to  that  of  the  sheriff  or  lord  of  regal- 
ity, and  ultimately  to  the  Parliament,  or  to 
a  certain  number  of  persons,  to  whom  it  del- 
egated its  authority.*  This  appellant  juris- 
diction of  Parliament,  as  well  as  that  of  the 
king's  privy  council,  which  was  original, 
came,  by  a  series  of  jjrovisions  from  the 
year  1425  to  1532,  into  the  hands  of  a  su- 
preme tribunal  thus  gradually  constituted  in 
Court  of  its  present  form,  the  court  of  session, 
session,  ■^vas  composed  of  fifteen  judges, 
half  of  whom,  besides  the  president,  were 
at  first  churchmen,  and  soon  established  an 
entire  subordination  of  the  local  courts  in  all 
civil  suits.  But  it  possessed  no  competence 
ia  criminal  proceedings  ;  the  hereditary  ju- 
risdictions remained  unaffected  for  some 
ages,  though  the  king's  two  justiciaries,  re- 
placed afterward  by  a  court  of  six  judges, 
went  their  circuits  even  through  those  coun- 
ties wherein  charters  of  regality  had  been 
granted.  Two  remarkable  innovations  seem 
to  have  accompanied,  or  to  have  been  not 
far  removed  in  time  from,  the  first  formation 
of  the  court  of  session;  the  discontinuance 
of  juries  in  civil  causes,  and  the  adoption  of 
so  many  principles  from  the  Roman  law  as 
have  given  the  jurisprudence  of  Scotland  a 
very  different  character  from  our  own.f 

In  the  reign  of  James  V.  it  might  appear 
probable  that  by  the  influence  of  laws  favor- 
able to  public  order,  better  enforced  through 
the  council  and  court  of  session  than  before, 
by  the  final  subjugation  of  the  house  of 
Douglas  and  of  the  Earls  of  Ross  in  the 
North,  and  some  slight  increase  of  wealth 
in  the  towns,  conspiring  with  the  general 
tendency  of  the  sixteenth  centuiy  through- 
out Europe,  the  feudal  spirit  would  be  weak- 
ened and  kept  under  in  Scotland,  or  display 
itself  only  in  a  P.irliamentary  resistance  to 


KeforniaCiaiik 


*  Kaims's  Law  Tracts.  Pinkerton,  i.,  158,  et 
alibi.    Stuart  on  Public  Law  of  Scotland. 

t  Kairas's  Law  Tracts.  Pinkerton's  Hist,  of 
Scotland,  i.,  117,  237,  388;  ii ,  313.  Robertson,  i., 
43.    Stuart  on  Law  of  Scotland. 


what  might  become  in  its  turn  dangerous, 
the  encroachments  of  arbitrary  power.  But 
immediately  afterward  a  new  and  unexpect- 
ed impulse  was  given  ;  religious  zeal,  so 
blended  with  the  ancient  spii-it  of  aristocrat- 
ic independence  that  the  two  motives  are 
scarcely  distinguishable,  swept  before  it  in 
the  first  whirlwind  almost  every  vestige  of 
the  royal  sovereignty.  The  Ro- 
man Catholic  religion  was  abol- 
ished with  the  forms  indeed  of  a  Parlia- 
ment, but  of  a  Parliament  not  summoned 
by  the  crown,  and  by  acts  that  obtained  not 
its  assent.  The  Scots  Church  had  been 
immensely  rich ;  its  riches  had  led,  as  ev- 
ery where  else,  to  neglect  of  duties  and  dis- 
soluteness of  life  ;  and  these  vices  had  met 
with  their  usual  punishment  in  the  people's 
hatred.*  The  Reformed  doctrines  gained 
a  more  rapid  and  general  ascendency  than 
in  England,  and  were  accompanied  with  a 
more  strenuous  and  uncompromising  enthu- 
siasm. It  is  probable  that  no  sovereign  re- 
taining a  strong  attachment  to  the  ancienf 
creed  would  long  have  been  permitted  tc- 
reign ;  and  Maiy  is  entitled  to  every  pre- 
sumption, in  the  great  controversy  that  be- 
longs to  her  name,  that  can  reasonably  be 
founded  on  this  admission  ;  but,  without 
deviating  into  that  long  and  intricate  discus- 
sion, it  may  be  given  as  the  probable  result 
of  fair  inquiry,  that  to  impeach  the  charac- 
ters of  most  of  her  adversaries  would  be  a 
far  easier  task  than  to  exonerate  her  own.f 


*  Robertson,  i.,  149.  M'Crie's  Life  of  Knox,  p. 
15.  At  least  one  half  of  the  wealth  of  Scotland 
wag  in  the  hands  of  the  clergy,  chiefly  of  a  few  in- 
dividuals.— Ibid.  [Robertson  thinks  that  James 
V.  favored  the  clergy  as  a  counterpoise  to  the  aris- 
tocracy, which  may  account  for  the  eagerness  of 
the  latter,  generally,  in  the  Reformation. — Hist,  of 
Scotland,  i.,  68.— 1845.] 

t  I  have  read  a  good  deal  on  this  celebrated  con- 
troversy ;  bat,  where  so  much  is  disputed,  it  is  not 
easy  to  form  an  opinion  on  every  point.  But,  upon 
the  whole,  I  think  there  are  only  two  hypotheses 
that  can  be  advanced  with  any  color  of  reason. 
The  first  is,  that  the  murder  of  Darnley  was  pro- 
jected by  Bothwell,  Maitland,  and  some  others, 
without  the  queen's  express  knowledge,  but  with 
a  reliance  on  her  passion  for  the  former,  which 
would  lead  her  both  to  shelter  him  from  punish- 
ment, and  to  raise  him  to  her  bed ;  and  that,  in 
both  respects,  this  expectation  was  fully  realized 
by  a  criminal  connivance  at  the  escape  of  one 
whom  she  must  believe  to  have  been  concerned  in 
her  husband's  death,  and  by  a  still  more  infamous 
marriage  with  him.  This,  it  appears  to  me,  is  a 
conclusion  that  may  be  drawn  by  reasoning  on  ad- 


662 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVII. 


The  history  of  Scotland  from  the  Refor- 
mation assumes  a  character  not  only  unlike 
that  of  preceding  times,  but  to  which  there 
is  no  parallel  in  modem  ages.  It  became  a 
contest,  not  between  the  crown  and  the 
feudal  aristocracy  as  before,  nor  between 
„  the  assertors  of  prerogative  and 

Power  of  the  _  _  . 

Presiiyterian  of  privilege,  as  in  England,  nor 
clergy.  between  the  possessors  of  estab- 
lished power  and  those  who  deemed  them- 
selves oppressed  by  it,  as  is  the  usual  source 
of  civil  discord,  but  between  the  temporal 
and  spiritual  authorities,  the  ci'own  and  the 
Church ;  that  in  general  supported  by  the 
Legislature,  this  sustained  by  the  voice  of 
the  people.  Nothing  of  this  kind,  at  least 
in  any  thing  like  so  gi-eat  a  degree,  has  oc- 
cnrred  in  other  Protestant  countries ;  the 
Anglican  Church  being,  in  its  original  con- 
stitution, bound  up  with  the  state  as  one  of 
its  component  parts,  but  subordinate  to  the 
whole,  and  the  ecclesiastical  order  in  the 
kingdoms  and  commonwealths  of  the  Con- 
tinent being  either  destitute  of  temporal  au- 

mitted  facts,  according  to  the  common  rales  of  pre- 
sumptive evidence.  The  second  supposition  is, 
that  she  had  given  a  previous  consent  to  the  as- 
sassination. This  is  rendered  probable  by  several 
circumstances,  and  especially  by  the  famous  let- 
ters and  sonnets,  the  genuineness  of  which  has 
been  so  warmly  disputed.  I  must  confess  that  they 
seem  to  me  authentic,  and  that  Mr.  Laing's  disser- 
tation on  the  murder  of  Damley  has  rendered  Ma- 
ry's innocence,  even  as  to  participation  in  that 
crime,  an  untenable  proposition.  No  one  of  any 
weight,  I  believe,  has  asserted  it  since  his  time, 
except  Dr.  Lingard,  who  manages  the  evidence 
with  his  nsual  adroitness,  but  by  admitting  the 
general  authenticity  of  the  letters,  qualified  by  a 
mere  conjecture  of  interpolation,  has  given  np 
what  his  predecessors  deemed  the  very  key  of  the 
citadel. 

I  shall  dismiss  a  subject  so  foreign  to  my  pur- 
pose with  remarking  a  fallacy  which  affects  almost 
the  whole  argument  of  Mary's  most  strenuous  ad- 
vocates. They  seem  to  fancy  that,  if  the  Earls  of 
Murray  and  Morton,  and  Secretary  Maitland  of 
Lethington,  can  be  proved  to  have  been  concerned 
in  Damley's  murder,  the  queen  herself  is  at  once 
absolved.  But  it  is  generally  agreed  that  Mait- 
land was  one  of  those  who  conspired  with  Both- 
well  for  this  purpose ;  and  Morton,  if  he  were  not 
absolutely  consenting,  was  by  bis  own  acknowl- 
edgment at  his  execution  apprised  of  the  conspir- 
acy. With  respect  to  Murray,  indeed,  there  is  not 
a  shadow  of  evidence,  nor  had  he  any  probable 
motive  to  second  Bothwell's  schemes ;  but,  even 
if  his  participation  were  presumed,  it  would  not 
alter  in  the  slightest  degree  the  proofs  as  to  the 
queen. 


thority,  or  at  least  subject  to  the  civil  mag- 
istrate's supremacy. 

Knox,  the  founder  of  the  Scots  Reforma- 
tion, and  those  who  concurred  Their  at- 
with  him,  both  adhered  to  the  r;eCen« 
theological  system  of  Calvin  and  on  the  staj*. 
to  the  scheme  of  polity  he  had  introduced 
at  Geneva,  with  such  modifications  as  be- 
came necessaiy  from  the  greater  scale  on 
which  it  was  to  be  practiced.  Each  parish 
had  its  minister,  lay  elder,  and  deacon,  who 
held  their  kirk-session  for  spiritual  jurisdic- 
tion and  other  purposes  ;  each  ecclesiastical 
province  its  synod  of  ministers  and  delega- 
ted elders,  presided  over  by  a  superintend- 
ent ;  but  the  supreme  power  resided  in  the 
general  assembly  of  the  Scots'  Church,  con- 
stituted of  all  ministers  of  parishes,  with  an 
admixture  of  delegated  laymen,  to  which 
appeals  from  inferior  judicatories  lay,  and 
by  whose  determinations  or  canons  the 
whole  were  bound.  The  superintendents 
had  such  a  degree  of  Episcopal  authority 
as  seems  implied  in  their  name,  but  con- 
currently with  the  parochial  ministers,  and 
in  subordination  to  the  general  assembly ; 
the  number  of  these  was  designed  to  be  ten, 
but  only  five  were  appointed.*  This  form 
of  Church  polity  was  set  up  in  1560 ;  but, 
according  to  the  iiregular  state  of  things  at 
that  time  in  Scotland,  though  fully  admitted 
and  acted  upon,  it  had  only  the  authority 
of  the  Church,  with  no  confirmation  of  Par- 
liament, which  seems  to  have  been  the  first 
step  of  the  former  toward  the  independency 
it  came  to  usurp.  Meanwhile  it  was  agi'eed 
that  the  Roman  Catholic  prelates,  including 
the  regulars,  should  enjoy  two  thirds  of 
their  revenues,  as  well  as  their  rank  and 
seats  in  Parliament,  the  remaining  third  be- 
ing given  to  the  crown,  out  of  which  sti- 
pends should  be  allotted  to  the  Protestant 
clergy.  Whatever  violence  may  be  imput- 
ed to  the  authors  of  the  Scots  Reformation, 
this  airangement  seems  to  display  a  mod- 
eration which  we  should  vainly  seek  in  our 


*  Spottiswood's  Church  History,  152.  M'Crie's 
Lifeof  Knox,  ii..6.  Life  of  .MeWUe,  i.,  143.  Rob- 
ertson's History  of  Scotland.  Cook's  History  of 
the  Reformation  in  Scotland.  These  three  mod- 
em writers  leave,  apparently,  little  to  require  as 
to  this  important  period  of  historj- ;  the  first  with 
an  intenseness  of  sympathy  that  enhances  oar  in- 
terest, though  it  may  not  always  command  our  ap- 
probation; the  last  two  with  a  cooler  and  more 
philosophical  impartiality. 


Scotland.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


663 


own.  The  new  church  was,  however,  but 
inadequately  provided  for ;  and  perhaps  we 
may  attribute  some  part  of  her  subsequent 
contumacy  and  encroachment  on  the  state 
to  the  exasperation  occasioned  by  the  lat- 
ter's  pareiinony,  or  rather  rapaciousness,  in 
the  distribution  of  ecclesiastical  estates.* 

It  was  doubtless  intended  by  the  planners 
of  a  Presbyterian  model,  that  the  bishoprics 
should  be  extinguished  by  the  death  of  the 
possessors,  and  their  revenues  be  converted, 
partly  to  the  maintenance  of  the  clergy, 
partly  to  other  public  interests ;  but  it  suit- 
ed better  the  men  in  power  to  keep  up  the 
old  appellations  for  their  own  benefit.  As 
the  Catholic  prelates  died  away,  they  were 
replaced  by  Protestant  ministers,  on  private 
compacts  to  alienate  the  principal  part  of 
the  revenues  lo  those  through  whom  they 
were  appointed.  After  some  hesitation,  a 
Convention  of  the  Church,  in  1572,  agreed 
to  recognize  these  bishops  until  the  king's 
majority  and  a  final  settlement  by  the  Leg- 
islature, and  to  permit  them  a  certain  por- 
tion of  jurisdiction,  though  not  greater  than 
that  of  the  superintendent,  and  equally  sub- 
ordinate to  the  general  assembly.  They 
were  not  consecrated ;  nor  would  the  slight- 
est distinction  of  order  have  been  endured 
by  the  Church.  Yet  even  this  moderated 
episcopacy  gave  offense  to  ardent  men,  led 
Andrew  by  Andrew  Melville,  the  second 
Melville,  name  to  Knox  in  the  ecclesiastical 
history  of  Scotland ;  and,  notwithstanding 
their  engagement  to  leave  things  as  they 
were  till  the  determination  of  Parliament, 
the  General  Assemblj'  soon  began  to  restrain 
the  bishops  by  their  own  authority,  and 
finally  to  enjoin  them,  under  pain  of  excom- 
munication, to  lay  down  an  office  which 
they  voted  to  be  destitute  of  warrant  from 
the  Word  of  God,  and  injurious  to  the 
Church.  Some  of  the  bishops  submitted 
to  this  decree ;  others,  as  might  be  expect- 
ed, stood  out  in  defense  of  their  dignity,  and 
were  supported  both  by  the  king  and  by  all 
who  conceived  that  the  supreme  power  of 
Scotland,  in  establishing  and  endowing  the 
Church,  had  not  constituted  a  society  inde- 
pendent of  the  Commonwealth.    A  series 

•  M'Crie's  Life  of  Knox,  ii.,  197,  et  alibi.  Cook, 
iii.,  30S.  Aocoi-ding  to  Robertson,  i.,  291,  the 
whole  revenue  of  the  Protestant  Church,  at  least 
in  Mary's  rei^,  was  about  24,000  pounds  Scots, 
which  seems  almost  incredible. 


of  acts  in  1584,  at  a  time  when  the  court 
had  obtained  a  temporary  ascendant,  seem- 
ed to  restore  the  episcopal  government  in 
almost  its  pristine  luster.  But  the  popular 
voice  was  loud  against  Episcopacy  ;  the 
prelates  were  discredited  by  their  simoniac- 
al  alienations  of  Church  revenues,  and  by 
their  connection  with  the  court ;  the  king 
was  tempted  to  annex  most  of  their  lands 
to  the  crown  by  an  act  of  Parliament  in 
1587 ;  Adamson,  archbishop  of  St.  An- 
drew's, who  had  led  the  Episcopal  party, 
was  driven  to  a  humiliating  retractation  be- 
fore the  General  Assembly  ;  and,  in  1592, 
the  sanction  of  the  Legislature  was  for  the 
first  time  obtained  to  the  whole  scheme  of 
Presbyterian  polity,  and  the  laws  of  1584 
were  for  the  most  part  abrogated. 

The  school  of  Knox,  if  so  we  may  call  the 
early  Piesbyterian  ministers  of  Scotland, 
was  full  of  men  breathing  their  master's 
spirit ;  acute  in  disputation,  eloquent  in  dis- 
course, learned  beyond  what  their  success- 
ors have  been,  and  intensely  zealous  in  the 
cause  of  reformation.  They  wielded  the 
people  at  will ;  who,  except  in  the  High- 
lands, threw  off  almost  with  unanimity  the 
old  religion,  and  took  alarm  at  the  slightest 
indication  of  its  revival.  Their  system  of 
local  and  general  assemblies  infused,  togeth- 
er with  the  forms  of  a  republic,  its  energy 
and  impatience  of  exterior  control,  combined 
with  the  concentration  and  unity  of  purpose 
that  belongs  to  the  most  vigorous  govern- 
ment. It  must  be  confessed  that  the  un- 
settled state  of  the  kingdom,  the  faults  and 
weakness  of  the  regents  Lennox  and  Mor- 
ton, the  inauspicious  beginning  of  James's 
personal  administration  under  the  sway  of 
unworthy  favorites,  the  real  perils  of  the 
Reformed  Church,  gave  no  slight  pretext 
for  the  clergy's  interference  with  civil  pol- 
icy. Not  merely  in  their  representative 
assemblies,  but  in  the  pulpits,  they  perpet- 
ually remonstrated,  in  no  guarded  language, 
against  the  misgovernment  of  the  court,  and 
even  the  personal  indiscretions  of  the  king. 
This  they  pretended  to  claim  as  a  privilege 
beyond  the  restraint  of  law.  Andrew  Mel- 
ville having  been  summoned  before  the  coun- 
cil in  1584,  to  give  an  account  of  some  sedi- 
tious language  alleged  to  have  been  used  by 
him  in  the  pulpit,  declined  its  jurisdiction 
on  the  ground  that  he  was  only  responsible, 
in  the  first  instance,  to  his  presbyteiy  for 


664 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVII. 


words  so  spoken,  of  which  the  king  and 
council  could  not  judge  without  violating 
the  immunities  of  the  Church.  Precedents 
for  such  an  immunity  it  would  not  have  been 
difficult  to  find  ;  but  they  must  have  been 
sought  in  the  archives  of  the  enemy.  It 
was  rather  early  for  the  new  republic  to 
emulate  the  despotism  she  had  overthrown. 
Such,  however,  is  the  uniformity  with  which 
the  same  passions  operate  on  bodies  of  men 
in  similar  circumstances  ;  and  so  greedily 
do  those,  whose  birth  has  placed  them  far 
beneath  the  possession  of  power,  intoxicate 
themselves  with  its  unaccustomed  enjoy- 
iTients.  It  has  been  urged  in  defense  of 
Melville,  that  he  only  denied  the  compe- 
tence of  a  secular  tribunal  in  the  first  in- 
stance ;  and  that,  after  the  ecclesiastical  fo- 
rum had  pronounced  on  the  spiritual  offense, 
it  was  not  disputed  that  the  civil  magisti-ate 
might  vindicate  his  own  authority.*  But 
not  to  mention  that  Melville's  claim,  as  I 
understand  it,  was  to  be  judged  by  his  pres- 
bytery in  the  first  instance,  and  ultimately 
by  the  General  Assembly,  from  which,  ac- 
cording to  the  Presbyterian  theory,  no  ap- 
peal lay  to  a  civil  court,  it  is  manifest  that 
the  government  would  have  come  to  a  very 
disadvantageous  conflict  with  a  man  to  whose 
defense  the  ecclesiastical  judicature  had  al- 
ready pledged  itself;  for  in  the  temper  of 
those  times  it  was  easy  to  foresee  the  de- 
termination of  a  synod  or  pi-esbytery. 

James,  however,  and  his  counselors  were 
Success  of  not  so  feeble  as  to  endure  this 
resTraimng"  Open  renewal  of  those  extrava- 
them.  gant  pretensions  which  Rome  had 
taught  her  priesthood  to  assert.  Melville 
fled  to  England ;  and  a  Parliament  that  met 
the  same  year  sustained  the  supremacy  of 
the  civil  power  with  that  violence  and  dan- 
gerous latitude  of  expression  so  frequent 
in  the  Scots  statute-book.  It  was  made 
treason  to  decline  the  jurisdiction  of  the 
king  or  council  in  any  matter,  to  seek  the 
diminution  of  the  power  of  any  of  the  three 
estates  of  Parliament,  which  struck  at  all 
tliat  had  been  done  against  Episcopacy,  to 
utter,  or  to  conceal,  when  heard  from  others 
in  sermons  or  familiar  discourse,  any  false 

*  M'Crie's  Life  of  MelviUe,  i.,  287,  296.  It  is 
impossible  to  think  veithout  respect  of  tliis  most 
powerful  writer,  before  whom  there  are  few  living 
controversialists  that  would  not  tremble ;  but  his 
Presbyterian  Hildebrandism  is  a  little  remarkable 
in  this  age. 


or  slanderous  speeches  to  the  reproach  of 
the  king,  his  council,  or  their  proceedings, 
or  to  the  dishonor  of  his  parents  and  pro- 
genitors, or  to  meddle  in  the  affairs  of  state. 
It  was  forbidden  to  treat  or  consult  on  any 
matter  of  state,  civil  or  ecclesiastical,  with- 
out the  king's  express  command,  thus  ren- 
dering the  General  Assembly  for  its  chief 
purposes,  if  not  its  existence,  altogether  de- 
pendent on  the  crown.  Such  laws  not  only 
annihilated  the  pretended  immunities  of  the 
Church,  but  went  very  far  to  set  up  that 
tyranny  which  the  Stuarts  afterwai-d  ex- 
ercised in  Scotland  till  their  expulsion. 
These  were  in  part  repealed,  so  far  as  af- 
fected the  Church,  in  1592 ;  but  the  crown 
retained  the  exclusive  right  of  convening  its 
!  General  Assembly,  to  which  the  Presby- 
terian hierarchy  still  gives  but  an  evasive 
and  reluctant  obedience.* 

These  bold  demagogues  were  not  long 
in  availing  themselves  of  the  advantages 
which  they  had  obtained  in  the  Parliament 
of  1592,  and  through  the  troubled  state  of 
the  realm.  They  began  again  to  inter- 
meddle with  public  affairs,  the  administra- 
tion of  which  was  sufficiently  open  to  cen- 
sure. This  license  brought  on  a  new  crisis 
in  1596.  Black,  one  of  the  ministers  of 
St.  Andrew's,  inveighing  against  the  gov- 
ernment from  the  pulpit,  painted  the  king 
and  queen,  as  well  as  their  council,  in  the 
darkest  colors,  as  dissembling  enemies  to 
religion.  James,  incensed  at  this  attack, 
caused  him  to  be  summoned  before  the 
privy  council.  The  clergy  decided  to  make 
common  cause  with  the  accused.  The 
council  of  the  Church,  a  standing  commit- 
tee lately  appointed  by  the  General  As- 
sembly, enjoined  Black  to  decline  the  juris- 
diction. The  king  by  proclamation  directed 
the  members  of  this  council  to  retire  to 
their  several  parishes.  They  resolved,  in- 
stead of  submitting,  that  since  they  were 
convened  by  the  warrant  of  Christ,  in  a 
most  needful  and  dangerous  time,  to  see 
unto  the  good  of  the  Church,  they  should 
obey  God  rather  than  man.  The  king  of- 
fered to  stop  the  proceedings,  if  they  would 
but  declare  that  they  did  not  decline  the 
civil  jurisdiction  absolutely,  but  only  in  the 
particular  case,  as  being  one  of  slander,  and, 
consequently,  of  ecclesiastical  competence ; 

*  M'Crie's  Life  of  Melville.  Bobertson.  Spot- 
tiswood. 


Scotland.! 


FROM  HENRY  VII.  TO  GEORGE  11. 


665 


for  Blctck  bad  asserted  before  the  council 
that  speeches  delivered  in  the  pulpits,  al- 
though alleged  to  be  treasonable,  could  not 
be  judged  by  the  king  until  the  Church  had 
fii-st  taken  cognizance  thereof.  But  these 
ecclesiastics,  in  the  full  spirit  of  the  thir- 
teenth century,  determined  by  a  majority 
not  to  recede  from  their  plea.  Their  con- 
test with  the  court  soon  excited  the  popu- 
lace of  Edinburgh,  and  gave  rise  to  a  tu- 
mult, which,  whether  dangerous  or  not  to 
the  king,  was  what  no  government  could 
pass  over  without  utter  loss  of  authority. 

It  was  in  Church  assemblies  alone  that 
.Tames  found  opposition.  His  Parliament, 
as  had  invariably  been  the  case  in  Scotland, 
went  readily  into  all  that  was  proposed  to 
them  ;  nor  can  we  doubt  that  the  gentiy 
must  for  the  most  part  have  revolted  from 
these  insolent  usurpations  of  the  ecclesias- 
tical order.  It  was  ordained  in  Parliament 
that  eveiy  minister  should  declare  his  sub- 
mission to  the  king's  jurisdiction  in  all  mat- 
ters civil  and  criminal ;  that  no  ecclesias- 
tical judicatory  should  meet  without  the 
king's  consent,  and  that  a  magistrate  might 
commit  to  prison  any  minister  reflecting  in 
his  seiTDons  on  the  Iving's  conduct.  He  had 
next  recourse  to  an  instrument  of  power 
more  successful  frequently  than  intimida- 
tion, and  generally  successful  in  conjunction 
with  it ;  gaining  over  the  members  of  the 
General  Assembly,  some  by  promises,  some 
by  exciting  jealousies,  till  they  suiTender- 
ed  no  small  portion  of  what  had  passed  for 
the  privileges  of  the  Church.  The  crown 
obtained  by  their  concession,  which  then 
seemed  almost  necessary  to  confirm  what 
the  Legislature  had  enacted,  the  right  of 
convoking  assemblies,  and  of  nominating 
Establish  ministers  in  the  principal  towns, 
ment  of  James  followed  up  this  victory 
Episcopacy.       ^  ^j^jjj  ^^^^  important  blow. 

It  was  enacted  that  fifty-one  ministers,  on 
being  nominated  by  the  king  to  titular  bish- 
oprics and  other  prelacies,  might  sit  in  Par- 
liament as  representatives  of  the  Church. 
This  seemed  justly  alarming  to  the  op- 
posite party ;  nor  could  the  General  As- 
sembly be  brought  to  acquiesce  without 
such  very  considerable  resti'ictions  upon 
these  sus])icious  commissioners,  by  which 
name  they  prevailed  to  have  them  called, 
as  might  in  some  measure  afford  security 
against  the  revival  of  that  Episcopal  domi- 


nation, toward  which  the  endeavors  of  the 
crown  were  plainly  directed.  But  the  king 
paid  little  regard  to  these  regulations  ;  and 
thus  the  name  and  Parliamentary  station 
of  bishops,  though  without  their  spiritual 
functions,  were  restored  in  Scotland  after 
only  six  years  from  their  abolition.* 

A  king  like  James,  not  less  conceited  of 
his  wisdom  than  full  of  the  dignity  of  his 
station,  could  not  avoid  contracting  that  in- 
superable avei'sion  to  the  Scots  presbytery, 
which  he  expressed  in  his  Basilicon  Doron 
before  his  accession  to  the  English  throne, 
and  more  vehemently  on  all  occasions  after- 
ward. He  found  a  very  different  race  of 
churchmen,  well  trained  in  the  supple 
school  of  courtlj''  conformity,  and  emulous 
flatterers  both  of  his  power  and  his  wisdom. 
The  ministers  of  Edinburgh  had  been  used 
to  pray  that  God  would  turn  his  heart : 
Whitgift,  at  the  conference  of  Hampton 
Court,  falling  on  his  knees,  exclaimed,  that 
he  doubted  not  his  majesty  spoke  by  the 
special  grace  of  God.  It  was  impossible 
that  he  should  not  redouble  his  endeavors 
to  introduce  so  convenient  a  system  of  ec- 
clesiastical government  into  his  native  king- 
dom. He  began,  accordingly,  to  prevent 
the  meetings  of  the  General  Assembly  by 
continued  prorogations.  Some  hardy  Pres- 
byterians ventui'ed  to  assemble  by  their  own 
authority,  which  the  lawyers  construed  in- 
to treason.  The  bishops  were  restored  by 
Parliament  in  1606  to  a  part  of  their  reve- 
nues, the  act  of  annexing  these  to  the 
crown  being  repealed.  They  were  appoint- 
ed by  an  ecclesiastical  convention,  more  sub- 
servient to  the  crown  than  formerly,  to  be 
perpetual  moderators  of  provincial  synods. 
The  clergy  still  gave  way  with  reluctance ; 

*  Spottiswood.  Robertson.  M'Crie.  [In  the 
55th  canon,  passed  by  the  Convocation  at  Loudon 
in  1603,  the  clergy  are  directed  to  bid  the  people 
to  "pray  for  Christ's  holy  Catholic  Church,  that  is, 
for  the  whole  congregation  of  Christian  people  dis- 
persed throughout  the  whole  world,  and  especially 
for  the  churches  of  England,  Scotland,  and  Ire- 
land." A  learned  writer  reckons  this  among  the 
canons,  the  observance  of  which  is  impossible. — 
Cardwell's  Synodalia,  preface,  p.  xxviii.  By  this 
singular  word  he  of  coarse  means  that  it  ought  not 
to  be  done ;  and,  in  fact,  I  never  heard  the  Church 
of  Scotland  so  distinguished,  except  once,  by  a 
Master  of  the  Temple  (Rennell).  But  it  has  evi- 
dently escaped  Br.  Cardwell's  refoUection,  that 
the  Church  of  Scotland  was,  properly  speaking,  as 
much  Presbyterian  in  1603  as  at  present. — 1845.] 


666  CONSTITUTIONAL  HISTORY  OF  ENGLAND  [Chap.  XVU. 


but  the  crown  had  an  irresistible  ascendency 
in  Parliament,  and  in  1610  the  Episcopal 
system  was  thoroughly  established.  The 
powers  of  oi'dination,  as  well  as  jurisdiction, 
were  solely  vested  in  the  prelates  ;  a  court 
of  high  commission  was  created  on  the  En- 
glish model ;  and,  though  the  General  As- 
sembly of  the  Church  still  continued,  it 
was  merely  as  a  shadow,  and  almost  a 
mockery,  of  its  original  importance.  The 
bishops  now  repaired  to  England  for  conse- 
cration, a  ceremony  deemed  essential  in 
the  new  school  that  now  predominated  in 
the  Anglican  Church,  and  this  gave  a  final 
blow  to  the  polity  in  which  the  Scottish 
Reformation  had  been  founded.*  With  far 
more  questionable  prudence,  James,  some 
years  afterward,  forced  upon  the  people 
of  Scotland  what  were  called  the  five  arti- 
cles of  Perth,  reluctantly  adopted  by  a  Gen- 
eral Assembly  held  there  in  1617.  These 
were  matters  of  ceremony,  such  as  the 
posture  of  kneeling  in  the  eucharist,  the 
right  of  confirmation,  and  the  observance 
of  certain  holydnys  ;  but  enough  to  alarm 
a  nation  fanatically  abhon-ent  of  every  ap- 
proximation to  the  Roman  worship,  and 
already  incensed  by  what  they  deemed 
the  corruption  and  degradation  of  their 
Church.f 

That  church,  if  indeed  it  preserved  its 
identity,  was  wholly  changed  in  character, 
and  became  as  much  distinguished  in  its 
Episcopal  form  by  servility  and  corruption 
as  during  its  Presbyterian  democracy  by 
faction  and  turbulence.  The  bishops  at  its 
head,  many  of  them  abhorred  by  their  own 
countrymen  as  apostates  and  despised  for 
their  vices,  looked  for  protection  to  the 
sister  Church  of  England  in  its  pride  and 
triumph.  It  had  long  been  the  favorite 
project  of  the  court,  as  it  naturally  was  of 
the  Anglican  prelates,  to  assimilate  in  all 
respects  the  two  establishments.  That  of 
Scotland  still  wanted  one  essential  charac- 
teristic, a  regular  Liturgy.  But  in  prepar- 
ing what  was  called  the  service-book,  the 
English  model  was  not  closely  followed,  the 
variations  having  all  a  tendency  toward  the 
Romish  worship.  It  is  far  more  probable 
that  Laud  intended  these  to  prepare  the 
way  for  a  similar  change  in  England,  than 

*  M'Crie's  i-ife  of  Melville,  ii.,  378.  Laing^s 
Hist,  of  Scotland,  iii.,  20,  35,  42,  62. 
t  Laing,  74,  89. 


that,  as  some  have  surmised,  the  Scots 
bishops,  from  a  notion  of  independence, 
chose  thus  to  distinguish  their  own  ritual. 
What  were  the  consequences  of  this  un- 
happy innovation,  attempted  with  that  igno- 
rance of  mankind  which  kings  and  priests, 
when  left  to  their  own  guidance,  usually 
display,  it  is  here  needless  to  mention.  In 
its  ultimate  results,  it  preserved  the  liberties 
and  overthrew  the  monarchy  of  England. 
In  its  more  immediate  effects,  it  gave  rise 
to  the  national  covenant  of  Scotland  ;  a  sol- 
emn pledge  of  unity  and  perseverance  in  a 
great  public  cause,  long  since  devised  when 
the  Spanish  armada  threatened  the  liberties 
and  religion  of  all  Britain,  but  now  directed 
against  the  domestic  enemies  of  both.  The 
Episcopal  government  had  no  friends,  even 
among  those  who  served  the  king.  To  him 
it  was  dear  by  the  sincerest  conviction,  and 
by  its  connection  with  absolute  power,  still 
more  close  and  direct  than  in  England. 
But  he  had  reduced  himself  to  a  condition 
where  it  was  necessary  to  sacrifice  his  au- 
thority in  the  smaller  kingdom,  if  he  would 
hope  to  preserve  it  in  the  greater ;  and  in 
this  view  he  consented,  in  the  Parliament 
of  1641,  to  restore  the  Presbyterian  disci- 
pline of  the  Scots  Church ;  an  oflTense 
against  his  conscience  (for  such  his  preju- 
dices led  him  to  consider  it)  which  he 
deeply  afterward  repented,  when  he  dis- 
covered how  absolutely  it  had  failed  of 
sei-ving  his  interests. 

In  the  great  struggle  with  Charles  against 
Episcoj)acy,  the  encroachments  innovations 
of  arbitrary  rule,  for  the  sake  of  "fChiiries  i 
which,  in  a  great  measure,  he  valued  that 
form  of  Church  polity,  were  not  overlook- 
ed ;  and  the  Parliament  of  1641  procured 
some  essential  improvements  in  the  civil 
Constitution  of  Scotland.  Triennial  ses- 
sions of  the  Legislature,  and  other  salutary 
reformations,  were  borrowed  from  their 
friends  and  coadjutors  in  England ;  but 
what  was  still  more  important  was  the  ab- 
olition of  that  destructive  control  over  the 
Legislature  which  the  crown  had  obtained 
through  the  lords  of  articles.  These  had 
doubtless  been  originally  nominated  by  the 
several  estates  in  Parliament,  solely  to  ex- 
pedite the  management  of  business,  and  re- 
lieve the  entire  body  from  attention  to  it ; 
but  as  early  as  1561  we  find  a  practice 
established,  that  the  spiritual  lords  should 


Scotland.] 


FEOM  HENRY  Vn.  TO  GEORGE  11. 


667 


choose  the  temporal,  generally  eight  in 
number,  who  were  to  sit  on  this  commit- 
tee, and  conversely,  the  burgesses  still  elect- 
ing their  own.  To  these  it  became  usual 
to  add  some  of  the  officers  of  state  ;  and  in 
1617  it  was  established  that  eight  of  them 
should  be  on  the  list.  Charles  procured, 
without  authority  of  Parliament,  a  further 
innovation  in  1633.  The  bishops  chose 
eight  peers,  the  peers  eight  bishops,  and 
these  appointed  sixteen  commissioners  of 
shires  and  boroughs.  Thus  the  whole 
power  was  devolved  upon  the  bishops,  the 
slaves  and  sycophants  of  the  crown.  The 
Parliament  itself  met  only  on  two  dfij-s,  the 
first  and  last  of  their  pretended  session,  the 
one  time  in  order  to  choose  the  lords  of 
articles,  the  other  to  ratify  what  they  pro- 
posed.* So  monstrous  an  anomaly  could 
not  long  subsist  in  a  high-spii'ited  nation. 
This  improvident  assumption  of  power  by 
low-born  and  odious  men  precipitated  their 
downfall,  and  made  the  destruction  of  the 
hierarchy  appear  the  necessary  guarantee 
for  Parliamentary  independence,  and  the 
ascendant  of  the  aristocracy  ;  but  lest  the 
court  might,  in  some  other  form,  regain  this 
preliminary  or  initiative  voice  in  legislation, 
which  the  experience  of  many  governments 
has  shown  to  be  the  surest  method  of  keep- 
ing supreme  authority  in  their  hands,  it 
was  enacted  in  1641  that  each  estate  might 
choose  lords  of  articles  or  not,  at  its  discre- 
tion ;  but  that  all  propositions  should  in  the 
first  instance  be  submitted  to  the  whole 
Parliament,  by  whom  such  only  as  should 
be  thought  fitting  might  be  referred  to  tlie 
committee  of  articles  for  consideration. 

This  Parliament,  however,  neglected  to 
Arbitrary  abolish  One  of  the  most  odious 
government,  engines  that  tyranny  ever  de- 
vised against  public  virtue,  the  Scots  law 
of  ti'eason.  It  had  been  enacted  by  a  stat- 
ute of  James  I.  in  1424,  that  all  leasing- 
makers,  and  tellers  of  what  might  engender 
discord  between  the  king  and  his  people, 
should  forfeit  life  and  goods. f  This  act 
was  renewed  under  .Tames  II.,  and  con- 
firmed in  1540. t  It  was  aimed  at  the  fac- 
tious aristocracy,  who  perpetually  excited 
the  people  by  invidious  reproaches  against 

*  Wight,  69,  et  post. 

t  Statutes  of  Scotland,  vol.  ii.,  p.  8.  Pinkerton, 
i.,  11.5.    Laing,  iii.,  117. 
i  Statutes  of  Scotland,  p.  360. 


the  king's  administration.  But  in  1584,  a 
new  antagonist  to  the  crown  having  appeared 
in  the  Presbyterian  pulpits,  it  was  determ- 
ined to  silence  opposition  by  giving  the  stat- 
ute of  leasing-making,  as  it  was  denomina- 
ted, a  more  sweeping  operation.  Its  penal- 
ties were  accordingly  extended  to  such  as 
should  "  utter  untrue  or  slanderous  speech- 
es, to  the  disdain,  rejjroach,  and  contempt 
of  his  highness,  his  parents  and  progenitors, 
or  should  meddle  in  the  affairs  of  his  high- 
ness, or  his  estate."  The  "  hearers  and 
not  reporters  thereof"  were  subjected  to 
the  same  punishment.  It  may  be  remarked 
that  these  Scots  statutes  are  woi'ded  with  a 
latitude  never  found  in  England,  even  in  the 
worst  times  of  Henry  VIII.  Lord  Balme- 
rino,  who  had  opposed  the  court  in  the 
Parliament  of  1633,  retained  in  his  posses- 
sion a  copy  of  an  apology  intended  to  have 
been  presented  by  himself  and  other  peers 
in  their  exculpation,  but  from  which  they 
had  desisted,  in  apprehension  of  the  king's 
displeasure.  This  was  obtained  clandes- 
tinely, and  in  breach  of  confidence,  by  some 
of  his  enemies,  and  he  was  indicted  on  the 
statute  of  leasing-making,  as  having  con- 
cealed a  slander  against  his  majesty's  gov- 
ernment. A  jury  was  returned  with  gross 
partiality ;  yet  so  outrageous  was  the  at- 
tempted violation  of  justice,  that  Balmerino 
was  only  convicted  by  a  majority  of  eight 
against  seven  ;  for  in  Scots  juries  a  simple 
majority  was  sufficient,  as  it  is  still  in  all 
cases  except  treason.  It  was  not  thought 
expedient  to  carry  this  sentence  into  execu- 
tion ;  but  the  kingdom  could  never  pardon 
its  government  so  infamous  a  stretcli  of 
power.*  The  statute  itself,  however,  seems 
not  to  have  shared  the  same  odium  :  we  do 
not  find  any  eflTort  made  for  its  repeal ;  and 
the  ruling  party  in  1641,  unfortunately,  did 
not  scruple  to  make  use  of  its  sanguinary 
provisions  against  their  own  adversaries.! 

The  conviction  of  Balmerino  is  hardly 
more  repugnant  to  justice  than  some  other 
cases  in  the  long  reign  of  James  VI.  Eight 
years  after  the  execution  of  the  Earl  of 
Gowrie  and  his  brother,  one  Sprot,  a  nota- 
i-y,  having  indiscreetly  mentioned  that  he 
was  in  possession  of  letters,  written  by  a 
person  since  dead,  which  evinced  his  par- 
ticipation in  that  mysterious  conspiracy,  was 

*  Laing,  ibid. 

t  Arnot's  Criminal  Trials,  p.  122. 


668 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVII. 


put  to  death  for  concealing  them.*  Thora- 
cis Ross  suffered,  in  1618,  the  punishment 
of  treason  for  publishing  at  Oxford  a  blas- 
phemous libel,  as  the  indictment  calls  it, 
against  the  Scots  nation. f  I  know  not  what 
he  could  have  said  worse  than  what  their 
sentence  against  him  enabled  others  to  say, 
that,  amid  a  great  vaunt  of  Christianity  and 
civilization,  they  took  away  men's  lives  by 
such  statutes,  and  such  constructions  of 
them,  as  could  only  be  paralleled  in  the  an- 
nals of  the  worst  tyrants.  By  an  act  of 
1584,  the  privy  council  were  empowered  to 
examine  an  accused  party  on  oath ;  and  if 
he  declined  to  answer  any  question,  it  was 
held  denial  of  their  jurisdiction,  and  amount- 
ed to  a  conviction  of  treason.  This  was  ex- 
perienced by  two  Jesuits,  Crighton  and 
Ogilvy,  in  1610  and  1615,  the  latter  of  whom 
was  executed. t  One  of  the  statutes  upon 
which  he  was  indicted  contained  the  singu- 
lar absurdity  of  "  annulling  and  rescinding 
every  thing  done,  or  hereafter  to  be  done, 
in  prejudice  of  the  royal  prerogative,  in  any 
time  by-gone  or  to  come." 

It  was  perhaps  impossible  that  Scotland 
should  remain  indifferent  in  the 
great  quarrel  of  the  sister  kingdom  ; 
but  having  set  her  heart  upon  two  things, 
incompatible  in  themselves  from  the  outset, 
according  to  the  circumstances  of  England, 
and  both  of  them  ultimately  impracticable, 


Civil  war. 


*  The  Gowrie  conspiracy  is  well  known  to  be 
one  of  the  most  difficult  problems  in  historj-.  Ar- 
not  has  given  a  very  good  account  of  it,  p.  20,  and 
sliown  its  truth,  which  could  not  reasonably  be 
questioned,  whatever  motive  we  may  assign  for  it. 
He  has  laid  stress  on  Logan's  letters,  which  appear 
to  have  been  unaccountably  slighted  by  some  writ- 
ers. I  have  long  had  a  suspicion,  founded  on  these 
letters,  that  the  Earl  of  Bothwell,  a  daring  man  of 
desperate  fortunes,  was  in  some  manner  concerned 
in  the  plot,  of  which  the  Earl  of  Gowrie  and  his 
brother  were  the  instruments. 

t  Amot  s  Criminal  Trials,  p.  70. 

t  Amot,  p.  67,  329 ;  State  Trials,  ii.,  884.  The 
prisoner  was  told  that  he  was  not  charged  for  say- 
ing mass,  nor  for  seducing  the  people  to  popery, 
nor  for  any  thing  that  concerned  his  conscience, 
but  for  declining  the  king's  authority,  and  main- 
taining trea.sonable  opinions,  as  the  statutes  libeled 
on  made  it  treason  not  to  answer  the  king  or  his 
council  in  any  matter  which  should  be  demanded. 

It  was  one  of  the  most  monstrous  iniquities  of  a 
monstrous  jurisprudence,  the  Scots  criminal  law,  to 
debar  a  prisoner  from  any  defense  inconsistent  with 
the  indictment ;  that  is,  he  might  deny  a  fact,  but 
was  not  permitted  to  assert  that,  being  true,  it  did 
not  warrant  the  conclusion  of  guilt. — Amot,  354. 


the  continuance  of  Charles  on  the  throne 
and  the  establishment  of  a  Presbyterian 
Church,  she  fell  into  a  long  course  of  disas- 
ter and  ignominy,  till  she  held  the  name  of 
a  free  Constitution  at  the  will  of  a  conquer- 
or. Of  the  three  most  conspicuous  among 
her  nobility  in  this  period,  each  died  by  the 
hand  of  the  executioner  ;  but  the  resem- 
blance is  in  nothing  besides;  and  the  charac- 
ters of  Hamilton,  Montrose,  and  Argj'le  are 
not  less  contrasted  than  the  factions  of  which 
they  were  the  leaders.  Humijled  and  bro- 
ken down,  the  people  looked  to  the  re-es- 
tablishment of  Charles  II.  on  the  throne  of 
his  fathers,  though  brought  about  by  the 
sternest  minister  of  Cromwell's  tyranny, 
not  only  as  the  augury  of  prosperous  days, 
but  as  the  obliteration  of  public  dishonor. 

They  were  miserably  deceived  in  every 
hope.  Thirty  infamous  years  Tyraunical 
consummated  the  misfortunes  ff^J^°™*^' 
and  degradation  of  Scotland.  Her  U- 
factions  have  always  been  more  sanguinary, 
her  rulers  more  oppressive,  her  sense  of 
justice  and  humanity  less  active,  or  at  least 
shown  less  in  public  acts,  than  can  be  charged 
against  England.  The  Parliament  of  1 661, 
influenced  by  wicked  statesmen  and  law- 
yers, left  far  behind  the  Royalist  Commons 
of  London,  and  rescinded  as  null  the  entire 
acts  of  1641,  on  the  absurd  pretext  that  the 
late  king  had  passed  them  through  force. 
The  Scots  Constitution  fell  back  at  once  to 
a  state  little  better  than  despotism.  The 
lords  of  articles  were  revived,  according  to 
the  same  form  of  election  as  under  Charles 
I.  A  few  years  afterward  the  Duke  of 
Lauderdale  obtained  the  consent  of  Parlia- 
ment to  an  act,  that  whatever  the  king  and 
council  should  order  respecting  all  eccle- 
siastical matters,  meetings,  and  persons, 
should  have  the  force  of  law.  A  militia,  or 
rather  army,  of  22,000  men  was  established, 
to  march  wherever  the  council  should  ap- 
point, and  the  honor  and  safety  of  the  king 
require.  Fines  to  the  amount  of  6£85,000, 
an  enormous  sum  in  that  kingdom,  were 
imposed  on  the  Covenanters.  The  Earl 
of  Argj-le  brought  to  the  scaffold  by  an  out- 
rageous sentence,  his  son  sentenced  to  lose 
his  life  on  such  a  construction  of  the  ancient 
law  against  leasing-making  as  no  man  en- 
gaged in  political  affairs  could  be  sure  to  es- 
cape, the  worst  system  of  constitutionfil 
laws  administered  by  the  worst  men,  left  no 


Scotland.] 


FROM  HEXKY  VII.  TO  GEORGE  II. 


669 


alternative  but  implicit  obedience  or  desper- 
ate rebellion. 

The  Presbj^terian  Church  of  course  fell 
by  the  act  which  annulled  the  Parliament 
wherein  it  had  been  established.  Ej)isco- 
pacy  revived,  but  not  as  it  had  once  existed 
in  Scotland;  the  jurisdiction  of  the  bishops 
became  unlimited  ;  the  General  Assemblies, 
so  dear  to  the  people,  were  laid  aside.* 
The  new  prelates  were  odious  as  apostates, 
and  soon  gained  a  still  more  indelible  title  to 
popular  hatred  as  persecutors.  Three  hun- 
dred and  fifty  of  the  Presbyterian  clergy 
(more  than  one  third  of  the  whole  number) 
were  ejected  from  their  benefices. f  Then 
began  the  preaching  in  conventicles,  and  the 
secession  of  the  excited  and  exasperated 
multitude  from  the  churches  ;  and  then 
ensued  the  ecclesiastical  commission  with 
its  inquisitorial  vigilance,  its  fines  and  cor- 
poral penalties,  and  the  free  quarters  of 
the  soldiery,  with  all  that  can  be  implied 
in  that  word.  Then  came  the  fruitless 
insurrection,  and  the  fanatical  assurance  of 
success,  and  the  certain  discomfiture  by  a 
disciplined  force,  and  tlie  consternation  of 
defeat,  and  the  unbounded  cruelties  of  the 
conqueror  ;  and  this  went  on  with  per- 
petual aggravation,  or  very  rare  intervals, 
through  the  reign  of  Charles,  the  tyran- 
ny of  Lauderdale  far  exceeding  that  of 
Middleton,  as  his  own  fell  short  of  the 
Duke  of  York's.  No  part,  I  believe,  of 
modern  history  for  so  long  a  period  can  be 
compared  for  the  wickedness  of  government 
to  the  Scots  administration  of  this  reign. 
In  proportion  as  the  laws  grew  moi-e  rigor- 
ous against  the  Presbyterian  worship,  its 
followers  evinced  more  steadiness ;  driven 
from  theu"  conventicles,  they  resorted  some- 
times by  night  to  the  fields,  the  woods,  the 
mountains ;  and  as  the  troops  were  contin- 
ually employed  to  disperse  thera,  they  came 
with  arms  which  they  were  often  obliged  to 
use ;  and  thus  the  hour,  the  place,  the  cir- 
cumstance, deepened  every  impression,  and 

*  Laing,  iv.,  20.  Kirkton,  p.  141.  "Whoso 
shall  compare,"  he  says,  "  this  set  of  bishops  with 
the  old  bishops,  established  in  the  year  1612,  shall 
find  that  these  were  but  a  sort  of  pigmies  com- 
pared with  our  new  bishops." 

t  Laing,  iv.,  32.  Kirkton  says  300.— P.  149. 
These  were  what  were  called  the  young  ministers, 
those  who  had  entered  the  Church  since  1649. 
They  might  have  kept  their  cures  by  acknowledg- 
ing the  authority  of  bishops. 


bound  up  their  faith  with  indissoluble  asso- 
ciations. The  same  causes  produced  a  dark 
fanaticism,  which  believed  the  revenge  of 
its  own  wrongs  to  be  the  execution  of  di- 
vine justice ;  and,  as  this  acquired  new 
strength  by  every  successive  aggravation  of 
tyranny,  it  is  literally  possible  that  a  contin- 
uance of  the  Stuart  government  might  have 
led  to  something  veiy  like  an  extermination 
of  the  people  in  the  western  counties  of 
Scotland.  In  the  year  1676  letters  of  inter- 
communing  were  published  ;  a  writ  forbid- 
ding all  persons  to  hold  intercourse  with  the 
parties  put  under  its  ban,  or  to  furnish  them 
with  any  necessary  of  life,  on  pain  of  being 
reputed  guilty  of  the  same  crime.  But  sev- 
en years  afterward,  when  the  Cameronian 
rebellion  had  assumed  a  dangei-ous  charac- 
ter, a  proclamation  was  issued  against  all 
who  had  ever  harbored  or  communed  with 
rebels ;  courts  were  appointed  to  be  held 
for  their  trial  as  traitors,  which  wei-e  to  con- 
tinue for  the  next  three  years.  Those  who 
accepted  the  Test,  a  declaration  of  passive 
obedience  repugnant  to  the  conscience  of 
the  Presbyterians,  and  imposed  for  that 
reason  in  1681,  were  excused  from  these 
penalties ;  and  in  this  way  they  were  eluded. 

The  enormities  of  this  detestable  govern- 
ment are  far  too  numerous,  even  in  species, 
to  be  enumerated  in  this  slight  sketch  ;  and, 
of  course,  most  instances  of  cruelty  have 
not  been  recorded.  The  privy  council  was 
accustomed  to  extort  confessions  by  torture  ; 
that  grim  divan  of  bishops,  lawyers,  and 
peers  sucking  in  the  groans  of  each  undaunt- 
ed enthusiast,  in  hope  that  some  imperfect 
avowal  might  lead  to  the  sacrifice  of  other 
victims,  or  at  least  wairant  the  execution  of 
the  present.  It  is  said  that  the  Duke  of 
York,  whose  conduct  in  Scotland  tends  to 
efface  those  sentiments  of  pity  and  respect 
which  other  parts  of  his  life  might  excite, 
used  to  assist  himself  on  these  occasions.* 
One  Mitchell,  having  been  induced,  by  a 
promise  that  his  life  should  be  spared,  to 
confess  an  attempt  to  assassinate  Sharp  the 
primate,  was  brought  to  trial  some  years 
afterward,  when  four  lords  of  the  council 
deposed  on  oath  that  no  such  assurance  had 
been  given  him,  and  Sharp  insisted  upon  his 
execution.  The  vengeance  ultimately  tak- 
en on  this  infamous  apostate  and  persecutor, 
though  doubtless  in  violation  of  what  is  just- 
'  Laing,  iv.,  116. 


C70 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVII. 


ly  reckoned  a  universal  rule  of  morality, 
ought  at  least  not  to  weaken  our  abhorrence 
of  the  man  himself. 

The  Test  above  mentioned  was  imposed 
by  Parliament  in  1681,  and  contained,  among 
other  things,  an  engagement  never  to  at- 
tempt any  alteration  of  government  in 
Church  or  State.  The  Earl  of  Argyle, 
son  of  him  who  had  perished  by  an  unjust 
sentence,  and  himself  once  before  attainted 
by  another,  though  at  that  time  restored  by 
the  king,  was  still  destined  to  illustrate  the 
house  of  Campbell  by  a  second  martyrdom. 
He  refused  to  subscribe  the  Test  without 
the  reasonable  explanation  that  he  would 
not  bind  himself  from  attempting,  in  his  sta- 
tion, any  improvement  in  Church  or  State. 
This  exposed  him  to  an  accusation  of  leasing- 
making  (the  old  mystery  of  iniquity  in  Scots 
law)  and  of  ti'eason.  He  was  found  guilty 
through  the  astonishing  audacity  of  the 
crown  lawyers,  and  servility  of  the  judges 
and  jury.  It  is  not,  perhaps,  certain  that 
his  immediate  execution  would  have  ensued ; 
but  no  man  ever  trusted  securely  to  the 
mercies  of  the  Stuarts,  and  Argyle  escaped 
in  disguise  by  the  aid  of  his  daughter-in- 
law.  The  council  proposed  that  this  lady 
should  be  publicly  whipped  ;  but  there  was 
an  excess  of  atrocity  in  the  Scots  on  the 
court  side  which  no  Englishman  could  reach, 
and  the  Duke  of  York  felt  as  a  gentleman 
upon  such  a  suggestion.*  The  Earl  of 
Argyle  was  brought  to  the  scaffold  a  few 
years  afterward,  on  this  old  sentence,  but 
after  his  unfortunate  rebellion,  which,  of 
course,  would  have  legally  justified  his  exe- 
cution. 

The  Cameronians,  a  party  rendered  wild 
and  fanatical  through  intolerable  oppression, 
published  a  declaration,  wherein,  after  re- 
nouncing their  allegiance  to  Charles,  and  ex- 
pressing their  abhorrence  of  murder  on  the 
score  of  religion,  they  announced  their  de- 
termination of  retaliating,  according  to  their 
power,  on  such  piivy  counselors,  officers  in 
command,  or  others,  as  should  continue  to 
seek  their  blood.  The  fate  of  Sharp  was 
thus  before  the  eyes  of  all  who  emulated 
his  crimes ;  and  in  terror  the  council  or- 
dered, that  whoever  refused  to  disown  this 
declaration  on  oath,  should  be  put  to  death 
in  the  presence  of  two  witnesses.  Everj- 
officer,  every  soldier,  was  thus  inti-usted 
*  Life  of  James  II.,  i.,  710. 


with  the  privilege  of  massacre ;  the  un- 
armed, the  women  and  children,  fell  indis- 
ciiminately  by  the  sword ;  and  besides  the 
distinct  testimonies  that  remain  of  atrocious 
cruelty,  there  exists  in  that  kingdom  a  deep 
traditional  horror,  the  record,  as  it  were,  of 
that  confused  mass  of  crime  and  misery 
which  has  left  no  other  memorial.* 

A  Parliament  summoned  by  James  on 
his  accession,  with  an  intimation  Rgjgn  of 
from  the  throne  that  they  were  Ja^e* 
assembled  not  only  to  express  their  own 
duty,  but  to  set  an  example  of  compliance 
to  England,  gave,  without  the  least  opposi- 
tion, the  required  proofs  of  loyalty.  They 
acknowledged  the  king's  absolute  power,  de- 
clared their  abhorrence  of  any  principle  de- 
rogatory to  it,  professed  an  unreserved  obe- 
dience in  all  cases,  bestowed  a  large  reve- 
nue for  life.  They  enhanced  the  penalties 
against  sectaries ;  a  refusal  to  give  evidence 
against  traitors  or  other  delinquents  was 
made  equivalent  to  a  conviction  of  the  same 
offense ;  it  was  capital  to  preach  even  in 
houses,  or  to  hear  preachers  in  the  fields. 
The  persecution  raged  with  still  greater 
fuiy  in  the  first  part  of  this  reign ;  but  the 
same  repugnance  of  the  Episcopal  i)arty 
to  the  king's  schemes  for  his  own  religion, 
which  led  to  his  remarkable  change  of  pol- 
icy in  England,  produced  similar  effects  in 
Scotland.  He  had  attempted  to  obtain  from 
Parliament  a  repeal  of  the  penal  laws  and 
the  Test  ;  but,  though  an  extreme  servili- 
ty or  a  general  intimidation  made  the  nobil- 
ity acquiesce  in  his  propositions,  and  two  of 
the  bishops  were  gained  over,  yet  the  com- 
missioners of  shires  and  boroughs,  who,  vot- 
ing promiscuously  in  the  House,  had,  when 
united,  a  majority  over  the  peers,  so  firmly 
resisted  every  encroachment  of  popery, 
that  it  was  necessary  to  try  other  methods 
than  those  of  Parliamentary  enactment. 
After  the  dissolution  the  dispensing  power 
was  brought  into  play ;  the  pri\y  council 
forbade  the  execution  of  the  laws  against 
the  Catholics ;  several  of  that  religion  were 
introduced  to  its  board  ;  the  royal  boroughs 
were  deprived  of  their  privileges,  the  king 
assuming  the  nomination  of  their  chief  mag- 
istrates, so  as  to  throw  the  elections  wholly 
into  the  hands  of  the  crown.    A  declaration 


*  Cloud  of  Witnesses,  passim.  De  Foe's  Hist, 
of  Church  of  Scotland.  Kirkton.  Laing.  Scott's 
notes  in  Minstrelsy  of  Scottish  Border,  &c.,  &;c. 


Scotland.] 


TROM  HENRY  VII.  TO  GEORGE  U. 


671 


of  indulgence,  emanating  from  the  king's  ab- 
solute prerogative,  relaxed  the  severity  of 
the  laws  against  Presbyterian  conventicles, 
and,  annulling  the  Oath  of  Supremacy  and 
the  Test  of  1681,  substituted  for  them  an 
oath  of  allegiance,  acknowledging  his  power 
to  be  unlimited.  He  promised,  at  the  same 
time,  that  "  he  would  use  no  force  nor  in- 
vincible necessity  against  any  man  on  ac- 
count of  his  persuasion,  or  the  Protestant 
religion,  nor  would  deprive  the  possessors 
of  lands  formerly  belonging  to  the  Church." 
A  veiy  intelligible  hint  that  the  Protestant 
religion  was  to  exist  only  by  this  gracious 
sufferance. 

The  oppressed  Presbyterians  gained  some 
Reyoiution  respite  by  this  indulgence,  though 
hshmen't'of  instances  of  executions  under  the 
Presbytery,  sanguinary  statutes  of  the  late  reign 
are  found  as  late  as  the  beginning  of  1688. 
But  the  memory  of  their  sufferings  was  in- 
delible ;  they  accepted,  but  with  no  grati- 
tude, the  insidious  mercy  of  a  tyrant  they 
abhorred.  The  Scots  conspiracy  with  the 
Prince  of  Orange  went  forward  simultane- 
ously with  that  of  England;  it  included  sev- 
eral of  the  council,  from  personal  jealousy, 
dislike  of  the  king's  proceedings  as  to  relig- 
ion, or  anxiety  to  secure  an  indemnity  they 
had  little  deserved  in  the  approaching  crisis. 
The  people  rose  in  different  parts  ;  the 
Scots  nobility  and  gently  in  London  pre- 
sented an  address  to  the  Prince  of  Orange, 
requesting  him  to  call  a  Convention  of  the 
es\ai<is ;  and  this  irregular  summons  was 
universally  obeyed. 

The  k'mg  was  not  without  friends  in  this 
Convention  ;  but  the  Whigs  had  from  ev- 
ery cause  u  decided  preponderance.  En- 
gland had  led  iVie  way ;  William  was  on  his 
throne  ;  the  royal  government  at  home  was 
wholly  dissolved ;  and,  after  enumerating  in 
fifteen  articles  the  breaches  committed  on 
the  Constitution,  the  estates  came  to  a  res- 
olution, "  That  James  VII.,  being  a  profess- 
ed papist,  did  assume  the  royal  power,  and 
acted  as  king,  without  ever  taking  the  oath 
required  by  law,  and  had,  by  the  advice  of 
evil  and  wicked  counselors,  invaded  the  fun- 
damental Constitution  of  the  kingdom,  and 
altered  it  from  a  legal  limited  monarchy  to 
an  arbitraiy  despotic  power,  and  hath  ex- 
erted the  same  to  the  subversion  of  the 
Protestant  religion,  and  the  violation  of  the 
laws  and  liberties  of  the  kingdom,  whereby 


he  hath  forfiiulted  (forfeited)  his  right  to  the 
crown,  and  the  throne  has  become  vacant." 
It  was  evident  that  the  English  vote  of  a 
constructive  abdication,  having  been  partly 
grounded  on  the  king's  flight,  could  not, 
without  still  greater  violence,  be  applied  to 
Scotland;  and,  consequently,  the  bolder  de- 
nomination of  forfeiture  was  necessarily  em- 
ployed to  express  the  penalty  of  his  mis- 
government.  There  was,  in  fact,  a  very 
sti'iking  difference  in  the  circumstances  of 
the  two  kingdoms.  In  the  one  there  had 
been  illegal  acts  and  unjustifiable  severities ; 
but  it  was,  at  first  sight,  no  very  strong  case 
for  national  resistance,  which  stood  rather 
on  a  calculation  of  expediency  than  an  in- 
stinct of  self-preservation  or  an  impulse  of 
indignant  revenge ;  but  in  the  other  it  had 
been  a  tyranny,  dark  as  that  of  the  most 
barbarous  ages;  despotism,  which  in  En- 
gland was  scarcely  in  blossom,  had  borne 
its  bitter  and  poisonous  fruits :  no  word  of 
slighter  import  than  forfeiture  could  be  cho- 
sen to  denote  the  national  rejection  of  the 
Stuart  line. 

A  declaration  and  claim  of  rights  was 
drawn  up,  as  in  England,  togeth-  Rei^n  of 
er  with  the  resolution  that  the  Wiii.amin. 
crown  be  tendered  to  William  and  Mary, 
and  descend  afterward  in  conformity  with 
the  limitations  enacted  in  the  sister  king- 
dom. This  declai'ation  excluded  papists 
from  the  throne,  and  asserted  the  illegality 
of  proclamations  to  dispense  with  statutes, 
of  the  inflicting  capital  punishment  without 
jury,  of  imprisonment  without  special  cause 
or  delay  of  trial,  of  exacting  enormous  fines, 
of  nominating  the  magistrates  in  boroughs, 
and  several  other  violent  proceedings  in  the 
last  two  reigns.  These  articles  the  Con- 
vention challenged  as  their  undoubted  right, 
against  which  no  declaration  or  i)recedent 
ought  to  operate.  They  reserved  some 
other  i4nportant  gi'ievances  to  be  redressed 
in  Parliament.  Upon  this  occasion,  a  noble 
fire  of  liberty  shone  forth  to  the  honor  of 
Scotland,  amid  those  scenes  of  turbulent 
faction  or  servile  corraption  which  the  an- 
nals of  her  Parliament  so  perpetually  dis- 
play. They  seemed  emulous  of  English 
freedom,  and  proud  to  place  their  own  im- 
perfect Commonwealth  on  as  firm  a  basis. 

One  great  alteration  in  the  state  of  Scot- 
land was  almost  necessarily  involved  in  the 
fall  of  the  Stuarts.    Their  most  conspieu- 


672 


CONSTITUTIOXAL  HISTOEY  OF  ENGLAND 


[Chap.  XVU. 


ous  object  had  been  the  mtdntenance  of  the 
Episcopal  Church  ;  the  line  was  drawn  far 
more  closely  than  in  England ;  in  that  church 
were  the  court's  friends,  out  of  it  were  its 
opponents.  Above  all,  the  people  were  out 
of  it,  and  in  a  revolution  brought  about  by 
the  people,  their  voice  could  not  be  slighted. 
It  was  one  of  the  articles,  accordingly,  in 
the  Declaration  of  Rights,  that  prelacy  and 
precedence  in  ecclesiastical  office  were  re- 
pugnant to  the  genius  of  a  nation  reformed 
by  presbyters,  and  an  unsupportable  griev- 
ance which  ought  to  be  abolished.  Will- 
iam, there  is  reason  to  believe,  had  offered 
to  preserve  the  bishops,  in  return  for  their 
support  in  the  Convention.  But  this,  not 
more  happily  for  Scotland  than  for  himself 
and  his  successors,  they  refused  to  give. 
No  compromise,  or  even  acknowledged  tol- 
eration, was  practicable  in  that  country  be- 
tween two  exasperated  factions  ;  but  if  op- 
pression was  necessary,  it  was,  at  least,  not 
on  the  majority  that  it  ought  to  fall;  but, 
besides  this,  there  was  as  clear  a  case  of 
forfeiture  in  the  Scots  Episcopal  Church  as 
in  the  royal  family  of  Stuart.  The  main 
controversy  between  the  Episcopal  and 
Presbyterian  Churches  was  one  of  histor- 
ical inquiry,  not,  perhaps,  capable  of  deci- 
sive solution  ;  it  was  at  least  one  as  to  which 
the  bulk  of  mankind  are  absolutely  incapa- 
ble of  forming  a  rational  judgment  for  them- 
selves ;  but,  mingled  up  as  it  had  always 
been,  and  most  of  all  in  Scotland,  with  fac- 
tion, with  revolution,  -with  power  and  emol- 
ument, with  courage  and  devotion,  and  fear, 
and  hate,  and  revenge,  this  dispute  drew 
along  with  it  the  most  glowing  emotions  of 
the  heait,  and  the  question  became  utterly 
out  of  the  province  of  argument.  It  was 
very  possible  that  Episcopacy  might  be  of 
apostolical  institution ;  but  for  this  institu- 
tion houses  had  been  burned  and  fields  laid 
waste,  and  the  Gospel  had  been  preached 
in  wildernesses,  and  its  ministers  had  been 
shot  in  their  prayers,  and  husbands  had 
been  murdered  before  their  wives,  and  vir- 
gins had  been  defiled,  and  many  had  died 
by  the  executioner,  and  by  massacre,  and  in 
imprisonment,  and  in  exile  and  slaveiy,  and 
women  had  been  tied  to  stakes  on  the  sea- 
shore till  the  tide  rose  to  overflow  them, 
and  some  had  been  tortured  and  mutilated ; 
it  was  a  religion  of  the  boots  and  the  thumb- 
screw, which  a  good  man  must  be  very  cool- 


blooded  indeed  if  he  did  not  hate  and  reject 
from  the  hands  which  offered  it ;  for,  after 
all,  it  is  much  more  certain  that  the  Su- 
preme Being  abhors  cruelty  and  persecu- 
tion, than  that  he  has  set  up  bishops  to  have 
a  superiority  over  presbyters. 

It  was,  however,  a  serious  problem  at  that 
time  whether  the  Presbyterian  Church,  so 
proud  and  stubborn  as  she  had  formerly 
shown  herself,  could  be  brought  under  a 
necessary  subordination  to  the  civil  magis- 
trate, and  whether  the  more  fanatical  part 
of  it,  whom  Cargill  and  Cameron  had  led 
on,  would  fall  again  into  the  ranks  of  social 
life.  But  here  experience  victoriously  con- 
futed these  plausible  apprehensions.  It 
was  soon  perceived  that  the  insanity  of  fa- 
naticism subsides  of  itself,  unless  purposely 
heightened  by  persecution.  The  fiercer 
spuit  of  the  sectaries  was  allayed  by  de- 
grees ;  and,  though  vestiges  of  it  may  prob- 
ably still  be  perceptible  by  observers,  it  has 
never,  in  a  political  sense,  led  to  dangerous 
effects.  The  Church  of  Scotland,  in  her 
general  assemblies,  preserves  the  forms, 
and  affects  the  language,  of  the  sixteenth 
century ;  but  the  Erastianism  against  which 
she  inveighs  secretly  controte  and  paralyzes 
her  vaunted  hberties,  and  she  can  not  but 
acknowledge  that  the  supremacy  of  the 
Legislature  is  like  the  collar  of  the  watch- 
dog, the  price  of  food  and  shelter,  and  the 
condition  upon  which  alone  a  religious  so- 
ciety can  be  endowed  and  established  by 
any  pi-udent  commonwealth.*  The  juJi- 
cious  admixture  of  laymen  in  these  assem- 
blies, and,  in  a  far  greater  degree,  t^ie  per- 
petual intercourse  with  England,  which  has 
put  an  end  to  eveiy  thing  lik«  sectarian  big- 
otry, and  even  exclusive  communion,  in  the 
higher  and  middling  classes,  are  the  princi- 
pal causes  of  thai  remarkable  moderation 
which  for  manv  y^rs  has  characterized  the 
successors  of  K-nox  and  Melville.  [1827.] 
The  Convention  of  estates  was  turned 
*  The  practice  observed  in  summouing  or  dis- 
solving the  great  national  assembly  of  the  Church 
of  Scotland,  which,  according  to  the  Presbyterian 
theorv,  can  only  be  done  by  its  own  authority,  is 
rather  amusing :  "  The  moderator  dissolves  the  as- 
sembly in  the  name  of  the  Lord  Jesus  Christ,  the 
head  of  the  Church,  and  by  the  same  authority  ap- 
points another  to  meet  on  a  certain  day  of  the  en- 
suing year.  The  lord-high-commissioner  then  dis- 
solves the  assembly  in  the  name  of  the  king,  and 
appoints  another  to  meet  on  the  same  day." — ^Ar- 
net's  Hist,  of  Edinburgh,  p.  269. 


Scotland.] 


FROM  HENRY  VII.  TO  GEORGE  H. 


673 


by  an  act  of  its  own  into  a  Parliament,  and 
continued  to  sit  during  tlie  king's  reign. 
This,  which  was  rather  conti-ary  to  the 
spirit  of  a  representative  government  than 
to  the  Scots  Constitution,  might  be  justified 
by  the  very  unquiet  state  of  the  kingdom 
and  the  intrigues  of  the  Jacobites.  Many 
oxcellent  statutes  were  enacted  in  this 
Parliament,  besides  the  provisions  included 
in  the  Declaration  of  Rights ;  twenty-six 
members  were  added  to  the  representation 
of  the  counties,  the  tyrannous  acts  of  the 
last  two  reigns  were  repealed,  the  unjust 
attainders  were  reversed,  the  lords  of  arti- 
cles were  abolished.  After  some  years,  an 
act  was  obtained  against  wrongous  imprison- 
ment, still  more  effectual,  perhaps,  in  some 
respects  than  that  of  the  habeas  corpus  in 
England.  The  prisoner  is  to  be  released 
on  bail  within  twenty-four  hours  on  appli- 
cation to  a  judge,  unless  committed  on  a 
capital  charge;  and  in  that  case  must  be 
brought  to  trial  within  sixty  days.  A  judge 
refusing  to  give  full  effect  to  the  act  is  de- 
clared incapable  of  public  trust. 

Notwithstanding  these  gi-eat  improve- 
ments in  the  Constitution,  and  the  cessa- 
tion of  religious  tyranny,  the  Scots  are  not 
accustomed  to  look  back  on  the  reign  of 
William  with  much  complacency.  The 
regeneration  was  far  from  perfect ;  the 
court  of  session  continued  to  be  corrupt  and 
partial :  severe  and  illegal  proceedings  might 
sometimes  be  imputed  to  the  council ;  and 
in  one  lamentable  instance,  the  massacre 
of  the  Macdonalds  in  Glencoe,  the  deliber- 
ate crime  of  some  statesmen  tarnished  not 
slightly  the  bright  fame  of  their  deceived 
master ;  though  it  was  not  for  the  adher- 
ents of  the  house  of  Stuart,  under  whom 
so  many  deeds  of  more  extensive  slaughter 
had  been  perpetrated,  to  fill  Europe  with 
their  invectives  against  this  military  execu- 
tion.* The  Episcopal  clergy,  driven  out 
injuriously  by  the  populace  from  their  liv- 

*  The  king's  instrucrions  by  no  means  warrant 
the  execation,  especially  with  all  its  circnmstances 
of  cruelty,  but  they  contain  one  unfortunate  sen- 
tence:  "If  Maclean  [sic],  of  Glencoo,  and  that 
tribe  can  be  well  separated  from  the  rest,  it  will 
be  a  proper  vindication  of  the  public  justice  to  ex- 
tirpate that  seat  of  thieves."  This  was  written,  it 
is  to  be  remembered,  while  they  were  exposed  to 
the  penalties  of  the  law  for  the  rebellion ;  but  the 
massacre  would  never  have  been  perpetrated  if 
Lord  Breadalbane  and  the  Master  of  Stair,  two  of 
the  worst  men  in  Scotland,  had  not  used  the  foul- 
Xx 


ings,  were  permitted,  after  a  certain  time, 
I  to  hold  them  again,  in  some  instances,  under 
certain  conditions ;  but  William,  perhaps 
almost  the  only  consistent  friend  of  toler- 
,  ation  in  his  kingdoms,  at  least  among  public 
men,  lost  by  this  indulgence  the  affection 
of  one  party,  without  in  the  slightest  degree 
conciliating  the  other.*    The  true  cause, 

est  arts  to  effect  it.  It  is  an  apparently  great  re- 
proach to  the  government  of  William  that  they 
escaped  with  impunity ;  but  political  necessity 
bears  down  justice  and  honor. — Laing,  iv.,  246. 
Carstares'  State  Papers. 

*  Those  who  took  the  oaths  were  allowed  to 
continue  in  their  churches  without  compliance  with 
the  Presbyterian  discipline,  and  many  more  who 
not  only  refused  the  oaths,  but  prayed  openly  for 
James  and  his  family. — Carstares,  p.  40.  But  in 
1693,  an  act  for  settling  the  peace  and  quiet  of  the 
Church  ordains  that  no  person  be  admitted  or  con- 
tinued to  be  a  minister  or  preacher  unless  he  have 
taken  the  Oath  of  Allegiance,  and  subscribed  the 
assurance  that  he  held  the  king  to  be  de  facto  et 
de  jure,  and  also  the  Confession  of  Faith ;  and  that 
he  owns  and  acknowledges  Presbyterian  church- 
government  to  be  the  only  government  of  this 
Church,  and  that  he  will  submit  thereto  and  concur 
therewith,  and  will  never  endeavor,  directly  or  in- 
directly, the  prejudice  or  subversion  thereof. — Id., 
715.    Laing,  iv.,  255. 

This  act  seems  not  to  have  been  strictly  insisted 
upon;  and  the  Episcopal  clergy,  though  their  ad- 
vocates did  not  forget  to  raise  a  cry  of  persecution, 
which  was  believed  in  England,  are  said  to  have 
been  treated  with  singular  favor.  De  Foe  chal- 
lenges them  to  show  any  one  minister  that  ever 
was  deposed  for  not  acknowledging  the  Church,  if 
at  the  same  time  he  offered  to  acknowledge  the 
government  and  take  the  oaths ;  and  says  they 
have  been  often  challenged  on  this  head. — Hist,  of 
Church  of  Scotland,  p.  319.  In  fact,  a  statute  was 
passed  in  1695,  which  confirmed  all  ministers  who 
would  qualify  themselves  by  taking  the  oaths ;  and 
no  less  than  116  (according  to  Laing,  iv.,  259)  did 
so  continue  ;  nay.  De  Foe  reckons  165  at  the  time 
of  the  Union.— P.  320. 

The  rigid  Presbyterians  inveighed  against  any 
toleration,  as  much  as  they  did  against  the  king's 
authority  over  their  own  church.  But  the  govern- 
ment paid  little  attention  to  their  bigotry;  besides 
the  above  mentioned  Episcopal  clergymen,  those 
who  seceded  from  the  Church,  though  universally 
Jacobites,  and  most  dangerously  so,  were  indulged 
with  meeting-houses  in  all  towns ;  and  by  an  act 
of  the  queen,  10  Anne,  c.  7,  obtained  a  full  tolera- 
tion, on  condition  of  praying  for  the  royal  family, 
with  which  they  never  complied.  It  was  thought 
necessary  to  put  them  under  some  fresh  restric- 
tions in  1748,  their  zeal  for  the  Pretender  being 
notorious  and  universal,  by  an  act  21  Geo.  II.,  c. 
34,  wliich  has  very  properly  been  repealed  after 
the  motive  for  it  had  wholly  ceased,  and  even  at 
first  was  not  reconcilable  with  the  general  princi- 
ples of  religious  liberty. 


674 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIL 


however,  of  the  prevalent  disaffection  at 
this  period  was  the  condition  of  Scotland, 
an  ancient,  independent  kingdom,  inliabited 
by  a  proud,  high-spirited  people,  relatively 
to  another  kingdom,  which  they  had  long 
regarded  with  enmity,  still  with  jealousy  ; 
but  to  which,  in  despite  of  their  theoretical 
equality,  they  were  kept  in  subordination  by 
an  insurmountable  necessity.    The  union 
of  the  two  crowns  had  withdrawn  their 
sovereign  and  his  court ;  yet  their  govern- 
ment had  been  national,  and,  on  the  whole, 
with  no  gi-eat  ir^ermixture  of  English  in- 
fluence.   Many'  reasons,  however,  might 
be  given  for  a  more  complete  incorporation, 
which  had  been  the  favorite  project  of 
James  I.,  and  was  discussed,  at  least  on 
the  part  of  Scotland,  by  commissioners  ap- 
pointed in  1670.    That  treaty  failed  of  mak- 
ing any  progress,  the  terms  proposed  being 
such  as  the  English  Parliament  would  never 
have  accepted.    At  the  Revolution  a  simi- 
lar plan  was  just  hinted,  and  abandoned. 
Meanwhile,  the  new  character  that  the 
English  government  had  assumed  rendered 
it  more  difficult  to  preserve  the  actual  con- 
nection.   A  king  of  both  countries,  espe- 
cially by  origin  more  allied  to  the  weaker, 
might  maintain  some  impartiality  in  his  be- 
havior towai  d  each  of  them  ;  but  if  they 
were  to  be  ruled,  in  effect,  nearly  as  two 
republics — that  is,  if  the  power  of  their 
Parliaments  should  be  so  much  enhanced 
as  ultimately  to  determine  the  principal 
measures  of  state  (which  was  at  least  the 
case  in  England) — no  one  who  saw  their 
mutual  jealousy,  rising  on  one  side  to  the 
highest  exasperation,  could  fail  to  anticipate 
that  some  great  revolution  must  be  at  hand, 
and  that  a  union,  neither  federal  nor  legis- 
lative, but  possessing  every  inconvenience 
of  both,  could  not  long  be  endured.  The 
well-known  business  of  the  Darien  Com- 
pany must  have  undeceived  eveiy  rational 
man  who  dreamed  of  any  alternative  but 
incorpoi-ation  or  separation.     The  Scots 
Parliament  took  care  to  bring  on  the  crisis 
by  the  Act  of  Security  in  1704.    It  was 
enacted  that,  on  the  queen's  death  without 
issue,  the  estates  should  meet  to  name  a 
successor  of  the  royal  line,  and  a  Protes- 
tant ;  but  that  this  should  not  be  the  same 
person  who  would  succeed  to  the  crown 
of  England,  unless  during  her  majesty's 
reign  conditions  should  be  established  to 


secure  from  English  influence  the  honor 
and  independence  of  the  kingdom,  the  au- 
thority of  Parliament,  the  religion,  trade, 
and  liberty  of  the  nation.  This  was  ex- 
plained to  mean  a  free  intercourse  with  the 
plantations,  and  the  benefits  of  tlie  Naviga- 
tion Act.  The  prerogative  of  declaring 
peace  and  war  was  to  be  subjected  forever 
to  the  approbation  of  Parliament,  lest  at 
any  future  time  these  conditions  should  be 
revoked. 

Those  who  obtained  the  Act  of  Security 
were  partly  of  the  Jacobite  faction.  Act  of 
who  saw  in  it  the  hope  of  restor-  Security, 
ing  nt  least  Scotland  to  the  banished  heir ; 
partly  of  a  very  different  description,  Whigg 
in  pvincii)!e,  and  determined  enemies  of  the 
Pretender,  but  attached  to  their  country, 
jealous  of  the  English  court,  and  determin- 
ed to  settle  a  legislative  union  on  such  terms 
as  became  an  independent  state.  Such  a 
union  was  now  seen  in  England  to  be 
indispensable;  the  treaty  was  soon 
afterward  begun,  and,  after  a  long  discus- 
sion of  the  terms  betvyeen  the  commission- 
ers of  both  kingdoms,  the  incorporation 
took  effect  on  the  1st  of  May,  1707.  It  is 
provided  by  the  articles  of  this  treaty,  con- 
firmed by  the  Parliaments,  that  the  suc- 
cession of  the  United  Kingdom  shall  re- 
main to  the  Princess  Sophia,  and  the  heirs 
of  her  body,  being  Protestants ;  that  all 
privileges  of  trade  shall  belong  equally  to 
both  nations  ;  that  there  shall  be  one  great 
seal,  and  the  same  coin,  weights,  and  meas- 
ures ;  that  the  Episcopal  and  Presbyterian 
Churches  of  England  and  Scotland  shall  be 
forever  established,  as  essential  and  funda- 
mental parts  of  the  union  ;  that  the  united 
kingdom  shall  be  represented  by  one  and 
the  same  Parliament,  to  be  called  the  Par- 
liament of  Great  Britain  ;  that  the  number 
of  peers  for  Scotland  shall  be  sixteen,  to  be 
elected  for  every  Pailiament  by  the  whole 
body,  and  the  number  of  representatives 
of  the  commons  forty-five,  two  thirds  of 
whom  to  be  chosen  by  the  counties,  and 
one  third  by  the  boroughs  ;  that  the  crown 
be  restrained  from  creating  any  new  peers 
of  Scotland  ;  that  both  parts  of  the  United 
Kingdom  shall  be  subject  to  the  same  duties 
of  excise,  and  the  same  customs  on  export 
and  import ;  but  that,  when  England  raises 
two  millions  by  a  land-tax,  ^£48,000  shall  be 
raised  in  Scotland,  and  in  like  proportion. 


Scotland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


675 


It  has  not  been  unusual  for  Scotsmen, 
even  in  modern  times,  while  they  can  not 
but  acknowledge  the  expediency  of  a  union, 
and  the  blessings  which  they  have  reaped 
from  it,  to  speak  of  its  conditions  as  less 
favorable  than  their  ancestors  ought  to  have 
claimed.  For  this,  however,  there  does 
not  seem  much  reason.  The  ratio  of  pop- 
ulation would  indeed  have  given  Scotland 
about  one  eighth  of  the  legislative  body,  in- 
stead of  something  less  than  one  twelfth  ; 
but  no  government  except  the  merest  de- 
mocracy is  settled  on  the  sole  basis  of  num- 
bers ;  and  if  the  comparison  of  wealth  and 
of  public  contributions  was  to  be  admitted, 
it  may  be  thought  that  a  country,  which 
stipulated  for  itself  to  pay  less  than  one 
fortieth  of  direct  taxation,  was  not  entitled 
to  a  much  greater  share  of  the  representa- 
tion than  it  obtained.  Combining  the  two 
ratios  of  population  and  property,  there 
seems  little  objection  to  this  part  of  the 
union  ;  and,  in  general,  it  may  be  observed 
of  the  articles  of  that  treaty,  what  often 
occurs  with  compacts  intended  to  oblige 
future  ages,  that  they  have  rather  tended 
to  throw  obstacles  in  the  way  of  reforma- 
tions for  the  substantial  benefit  of  Scotland, 
than  to  protect  her  against  encroachment 
and  usurpation. 

This,  however,  could  not  be  securely 
anticipated  in  the  reign  of  Anne  ;  and,  no 
doubt,  the  measure  was  an  experiment  of 
such  hazard  that  every  lover  of  his  countiy 
must  have  consented  in  ti'embling,  or  re- 
volted from  it  with  disgust.  No  past  ex- 
perience of  history  was  favorable  to  the 
absorption  of  a  lesser  state  (at  least  where 
the  government  partook  so  much  of  the 
Republican  foi"m)  in  one  of  superior  power 
and  ancient  rivalry.  The  representation 
of  Scotland  in  the  united  Legislature  was 
too  feeble  to  give  any  thing  like  security 
against  the  English  prejudices  and  animos- 
ities, if  they  should  continue  or  revive. 
The  Church  was  exposed  to  the  most  ap- 
parent perils,  brought  thus  within  the  pow- 
er of  a  Legislature  so  frequently  influenced 
by  one  which  held  her  not  as  a  sister,  but 
rather  a  bastard  usurper  of  a  sister's  inher- 
itance ;  and  though  her  permanence  was 
guaranteed  by  the  treaty,  yet  it  was  hard 
to  say  how  far  the  legal  competence  of 
Parliament  might  hereafter  be  deemed  to 
extend,  or  at  least  how  far  she  might  be 


abridged  of  her  privileges  and  impaired  in 
her  dignity.*  If  very  few  of  these  mis- 
chiefs have  resulted  from  the  union,  it  has 
doubtless  been  owing  to  the  prudence  of 
our  government,  and  chiefly  to  the  general 
sense  of  right,  and  the  diminution  both  of 
national  and  religious  bigotry  during  the  last 
centary.  But  it  is  always  to  be  kept  in 
mind,  as  the  best  justification  of  those  who 
came  into  so  great  a  sacrifice  of  natural 
patriotism,  that  they  gave  up  no  excellent 
form  of  polity  ;  that  the  Scots  Constitution 
bad  never  produced  the  people's  happiness; 
that  their  Parliament  was  bad  in  its  compo- 
sition, and  in  practice  little  else  than  a  fac- 
tious and  venal  aristocracy  ;  that  they  had 
before  them  the  alternatives  of  their  pres- 
ent condition,  with  the  prospect  of  unceas- 
ing discontent,  half  suppressed  by  unceas- 
ing coiTuption,  or  of  a  more  honorable,  but 
very  precarious,  separation  of  the  two  king- 
doms, the  renewal  of  national  wars  and 
border  feuds,  at  a  cost  the  poorer  of  the 
two  could  never  endure,  and  at  a  hazard  of 
ultimate  conquest  which,  with  all  her  pride 
and  bravery,  the  experience  of  the  last 
generation  had  shown  to  be  no  impossible 
term  of  the  contest. 

The  U  nion  closes  the  story  of  the  Scots 
Constitution.  From  its  own  nature,  not 
more  than  from  the  gross  prostitution  with 
which  a  majority  had  sold  themselves  to 
the  surrender  of  their  own  legislative  ex- 
istence, it  was  long  odious  to  both  parties 
in  Scotland.  An  attempt  to  dissolve  it  by 
the  authority  of  the  united  Parliament  it- 
self was  made  in  a  very  few  years,  and 
not  very  decently  supported  by  the  Whigs 
against  the  queen's  last  ministry  ;  but  after 
the  accession  of  the  house  of  Hanover,  the 
Jacobite  party  displayed  such  sti-ength  in 
Scotland,  that  to  maintain  the  Union  was 
evidently  indispensable  for  the  reigning 
family.  That  party  comprised  a  large  pro- 
portion of  the  superior  classes,  and  nearly 

*  Archbishop  Tenison  said,  in  the  debates  on 
the  Union,  he  thought  the  narrow  notions  of  all 
churches  had  been  their  ruiti,  and  that  he  believed 
the  Church  of  Scotland  to  be  as  true  a  Protestant 
Cliurcli  as  the  Church  of  England,  though  he  could 
not  say  it  was  as  perfect. — Carstares,  759.  This 
sort  of  language  was  encouraging  ;  but  the  exclu- 
sive doctrine,  or  jus  divinum,  was  sure  to  retain 
many  advocates,  and  has  always  done  so.  Fortu- 
nately for  Great  Britain,  it  has  not  had  the  slight- 
est effect  on  the  laity  in  modern  times. — [1827.] 


67G 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XVIII. 


the  whole  of  the  Episcopal  Church,  which, 
though  fallen,  was  for  some  years  consid- 
erable in  numbers.  The  national  prejudices 
ran  in  favor  of  their  ancient  stock  of  kings, 
conspiring  with  the  sentiment  of  dishonor 
attached  to  the  Union  itself,  and  jealousy 
of  some  innovations  which  a  Legislature  ' 
they  were  unwilling  to  recognize  thought  t 
,,   ,  ,  ,    fit  to  introduce.   It  is  certain  that  i 

Gradual  de-  ... 

dine  of  Jac-  Jacobitism,  iu  England  little  more, 
obitism.      aftgi-  the  reign  of  George  I.,  than 
an  empty  word,  the  vehicle  of  indefinite  j 
dissatisfaction  in  those  who  were  never  I 
ready  to  encounter  peril  or  sacrifice  advant-  j 
age  for  its  aftected  principle,  subsisted  in  ! 
Scotland  as  a  vivid  emotion  of  loyalty,  a  i 
generous  promptitude  to  act  or  suffer  in  its 
cause  ;  and,  even  when  all  hope  was  ex-  I 
tiuct,  clung  to  the  recollections  of  the  past  i 


long  after  the  very  name  was  only  known 
by  tradition,  and  every  feeling  connected 
with  it  had  been  wholly  effaced  to  the 
south  of  Tweed.  It  is  believed  that  some 
persons  in  that  country  kept  up  an  inter- 
course with  Charles  Edward  as  their  .sov- 
ereign till  his  decease  in  1787.  They  had 
given,  forty  years  before,  abundant  testi- 
monies of  their  activity  to  serve  him.  That 
rebellion  is,  in  more  respects  than  one,  dis- 
graceful to  the  British  government ;  but  it 
furnished  an  opportunity  for  a  wise  meas- 
ure to  prevent  its  recuiTence,  and  to  break 
down,  in  some  degree,  the  aiistocratical 
ascendency,  by  abolishing  the  hereditary 
jurisdictions  which,  according  to  the  genitis 
of  the  feudal  system,  were  exercised  by 
territorial  proprietors  under  royal  charter 
or  prescription. 


CHAPTER  XVIII. 


ON  THE  CONSTITUTION  OF  IRELAND. 


Ancient  State  of  Ireland.  —  Its  Kingdoms  and 
Chieftainships. —  Lav?  of  Tanistry  and  Gav'- 
kind.  —  Rnde  State  of  Society.- — Invasion  ol 
Henry  II. — Acquisitions  of  English  Barons. — 
Forms  of  English  Constitution  established.— 
Exclusion  of  native  Irish  from  them. — Degener- 
acy of  English  Settlers. — Parliament  of  Ireland. 

—  Disorderly  State  of  the  Island.  —  The  Irish 
regain  Part  of  their  Territories. — EngUsh  Law 
confined  to  the  Pale. — Poj-ning  s  Law. — Royal 
Authority  re%'ives  under  Henry  TIH. — Resist- 
ance of  Irish  to  Act  of  Supremacy. — Protestant 
Church  established  by  Elizabeth.  — ElFects  of 
this  Measure. — RebeUions  of  her  Reign. — Op- 
position in  Parliament. — Arbitrary  Proceedings 
of  Sir  Henry  Sidney.— James  I. — Laws  against 
Catholics  enforced. — English  Law  established 
throughout  Ireland. — Settlements  of  English  in 
Munster,  Ulster,  and  other  Parts. — Injustice  at- 
tending them. — Constitution  of  Irish  Parliament 

—  Charles  I.  promises  Graces  to  the  Irish.  — 
Does  not  confirm  them.  —  Administration  of 
Strafford. — Rebellion  of  1641. —  Subjugation  of 
Irish  by  Cromwell. — ^Restoration  of  Charles  II. 
— Act  of  Settlement.  —  Hopes  of  Catholics  un- 
der Charles  and  James. — War  of  1689,  and  final 
Reduction  of  Ireland.  —  Penal  Laws  against 
Catholics.  —  Dependence  of  Irish  on  EngUsb 
Parliament.  —  Growth  of  a  patriotic  Part}-  in 
1753. 

The  antiquities  of  Irish  histoiy,  imper- 
Andent  slate  fectly  recorded,  and  rendered 
of  Ireland.  more  obscure  by  conti-oversy, 
seem  hardly  to  belong  to  our  present  sub- 
ject.   But  the  political  order  or  state  of 


society  among  that  people  at  the  period  of 
Henry  II. 's  invasion  must  be  distinctly  ap- 
prehended and  kept  in  mind,  before  we  can 
pass  a  judgment  upon,  or  even  understand, 
the  course  of  succeeding  events,  and  the 
policy  of  the  English  government  in  relation 
to  that  island. 

I  It  can  hardly  be  necessary  to  mention 
(the  idle  traditions  of  a  derivation  fi-om  Spain 
having  long  been  exploded)  that  the  Irish 
are  descended  from  one  of  those  Celtic 
tribes  which  occupied  Gaul  and  Britain 
some  centuries  before  the  Christian  era. 
Their  language,  however,  is  so  far  dissim- 
ilar from  that  spoken  in  Wales,  though  evi- 
dently of  the  same  root,  as  to  render  it  prob- 
able that  the  emigration,  whether  from  this 
island  or  from  Armorica,  was  in  a  remote 
age,  while  its  close  resemblance  to  that  of 
the  Scottish  Highlanders,  which  hardly  can 
be  called  another  dialect,  as  unequivocally 
demonstrates  a  nearer  affinity  of  the  two 
nations.  It  seems  to  be  generally  believed, 
though  the  antiquaries  are  far  from  unani- 
mous, that  the  Irish  are  the  parent  tribe, 
and  planted  their  colony  in  Scotland  since 
the  commencement  of  our  era. 

About  the  end  of  the  eighth  century, 
some  of  those  swarms  of  Scandinavian  de- 
scent which  were  poured  out  in  such  un- 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


677 


ceasing  and  irresistible  multitudes  on  France 
and  Britain,  began  to  settle  on  the  coEists  of 
Ireland.  These  colonists  were  known  b}^ 
the  name  of  Ostmen,  or  men  from  the  east, 
as  in  France  they  were  called  Normans 
from  their  northern  origin.  They  occupied 
the  sea-coast  from  Antrim  easterly  round 
to  Limerick ;  and  by  them  the  principal 
cities  of  Ireland  were  built.  They  waged 
war  for  some  time  against  the  aboriginal 
Irish  in  the  interior;  but,  though  better  ac- 
quainted with  the  arts  of  civilized  life,  their 
inferiority  in  numbers  caused  them  to  fail 
at  length  in  this  contention  ;  and  the  piratic- 
al invasions  from  their  brethren  in  Norway 
becoming  less  frequent  in  the  eleventh  and 
twelfth  centuries,  they  had  fallen  into  a 
state  of  dependence  on  the  native  princes. 

The  island  was  divided  into  five  provincial 
,,  ,.    .       kingdoms,   Leinster,  Munster, 

Its  kingdoms         »  '  '  ' 

andchiefuin-  Ulster,  Conuaught,  and  Meath, 

ships.  c  u 

one  ot  whose  sovereigns  was 

chosen  King  of  Ireland  in  some  general 
meeting,  probably  of  the  nobility  or  smaller 
chieftains  and  of  the  prelates.  But  there 
seems  to  be  no  clear  tradition  as  to  the  char- 
acter of  this  national  assembly,  though  some 
maintain  it  to  have  been  triennially  held. 
The  monarch  of  the  island  had  tributes 
from  tho  inferior  kings,  and  a  certain  su- 
premacy, especially  in  the  defense  of  the 
country  against  invasion  ;  but  the  constitu- 
tion was  of  a  federal  nature,  and  each  was 
independent  in  ruling  his  people,  or  in  mak- 
ing war  on  his  neighbors.  Below  the  kings 
were  the  chieftains  of  different  septs  or 
families,  perhaps  in  one  or  two  degrees  of 
subordination,  bearing  a  relation,  which  may 
be  loosely  called  feudal,  to  each  other  and 
to  the  crown.* 

These  chieftainships,  and  perhaps  even 
Law  of  the  kingdoms  themselves,  though  not 
tanistry  partible,  followed  a  very  different  rule 
of  succession  from  that  of  primogeniture. 
They  were  subject  to  the  law  of  tanistry, 
of  which  the  principle  is  defined  to  be,  that 
the  demesne  lands  and  dignity  of  chieftain- 
ship descended  to  the  eldest  and  most  wor- 
thy of  the  same  blood ;  these  epithets  not 
being  used,  we  may  suppose,  synonymous- 
ly, but  in  order  to  indicate  that  the  prefer- 
ence given  to  seniority  was  to  be  controlled 

*  Sir  .lames  Ware's  Antiquities  of  Ireland.  Le- 
land's  Hist,  of  Ireland  ;  lutroduction.  Ledwich's 
Dissertations. 


by  a  due  regard  to  desert.  No  better  mode, 
it  is  evident,  of  providing  for  a  perpetual 
supply  of  those  civil  quarrels,  in  which  the 
Irish  are  supposed  to  place  so  much  of  their 
enjoyment,  coidd  have  been  devised ;  yet, 
as  these  grew  sometimes  a  little  too  fre- 
quent, it  was  not  unusual  to  elect  a  tanist, 
or  reversionary  successor,  in  the  lifetime  of 
the  reigning  cliief,  as  has  been  the  practice 
of  more  civilized  nations.  An  infant  was 
never  allowed  to  hold  the  scepter  of  an  Irish 
kingdom,  but  was  necessarily  postponed  to 
his  uncle  or  other  kinsman  of  mature  age ; 
as  was  the  case  also  in  England,  even  after 
the  consolidation  of  the  Anglo-Saxon  mon- 
archy.* 

The  land-owners,  who  did  not  belong  to 
the  noble  class,  bore  the  same  name  gavel- 
as  their  chieftain,  and  were  pre- 
sumed  to  be  of  the  same  lineage ;  but  they 
held  their  estates  by  a  very  diffei-ent  and  an 
extraordinary  tenure,  that  of  Irish  gavel- 
kind. On  the  decease  of  a  proprietor,  in- 
stead of  an  equal  partition  among  his  chil- 
dren, as  in  the  gavel-kind  of  English  law, 
the  chief  of  the  sept,  according  to  the  gen- 
erallj'  received  explanation,  made,  or  was 
entitled  to  make,  a  fresh  division  of  all  the 
lands  within  his  district,  allotting  to  the  heirs 
of  the  deceased  a  portion  of  the  integral  ter- 
ritoiy  along  with  the  other  members  of  the 
tribe.  It  seems  impossible  to  conceive  that 
these  partitions  were  renewed  on  every 
death  of  one  of  the  sept ;  but  they  are  as- 
serted to  have  at  least  taken  place  so  fre- 
quently as  to  produce  a  continual  change 
of  possession.  The  policy  of  this  custom 
doubtless  sprung  from  too  jealous  a  solici- 
tude as  to  the  excessive  inequality  of  wealth, 
and  from  the  habit  of  looking  on  the  tribe 
as  one  family  of  occupants,  not  wholly  di- 
vested of  its  original  right  by  the  necessaiy 
allotment  of  lands  to  particular  cultivators. 
It  bore  some  degree  of  analogy  to  the  insti- 
tution of  the  year  of  jubilee  in  the  Mosaic 
code,  and,  what  may  be  thought  more  im- 
mediate, was  almost  exactly  similar  to  the 

*  lid.  Auct. :  also  Davis's  Reports,  29,  and  his 
"  Discovery  of  the  true  Causes  why  Ireland  was 
never  entirely  subdued  till  bis  Majesty's  happy 
Reign,"  169.  Sir  John  Davis,  author  of  the  philo- 
sophical poem,  ruSfli  leavrbf,  was  chief  justice  of 
Ireland  under  James  I.  The  tract  just  quoted  is 
well  known  as  a  concise  and  luminous  exposition 
of  the  history  of  that  country  from  the  English  in- 
vasion. 


678 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIIL 


rule  of  succession  which  is  laid  down  in  the 
ancient  laws  of  Wales.* 

In  the  territories  of  each  sept,  judges 
Rode  state  called  Brehons,  and  taken  out  of 
of  society,  certain  families,  sat  with  primeval 
simplicity  upon  turfen  benches  in  some  con- 
spicuous situation,  to  determine  controver- 
sies. Their  usages  are  almost  wholly  un- 
known ;  for  what  have  been  published  as 
fragments  of  the  Brehon  law  seem  open  to 
great  suspicion  of  having  at  least  been  inter- 
polated.! It  is  notorious  that,  according  to 
the  custom  of  many  states  in  the  infancy 
of  civilization,  the  Irish  admitted  the  com- 
position or  fine  for  murder  instead  of  capital 
punishment ;  and  this  was  divided,  as  in 
other  counti'ies,  between  the  kindred  of  the 
slain  and  the  judge. 


*  Ware.  Leland.  Ledwich.  Davis's  Discov- 
ery, ibid.  Reports,  49.  It  is  remarkable  that 
Davis  seems  to  have  been  aware  of  an  analogy  be- 
tween the  custom  of  Ireland  and  Wales,  and  yet 
that  he  only  quotes  the  statute  of  Rutland,  12  Edw. 
I.,  which  by  itself  does  not  prove  it.  It  is,  how- 
ever, proved,  if  I  understand  the  jjassage,  by  one 
of  the  Leges  Walliae,  published  by  Wotton,  p.  139. 
A  gavel  or  partition  was  made  on  the  death  of 
everj'  member  of  a  family  for  three  generations, 
after  which  none  could  be  enforced.  But  these 
parceners  were  to  be  all  in  the  same  degree ;  so 
that  nephews  could  not  compel  their  uncle  to  a 
partition,  but  must  wait  till  his  death,  when  they 
were  to  be  put  on  an  equaUty  with  their  cousins  ; 
and  this,  I  suppose,  is  meant  bj'  the  expression  in 
the  statute  of  Rutland,  "  quod  haereditates  rema- 
neant  partibiles  inter  consimiles  hctrcdes." 

t  Leland  seems  to  favor  the  authenticity'  of  the 
supposed  Brehon  laws  published  by  Vallancey. — 
Introduction,  29.  The  stjle  is  said  to  be  very  dis- 
tinguishable from  the  Irish  of  the  twelfth  or  thir- 
teenth century,  and  the  laws  themselves  to  have 
no  allusion  to  the  settlement  of  foreigners  in  Ire- 
land, or  to  coined  money ;  whence  some  ascribe 
them  to  the  eighth  century.  On  the  other  hand, 
Ledwich  proves  that  some  parts  must  be  later  than 
the  tenth  century. — Dissertations,  i.,  270.  And 
others  hold  them  to  be  no  older  than  the  thirteenth. 
— Campbell's  Historical  Sketch  of  Ireland,  41.  It 
is  also  maintained  that  they  are  very  unfaithfully 
translated  ;  but  when  we  find  the  Anglo  Saxon  and 
Norman  usages,  relief,  aid,  wardship,  trial  by  jury 
(and  that  unanimous),  and  a  sort  of  correspondence 
in  the  ranks  of  society  with  those  of  England 
(which  all  we  read  elsewhere  of  the  ancient  Irish 
seems  to  contradict),  it  is  impossible  to  resist  the 
suspicion  that  they  are  either  extremely  interpo- 
lated, or  were  compiled  in  a  late  age,  and  among 
some  of  the  septs  who  had  most  intercourse  with 
the  English.  We  know  that  the  degenerate  col- 
onists, such  as  the  Earls  of  Desmond,  adopted  the 
Brehon  law  in  their  territories ;  but  this  would 


In  the  twelfth  century  it  is  evident  that 
the  Irish  nation  had  made  far  less  progi-ess 
in  the  road  of  improvement  than  any  other 
of  Europe  in  circumstances  of  climate  and 
position  so  little  unfavorable.  They  had  no 
arts  that  deserve  the  name,  nor  any  com- 
merce, their  best  line  of  sea-coast  being  oc- 
cupied by  the  Norwegians.  They  had  no 
fortified  towns,  nor  any  houses  or  castles 
of  stone,  the  first  having  been  elected  at 
Tuam  a  very  few  years  before  the  invasion 
of  Henry.*  Their  conversion  to  Christian- 
ity, indeed,  and  the  multitude  of  cathedral 
and  conventual  churches  erected  throughout 
the  island,  had  been  the  cause,  and  probably 
the  sole  cause,  of  the  rise  of  some  cities,  or 
villages  with  that  name,  such  as  Armagh. 
Cashel,  and  Trim ;  but  neither  the  chiefs 
nor  the  people  loved  to  be  confined  within 
their  precincts,  and  chose  rather  to  dwell  iu 
.scattered  cabins  amid  the  free  solitude  of 
bogs  and  mountains. f  As  we  might  ex- 
pect, their  qualities  were  such  as  belong  to 
man  by  his  original  nature,  and  which  he 
displays  in  all  parts  of  the  globe  where  the 
state  of  society  is  inartificial :  they  were 
gaj',  generous,  hospitable,  ardent  in  attach- 
ment and  hate,  credulous  of  falsehood,  prone 
to  anger  and  violence,  generally  crafty  and 
cruel.  With  these  verj-  general  attributes 
of  a  barbarous  people,  the  Irish  character 
was  distinguished  by  a  peculiar  vivacity  of 
imagination,  an  enthusiasm  and  impetuosity 

probably  be  with  some  admixture  of  that  to  which 
they  had  been  used. 

*  "  The  first  pile  of  lime  and  stone  that  ever  was 
in  Ireland  was  the  castle  of  Tuam,  built  in  1161  by 
Roderic  O'Connor,  the  monarch." — Introduction  to 
Cox's  History  of  Ireland.  I  do  not  find  that  any 
later  writer  controverts  this,  so  far  as  the  aborigi- 
nal Irish  are  concerned ;  but  doubtless  the  Nor- 
wegian Ostmen  had  stone  churches,  and  it  nsed  to 
be  thought  that  some,  at  least,  of  the  famous  round 
towers  so  common  in  Ireland  were  erected  by 
them,  though  several  antiquaries  have  lately  con- 
tended for  a  much  earlier  origin  of  these  mysteri- 
ous structures. — See  Ledwich's  Dissertations,  vii.. 
143;  and  the  book  called  Grose's  Antiquities  of 
Ireland,  also  written  by  Ledwich.  Piles  of  stone 
without  mortar  are  not  included  in  Cox's  expres- 
sion. In  fact,  the  Irish  had  very  few  stone  houses, 
or  even  regular  villages  and  towns,  before  the  time 
of  James  I. — Davis,  170. 

t  ["I  dare  boldly  say  that  never  any  particular 
person,  from  the  Conquest  till  the  Reign  of  James 
I.,  did  build  any  stone  or  brick  house  for  his  pri- 
vate habitation,  but  such  as  have  lately  obtained 
estates  according  to  the  course  of  the  law  of  En- 
gland."—Davis.— 1845.] 


FROM  HENRY  VII.  TO  GEORGE  n. 


679 


of  passion,  and  a  more  than  ordinary  bias 
towaid  a  submissive  and  superstitious  spirit 
in  religion. 

This  spirit  may  justly  be  traced,  in  a 
great  measure,  to  the  virtues  and  piety  of 
the  early  preachei's  of  the  Gospel  in  that 
countiy.  Their  influence,  though  at  this 
remote  age,  and  with  our  imperfect  knowl- 
edge, it  may  hardly  be  distinguishable  amid 
the  licentiousness  and  ferocity  of  a  rudo 
people,  was  necessarily  directed  to  counter- 
act those  vices,  and  can  not  have  failed  to 
mitigate  and  compensate  their  evil,  la  the 
neventh  and  eighth  centuries,  while  a  total 
ignorance  seemed  to  overspread  the  face 
of  Europe,  the  monasteries  and  schools  of 
Ireland  preserved,  in  the  best  manner  they 
could,  such  learning  as  had  survived  the 
revolutions  of  the  Roman  world.  But  the 
learning  of  monasteries  had  never  much  ef- 
ficacy in  dispelling  the  ignorance  of  the  lai- 
ty; and,  indeed,  even  in  them,  it  had  decay- 
ed long  before  the  twclftli  century.  The 
clergy  were  respected  and  numerous,  the 
bishops  alone  amounting  at  one  time  to  no 
less  than  three  hundred  ;*  and  it  has  been 
maintained  by  our  most  learned  writers, 
that  they  were  wholly  independent  of  the 
See  of  Rome  till,  a  little  before  the  English 
invasion,  one  of  their  pi  imates  thought  fit  to 
solicit  the  pall  from  thence  on  his  consecra- 
tion, according  to  the  discipline  long  prac- 
ticed in  other  Western  churches. 

It  will  be  readily  perceived  that  the  gov- 
ernment of  Ireland  must  have  been  almost 
entirely  aristocratical,  and,  though  not  strict- 
ly feudal,  not  very  unlike  that  of  the  feudal 
confederacies  in  France  during  the  ninth 
and  tenth  centuries.  It  was,  perhaps,  still 
more  oppressive.  The  ancient  condition 
of  the  common  people  of  Ii-eland,  says  Sir 
James  Ware,  was  very  little  different  from 
slavery. f  Unless  we  believe  this  condition 
to  have  been  greatly  deteriorated  under  the 
rule  of  their  native  chieftains  after  the  En- 
glish settlement,  for  which  there  seems  no 
good  reason,  we  must  give  little  credit  to 
the  fanciful  pictures  of  prosperity  and  hap- 
piness in  that  period  of  aboriginal  independ- 
ence which  the  Irish,  in  their  discontent 
with  later  times,  have  been  apt  to  draw. 
They  had,  no  doubt,  like  all  other  nations, 
good  and  wise  princes,  as  well  as  tyrants 

*  Ledwich,  i.,  39.5. 

t  Antiquities  of  Ireland,  ii.,  76. 


and  usurpers ;  but  we  find  by  their  annals 
that,  out  of  two  hundred  ancient  kings,  of 
whom  some  brief  memorials  are  recorded, 
not  more  than  thirty  came  to  a  natural 
death,*  while  for  the  later  period,  the  op- 
pression of  the  Irish  chieftains,  and  of  those 
degenerate  English  who  trod  in  their  steps, 
and  emulated  the  vices  they  should  have 
restrained,  is  the  one  constant  theme  of 
history.  Their  exactions  kept  the  peasants 
in  hopeless  poverty,  their  tyranny  in  per- 
petual fear.  The  chief  claimed  a  right  of 
taking  from  his  tenants  provisions  for  his 
own  use  at  discretion,  or  of  sojourning  in 
their  houses.  This  was  called  coshery,  and 
is  somewhat  analogous  to  the  royal  prerog- 
ative of  purveyance.  A  still  more  teri'ible 
oppression  was  the  quartering  of  the  lords" 
soldiers  on  the  people,  sometimes  mitigated 
by  a  composition,  called  by  the  Irish  bo- 
naght;f  for  the  perpetual  warfare  of  these 
petty  chieftains  had  given  rise  to  the  em- 
ployment of  mercenary  troops,  partly  na- 
tives, partly  from  Scotland,  known  by  the 
uncouth  names  of  Kerns  and  Gallovvglasses, 
who  proved  the  scourge  of  Ireland  down  to 
its  final  subjugation  by  Ehzabeth. 

This  unusually  backward  condition  of  so- 
ciety furnished  but  an  inauspicious  presage 
for  the  future.  Yet  we  may  be  led  by  the 
analogy  of  other  countries  to  think  it  prob- 
able that,  if  Ireland  had  not  tempted  the 
cupidity  of  her  neighbors,  there  would  have 
arisen  in  the  course  of  time  some  Egbert  or 
Harold  Harfager  to  consolidate  the  provin- 
cial kingdoms  into  one  hereditary  monarchy, 
which,  by  the  adoption  of  better  laws,  the 
increase  of  commerce,  and  a  frequent  inter- 
course with  the  chief  courts  of  Europe, 
might  have  taken  as  respectable  a  station  as 
that  of  Scotland  in  the  Commonwealth  of 
Christendom.  If  the  two  islands  had  af- 
terward become  incorporated  through  in- 
termarriage of  their  sovereigns,  as  would 
very  likely  have  taken  place,  it  might  have 
been  on  such  conditions  of  equality  as  Ire- 
land, till  lately,  has  never  known,  and  cer- 
tainly without  that  long  tragedy  of  crime 
and  misfortune  wliich  her  annals  unfold. 

The  reduction  of  Ireland,  at  least  in  name, 
under  the  dominion  of  Henry  II.,  invasion  ot 
was  not  achieved  by  his  own  ef-  Hofy  II- 

*  Ledwich,  i.,  260. 

t  Ware,  ii.,  74.  Davis's  Discovery,  174.  Speo 
ser's  State  of  Ireland,  390. 


680 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVUL 


forts.  He  had  little  share  in  it  beyond  re- 
ceiving the  homage  of  Irish  princes,  and 
granting  charters  to  his  English  nobility. 
Strongbow,  Lacy,  Fitz-Stephen,  were  the 
real  conquerors,  through  whom  alone  any 
portion  of  Irish  ten-itpry  was  gained  by  arms 
or  ti'eaty  ;  and,  as  they  began  the  enterprise 
without  tlife  king,  they  carried  it  on  also  for 
themselves,  deeming  their  swords  a  better 
security  than  his  charters.  This  ought  to 
be  kept  in  mind,  as  revealing  the  secret  of 
the  English  government  over  Ireland,  and 
furnishing  a  justification  for  what  has  the 
appearance  of  a  negligent  abandonment  of 
his  authority.  The  few  barons  and  other 
,  .  ...  adventurers,  who,  by  dint  of  for- 
of  English    ces  hired  by  themselves,  and,  in 

barons.  •     .  . 

some  mstances,  by  conventions 
with  the  Irish,  settled  their  armed  colonies 
iu  the  island,  thought  they  had  done  much 
for  Henry  II.  in  causing  his  name  to  be  ac- 
knowledged, his  admiuisti  ation  to  be  estab- 
lished in  Dublin,  and  in  holding  their  lands 
by  his  grant.  They  claimed  in  their  turn, 
according  to  the  practice  of  all  nations  and 
the  principles  of  equity,  that  those  who  had 
borne  the  heat  of  the  battle  should  enjoy  the 
spoil  without  molestation.  Hence  the  enor- 
mous grants  of  Heniy  and  his  successors, 
though  so  often  censured  for  impolicy,  were 
probably  what  they  could  not  have  retained 
in  their  own  hands ;  and  though  not,  per- 
haps, absolutely  stipulated  as  the  price  of 
titular  sovereignty,  were  something  very 
like  it.*  But  what  is  to  be  censured,  and 
what,  at  all  hazards,  they  were  bound  to 
refuse,  was  the  violation  of  their  faith  to  the 
Irish  princes,  in  sharing  among  these  insa- 
tiable barons  their  ancient  ten'itories,  which, 
setting  aside  the  wrong  of  the  first  invasion, 
were  protected  by  their  homage  and  sub- 
mission, and  sometimes  by  positive  conven- 
tions. The  whole  island,  in  fact,  with  the 
exception  of  the  county  of  Dublin  and  the 
maritime  towns,  was  divided,  before  the  end 
of  the  thirteenth  century,  and  most  of  it  in 
the  twelfth,  among  ten  Enghsh  families: 
Earl  Strongbow,  who  had  some  color  of  he- 
reditaiy  title,  according  to  our  notions  of 
law,  by  his  marriage  with  the  daughter  of 
Dermot,  king  of  Leinster,  obtaining  a  grant 
of  that  province  ;  Lacy  acquiring  Meath, 
which  was  not  reckoned  a  part  of  Leinster, 
in  the  same  manner;  the  whole  of  Ulster 


Davis,  135. 


being  given  to  De  Courcy ;  the  whole  of 
Connaught  to  De  Burgh ;  and  the  rest  to 
six  others.  These,  it  must  be  understood, 
they  were  to  hold  in  a  sort  of  feudal  suzer- 
ainty, parceling  them  among  their  tenants 
of  English  race,  and  expelling  the  natives, 
or  driving  them  into  the  worst  parts  of  the 
countiy  by  an  incessant  warfare. 

The  Irish  chieftains,  though  compelled  to 
show  some  exterior  signs  of  sub-  Forms  of 
mission  to  Heniy,  never  thought  eonl't^^mn 
of  renouncing  their  own  authori-  estabiishcii. 
ty,  or  the  customs  of  their  forefathers ;  nor 
did  he  pretend  to  interfere  with  the  govern- 
ment of  their  septs,  content  with  their  prom- 
ise of  homage  and  tribute,  neither  of  which 
were  afterward  paid.  But  in  those  parts 
of  Ireland  which  he  reckoned  his  own,  it 
was  his  aim  to  establish  the  English  laws, 
to  render  the  lesser  island,  as  it  were,  a 
counterpart  in  all  its  civil  constitution,  and 
mirror  of  the  greater.  The  colony  from 
England  was  already  not  inconsiderable,  and 
likely  to  increase ;  the  Ostmen,  who  inhab- 
ited the  maritime  towns,  came  very  willing- 
ly, as  all  settlers  of  Teutonic  origin  have 
done,  into  the  English  customs  and  language; 
and  upon  this  basis,  leaving  the  accession  of 
the  aboriginal  people  to  future  contingencies, 
he  raised  the  edifice  of  the  Irish  Constitu- 
tion. He  gave  charters  of  privilege  to  the 
chief  towns,  began  a  division  into  counties, 
appointed  sheriffs  and  judges  of  assize  to  ad- 
minister justice,  erected  supreme  courts  at 
Dublin,  and  perhaps  assembled  Parlia- 
ments.* His  successors  pursued  the  same 
course  of  policy  ;  the  Great  Charter  of  lib- 
ei'ties,  as  soon  as  granted  by  John  at  Run- 
nymede,  was  sent  over  to  Ireland ;  and  the 
whole  common  law,  with  all  its  forms  of 
process,  and  every  privilege  it  was  deemed 
to  convey,  became  the  birthright  of  the  An- 
glo-Irish colonists,  f 

These  had  now  spread  over  a  considera- 
ble part  of  the  island.  Twelve  counties  ap- 
pear to  have  been  established  by  John,  com- 
prehending most  of  Leinster  and  Munster, 
while  the  two  ambitious  families  of  Courcy 
and  De  Burgh  encroached  more  and  more 
on  the  natives  in  the  other  provinces.!  But 

*  Leland,  80,  et  post.    Davis,  100. 
t  4  Inst.,  349.    Leland,  203.   Harris's  Hibemica, 
ii.,  14. 

t  These  counties  are  Dublin,  Kildare,  Meatb 
(including  Westmeath),  Louth,  Carlow,  Wexford. 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  U. 


681 


the  same  necessity,  which  gi-atitude  for  the 
services,  or  sense  of  the  power  of  the  great 
famihes  liad  engendered,  for  rewarding  them 
by  excessive  grants  of  territory,  led  to  other 
concessions  that  rendered  them  ahuost  in- 
dependent of  the  monarchy.*    The  fran- 
chise of  a  county  palatine  gave  a  right  of 
exclusive  civil  and  criminal  jurisdiction,  so 
that  the  king's  writ  should  not  run,  nor  liis 
judges  come  within  it,  though  judgment  in 
its  courts  might  be  reversed  by  writ  of  error 
in  the  King's  Bench.    The  lord  might  en- 
feoff tenants  to  hold  by  knight's  service  of 
himself;  he  had  almost  all  regalian  rights ; 
the  lands  of  those  attainted  for  treason  es- 
cheated to  him ;  he  acted  in  every  thing 
rather  as  one  of  the  great  feudatories  of 
France  or  Germany  than  a  subject  of  the 
English  crown.    Such  had  been  the  Earl 
of  Chester,  and  only  Chester,  in  England ; 
but  in  Ireland  this  dangerous  independence 
was  permitted  to  Strongbovv  in  Leinster, 
to  Lacy  in  Meath,  and  at  a  later  time  to  the 
Butlers  and  Geraldines  in  parts  of  Munster. 
Strongbow's  vast  inheritance  soon  fell  to  five 
sisters,  who  took  to  their  shares,  with  the 
same  palatine  rights,  the  counties  of  Cal- 
low, Wexford,  Kilkenny,  Kildare,  and  the 
district  of  Leix,  since  called  the  Queen's 
County. f    In  all  these  palatinates,  forming 
by  far  the  greater  portion  of  the  English 
territories,  the  king's  process  had  its  course 
only  within  the  lands  belonging  to  the 
Church. t    The  English  aristocracy  of  Ire- 
land, in  the  thirteenth  and  fourteenth  cen-  i 
turies,  be.-irs  a  much  closer  analogy  to  that 
of  France  in  rather  an  earlier  period  than 
any  thing  which  the  history  of  this  island 
can  show.  ' 

Kilkenny,  Waterford,  Cork,  Tipperary,  Kerry,  and  I 

Limerick.    In  the  reign  of  Edward  I.  we  find  | 

sheriffs  also  of  Comiaught  and  Roscommon. — Le-  i 

land,  i.,  19.    Thus,  except  the  northern  province  I 

and  some  of  the  central  districts,  all  Ireland  was  i 

shire-ground,  and  subject  to  the  crown  in  the  thir-  i 

teenth  century,  however  it  might  fall  away  in  the  < 

two  next.    Those  who  write  confusedly  about  this  . 

subject  pretend  that  the  authority  of  the  king  at  ! 

no  time  extended  beyond  the  pale,  whereas  that  < 

name  was  not  known,  I  believe,  till  the  fifteenth  I 

century.    Under  the  great  Earl  of  Pembroke,  who  i 

died  in  1219,  the  %hole  island  was  perhaps  nearly  I 

as  much  reduced  under  obedience  as  in  the  reign  ] 
of  Elizabeth.— Leland,  205.          *  L eland,  170. 

t  Davis,  140.    William  Marischal,  earl  of  Pem-  i 

broke,  who  mairied  the  daughter  of  Earl  Strong-  ( 

bow,  left  five  sons  and  five  daughters  ;  the  first  all  ( 

died  without  issue.      t  Davis,  147.    Leland,  291.  j 


Pressed  by  the  inroads  of  these  barons, 
and  despoiled  frequently  of  lands  secured  to 
thein  by  grant  or  treaty,  the  native  chiefs 
had  recourse  to  the  throne  for  protection, 
and  would,  in  all  likelihood,  have  submitted 
without  rejjining  to  a  sovereign  who  could 
have  afforded  it.*  But  .John  and  Henry  III., 
in  whose  reigns  the  independence  of  the  aris- 
tocracy was  almost  complete,  though  insist- 
ing by  writs  and  proclamations  on  a  due  ob- 
servance of  the  laws,  could  do  little  more 
for  their  new  subjects,  who  found  a  better 
chance  of  redress  in  standing  on  their  own 
defense.  The  powerful  septs  of  the  north 
enjoyed  their  liberty  ;  but  those  of  Munster 
and  Leinster,  intermixed  with  the  English, 
and  encroached  upon  from  every  side,  were 
the  victims  of  constant  injustice,  and,  aban- 
doning the  open  country  for  bog  and  mount- 
ain pastui-e,  grew  more  poor  and  barbarous 
in  the  midst  of  the  general  advance  of  Eu- 
rope. Many  remained  under  the  yoke  of 
English  lords,  and  in  a  worse  state  than  that 
of  villenage,  because  still  less  protected  by 
the  tribunals  of  justice.  The  Irish  had 
originally  stipulated  with  Henry  „  ,  . 

„  ,    .  ^    Exclusion  of 

II.  for  the  use  of  their  own  laws.f  naiive  lush 
They  were  consequently  held  be- 
yond  the  pale  of  English  justice,  and  re- 
garded as  aliens  at  the  best,  sometimes  as 
enemies,  in  our  courts.  Thus,  as  by  the 
Brehon  customs  murder  was  only  punished 
by  a  fine,  it  was  not  held  felony  to  kill  one 
of  Irish  race  unless  he  had  conformed  to 
the  English  law.J    Five  septs,  to  which 

*  Id.,  194,  209.  t  Leland,  225. 

\  Davis,  100, 109.  He  quotes  the  following  record 
from  an  assize  at  Waterford,  in  the  4th  of  Edward 
II.  (1311),  which  may  be  extracted,  a^briefly  illus- 
trating the  state  of  law  in  Ireland  better  than  any 
general  positions.  "  duod  Robevtus  le  Wayleys 
rectatus  de  morte  Johannis  filiilvorMac-GiUemoiy, 
felonice  per  ipsum  interfecti,  &c.  Veuit  et  bene 
cognovit  quod  praedictum  .lohannem  interfecit;  di- 
cit  tamen  quod  per  ejus  interfectiouem  feloniam 
committere  uou  potuit,  quia  dicit,  quod  praedictus 
Johannes  fuit  purus  Hibeniicus,  et  non  de  libero 
sanguinfe,  &c.  Et  cum  dominus  dicti  Johannis, 
cujus  Hibeniicus  idem  Johannes  fuit,  die  quo  in- 
tcrfectus  fuit,  solutionem  pro  ipso  Johanne  Hiber- 
nico  suo  sic  interfecto  petere  voluerit,  ipse  Rober- 
tus  paratus  erit  ad  respondendum  de  solutione  * 
pra-dicta  prout  justitia  suadebit.  Et  super  hoc 
veuit  quidam  Johannes  le  Poer,  et  dicit  pro  domino 
rege,  quod  praedictus  Johannes  filius  Ivor  Mac- 
Gillemory,  et  antecessores  sui  de  cognomine  prae- 
dicto  a  tempore  quo  dominus  Henricus  filius  im- 
peratricis,  quondam  dominus  Hiberniae,  tritav-us 


682 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIIL 


the  royal  families  of  Ireland  beloDged,  the  i 
names  of  O'Neal,  O'Connor,  O'Brien, 
O'Malachlin,  and  Mac  Murrough,  had  the 
special  immunity  of  being  within  the  protec- 
tion of  our  law,  and  it  was  felony  to  kill  one 
of  them.  I  do  not  know  by  what  means 
they  obtained  this  privilege,  for  some  of  i 
these  were  certainly  as  far  from  the  king's 
obedience  as  any  in  Ireland.*  But  besides 
these,  a  vast  number  of  charters  of  deniza-  i 
tion  were  granted  to  particular  persons  of 
Irish  descent  from  the  reign  of  Henry  II.  j 
downward,  which  gave  them  and  their  pos- 
terity the  full  birthrights  of  English  subjects ; 
nor  does  there  seem  to  have  been  any  dif- 
ficulty in  procuring  these,  f  It  can  not  be 
said,  therefore,  that  the  EngUsh  govern- 
ment, or  those  who  represented  it  in  Dub- 
lin, displayed  any  leluctance  to  emancipate 
the  Irish  from  thraldom.  Whatever  ob- 
struction might  be  interposed  to  this  was 
from  that  assembly  whose  concuiTence  was 
necessary  to  every  general  measure,  the 
Anglo-Irish  Parliament.  Thus,  in  1278,  j 
we  find  the  first  instance  of  an  application 
from  the  community  of  Ireland,  as  it  is 
termed,  but  probably  from  some  small  num- 
ber of  septs  dwelling  among  the  colony,  that 
the}-  might  be  admitted  to  live  by  the  En- 
glish law,  and  offering  8000  marks  for  this 
favor.  The  letter  of  Edward  I.  to  the  jus- 
ticiary of  Ireland  on  this  is  sufficiently  char- 
acteristic both  of  his  wisdom  and  his  rapa- 
ciousness.  He  is  satisfied  of  the  expedien- 
cy of  granting  the  request,  provided  it  can 
be  done  with  the  general  consent  of  the 
prelates  and  nobles  of  Ii'eland  ;  and  directs 
the  justiciary,  if  he  can  obtain  that  concur- 
rence, to  a^-ee  with  the  petitioners  for  the 
highest  fine  he  can  obtain,  and  for  a  body 
of  good  and  stout  soldiers.  J  But  this  neces- 
sary consent  of  the  aristocracy  was  with- 

domini  regis  nunc,  ftiit  in  Hibemia,  legem  Aneli- 
canam  in  Hibemia  usque  ad  banc  diem  habere,  et 
secundum  ipsam  legem  judicari  et  deduci  debent." 
We  have  here  both  the  general  rule,  that  the 
death  of  an  Irishman  was  only  punishable  by  a 
composition  to  his  lord,  and  the  exception  in  be- 
half of  those  natives  who  had  conformed  to  the 
^    English  law. 

*  Davis,  104.  Leland,  82.  It  was  necessarj-  to 
plead  in  bar  of  an  action  that  the  plaintiff  was  Hi 
bernicus,  et  non  de  quiuque  sanguiuibus. 

t  Davis,  106.  "  If  I  should  collect  out  of  the 
records  all  the  charters  of  this  kind,  I  should  make 
a  volume  thereof"  They  began  as  early  as  the 
reign  of  Heurj-  III.  Leland,  225.       }  Leland,  243. 


held.  Excuses  were  made  to  evade  the 
king's  desire.  It  was  wholly  incompatible 
with  their  systematic  encroachments  on 
their  Irish  neighbors  to  give  them  the  safe 
guard  of  the  king's  writ  for  iheir  posses- 
sions. The  Irish  renewed  their  supplicatioi 
more  than  once,  both  to  Edward  I.  and  Ed- 
ward III.;  they  found  the  same,  readiness 
in  the  English  court;  tbey  sunk  at  home 
through  the  same  unconquerable  oligarchy.* 
It  is  not  to  be  imagined  that  the  entire 
Irishry  partook  in  this  desire  of  renouncing 
their  ancient  customs.  Besides  the  preju- 
dices of  nationality,  there  was  a  strong  in- 
ducement to  preserve  the  Brehon  laws  of 
tanistiy,  which  suited  better  a  warlike  tribe 
than  the  hereditary  succession  of  England. 
But  it  was  the  unequivocal  duty  of  the 
Legislature  to  avail  itself  of  every  token  of 
voluntary  submission,  which,  tliough  begin- 
ning only  with  the  subject  septs  of  Leinster, 
would  gradufilly  incorporate  the  whole  na- 
tion in  a  common  bond  of  co-equal  privileg- 
es with  their  conquerors. 

Meanwhile,  these  conquerors  were  them- 
selves brought  under  a  moral  cap-  v> 

"  Degeneracy 

tivity  of  the  most  disgraceful  na-  of  English 
ture  ;  and,  not  as  the  rough  sol- 
dier  of  Rome  is  said  to  have  been  subdued 
by  the  art  and  learning  of  Greece,  the 
Anglo-Norman  barons,  that  had  wrested 
Ireland  from  the  native  possessors,  fell  into 
their  barbarous  usages,  and  emulated  the 
vices  of  the  vanquished.  This  degeneracy 
of  the  English  settlers  began  very  soon, 
and  continued  to  increase  for  sevei-al  ages. 
They  intermarried  with  the  Irish ;  they 
connected  themselves  with  them  by  the 
national  custom  of  fostering,  which  formed 
an  artificial  relationship  of  the  strictest  na- 
ture ;f  they  spoke  the  Irish  language  ;  they 

*  Leland,  289. 

t  "There  were  two  other  customs,  proper  and 
peculiar  to  the  Irishrj",  which,  being  the  cause  of 
many  strong  combinations  and  factious,  do  tend  to 
the  utter  ruin  of  a  commonwealth.  The  one  was 
fostering,  the  other  gossipred ;  both  which  have 
ever  been  of  greater  estimation  among  this  people 
than  with  any  other  nation  in  the  Christian  world. 
Far  foftering,  I  did  never  hear  or  read  that  it  was 
in  that  use  or  reputation  in  any^other  couutrj-,  bar- 
barous or  civil,  as  it  hath  been,  and  yet  is,  in  Ire- 
land, where  they  put  away  all  their  children  to 
fosterers ;  the  potent  and  rich  men  selling,  the 
meaner  sort  buying,  the  alterage  and  nursing  of 
their  children  ;  and  the  reason  is,  because  in  the 
opinion  of  this  people,  fostering  hath  always  been 


UlELAND.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


683 


nflected  the  Irish  dress  and  manner  of 
wearing  the  hair  ;*  they  even  adopted,  in 
some  instances,  Irish  surnames  ;  they  liar- 
assed  tlieir  tenants  with  every  Irish  exac- 
tion and  tyranny  ;  they  administered  Irish 
law,  if  any  at  all ;  they  became  chieftains 
rather  than  peers ;  and  neither  regarded 
the  kinjj's  summons  to  his  Parliaments,  nor 
paid  any  obedience  to  his  judges. f  Thus 
the  great  family  of  De  Burgh  or  Burke, 
in  Connaught,  fell  off  almost  entiiely  from 
subjection  ;  nor  was  that  of  the  Earls  of 
Desmond,  a  younger  branch  of  the  house 
of  Geraldino  or  Fitzgerald,  much  less  in- 
dependent of  the  crown,  though  by  the 
title  it  enjoyed,  and  the  palatine  franchises 
gi'anted  to  it  by  Edward  III.  over  the  coun- 
ties of  Limerick  and  Kciry,  it  seemed  to 
keep  up  more  show  of  English  allegiance. 

The  regular  constitution  of  Ireland  was, 
as  I  have  said,  as  nearly  as  possible  a  coun- 
terpart of  that  established  in  this  country. 
The  administration  was  vested  in  an  En- 
glish justiciary  or  lord-deputy,  assisted  by 
a  council  of  judges  and  principal  officers, 
mixed  with  some  prelates  and  barons,  but 
a  stronger  alliance  than  blood ;  and  the  foster-chil- 
dren do  love  and  are  beloved  of  tlicir  foster-fathers 
and  their  sept  more  than  of  their  own  natural  pa- 
rents and  kindred,  and  do  participate  of  their 
means  more  frankly,  and  do  adhere  to  them  in  all 
fortunes  with  more  affection  and  constancy.  The 
like  may  be  said  of  gossipred  or  compatcrnity, 
which  though  by  the  canon  law  it  be  a  spiritual 
aCinity,  and  a  juror  that  was  gossip  to  either  of 
the  parties  might  in  former  times  have  been  chal- 
lenged, as  not  indifferent,  by  our  law,  yet  there 
was  no  nation  under  the  sun  that  ever  made  so  re- 
ligious an  account  of  it  as  the  Irish.'' — Davis,  179. 

*  "For  that  now  there  is  no  diversity  in  array 
between  the  English  marchers  and  the  Irish  ene- 
mies, and  so  by  color  of  the  English  marchers,  the 
Irish  enemies  do  come  from  day  to  day  into  the 
['English  counties  as  English  marchers,  and  do  rob 
and  kill  by  the  highways,  and  destroy  the  common 
people  by  lodging  upon  them  in  the  nights,  and 
also  do  kill  the  husbands  in  the  nights,  and  do 
take  their  goods  to  the  Irish  men ;  wherefore  it  is 
ordained  and  agreed,  that  no  manners  man  that 
will  be  taken  for  an  Englishman  shall  have  no 
beard  above  his  mouth ;  that  is  to  say,  that  he 
have  no  hairs  upon  his  upper  lip,  so  that  the  said 
lip  be  once  at  least  shaven  every  fortnight,  or  of 
equal  growth  with  the  nether  lip.  And  if  any  man 
be  found  among  the  English  contrary  hereunto, 
that  then  it  shall  be  lawful  to  evei-y  man  to  take 
thera  and  their  goods  as  Irish  enemies,  and  to  ran- 
som tiiem  as  Irish  enemies." — Irish  Statutes,  2.5 
Hen.  VI.,  c.  i. 

t  Davis,  152,  182.  Lelaud,  i.,  256,  &c.  Ware, 
ii.,  58. 


subordinate  to  that  of  England,  wherein  sat 
the  immediate  advisers  of  the  sovereign. 
The  courts  of  Chancery,  King's  Bench, 
Common  Pleas,  and  Exchequei-,  were  the 
same  in  both  countries  ;  but  writs  of  error 
lay  from  judgments  given  in  the  second  of 
these  to  the  same  court  in  England.  For 
all  momentous  purposes,  as  to  grant  a  sub- 
sidy, or  enact  a  statute,  it  was  as  necessary 
to  summon  a  Parliament  in  the  one  island 
as  in  the  other.  An  Irish  Parlia-  parliament 
nient  originally,  like  an  English  of ''eland, 
one,  was  but  a  more  numerous  council,  to 
wliich  the  more  distant  as  well  as  the  neigh- 
boring barons  were  summoned,  whose  con- 
sent, though  dispensed  with  in  ordinary  acts 
of  state,  was  both  the  pledge  and  the  condi- 
tion of  their  obedience  to  legislative  provi- 
sions. Not  long  after  1295,  the  sherifi"  of 
each  county  and  liberty  is  directed  to  return 
two  knights  to  a  Parliament  held  by  Wogan, 
an  active  and  able  deputy.*  The  date  of  the 
admission  of  burgesses  can  not  be  tixed  with 
precision,  but  it  was  probably  not  earlier 
than  the  reign  of  Edward  III.  They  aj)- 
pear  in  1341  ;  and  the  Earl  of  Destnnnd 
summoned  many  deputies  from  coi'pora- 
tions  to  his  rebel  Convention  held  at  Kil- 
kenny in  the  next  ycar.f  The  Commons 
are  mentioned  as  an  essential  part  of  Par- 
liament in  an  ordinance  of  1359  ;  before 
which  time,  in  the  opinion  of  Lord  Coke, 
"the  Conventions  in  Ireland  were  not~so 
much  Parliaments  as  assemblies  of  great 
men."t  This,  as  appears,  is  not  strictly 
correct ;  but  in  substance  they  were  per- 
haps little  else  long  afterward. 

The  earliest  statutes  on  record  are  of  the 
year  1310  ;  and  from  that  year  they  are 
lost  till  1429,  though  we  know  many  Par- 
liaments to  have  been  held  in  the  mean 
time,  and  are  acquainted  by  other  means 
with  their  provisions.  Those  of  1310  bear 
witness  to  the  degeneracy  of  the  English 

*  Leland,  253.  [The  precise  year  is  not  men- 
tioned, but  Wogan  became  deputy  in  1295.  Arch- 
bishop Usher,  liowever,  (in  Collectanea  Curiosa, 
vol.  i.,  p.  36),  says  that  there  had  been  a  Parlia- 
ment as  early  as  48  Hen,  III.  (1264).  Usher  makes 
a  distinction  between  small  and  great  Parliaments, 
calling  the  former  rather  ^ar/(es. — 1845.] 

t  Cox's  Hist,  of  Ireland,  117,  120. 

t  Id.,  125,  129.  Leland,  313.  [It  may  be  prob- 
ably thought  that  the  raajores  civitatum  regalium, 
whom  Desmond  summond  to  Kilkenny,  were  may- 
ors rather  than  representatives. — Usher,  ibid. — 
1845.] 


684 


CONSTITUTIONAL  HISTOEY  OF  ENGLAND 


[Chap.  XVIIL 


lords,  and  to  the  laudable  zeal  of  a  feeble 
government  for  the  reformation  of  their 
abuses.  They  begin  with  an  act  to  restrain 
gi-eat  lords  from  taking  of  prises,  lodging,  and 
sojourning  with  the  people  of  the  country 
against  their  will.  "  It  is  agreed  and  as- 
sented," the  act  proceeds,  "  that  no  such 
prises  shall  be  henceforth  made  without 
ready  payment  and  agi-eement,  and  that 
none  shall  harbor  or  sojourn  at  the  house 
of  any  other  by  such  malice  against  the 
consent  of  him  which  is  owner  of  the  house 
to  destroy  his  goods ;  and  if  any  shall  do  the 
same,  such  prises,  and  such  manner  of  de- 
struction, shall  be  holden  for  open  robbery, 
and  the  king  shall  have  the  suit  thereof,  if 
others  will  not,  nor  dare  not  sue.  It  is 
agreed,  also,  that  none  shall  keep  idle  people 
nor  kearn  (foot-soldiers)  in  time  of  peace  to 
live  upon  the  poor  of  the  country,  but  that 
those  which  will  have  them  shall  keep  them 
at  their  own  charges,  so  that  their  free  ten- 
ants, nor  farmers,  nor  other  tenants  be  not 
charged  with  them."  The  statute  pro- 
ceeds to  restrain  great  lords  or  others,  ex- 
cept such  as  have  royal  franchises,  from 
giving  protections,  which  they  used  to  com- 
pel the  people  to  purchase  ;  and  directs 
that  there  shall  be  commissions  of  assize 
and  jail  deliveiy  through  all  the  counties 
of  Ireland.* 

These  regulations  exhibit  a  picture  of 
Irish  miseries.  The  barbarous  practices  of 
coshering  and  bonaght,  the  latter  of  which 
was  generally  known  in  later  times  by  the 
name  of  coyne  and  livery,  had  been  borrow- 
ed from  those  native  chieftains  whom  our 
modern  Hibernians  sometimes  hold  forth  as 
the  paternal  benefactors  of  their  countiy.f 
It  was  the  crime  of  the  Geraldines  and  the 
De  Courcys  to  have  retrograded  from  the 
comparative  humanity  and  justice  of  En- 
gland, not  to  have  deprived  the  people  of 
freedom  and  happiness  they  had  never 
known.  These  degenerate  English,  an 
epithet  by  which  they  are  always  distin- 
guished, paid  DO  regard  to  the  statutes  of  a 
Parliament  which  they  had  disdained  to 
attend,  and  which  could  not  render  itself 
feared.    We  find  many  similar  laws  in  the 

*  Irish  Statotes. 

f  Davis,  174,  189.  Leland,  281.  Maurice  Fitz- 
Thomas,  earl  of  Desmond,  was  the  first  of  the  En- 
glish, according  to  Ware,  ii.,  76,  who  imposed  the 
exaction  of  coyne  and  livery. 


fifteenth  century,  after  the  interval  which 
I  have  noticed  in  the  printed  records  ;  and 
in  the  intervening  period,  a  Parliament  held 
by  Lionel,  duke  of  Clarence,  second  son  of 
Edward  III.,  at  Kilkenny,  in  1.367,  the  most 
numerous  assembly  that  had  ever  jnet  in 
Ireland,  was  prevailed  upon  to  pass  a  very 
severe  statute  against  the  insubordinate  and 
degenerate  colonists.  It  recites  ttat  the 
English  of  the  realm  of  Ireland  were  be- 
come mere  Irish  in  their  language,  names, 
apparel,  and  manner  of  living ;  that  they 
had  rejected  the  English  laws,  and  allied 
themselves  by  intermarriage  with  the  Irish. 
It  prohibits,  under  the  penalties  of  high 
treason,  or  at  least  of  foifeiture  of  lands,  all 
these  approximations  to  the  native  inhabit- 
ants, as  well  as  the  connections  of  foster- 
ing and  gossipred.  The  English  are  re- 
strained from  permitting  the  Irish  to  gi'aze 
their  lands,  from  presenting  them  to  ben- 
efices, or  receiving  them  into  religious 
houses,  and  from  entertaining  their  bards. 
On  the  other  hand,  they  are  forbidden  to 
make  war  upon  their  Irish  neighbors  with- 
out the  authority  of  the  state  :  and,  to  en- 
force better  these  provisions,  the  king's 
shei-iffs  ai-e  empowered  to  enter  all  fran- 
chises for  the  apprehension  of  felons  or 
traitors.* 

This  statute,  like  all  others  passed  in 
Ireland,  so  far  from  pretending  to  _     ,  , 

^  °  Disorderly 

bind  the  Irish,  regarded  them  not  state  of  the 
only  as  out  of  the  king's  allegi- 
ance,  but  as  perpetually  hostile  to  his  gov- 
ernment. They  were  generally  denomi- 
nated the  Irish  enemy.  This  doubtless 
was  not  according  to  the  policy  of  Henry 
II.,  nor  of  the  English  government  a  con- 
siderable time  after  his  reign.  Nor  can  it 
be  said  to  be  the  fact,  though  from  some 
confusion  of  times  the  assertion  is  often 

'  Irish  Statutes.  Davis,  202.  Cox.  Leland. 
[The  statute  of  Kilkenny,  though  Leland,  i.,  329, 
says  that  Edward  was  obliged  to  relax  it  in  some 
particulars,  as  incapable  of  being  enforced,  re- 
stored the  English  government  for  a  time,  if  we 
may  believe  Davis,  p.  222,  so  that  it  did  not  fall 
back  again  till  the  war  of  the  Roses.  About  this 
time  Edward  III.  endeavored  to  supersede  the 
domestic  Legislature  by  causing  the  Anglo-Irish 
to  attend  his  Parliament  at  Westminster,  and  suc- 
ceeded so  far  that  in  1375  not  only  prelates  and 
peers,  but  proctors  of  the  clergy,  knights,  and  evea 
burgesses  from  nine  towns,  actually  sat  there.  But 
this  was  too  much  against  the  temper  of  the  Irish 
to  be  repeated.— Leland,  i.,  327,  363.— 1845.] 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


685 


made,  that  the  island  was  not  subject,  in  a 
general  sense,  to  that  prince  and  to  the 
three  next  kings  of  England.  The  English 
were  settled  in  every  province  ;  an  imper- 
fect division  of  counties  and  administration 
of  justice  subsisted  ;  and  even  the  Irish 
chieftains,  though  ruling  their  septs  by  the 
Brehon  law,  do  not  appear,  in  that  period, 
to  have  refused  the  acknowledgment  of 
the  king's  sovereignty  ;  but  compelled  to 
defend  their  lands  against  perpetual  aggres- 
sion, they  justly  renounced  all  allegiance  to 
a  government  which  could  not  redeem  the 
original  wro/ig  of  its  usurpation  by  the  ben- 
Theirishre-  efits  of  protection.  They  became 
iheV^rliil  gradually  stronger;  they  regaiu- 
ries.  ed  part  of  their  lost  territories ; 

and  after  the  era  of  1315,  when  Edward 
Bruce  invaded  the  kingdom  with  a  Scots  ar- 
my, and,  though  ultimately  defeated,  threw 
the  government  into  a  disorder  from  which 
it  never  recovered,  their  progress  was  so 
rapid,  that  in  the  space  of  thirty  or  forty 
years,  the  northern  provinces,  and  even  part 
of  the  southern,  were  entirely  lost  to  the 
crown  of  England.* 

It  is  unnecessary,  in  so  brief  a  sketch, 
to  follow  the  unprofitable  annals  of  Ireland 
in  the  fourteenth  and  fifteenth  centuries. 
Amid  the  usual  variations  of  war,  the 
English  interests  were  continually  losing 
ground.  Once  only  Richard  II.  appeared 
with  a  very  powerful  army,  and  the  prin- 
ces of  Ireland  crowded  round  his  throne  to 
offer  homage  -jf  but  upon  his  leaving  the 
kingdom,  they  returned,  of  course,  to  their 
former  independence  and  hostility.  The 
long  civil  wars  of  England  in  the  next  cen- 
tury consummated  the  ruin  of  its  power 
over  the  sister  island.  The  Irish  possess- 
ed all  Ulster,  and  shared  Connaught  with 
the  degenerate  Burkes.  The  sept  of 
O'Brien  held  their  own  district  of  Tho- 
mond,  now  the  county  of  Clare.  A  consid- 
erable part  of  Leinster  was  occupied  by 
other  independent  tribes  ;  while  in  the 
south,  the  Earls  of  Desmond,  lords  either 
by  property  or  territorial  jurisdiction  of 
the  counties  of  Keriy  and  Limerick,  and  in 


*  Leland,  i.,  278,  296,  324.    Davis,  152,  197. 

t  Leland,  342,  The  native  chieftains  who  came 
to  Dubhn  are  said  to  have  been  seventy-five  in 
number ;  but  the  insolence  of  the  courtiers,  who 
ridiculed  an  unusual  dress  and  appearance,  dis- 
gusted them. 


some  measure  those  of  Cork  and  Water- 
ford,  united  the  turbulence  of  English  bar- 
ons with  the  savage  manners  of  Irish  chief- 
tains, ready  to  assume  either  character  as 
best  suited  their  rapacity  and  ambition, 
reckless  of  the  king's  laws  or  his  com- 
mands, but  not  venturing,  nor,  upon  the 
whole,  probably,  wishing  to  cast  off  the 
name  of  his  subjects.*  The  elder  branch 
of  their  house,  the  Earls  of  Kildare,  and 
another  illustrious  family,  the  Butlers,  earls 
of  Ormond,  were  apparently  more  steady 
in  their  obedience  to  the  crown  ;  yet,  in 
the  great  franchises  of  the  latter,  compris- 
ing the  counties  of  Kilkenny  and  Tipperary, 
the  king's  writ  had  no  course,  nor  did  he 
exercise  any  civil  or  military  authority  but 
by  the  permission  of  this  mighty  j^^^^. 
peer.f  Thus,  in  the  reign  of  confined  to 
Henry  VII.,  when  the  English  p"'*"- 
authority  over  Ireland  had  reached  its  low- 
est point,  it  was,  with  the  exception  of  a 
veiy  few  sea-ports,  to  all  intents  confined 
to  the  four  counties  of  the  English  pale,  a 
name  not  older,  perhaps,  than  the  preced- 
ing century  :  those  of  Dublin,  Louth,  Kil- 
dare, and  Meath,  the  latter  of  which  at  that 
time  included  West  Meath.  But  even  in 
these  there  were  extensive  marches  or 
frontier  disti'icts,  the  inhabitants  of  which 
were  hardly  distinguishable  from  the  Irish, 
and  paid  them  a  tribute  called  black-rent, 
so  that  the  real  supremacy  of  the  English 
laws  was  not  probably  established  beyond 
the  two  first  of  these  counties,  from  Dublin 
to  Dundalk  on  the  coast,  and  for  about 
thirty  miles  inland.  J    From  this  time,  how- 


*  [It  appears  by  the  rates  paid  to  a  subsidy 
granted  in  1420,  that  most  of  Leinster,  with  a 
small  part  of  Muuster,  still  contributed. — Cox,  152. 
—1845.]  t  Davis,  193. 

t  Leland,  ii.,  822,  et  post.  Davis,  199,  229,  236. 
Holingshed's  Chronicles  of  Ireland,  p.  4.  Finglas, 
a  baron  of  the  Exchequer  in  the  reign  of  Henry 
VIII.,  in  his  Breviate  of  Ireland,  from  which  Da- 
vis has  taken  great  part  of  his  materials,  says  ex- 
pressly, that,  by  the  disobedience  of  the  Gerald- 
ines  and  Butlers,  and  their  Irish  connections,  "  the 
whole  land  is  now  of  Irish  rule,  except  the  little 
English  pale,  within  the  counties  of  Dublin  and 
Meath,  and  Uriel  [Louth],  which  pass  not  thirtj' 
or  forty  miles  in  compass."  He  afterward  includes 
Kildare.  The  English  were  also  expelled  from 
Monster,  except  the  walled  towns.  The  king  had 
no  profit  out  of  Ulster  but  the  manor  of  Carling- 
ford,  nor  any  in  Connaught.  This  treatise,  writ- 
ten about  1530,  is  printed  in  Harm's  Hibemica. 
The  proofs  that,  in  this  age,  the  English  law  and 


686 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIII. 


ever,  we  are  to  date  its  gradual  recoveiy. 
The  more  steady  councils  and  firmer  pre- 
rogative of  the  Tudor  kings  left  little  chance 
of  escape  from  their  authority  either  for 
rebellious  peers  of  English  race  or  the  bar- 
barous chieftains  of  Ireland. 

I  must  pause  at  this  place  to  observe  that 
we  shall  hardly  find  in  the  foregoing  sketch 
of  Irish  history,  during  the  period  of  the 
Plautagenet  dynasty  (nor  am  I  conscious 
of  having  concealed  any  thing  essential),  that 
systematic  oppression  and  misrule  which  is 
every  day  imputed  to  the  English  nation 
and  its  government.  The  policy  of  our 
kings  appears  to  have  generally  been  wise 
and  beneficent;  but  it  is  duly  to  be  remem- 
bered that  those  very  limitations  of  their 
prerogative  which  constitute  liberty  must 
occasionally  obstruct  the  execution  of  the 
best  purposes,  and  that  the  co-ordinate  pow- 
ers of  Parliament,  so  justly  our  boast,  may 
readily  become  the  screen  of  private  tyran- 
ny and  inveterate  abuse.  This  incapacity 
of  doing  good  as  well  as  harm  has  produced, 
comparatively  speaking,  little  mischief  in 
Great  Britain,  where  the  aristocratical  ele- 
ment of  the  Constitution  is  neither  so  pre- 
dominant, nor  so  mucli  in  opposition  to  the 
generid  interest,  as  it  may  be  deemed  to  have 
been  in  Ireland.  But  it  is  manifestly  absurd 
to  charge  the  Edwards  and  Henries,  or  those 
to  whom  their  authority  was  delegated  at 
Dublin,  with  the  crimes  they  vainly  endeav- 
ored to  chastise,  much  more  to  erect  ei- 
ther the  wild  barbarians  of  the  north,  the 
O'Neals  and  O'Connors,  or  the  degenerate 
houses  of  Burke  and  Fitzgerald,  into  patriot 
asserters  of  their  country's  welfare.  The 
laws  and  liberties  of  England  were  the  best 
inheritance  to  which  Ireland  could  attain ; 
the  sovereignty  of  the  English  crown  her 
only  shield  against  native  or  foreign  tyran- 
ny. It  was  her  calamity  that  these  advan- 
tages were  long  withheld  ;  but  the  blame 
can  never  fall  upon  the  goveniment  of  this 
island. 

In  the  contest  between  the  houses  of 
York  and  Lancaster,  most  of  the  English 
colony  in  Ireland  had  attached  themselves 
to  the  fortunes  of  the  White  Rose  ;  ihey 
even  espoused  the  two  pretenders,  who  put 
in  jeopardy  the  crown  of  Henry  VII.,  and 

government  veere  coufined  to  the  four  shires,  are 
abundant.  It  is  even  mentioned  in  a  statute,  31 
Hen.  VIII.,  c.  2. 


I  thus  became,  of  course,  obnoxious  to  his 
jealousy,  though  he  was  politic  enough  t<i 
for  give,  in  appearance,  their  disafifectioa. 
But,  as  Ireland  had  for  a  considerable  time 
rather  sei-ved  the  purposes  of  rebellious 
invaders  than  of  the  English  monarchy,  it 
was  necessary  to  make  her  subjection,  at 
least  so  far  as  the  settlers  of  the  pale  were 
concerned,  more  than  a  word.  This  pro- 
duced the  famous  statute  of  Droglieda  in 
1495,  known  by  the  name  of  Poyn-  p„j.ni„.,  g 
ing's  law,  from  the  lord-deputy 
through  whose  vigor  and  prudence  it  was 
enacted.  It  contains  a  variety /)f  provisions 
to  restrain  the  lawlessness  of  the  Anglo- 
Irish  within  the  pale  (for  to  no  others  could 
it  immediately  extend),  and  to  confirm  the 
royal  sovereignty.  Wl  private  hostilities 
without  the  deputy's  license  were  declared 
illegal ;  but  to  excite  the  Irish  to  war  was 
made  high  treason.  Murders  were  to  l)e 
prosecuted  according  to  law,  and  not  in  the 
manner  of  the  natives,  by  pillaging,  or  exact- 
ing a  fine  from  the  sept  of  the  slayer.  The 
citizens  or  freemen  of  towns  were  jirohibit- 
ed  from  receiving  wages  or  becoming  re- 
tainers of  lords  and  gentlemen  ;  and,  to  pre- 
vent the  ascendency  of  the  latter  class,  none 
who  had  not  served  apprenticeships  were 
to  be  admitted  ns  aldermen  or  freemen  of 
corporations.  The  requisitions  of  coin  and 
livery,  which  Irad  subsisted  in  spite  of  the 
statutes  of  Kilkenny,  were  again  forbidden, 
and  those  statutes  were  renewed  and  con- 
firmed. The  principal  officers  of  state  and 
the  judges  were  to  hold  their  patents  during 
pleasure,  "  because  of  the  great  inconveni- 
ences that  had  followed  from  their  being  for 
term  of  life,  to  the  king's  grievous  displeas- 
ure." A  still  more  important  provision,  in 
its  permanent  consequence,  was  made,  by 
enacting  that  all  statutes  lately  made  in  En- 
gland be  deemed  good  and  effectual  in  Ire- 
land.*   It  has  been  remarked  that  the  same 

*  [It  had  been  common  to  eKteud  the  operation 
of  English  statutes  to  Ireland,  even  when  not  par- 
ticularly named,  if  the  judges  thought  that  the 
subject  was  sutBciently  general  to  require  it,  as 
in  the  statute  of  Merchants,  13  Edw.  I. ;  the  stat- 
ute Westminster  2.  the  same  year,  and  many  oth- 
ers under  Edw.  II.  and  Edw.  III.  Bat  in  the 
reign  of  Richard  III.,  a  question  was  debated  in 
the  Exchequer  Chamber,  "Si  villjE  corporatae  in 
Hibeniia  et  alii  habitantes  in  Hibernia  erunt  liga- 
ti  per  statutum  factum  in  Anglia."  And  tliis  was 
resolved  affirmatively  by  a  majority  of  the  English 
judges,  though  some  differed. — Usher  in  Gollecta- 


FROM  HENUY  VII.  TO  GEOIIGE  II. 


687 


had  been  done  by  an  Irish  act  of  Edward 
IV.  Some  question  might  also  be  made 
whether  the  word  "  lately"  was  not  intend- 
ed to  limit  tliis  acceptation  of  English  law. 
But,  in  effect,  this  enactment  has  made  an 
epoch  in  Irish  jurisprudence,  all  statutes 
made  in  England  [)rior  to  the  eighteenth 
year  of  Henry  VII.  being  held  equally  valid 
in  Ireland,  while  none  of  later  date  have  any 
operation,  unless  specially  adopted  by  its 
Parliament,  so  that  the  law  of  the  two  coun- 
ti'ies  has  begun  to  diverge  from  that  time, 
and  after  three  centuries  has  been  in  sever- 
al resjiects  di(ferently  modified. 

But  even  these  articles  of  Poyning's  law 
are  less  momentous  than  one  by  which  it  is 
peculiarly  known.  It  is  enacted  that  no 
Parliament  shall  in  future  be  holden  in  Ire- 
land till  the  king's  lieutenant  shall  certify  to 
the  king,  under  the  great  seal,  the  causes 
and  considerations,  and  all  such  acts  as  it 
seems  to  him  ought  to  be  passed  thereon, 
and  such  be  affirmed  by  the  king  and  his 
council,  and  his  license  to  hold  a  Parliament 
be  obtained.  Any  Parliament  holden  con- 
trary to  this  form  and  provision  should  be 
deemed  void.  Thus,  by  securing  the  ini- 
tiative power  to  the  English  council,  a  bridle 
was  placed  in  the  mouths  of  every  Irish 
Parliament.  It  is  probable,  also,  that  it  was 
designed  as  a  check  on  the  lord-deputies, 
somelimos  powerful  Irish  nobles,  whom  it 
was  dangerous  not  to  employ,  but  still  more 
dangerous  to  tnast.  Whatever  might  be  its 
motives,  it  proved,  in  course  of  time,  the 
great  means  of  preserving  the  subordination 
of  an  island,  which,  from  the  similarity  of 
constitution,  and  the  high  spirit  of  its  inhab- 
itants, was  constantly  panting  for  an  inde- 
pendence which  her  more  powerful  neigh- 
bor neither  desired  nor  dared  to  concede.* 

No  subjects  of  the  crown  in  Ireland  en- 
Royal  an-  joyed  such  influence  at  this  time 
tives'u.'.'ier  ^  ^arls  of  Kildare,  whose  pos- 
Henry  VIII,  sessions  lying  chiefly  within  the 
pale,  they  did  not  atlect  an  ostensible  inde- 
pendence, but  generally  kept  in  their  hands 
the  chief  authority  of  government,  though 
it  was  the  policy  of  the  English  court,  in  its 
state  of  weakness,  to  balance  them  in  some 
measure  by  the  rival  f  imily  of  Butler.  But 
the  se!f  confidence  with  which  this  exalta- 

nea  Cuiiosa,  p.  29,  citing  Fitzherbert  and  Broke. 
—1845.] 

t  Irish  Statutes.   Davis,  230.    Leiand,  ii.,  102. 


tion  inspired  the  chief  of  the  former  house 
laid  him  open  to  the  vengeance  of  Henry 
VIII. ;  he  affected,  while  lord-deputj",  to  be 
suiTounded  by  Irish  lords,  to  assume  their 
wild  manners,  and  to  intermarry  his  daugh- 
ters with  their  race.  The  counselors  of  En- 
glish birth  or  origin  dreaded  this  suspicious 
approximation  to  their  hereditary  enemies, 
and  Kildare,  on  their  complaint,  was  coin- 
pelled  to  obey  his  sovereign's  order  by  re- 
pairing to  London.  He  was  committed  to 
the  Tower ;  on  a  premature  report  that  he 
had  suffered  death,  his  son,  a  young  man  to 
whom  he  had  delegated  the  administration, 
took  up  arms  under  the  rash  impulse  of  re- 
sentment ;  the  primate  was  nmrdeied  by 
his  wild  followers  ;  but  the  citizens  of  Dublin 
and  the  re-enfoicements  sent  from  England 
suppressed  this  hasty  rebellion,  and  its  lead- 
er was  sent  a  prisoner  to  London.  Five  of 
his  uncles,  some  of  them  not  concerned  in 
the  treason,  perished  with  him  on  the  scaf- 
fold ;  his  fiither  had  been  more  fortunate  in 
a  natural  death ;  one  sole  surviving  child  of 
twelve  yeais  old,  who  escaped  to  Flanders, 
became  afterward  the  stock  from  which  the 
great  family  of  the  Geraldines  was  restored.* 
The  chieftains  of  Ireland  were  justly  at- 
tentive to  the  stern  and  systematic  despotism 
which  began  to  characterize  the  English 
government,  displayed,  as  it  thus  was,  in  the 
destruction  of  an  ancient  and  loyal  house. 
But  their  intimidation  produced  contrary 
effects  ;  they  became  moi  e  ready  to  pro- 
fess allegiance,  and  to  put  on  the  e.xterior 
badges  of  submission  ;  but  moi  e  jealous  of 
the  crown  in  their  hearts,  more  resolute  to 
preserve  their  independence,  and  to  with- 
stand any  change  of  laws.  Thus,  in  the 
latter  years  of  Henry,  after  the  northern 
Irish  had  been  beaten  by  an  able  deputy, 
Lord  Leonard  Gray,  and  the  lordship  of 
Ireland,  the  title  hitherto  bo)-ne  by  the  suc- 
cessors of  Henry  II.,  had  been  raised  by 
act  of  Parliament  to  the  dignity  of  a  king- 
dom,f  the  native  chiefs  came  in  and  sub- 
mitted ;  the  Earl  of  Desmond,  almost  as  in- 
dependent as  any  of  the  natives,  attended 
Parliament,  from  which  his  ancestojs  had 
for  some  ages  claimed  a  dispensation  ;  sev- 
eral peerages  were  conferred,  some  of 
them  on  the  old  Irish  ffimilies ;  fresh  laws 
were  about  the  same  time  enacted  to  es- 
tai)lish  the  English  dress  and  latjguage,  and 
*  Lefaud.     t  Irish  Statutes,  33  Hen.  VIII.,  c.  1. 


688 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIII. 


to  keep  the  colonists  apart  from  Irish  inter- 
course ;*  and  after  a  disuse  of  two  hundred 
years,  the  authority  of  government  was  nom- 
inally recognized  throughout  Munster  and 
Connaught.f  Yet  we  find  that  these  pi'ov- 
inces  were  nearly  in  the  same  condition  as 
before  ;  the  king's  judges  did  not  administer 
justice  in  them  ;  the  old  Brehon  usages  con- 
tinued to  prevail  even  in  the  territories  of 
the  new  peers,  though  their  priniogeuitary 
succession  was  evidently  incompatible  with 
Irish  tanistiy.  A  rebellion  of  two  septs  in 
Leinster  under  Edward  VI.,  led  to  a  more 
complete  reduction  of  their  districts,  called 
Leix  and  O'Fally,  which  in  the  next  reign 
were  made  shire-land,  by  the  names  of 
King's  and  Queen's  county. t  But,  at  the 
accession  of  Elizabeth,  it  was  manifest  that 
an  arduous  struggle  would  ensue  between 
law  and  liberty,  the  one  too  nearly  allied  to 
cool-blooded  oppression,  the  other  to  fero- 
cious barbarism. 

It  may  be  presumed,  as  has  been  already 
said,  from  the  analogy  of  other  countries, 
that  Ireland,  if  left  to  herself,  would  have 
settled,  in  time,  under  some  one  line  of 
kings,  and  assumed,  like  Scotland,  much  of 
the  feudal  character,  the  best  transitional 
state  of  a  monarchy  from  rudeness  and  an- 
ai-chy  to  civilization  ;  and,  if  the  right  of  fe- 
male succession  had  been  established,  it 
might  possibly  have  been  united  to  the  En- 
glish crown  on  a  juster  footing,  and  with  far 

*  Irish  Statutes,  28  Hen.  VIII.,  c.  15,28.  The  lat- 
ter act  prohibits  iutermarriage  or  fostering  with  the 
Irish,  which  had,  indeed,  been  previously  restrained 
by  other  statutes  In  one  passed  five  years  after- 
ward, it  is  recited  that  "  the  king's  English  sub- 
jects, by  reason  that  they  are  inhabited  in  so  little 
compass  or  circuit,  and  restrained  by  statute  to 
marry  with  the  Irish  nation,  and  therefore  of  ne- 
cessity must  marry  themselves  together,  so  that, 
in  effect,  they  all,  for  the  most  part,  must  be  allied 
together ;  and  therefore  it  is  enacted,  that  consan- 
guinity or  affinity  beyond  the  fourth  degree  shall 
be  no  cause  of  challenge  on  a  jury." — 33  Hen.  VIII., 
c.  4.  These  laws  were  for  many  years  of  tittle 
avail,  so  far,  at  least,  as  they  were  meant  to  ex- 
tend beyond  the  pale. — Spenser's  State  of  Ireland, 
p.  384,  et  post.  t  Leland,  ii.,  178,  184. 

t  Leland,  ii.,  189,  211.  3  &  4  P.  and  M.,  c.  1  and 
2.  Meath  bad  been  divided  into  two  shires  by 
separating  the  western  part. — 34  Hen.  VIII.,  c.  1. 
"Forasmuch  as  the  shire  of  Methe  is  gi-eat  and 
large  in  circuit,  and  the  west  part  thereof  laid 
about  or  beset  with  divers  of  the  king's  rebels." 
Baron  Finglas  says,  "  Half  Meath  has  not  obeyed 
the  king's  laws  these  one  hundred  years  or  more." 
— Breviate  of  Ireland,  apud  Harris,  p.  85. 


less  of  oppression  or  bloodshed  than  actually 
took  place.  But  it  was  too  late  to  dream  of 
what  might  have  been  :  in  the  middle  of  the 
sixteenth  century  Ireland  could  have  had 
no  reasonable  pi'ospect  of  independence  ; 
nor  could  that  independence  have  been  any 
other  than  the  most  savage  liberty,  perhaps 
another  denomination  of  servitude.  It  was 
doubtless  for  the  interest  of  that  people  to 
seek  the  English  Constitution,  which,  at 
least  in  theory,  was  entirely  accorded  to 
their  country,  and  to  press  with  spontaneous 
homage  round  the  throne  of  Elizabeth;  but 
this  was  not  the  interest  of  their  ambitious 
chieftains,  whether  of  Irish  or  English  de- 
scent, of  a  Slanes  O'Neil,  an  Earl  of  Tyrone, 
an  Earl  of  Desmond.  Their  influence  was 
irresistible  among  a  nation  ardently  sens- 
ible to  the  attachments  of  clanship,  averse 
to  innovation,  and  accustomed  to  dread  and 
hate  a  government  that  was  chiefly  known 
by  its  severities ;  but  the  unhappy  alienation 
of  Ireland  from  its  allegiance  in  part  of  the 
queen's  reign  would  probably  not  have  been 
so  complete,  or,  at  least,  led  to  such  per- 
manent mischiefs,  if  the  ancient  national 
animosities  had  not  been  exasperated  by  the 
still  more  invincible  prejudices  of  religion. 

Henry  VIII.  had  no  sooner  prevailed  on 
the  Lords  and  Commons  of  En-  Resistance 
gland  to  renounce  their  spuitual  ^ct'of'su*- 
obedience  to  the  Roman  See,  and  premacy. 
to  acknowledge  his  own  supremacy,  than, 
as  a  natural  consequence,  he  proceeded  to 
establish  it  in  Ireland.  In  the  former  in- 
stance, many  of  his  subjects,  and  even  his 
clergy,  were  secretly  attached  to  the  prin- 
ciples of  the  Reformation,  as  many  others 
were  jealous  of  ecclesiastical  wealth,  or  ea- 
ger to  possess  it.  But  in  Ireland  the  Re- 
formers had  made  no  progress  ;  it  had  been 
among  the  effects  of  the  pernicious  separa- 
tion of  the  two  races,  that  the  Irish  priests 
had  little  intercourse  with  tlieir  bishops,  who 
were  nominated  by  the  king,  so  that  their 
synods  are  commonly  recited  to  have  been 
holden  inter  Anglkos  ;  the  bishops  them- 
selves were  sometimes  inti-uded  by  violence, 
more  often  dispossessed  by  it ;  a  total  igno- 
rance and  neglect  prevailed  in  the  Church ; 
and  it  is  even  found  impossible  to  recover  the 
succession  of  names  in  some  sees.*  In  a 
nation  so  Ul  predisposed,  it  was  difficult  tc 
bring  about  a  compliance  with  the  king's  de- 
*  Leland,  ii.,  158.  ' 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


689 


mand  of  abjuring  their  religion ;  ignorant, 
but  not  indifferent,  the  clergy,  with  Cro- 
mer the  primate  at  their  head,  and  most 
of  the  lords  and  commons,  in  a  Parliament 
held  at  Dublin  in  1536,  resisted  the  Act  of 
Supremacy,  which  was  nevertheless  ulti- 
mately carried  by  the  force  of  government.* 
Its  enemies  continued  to  withstand  the  new 
schemes  of  reformation,  more  especially  in 
the  next  reign,  when  they  went  altogether 
to  subvert  the  ancient  faith.  As  it  appeared 
dangerous  to  summon  a  Parliament,  the 
English  Liturgy  was  ordered  by  a  royal 
proclamation ;  but  Dowdall,  the  new  pri- 
mate, as  stubborn  an  adherent  of  the  Rom- 
ish Church  as  his  predecessor,  with  most 
of  the  other  bishops  and  clergy,  refused 
obedience  ;  and  the  Reformation  was  never 
legally  established  in  the  short  reign  of  Ed- 
ward, f  His  eldest  sister's  accession  re- 
versed, of  course,  what  had  been  done,  and 
restored  tranquillity  in  ecclesiastical  mat- 
ters; for  the  Protestants  were  too  few  to 
be  worth  persecution,  nor  were  even  those 
molested  who  fled  to  Ireland  from  the  fires 
of  Smithfield. 

Another  scene  of  revolution  ensued  in  a 
Protestant  very  few  years.  Elizabeth,  hav- 
t^abiished  by  '^^S  Axed  the  Protestant  Church 
Elizabeth,    on  a  Stable  basis  in  England,  sent 


*  [Leland,  ii.,  165.  An  act  in  this  year,  recit- 
ing tliat  "  proctors  of  the  clergy  have  been  used 
and  accustomed  to  be  summoned  and  warned  to 
be  at  Parliament,  vphich  were  never  by  the  order 
of  the  law,  usage,  custom,  or  otherwise,  any  mem- 
"ber  or  parcel  of  tho  whole  body  of  the  Parliament, 
nor  have  had,  of  right,  any  voice  or  suffrage  in  the 
same,  but  only  to  be  there  as  counselors  and  as- 
sistants to  the  same,"  and  proceeding  to  admit 
that  these  proctors  "have  usually  been  privy  and 
consulted  about  laws,"  asserts  and  enacts,  that 
they  have  no  right,  as  they  "  temerariously  pre- 
sume, and  usurpedly  take  on  themselves,  to  be 
parcel  of  the  body,  in  manner  claiming,  that  with- 
out their  assents  nothing  can  be  enacted  at  any 
Parliament  within  this  land." — Irish  Statutes,  28 
Hen.  VIII.,  c.  12.  This  is  followed  by  c.  13,  enact- 
ing the  Oath  of  Supremacy;  the  refusal  of  which, 
by  any  person  holding  an  oiEce  temporal  or  spirit- 
ual, is  made  treason. — See  Gilbert's  Treatise  of 
the  Exchequer,  p  58,  for  the  proctors  of  the  cler- 
gy assisting  in  Parliament. — 1845.] 

t  [The  famous  Ball  was  made  Bishop  of  Ossory, 
and  insisted  on  being  consecrated  according  to  the 
Protestant  form,  though  not  established.  He  lived 
in  a  perpetual  state  of  annoyance,  brought  on,  in 
great  measure,  by  his  rash  zeal. — Leland,  ii.,  202. 
At  the  accession  of  Mary,  those  of  the  clergy  who 
had  taken  wives  were  ejected,  207. — 1845.] 
Y  T 


over  the  Earl  of  Sussex  to  hold  an  Irish 
Parliament  in  1560.  The  disposition  of 
such  an  assembly  might  be  presumed  hos- 
tile to  the  projected  reformations ;  but,  con- 
trary to  what  had  occurred  on  this  side  of 
the  Channel,  though  the  peers  were  almost 
uniformly  for  the  old  religion,  a  large  ma- 
jority of  the  bishops  are  said  to  have  veer- 
ed round  with  the  times,  and  supported,  at 
least  by  conformity  and  acquiescence,  the 
creed  of  the  English  court.  In  the  House 
of  Commons,  pains  had  been  taken  to  se- 
cure a  majority ;  ten  only  out  of  twenty 
counties,  which  had  at  that  time  been  form- 
ed, received  the  writ  of  summons  ;  and  the 
number  of  seventy-six  representatives  of 
the  Anglo-Irish  people  was  made  up  by  the 
towns,  many  of  them  under  the  influence 
of  the  crown,  some,  perhaps,  containing  a 
mixture  of  Protestant  population.  The 
English  laws  of  supremacy  and  uniformity 
were  enacted  in  nearly  the  same  words; 
and  thus  the  Common. Prayer  was  at  once 
set  up  instead  of  the  mass,  but  with  a  sin- 
gular reservation,  that  in  those  parts  of  the 
countiy  where  the  minister  had  no  knowl- 
edge of  the  English  language,  he  might  read 
the  service  in  Latin.  All  subjects  were 
bound  to  attend  the  public  worship  of  the 
Church,  and  every  other  was  interdicted.* 
There  were  doubtless  three  arguments 
in  favor  of  this  compulsory  establishment 
of  the  Protestant  Church,  which  must  have 
appeared  so  conclusive  to  Elizabeth  and  her 
council,  that  no  one  in  that  age  could  have 
disputed  them  without  incurring,  among 
other  hazards,  that  of  being  accounted  a 
lover  of  unreasonable  paradoxes.  The  first 
was,  that  the  Protestant  religion  being  ti-ue, 
it  Avas  the  queen's  duty  to  take  care  that 
her  subjects  should  follow  no  other ;  the 
second,  that,  being  an  absolute  monarch,  or 
something  like  it,  and  a  very  wise  princess, 
she  had  a  better  right  to  order  what  doc- 
trine they  should  believe,  than  they  could 
have  to  choose  for  themselves ;  the  third, 
that  Ireland,  being  as  a  handmaid,  and  a 
conquered  countiy,  must  wait,  in  all  import- 
ant matters,  on  the  pleasure  of  the  greater 
island,  and  be  accommodated  to  its  revolu- 
tions ;  and  as  it  was  natural  that  the  queen 
and  her  advisers  should  not  reject  maxims 
which  all  the  rest  of  the  world  entertained, 
merely  because  they  were  advantageous  to 
*  Leland,  224.   Irish  Statutes,  2  Eliz. 


690 


CONSTITUTIONAL  HISTOaV  OF  ENGLAND 


[Chap.  XVIIL 


themselves,  we  need  not,  perhaps,  be  rery 
acrimonious  in  censuring  the  laws  whereon 
the  Church  of  Ireland  is  founded ;  but  it  is 
still  equally  true  that  they  invoke  a  piinci- 
ple  essentially  unjust,  and  that  they  have 
enormously  aggravated,  both  in  the  age  of 
Elizabeth  and  long  afterward,  the  calamities 
and  the  disaffection  of  Ireland.  An  ecclesi- 
astical establishment,  that  is,  the  endow- 
ment and  privileges  of  a  particular  religious 
society,  can  have  no  advantages  (relatively, 
at  least,  to  the  community  where  it  exists) 
but  its  tendency  to  promote  in  that  com- 
munity good  order  and  virtue,  religious 
knowledge  and  edification ;  but,  to  accom- 
plish this  end  in  any  satisfactory  manner,  it 
must  be  their  church,  and  not  that  merely 
of  the  government :  it  should  exist  for  the 
people,  and  in  the  people,  and  with  the  peo- 
ple. This,  indeed,  is  so  manifest,  that  the 
^remment  of  Elizabeth  never  contempla- 
ted the  separation  of  a  great  majority  as  li- 
censed dissidents  from  the  ordinances  es- 
tablished for  their  instruction.  It  was  un- 
doubtedly presumed,  as  it  was  in  England, 
that  the  Church  and  Commonwealth,  ac- 
cording to  Hooker's  language,  were  to  be 
two  denominations  of  the  same  society,  and 
that  every  man  in  Ireland  who  appertained 
to  the  one  ought  to  embrace,  and  in  due 
season  would  embrace,  the  communion  of 
the  other.  There  might  be  ignorance, 
there  might  be  obstinacy,  there  might  be 
feebleness  of  conscience  for  a  time ;  and 
perhaps  some  connivance  would  be  shown 
to  these ;  but  that  the  prejudices  of  a  ma- 
jority should  ultimately  prevail  so  as  to  de- 
termine the  national  faith,  that  it  should 
even  obtain  a  legitimate  indulgence  for  its 
own  mode  of  worship,  was  abominable  be- 
fore God.  and  incompatible  with  the  sover- 
eign authority. 

This  sort  of  reasoning,  half  bigotry,  half 
of  despotism,  was  nowhere  so  pre- 
liismeasore.  posterously  displayed  as  in  Ire- 
land. The  numerical  majority  is  not  al- 
wavs  to  be  ascertained  with  certainty ;  and 
some  regard  may  fairly,  or  rather  necessa- 
rilr,  be  had  to  rank,  to  knowledge,  to  con- 
centration :  but  in  that  island,  the  disciples 
of  the  Reformation  were  in  the  most  incon- 
siderable proportion  among  the  Anglo-Irish 
colony,  as  well  as  among  the  natives  :  their 
church  was  a  government  without  subjects, 
a  college  of  shepherds  without  sheep.  I 


am  persuaded  that  this  was  not  intended 
nor  expected  to  be  a  permanent  condition  ; 
but  such  were  the  difficulties  which  the 
state  of  that  unhappy  nation  presented, 
or  such  the  negligence  of  its  rulers,  that 
scarce  any  pains  were  taken  in  the  age  of 
Elizabeth,  nor,  indeed,  in  subsequent  ages, 
to  win  the  people's  conviction,  or  to  eradi- 
cate their  superstitions,  except  by  penal 
statutes  and  the  sword.  The  Irish  lan- 
guage was  universally  spoken  without  the 
pale :  it  had  even  made  great  progress  with- 
in it ;  the  clergy  were  principally  of  that  na- 
tion :  yet  no  translation  of  the  Scriptures, 
the  chief  means  through  which  the  Refor- 
mation had  been  effected  in  England  and 
Germany,  nor  even  of  the  regular  Liturgy, 
was  made  into  that  tongue  :  nor  was  it  pos- 
sible, f)erhaps,  that  any  popular  instruction 
should  be  carried  far  in  Elizabeth's  reign, 
either  by  public  authority,  or  by  the  minis- 
trations of  the  Reformed  clergy:  yet  nei- 
ther among  the  Welsh  nor  the  Scots  High- 
landers, though  Celtic  tribes,  and  not  much 
better  in  civility  of  life  at  that  time  than  the 
Irish,  was  the  ancient  religion  long  able  to 
withstand  the  sedulous  preachers  of  the 
Refonnation. 

It  is  evident  from  the  history  of  Eliza- 
beth's reign  that  the  forcible  dis-  Rebellion*  o* 
possession  of  the  Catholic  cler- 
gy,  and  their  consequent  activity  in  deluding 
a  people  too  open  at  all  times  to  their  coun- 
sels, aggravated  the  rebellious  spirit  of  the 
Irish,  and  rendered  their  obedience  to  the 
law  more  unattainable  ;  but,  even  independ- 
ently of  this  motive,  the  Desmonds  and 
Tyrones  would  have  tried,  as  they  did,  the 
chances  of  insurrection,  rather  than  abdicate 
their  unlicensed  but  ancient  chieftainship. 
It  must  be  admitted  that,  if  they  were  faith- 
less in  promises  of  loyalty,  the  crown's  rep- 
resentatives in  Ireland  set  no  good  example : 
and  when  they  saw  the  spoliations  of  proj>- 
erty  by  violence  or  pretext  of  law,  the  sud- 
I  den  executions  on  alleged  treasons,  the 
•  breaches  of  treaty,  sometimes  even  the 
j  assassinations,  by  which  a  despotic  policy 
I  went  onward  in  its  work  of  subjugation, 
they  did  but  play  the  usual  game  of  barba- 
rians in  opposing  craft  and  perfidy,  rather 
more  gross,  perhaps,  and  notorious,  to  the 


*  Lelasd  gives  several  instances  of  breach  of 
faith  in  the  govemment    A  little  tract,  called  a 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  11. 


691 


yet,  if  we  can  put  any  trust  in  our  own  tes- 
timonies, the  gieat  families  were,  by  mis- 
management and  dissension,  the  curse  of 
their  vassals.  Sir  Henry  Sidney  repre- 
sents to  the  queen,  in  15G7,  the  wretched 
condition  of  the  southern  and  western  coun- 
ties in  the  vast  territories  of  the  Earls  of 
Ormond, Desmond, and Clanricarde.*  "An 
unmeasurable  tract,"  he  says,  "  is  now  waste 
and  uninhabited,  which  of  late  years  w!is 
well  tilled  and  pastured."  "  A  more  pleas- 
ant nor  a  more  desolate  land  1  never  saw 
than  from  Youghall  to  Limerick."f  "  So 
far  hath  that  policy,  or,  rather,  lack  of  pol- 
icy, in  keeping  dissension  among  them  pre- 
BrieF^DeclaratioiTof  the  Government  of  Ireland, 
written  by  Captain  Lee,  in  1594,  and  published  in 
Desiderata  Curiosa  Hibernica,  vol.  i..  censures  the 
two  last  deputies  (Grey  and  Fitzwilliams)  for 
their  ill  usage  of  the  Irish,  and  unfolds  the  despot- 
ic character  of  the  English  government.  "  The 
cause  they  (the  lords  of  the  north)  have  to  stand 
upon  those  terms,  and  to  seek  for  better  assurance, 
is  the  harsh  practices  used  against  others  by  those 
who  have  been  placed  in  authority  to  protect  men 
for  your  majesty's  service,  which  they  have  great- 
ly abased  in  this  sort.  They  have  drawn  unto 
thera  by  protection  three  or  four  hundred  of  the 
country  people,  under  color  to  do  your  majesty 
gervice,  and  brought  them  to  a  place  of  meeting, 
where  your  garrison  soldiers  were  appointed  to 
be,  who  have  there  most  dishonorably  put  them  all 
to  the  sword ;  and  this  hath  been  by  the  consent 
and  practice  of  the  lord-deputy  for  the  time  being. 
If  this  be  a  good  course  to  draw  those  savage  peo- 
ple to  the  state  to  do  your  majesty  service,  and 
not  rather  to  enforce  them  to  stand  on  their  guard, 
I  leave  to  your  majesty." — P.  90.  He  goes  on  to 
enumerate  more  cases  of  hardship  and  tyranny ; 
many  being  arraigned  and  convicted  of  treason  on 
slight  evidence  ;  many  assaulted  and  killed  by  the 
sheriffs  on  commissions  of  rebellion  ;  others  impris- 
oned and  kept  in  irons  ;  among  others,  a  youth,  the 
heir  of  a  great  estate.  He  certainly  praises  Ty- 
rone more  than,  from  subsequent  events,  we  should 
think  just,  which  may  be  thought  to  throw  some 
suspicion  on  his  own  loyalty ;  yet  he  seems  to  have 
been  a  Protestant,  and  in  1594  the  views  of  Tyrone 
were  ambiguous,  so  that  Captain  Lee  may  have 
been  deceived. 

*  Sidney  Papers,  i.,  20.  [This  is  in  a  long  re- 
port to  the  queen,  which  contains  an  interesting 
view  of  the  state  of  the  counti'y  during  its  transi- 
tion from  Irish  to  English  law.  Athenry,  he  says, 
had  once  300  good  householders,  and,  in  his  own 
recollection,  twenty,  who  are  reduced  to  four,  and 
those  poor.  It  had  been  mixed  by  the  Clanri- 
cardes.  But,  "  as  touching  all  Leinster  and  Meath, 
I  dare  affirm  on  my  credit  unto  your  majesty,  as 
well  for  the  EngHsh  pale,  and  the  justice  thereof, 
it  was  never  in  the  memory  of  the  oldest  man 
that  now  liveth  in  greater  quiet  and  obedience." — 
1845.]  t  Id.,  24. 


vailed,  as  now,  albeit  all  that  are  alive  would 
become  honest  and  live  in  quiet,  yet  are 
there  not  left  alive  in  those  two  provinces 
the  twentieth  person  necessary  to  inhabit 
the  same."*  Yet  this  was  but  the  first 
scene  of  calamity.  After  the  rebellion  of 
the  last  Earl  of  Uesiriond,  the  counties  of 
Cork  and  Kerry,  his  ample  patrimony,  were 
so  wasted  by  war  and  militaiy  executions, 
and  famine  and  pestilence,  that,  according 
to  a  cotemporary  writer,  who  expresses  the 
truth  with  hyperbolical  energy,  "  the  land 
itself,  which  before  those  wars  was  popu- 
lous, well  inhabited,  and  rich  in  all  the  good 
blessings  of  God,  being  plenteous  of  corn, 
full  of  cattle,  well  stored  with  fruit  and  sun- 
dry other  good  commodities,  is  now  become 
waste  and  barren,  yielding  no  fruits,  the 
pastures  no  cattle,  the  fields  no  corn,  the 
air  no  birds,  the  seas,  though  full  of  fish, 
yet  to  them  yielding  nothing.  Finally,  ev- 
ery way  the  curse  of  God  was  so  great, 
and  the  land  so  barren  both  of  man  and 
beast,  that  whosoever  did  travel  from  the 
one  end  unto  the  other  of  all  Munster,  even 
from  Waterford  to  the  head  of  Limerick, 
which  is  about  six-score  miles,  he  should 
not  meet  any  man,  woman,  or  child,  saving 
in  towns  and  cities,  nor  yet  see  any  beast 
but  the  very  wolves,  the  foxes,  and  other 
like  ravening  beasts. "f  The  severity  of 
Sir  Arthur  Grey,  at  this  time  deputy,  was 
such  that  Elizabeth  was  assured  he  had 
left  little  for  her  to  reign  over  but  ashes  and 
carcasses ;  and,  though  not  by  any  means 
of  too  indulgent  a  nature,  she  was  induced 
to  recall  him.J    His  successor,  Sir  John 

*  Sidney  Papers,  i.,  29.  .Spenser  descants  on 
the  lawless  violence  of  the  superior  Irish  ;  and  im- 
putes, I  believe,  with  much  justice,  a  great  part 
of  their  crimes  to  his  own  brethren,  if  they  might 
claim  so  proud  a  title,  the  bards :  "  whomsoever 
they  find  to  be  most  licentious  of  life,  most  bold 
and  lawless  in  his  doings,  most  dangerous  and  des- 
perate in  all  parts  of  disobedience  and  rebellious 
disposition,  him  they  set  up  and  glorify  in  their 
rhymes,  him  they  praise  to  the  people,  and  to 
young  men  make  an  example  to  follow." — P.  394. 

t  Holingshed,  460. 

t  Leland,  287.  Spenser's  Account  of  Ireland,  p. 
430  (vol.  viii.  of  Todd's  edition,  1805).  Grey  is  the 
Arthegal  of  the  Faery  Queen,  the  representative 
of  the  virtue  of  justice  in  that  allegory,  attended 
by  Talus  with  his  iron  flail,  which,  indeed,  was  un- 
sparingly employed  to  crush  rebellion.  Grey's  se- 
verity was  signalized  in  putting  to  deafli  seven 
hundred  Spaniards  who  had  surrendered  at  dis- 
cretion in  the  fort  of  Smerwick.    Though  this 


692 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIII. 


Perrott,  who  held  the  viceroyalty  only  from 
1584  to  1587,  was  distinguished  for  a  sense 
of  humanity  and  justice,  together  with  an 
active  zeal  for  the  enforcement  of  law. 
Sheriffs  were  now  appointed  for  the  five 
counties  into  which  Connaught  had  some 
years  before  been  parceled ;  and  even  for 
Ulster,  all  of  which,  except  Antrim  and 
Down,  had  hitherto  been  undivided,  as  well 
as  ungoverned.*  Yet  even  this  apparently 
wholesome  innovation  aggi-avated  at  first 
the  servitude  of  the  natives,  whom  the  new 
sheriffs  were  prone  to  oppress,  f  PeiTott, 
the  best  of  Irish  governors,  soon  fell  a  sac- 
rifice to  a  court  intrigue  and  the  queen's 
jealousy  ;  and  the  remainder  of  her  reign 
was  occupied  with  almost  unceasing  revolts 
of  the  Earl  of  Tyrone,  head  of  the  great 
sect  of  O'Neil  in  Ulster,  instigated  by  Rome 
and  Spain,  and  endangering,  far  more  than 
any  pi'eceding  rebellion,  her  sovereignty 
over  Ireland. 

The  old  English  of  tSe  pale  were  little 
more  disposed  to  embrace  the  Reformed 
religion,  or  to  acknowledge  the  despotic 
principles  of  a  Tudor  administration,  than 
the  Irish  themselves ;  and  though  they  did 
not  join  the  rebellions  of  those  they  so 
much  hated,  the  queen's  deputies  had 
sometimes  to  encounter  a  more  legal  resist- 
ance. A  new  race  of  colonists  had  begun 
to  appear  in  their  train,  eager  for  posses- 
sions, and  for  the  rewards  of  the  crown, 
contemptuous  of  the  natives,  whether  ab- 
original or  of  English  descent,  and,  in  con- 
sequence, the  objects  of  their  aversion  or 

might  be  justified  by  the  strict  laws  of  war  {Phil- 
ip not  being  a  declared  enemy),  it  was  one  of 
those  extremities  which  justly  revolt  the  common 
feelings  of  mankind.  The  queen  is  said  to  have 
been  much  displeased  at  it.  Leiand,  283.  Spen- 
ser undertakes  the  defense  of  his  patron  Grey. — 
State  of  Ireland,  p.  434. 

Lelaud,  247,  293.  An  act  had  passed,  1 1  Eliz., 
c.  9,  for  dividing  the  whole  island  into  shire-ground, 
appointing  sheriffs,  justices  of  the  peace,  &c., 
which,  however,  was  not  completed  till  the  time 
of  Sir  John  Perrott. — Holingshed,  p.  457. 

t  Leiand,  305.  Their  conduct  provoked  an  in- 
surrection both  in  Connaught  and  Ulster.  Spen- 
ser, who  shows  always  a  bias  toward  the  most  rig- 
orous poUcy,  does  injustice  to  Pen-ott.  "  He  did 
tread  down  and  disgrace  all  the  English,  and  set 
up  and  countenance  the  Irish  all  that  he  could." — 
P.  437.  This  has  in  all  ages  been  the  language, 
when  they  have  been  placed  on  an  equality,  or 
any  thing  approaching  to  an  equaUty,  with  their 
fellow-subjects. 


jealousy.*  Hence,  in  a  Parliament  sum- 
moned by  Sir  Heniy  Sidney  in  opposition  in 
1569,  the  first  after  that  which  Parliament, 
had  reluctantly  established  the  Protestant 
Church,  a  strong  country  party,  as  it  may 
be  termed,  was  formed  in  opposition  to  the 
crown.  They  complained  with  much  just- 
ice of  the  management  by  which  irreguiai- 
returns  of  members  had  been  made  ;  some 
from  towns  not  incorporated,  and  which 
had  never  possessed  the  elective  right; 
some  self-chosen  sheriffs  and  magistrates ; 
some  mere  English  strangers,  returned  for 
places  which  they  had  never  seen.  The 
judges,  on  reference  to  their  opinion,  de- 
clared the  elections  iUegal  in  the  two  for- 
mer cases,  but  confirmed  the  non-resident 
burgesses,  which  still  left  a  majority  for 
the  court. 

The  Irish  patriots,  after  this  preliminarj- 
discussion,  opposed  a  new  tax  upon  wines, 
and  a  bill  for  the  suspension  of  Poyning's 
law.  Hooker,  an  Englishman,  chosen  for 
Athenry,  to  whose  account  we  are  chief!}- 
indebted  for  our  knowledge  of  these  pro- 
ceedings, sustained  the  foi-mer  in  that  high 
'one  of  a  prerogative  lawyer  which  always 
best  pleased  his  mistress.  "  Her  majesty," 
he  said,  "  of  her  own  royal  authority,  might 
and  may  establish  the  same  %vithout  any  of 
your  consents,  as  she  hath  already  done  the 
like  in  England;  saving  of  her  courtesy,  it 
pleaseth  her  to  have  it  pass  with  your  own 
consents  by  order  of  law,  that  she  might 
thereby  have  the  better  tinal  and  assurance 
of  your  dutifulness.  and  good-will  toward 
her."  This  language  from  a  stranger,  un- 
usual among  a  people  proud  of  their  birth- 
right in  the  common  constitution,  and  little 
accustomed  even  to  legitimate  obedience, 
raised  such  a  flame  that  the  House  was  ad- 
journed ;  and  it  was  necessary  to  protect 
the  utterer  of  such  doctrines  by  a  guard. 
The  duty  on  wines,  laid  aside  for  the  time, 
was  carried  in  a  subsequent  session  in  the 
same  year ;  and  several  other  statutes  were 
enacted,  which,  as  they  did  not  aflfect  the 
pale,  may  possibly  have  encountered  no  op- 
position. A  part  of  Ulster,  forfeited  by 
Slanes  O'Neil,  a  rebel  almost  as  formidable 
in  the  first  years  of  this  reign  as  his  kinsman 
Tyrone  was  near  its  conclusion,  was  vested 
in  the  crown ;  and  some  provisions  were 
made  for  the  reduction  of  the  whole  island 


*  Leiand,  248. 


Ireland] 


FROM  HENRY  VII.  TO  GEORGE  II. 


693 


into  shires.  Connaught,  in  consequence, 
which  had  passed  for  one  county,  was  di- 
vided into  five.* 

In  Sir  Henry  Sidney's  second  govern- 
Aibitrary  uient,  which  began  in  1576,  the 
uf  sTr'uei?^  P'''®  excited  to  a  more  stren- 
sidney.  uous  resistance  by  an  attempt  to 
subvert  their  liberties.  It  had  long  been 
usual  to  obtain  a  sum  of  money  for  the 
maintenance  of  the  household  and  of  the 
troops  by  an  assessment  settled  between 
the  council  and  principal  inhabitants  of  each 
disti'ict.  This,  it  was  contended  by  the 
government,  was  instead  of  the  contribution 
of  victuals  which  the  queen,  by  her  pre- 
rogative of  purveyance,  might  claim  at  a 
fixed  rate,  much  lower  than  the  current 
price. f  It  was  maintained  on  the  other 
side  to  be  a  voluntary  benevolence.  Sid- 
ney now  devised  a  plan  to  change  it  for  a 
cess  or  permanent  composition  for  eveiy 
plow-land,  without  regard  to  those  which 
claimed  exemption  from  the  burden  of  pur- 
veyance ;  and  imposed  this  new  tax  by  or- 
der of  council,  as  sufficiently  warrantable 
by  the  royal  prerogative.  The  land-own- 
ers of  the  pale  remonstrated  against  such  a 
violation  of  their  franchises,  and  were  met 
by  the  usual  arguments.  They  appealed 
to  the  text  of  the  laws ;  the  deputy  replied 
by  precedents  against  law.  "  Her  majes- 
ty's prerogative,"  he  said,  "  is  not  limited 
by  Magna  Charta,  nor  found  in  Littleton's 
Tenures,  nor  written  in  the  books  of  As- 
sizes, but  registered  in  the  remembrances  of 
her  majesty's  Exchequer,  and  remains  in  the 
rolls  of  records  of  the  Tower."t  It  was 
proved,  according  to  him,  by  the  most  an- 
cient and  credible  recoi'ds  in  the  roalm,  that 
such  charges  had  been  imposed  from  time 
to  time,  sometimes  by  the  name  of  cess, 
sometimes  by  other  names,  and  more  often 
by  the  governor  and  council,  with  such  of 
the  nobility  as  came  on  summons,  than  by 
Parliament.  These  irregularities  did  not 
satisfy  the  gentry  of  the  pale,  who  refused 
compliance  with  the  demand,  and  still  al- 
leged that  it  was  contraiy  both  to  reason 
and  law  to  impose  any  charge  upon  them 
without  Parliament  or  grand  council.  A 
deputation  was  sent  to  England  in  the 

*  Holingshed's  Chronicles  of  Ireland,  342.  This 
pai't  is  written  by  Hooker  himself.  L  eland,  240. 
Irish  Statutes,  11  Eliz. 

t  Sidney  Papers,  i.,  153.  t  H.,  179. 


name  of  all  the  subjects  of  the  English  pale. 
Sidney  was  not  backward  in  representing 
their  behavior  as  the  eflect  of  disaffection ; 
nor  was  Elizabeth  likely  to  recede,  where 
both  her  authority  and  her  revenue  were 
apparently  concerned.  But,  after  some 
demonstrations  of  resentment  in  committing 
the  delegates  to  the  Tower,  she  took  alarm 
at  the  clamors  of  their  countiymen;  and, 
aware  tliat  the  King  of  Spain  was  ready  to 
throw  troops  into  Ireland,  desisted  with 
that  prudence  which  always  kept  her  pas- 
sion in  command,  accepting  a  voluntary 
composition  for  seven  years  in  the  accus- 
tomed manner.* 

James  I.  ascended  the  throne  with  as 
great  advantages  in  Ireland  as  in  his 
other  kingdoms.  That  island  was  "'^"'^^ 
already  pacified  by  the  submission  of  Ty- 
rone, and  all  was  prepared  for  a  final  estab- 
lishment of  the  English  power  upon  the  ba- 
sis of  equal  laws  and  civilized  customs :  a 
reformation  which  in  some  respects  the 
king  was  not  ill  fitted  to  introduce.  His 
]-eign  is,  perhaps,  on  the  whole,  the  most 
important  in  the  constitutional  histoiy  of 
Ireland,  and  that  from  which  the  present 
scheme  of  society  in  that  country  is  chiefly 
to  be  deduced. 

1.  The  laws  of  supremacy  and  unifoi-mi- 
ty,  copied  from  those  of  England,  were  in- 
compatible with  any  exercise  of  the  Roman 

*  Sidney  Papers,  84,  117,  &c.,  to  236.  Holing- 
shed,  389.  Leland,  2C1.  Sidney  was  much  dis- 
appointed at  the  queen's  want  of  finnness  ;  but  it 
was  plain  by  the  correspondence  that  Walsiug- 
ham  also  thought  he  had  gone  too  far. — P.  192. 
The  sum  required  seems  to  have  been  reasonable, 
about  X2000  a  year  from  the  five  shires  of  the 
pale ;  and,  if  they  had  not  been  stubborn,  he  thought 
all  Munster  also,  except  the  Desmond  territories, 
would  have  submitted  to  the  payment. — P.  183. 
"  1  have  great  cause,"  he  writes,  "to  mistrust  the 
fidelity  of  the  greatest  number  of  the  people  of 
this  country's  birth  of  all  degrees  ;  they  be  papists, 
as  I  may  well  term  them,  body  and  soul ;  for  not 
only  in  matter  of  religion  they  be  Romish,  but  for 
government  they  will  change,  to  be  under  a  prince 
of  their  own  superstition.  Since  your  highness's 
reign  the  papists  never  showed  such  boldness  as 
now  they  do." — P.  184.  This,  however,  hardly 
tallies  with  what  he  says  afterward,  p.  208  :  "  I  do 
believe,  for  far  the  greatest  number  of  the  inhab- 
itants of  the  English  pale,  her  highness  hath  as 
true  and  faithful  subjects  as  any  she  hath  subject 
to  the  crown ;"  unless  the  former  passage  refer 
chiefly  to  those  without  the  pale,  who,  in  fact, 
were  exclusively  concerned  in  the  rebellions  of 
this  reign. 


694 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIII. 


Catholic  worship,  or  with  the  admission  of 
any  members  of  that  Church  into  civil 
trust.  It  appears,  indeed,  that  they  were 
by  no  means  strictly  executed  during  the 
queen's  reign  ;*  yet  the  priests  were  of 
course  excluded,  so  far  as  the  English  au- 
thority prevailed,  from  their  churches  and 
benefices  ;  the  former  were  chiefly  ruined  ; 
the  latter  fell  to  Protestant  strangers,  or  to 
conforming  ministers  of  native  birth,  disso- 
lute and  ignorant,  as  careless  to  teach  as 
the  people  were  predetermined  not  to  list- 
en.f    The  priests,  many  of  them,  engaged 

*  Leland,  ii.,  381. 

t  "The  Church  is  now  so  spoiled,"  says  Sir 
Henry  Sidney  in  1576,  "as  well  by  the  ruin  of  the 
temples,  as  the  dissipation  and  embezzling  of  the 
patrimony,  and  most  of  all  for  want  of  sufficient 
ministers,  as  so  deformed  and  overthrown  a  Church 
there  is  not,  I  am  sure,  in  any  region  where  Christ 
is  professed." — Sidney  Papers,  i.,  109.  In  the  di- 
ocese of  Meath,  being  the  best  inhabited  country 
of  all  the  realm,  out  of  2ii4  parish  churches.  105 
were  impropriate,  having  only  curates,  of  whom 
but  eighteen  could  speak  English,  the  rest  being 
"  Irish  rogues,  who  used  to  be  papists,"  fifty-two 
other  churches  had  vicars,  and  fifty-two  more  were 
in  better  state  than  the  rest,  yet  far  from  well. — 
Id.,  112.  Spenser  gives  a  bad  character  of  the 
Protestant  clergy,  p.  412.  [It  was  chiefly  on  this 
account  that  the  University  of  Dublin  was  founded 
in  1591.— Leland,  ii.,  319.— 1845.] 

An  act  was  passed,  12  Eliz.,  c.  1,  for  erecting 
free  schools  in  every  diocese,  under  English  mas- 
ters, the  ordinary  paying  one  third  of  the  salary, 
and  the  clergy  the  rest.  This,  however,  must  have 
been  nearly  impracticable.  Another  act,  13  Eliz., 
o.  4,  enables  the  Archbishop  of  Armagh  to  grant 
leases  of  his  lands  out  of  the  pale  for  a  hundred 
years  without  assent  of  the  dean  and  chapter,  to 
persons  of  English  birth,  "or  of  the  English  and 
civil  nation,  bom  in  this  realm  of  Ireland,"  at  the 
rent  of  id.  an  acre.  It  recites  the  chapter  to  be 
"  except  a  very  few  of  them,  both  by  nation,  edu- 
cation, and  custom,  Irish.  Irishly  afFectioiied,  and 
small  hopes  of  their  conformities  or  assent  unto 
any  such  devices  as  would  tend  to  the  placing  of 
any  such  number  of  civil  people  there,  to  the  dis- 
advantage or  bridling  of  the  Irish."  lu  these 
northern  parts,  the  English  and  Protestant  inter- 
ests had  so  Uttle  influence  that  the  pope  conferred 
three  bishoprics,  Derry,  Clogher,  and  Raphoe, 
throughout  the  reign  of  Elizabeth. — Davis,  234. 
Leland,  ii.,  248.  What  is  more  remarkable  is,  that 
two  of  these  prelates  were  summoned  to  Parlia- 
ment in  1585 — Id.,  295 — the  first  in  which  some 
Irish  were  returned  among  the  Commons. 

The  reputation  of  the  Protestant  Church  contin- 
ued to  be  little  better  in  the  reign  of  Charles  I., 
though  its  revenues  were  much  improved.  Straf 
ford  gives  the  clergy  a  very  bad  character  in  writ- 
ing to  Laud. — Vol.  i.,  187.  And  Burnet's  Life  of 
Bedell,  transcribed  chiefly  from  a  cotemporary  me- 


in  a  conspiracy  with  the  court  of  Spain 
against  the  queen  and  her  successor,  and 
all  deeming  themselves  unjustly  and  sacri- 
legiously despoiled,  kept  up  the  spirit  of 
disaffection,  or  at  least  of  resistance  to  re- 
ligious innovation,  throughout  the  king- 
dom.* The  acces.sion  of  James  seemed  a 
sort  of  signal  for  casting  off  the  yoke  of  her- 
esy ;  in  Cork,  Waterford,  and  other  cities, 
the  people,  not  without  consent  of  the  mag- 
istrates, rose  to  restore  the  Catholic  wor- 
ship ;  they  seized  the  churches,  ejected 
the  ministers,  marched  in  public  proces- 
sions, and  shut  their  gates  against  the  lord- 
deputj-.  He  soon  reduced  them  to  obedi- 
ence ;  but  almost  the  whole  nation  was  of 
the  same  faith,  and  disposed  to  struggle  for 
a  public  toleration.  This  was,  beyond  ev- 
ery question,  their  natural  right,  and  as 
certainly  was  it  the  best  policy  of  England 
to  have  granted  it;  but  the  kingcraft  and 
the  priestcraft  of  the  day  taught  other  les- 
sons.   Priests  were  ordered  by  , 

Laws  against 

proclamation  to  quit  the  realm  ;  Cathoiicsen- 
the  magistrates  and  chief  citi- 
zens  of  Dublin  were  committed  to  prison 
for  refusing  to  frequent  the  Protestant 
Church.  The  gentry  of  the  pale  remon- 
sti-ated  at  the  court  of  Westminster;  and. 
though  their  delegates  atoned  for  their 

moir,  gives  a  detailed  account  of  that  bishop's  dio- 
cese (Kilmore),  which  will  take  off  any  surprise 
that  might  be  felt  at  the  slow  progress  of  the  Ref- 
ormation. He  liad  about  fifteen  Protestant  clergy, 
but  all  English,  unable  to  speak  the  tongue  of  the 
people,  or  to  perform  any  divine  offices,  or  con- 
verse with  them,  "  which  is  no  small  cause  of  the 
continuance  of  the  people  in  popery  still." — P.  47. 
The  bishop  observed,  says  his  biographer,  "with 
much  regret,  that  the  English  had  all  along  neg- 
lected the  Irish  as  a  nation,  not  only  conquered, 
but  undisciplinable,  and  that  the  clergy  had  scarce 
considered  them  as  a  part  of  their  charge,  but"  had 
left  them  wholly  into  the  hands  of  their  own  priests, 
without  taking  any  other  care  of  them  but  the 
making  them  pay  their  tithes ;  and,  indeed,  their 
priests  were  a  strange  sort  of  people,  that  knew 
generally  nothing  but  the  reading  their  oflices, 
which  were  not  so  much  as  understood  by  many 
of  them ;  and  they  taught  the  people  nothing  but 
the  saying  their  paters  and  aves  in  Latin." — P. 
114.  Bedell  took  the  pains  to  learn  himself  the 
Irish  language  ;  and,  though  he  could  not  speak  it, 
composed  the  first  grammar  ever  made  of  it,  had 
the  Common  Prayer  read  every  Sunday  in  Irish, 
circulated  catechisms,  engaged  the  clergy  to  set 
up  schools,  and  even  undertook  a  translation  of 
the  Old  Testament,  which  he  would  have  publisb 
ed  but  for  the  opposition  of  Laud  and  Strafford. — 
P.  121.  *  Leland,  413. 


Ireland.] 


FROM  HENRY  VII.  10  GEORGE  II. 


695 


self-devoted  courage  by  imprisonment,  the 
secret  menace  of  expostulation  seems  to 
have  produced,  as  usual,  some  effect,  in  a 
direction  to  the  lord-deputy  that  he  should 
endeavor  to  conciliate  the  recusants  by  in- 
struction. These  penalties  of  recusancy, 
from  whatever  cause,  were  very  little  en- 
forced ;  but  the  Catholics  murmured  at  the 
Oath  of  Supremacy,  w^hich  shut  them  out 
from  every  distinction  ;  though  here,  again, 
the  execution  of  the  law  was  sometimes 
mitigated,  they  justly  thought  themselves 
humiliated,  and  the  liberties  of  their  coun- 
try endangered,  by  standing  thus  at  the 
mercy  of  the  crown ;  and  it  is  plain  that 
even  within  the  pale  the  compulsory  stat- 
utes were  at  least  far  better  enforced  than 
under  the  queen,  while  in  those  provinces 
within  which  the  law  now  first  began  to 
have  its  course,  the  difference  w.is  still 
more  acutely  perceived.* 

2.  The  first  care  of  the  new  administra- 
English  )aw  tion  was  to  perfect  the  reduction 
estabii.^hed        Ireland  into  a  civilized  kina;- 

tbrougnuut  ^ 

Ireland.  dom.  Sheriffs  were  appointed 
throughout  Ulster;  the  teiritorial  divisions 
of  counties  and  baronies  were  extended  to 
the  few  districts  that  still  wanted  them ; 
the  judges  of  assize  went  their  circuits  ev- 
ery where ;  the  customs  of  tanistry  and 
gavelkind  were  determined  by  the  Court 
of  King's  Bench  to  be  void ;  the  Irish  lords 
surrendered  their  estates  to  the  crown, 
and  received  them  back  by  the  English  ten- 
ures of  knight-service  or  soccage ;  an  ox- 
act  account  was  taken  of  the  lands  each  of 
these  chieftains  possessed,  that  he  might  be 
invested  with  none  but  those  he  occupied ; 

*  Leland,  414,  &c.  In  a  letter  from  six  Catho- 
lic lords  of  the  pale  to  the  king  in  1613,  published 
ID  Desiderata  Curiosa  Hibemica,  i.,  158,  they  com- 
plain of  the  Oath  of  Supremacy,  which,  they  say, 
had  not  been  much  imposed  under  the  queen,  but 
was  now,  for  the  first  time,  enforced  in  the  remote 
parts  of  the  country,  so  that  the  most  sufficient 
gentry  were  excluded  from  magistracy,  and  mean- 
er persons,  if  conformable,  put  instead.  It  is  said, 
on  the  other  side,  that  the  laws  against  recusants 
were  very  little  enforced,  from  the  difficulty  of  get- 
ting juries  to  present  them. — Id.,  359.  Carte's 
Ormond,  33.  But  this,  at  least,  shows  that  there 
was  some  disposition  to  molest  the  Catholics  on 
the  part  of  the  government :  and  it  is  admitted 
that  they  were  excluded  from  offices,  and  even 
from  practicing  at  the  bar,  on  account  of  the  Oath 
of  Supremacy. — Id.,  320 ;  and  compare  the  letter 
of  six  Catholic  lords  with  the  answer  of  the  lord- 
deputy  and  council  in  the  same  volume. 


while  his  tenants,  exempted  from  those  un- 
certain Irish  exactions,  the  source  of  their 
servitude  and  misery,  were  obliged  only  to 
an  annual  quit-rent,  and  held  their  own 
lands  by  a  free  tenure.  The  king's  writ 
was  obeyed,  at  least  in  profession,  through- 
out Ireland ;  after  four  centuries  of  law- 
lessness and  misgovernment,  a  golden  pe- 
riod was  anticipated  by  the  English  comt- 
iers  ;  nor  can  we  hesitate  to  recognize  the 
influence  of  enlightened,  and  sometimes  of 
benevolent  minds,  in  the  scheme  of  govern- 
ment now  carried  into  effect.*  But  two 
unhappy  maxims  debased  their  motives  and 
discredited  their  policy :  the  first,  that  none 
but  the  true  religion,  or  the  state's  religion, 
could  be  suffered  to  exist  in  the  eye  of  the 
law ;  the  second,  that  no  pretext  could  be 
too  harsh  or  iniquitous  to  exclude  men  of 
a  different  race  or  erroneous  faith  from 
their  possessions. 

3.  The  suppression  of  Slanes  O'Neil's 
revolt  in  1567  seems  to  have  gettlen.ents 
suggested  the  thought,  or  afford-  "f  English  in 
ed  the  means,  of  perfecting  the  stcr'aifd'oth- 
conquest  of  Ireland  by  the  same  P^"^. 
methods  that  had  been  used  to  commence 
it,  an  extensive  plantation  of  English  colo- 

*  Davis's  Reports,  ubi  supra.  Discovery  of 
Causes,  &c.,  260.  Carte's  Life  of  Ormond,  i.,  14. 
Leland,  418.  It  had  long  been  an  object  with  the 
English  government  to  extinguish  the  Irish  tenures 
and  laws.  Some  steps  toward  it  were  taken  under 
Henry  VIII. ;  but  at  that  time  there  was  too  great 
a  repugnance  among  the  chieftains.  In  Eliza- 
beth's instructions  to  the  Earl  of  Sussex  on  taking 
the  government  in  1560,  it  is  recommended  that 
the  Irish  should  surrender  their  estates,  and  re- 
ceive grants  in  tail  male,  but  no  greater  estate. — 
Desiderata  Curiosa  Hibernica,  i.,  1.  This  would 
have  left  a  reversion  in  the  crown,  which  could  not 
have  been  cut  oiF  by  suffering  a  recovery ;  but  as 
those  who  held  by  Irish  tenure  had  probably  no 
right  to  alienate  their  lands,  they  had  little  cause 
to  complain.  An  act  in  1569,  12  EHz..  c.  4,  recit- 
ing the  greater  part  of  the  Irish  to  have  petitioned 
for  leave  to  surrender  their  lands,  authorizes  the 
deputy,  by  advice  of  the  privy  council,  to  grant 
letters  patent  to  the  Irish  and  degenerate  English, 
yielding  certain  reservations  to  the  queen.  Sid- 
ney mentions,  in  several  of  his  letters,  that  the 
Irish  were  ready  to  surrender  their  lands. — Vol.  i., 
94,  105,  165. 

The  act  11  Jac.  1,  c.  5,  repeals  divers  statutes 
that  treat  the  Irish  as  enemies,  some  of  which  have 
been  mentioned  above.  It  makes  all  the  king's 
subjects  under  his  protection  to  live  by  the  same 
law.  Some  vestiges  of  the  old  distinctions  re- 
mained  in  the  statute-book,  and  were  eradicated 
in  Strafford's  Parliament. — 10  &  11  Car.  I,,  c.  6, 


696 


CONSTITUTIONAL  HISTOB,Y  OF  ENGLAND 


[Chap.  XVIII. 


nists.  The  law  of  forfeiture  came  in  very 
conveniently  to  further  this  great  scheme 
of  policy.  O'Neil  was  attainted  in  the  Par- 
liament of  1569 ;  the  teiTitories  which  ac- 
knowledged him  as  chieftain,  comprising  a 
large  part  of  Down  and  Antrim,  were  vest- 
ed in  the  crown  :  and  a  natural  son  of  Sir 
Thomas  Smith,  secretary  of  state,  who  is 
said  to  have  projected  this  settlement,  was 
sent  with  a  body  of  English  to  take  pos- 
session of  the  lands  thus  presumed  in  law 
to  be  vacant.  This  expedition,  however, 
failed  of  success,  the  native  occupants  not 
acquiescing  in  this  doctrine  of  our  law- 
yers ;*  but  fresh  adventurers  settled  in  dif- 
ferent parts  of  Ireland,  and  particularly  aft- 
er the  Earl  of  Desmond's  rebellion  in  1583, 
whose  forfeiture  was  reckoned  at  574,628 
Irish  acres,  though  it  seems  probable  that 
this  is  more  than  double  the  actual  confis- 
cation.f  These  lands  in  the  counties  of 
Cork  and  Keny,  left  almost  desolate  by 
the  oppression  of  the  Geraldines  them- 
selves, and  the  far  gi-eater  cruelty  of  the 
government  in  subduing  them,  were  par- 
celed out  among  English  undertakers  at  low 
rents,  but  on  condition  of  planting  eighty- 
six  families  on  an  estate  of  12,000  acres, 
and  in  like  proportion  for  smaller  posses- 
sions. None  of  the  native  Irish  were  to 
be  admitted  as  tenants  ;  but  neither  this  nor 
the  other  conditions  were  strictly  observ- 
ed by  the  undertakers,  and  the  colony  suffer- 
ed alike  by  their  rapacity  and  their  neg- 
lect.t  The  oldest  of  the  second  race  of 
English  families  in  Ireland  are  found  among 
the  descendants  of  these  Munster  colonists. 
We  find  among  them,  also,  some  distin- 
guished names,  that  have  left  no  memo- 
rial in  their  posterity  :  Sir  Walter  Raleigh, 
who  here  laid  the  foundation  of  his  ti-ansi- 
tory  success,  and  one  not  less  in  gloiy,  and 
hardly  less  in  misfortune,  Edmund  Spenser. 
In  a  country  house  once  belonging  to  the 
Desmonds,  on  the  banks  of  the  Mulla,  near 
Doneraile,  the  first  three  books  of  the  Fae- 
ry Queen  were  written ;  and  here,  too, 
the  poet  awoke  to  the  sad  realities  of  life, 
and  has  left  us,  in  his  Account  of  the  State 
of  Ireland,  the  most  full  and  authentic  doc- 

*  Leland,  ii.,  254. 

t  See  a  note  in  Leland,  ii.,  302.  The  tnith  seems 
to  be.  that  in  this,  as  in  other  Irish  forfeitures,  a 
large  part  was  restored  to  the  tenants  of  the  at- 
tainted parties.  t  Leland,  ii.,  301. 


'  ument  that  Ulustrates  its  condition.  This 
treatise  abounds  with  judicious  observa- 
tions ;  but  we  regret  the  disposition  to  rec- 
ommend an  extreme  severity  in  dealing 
with  the  native  Irish,  which  ill  becomes 
the  sweetness  of  his  muse. 

The  two  gieat  native  chieftains  of  the 
north,  the  Earls  of  Tyrone  and  Tyrconnel, 
a  few  years  after  the  king's  accession,  en- 
gaged, or  were  charged  with  having  en- 
gaged, in  some  new  conspiracy,  and  fly- 
ing from  justice,  were  attainted  of  treason. 
Five  hundred  thousand  acres  in  Ulster 

!  were  thus  forfeited  to  the  crown :  and  on 
this  was  laid  the  foundation  of  that  great 
colony,  which  has  rendered  that  province, 
from  being  the  seat  of  the  wildest  natives, 
the  most  flourishing,  the  most  Protestant, 
and  the  most  enlightened  pait  of  Ireland. 
This  plantation,  though  projected,  no  doubt, 
by  the  king  and  by  Lord  Bacon,  was  chief- 
ly caiTied  into  effect  by  the  lord-deputy. 
Sir  Arthur  Chichester,  a  man  of  great  ca- 
pacity, judgment,  and  prudence.  He  caused 
surveys  to  be  taken  of  the  several  counties, 
fixed  upon  proper  places  for  building  castles 
or  founding  towns,  and  advised  that  the 
lands  should  be  assigned,  partly  to  English 
or  Scots  undertakers,  partly  to  servitors  of 
the  crown,  as  they  were  called,  men  who 
had  possessed  civil  or  militarj'  offices  in  Ire- 
land, partly  to  the  old  Irish,  even  some  of 
those  who  had  been  concerned  in  Tyrone's 
rebellion.  These  and  their  tenants  were 
exempted  from  the  Oath  of  Supremacy  im- 
posed on  the  new  planters.  From  a  sense 
of  the  error  committed  in  the  queen's  time 
by  granting  vast  tracts  to  single  persons, 
the  lands  were  distributed  in  three  classes, 
of  2000,  1500,  and  1000  English  acres: 

{  and  in  every  county  one  half  of  the  assign- 
ments was  to  the  smallest,  the  rest  to  the 
other  two  classes.  Those  who  received 
2000  acres  were  bound  within  four  years 
to  build  a  castle  and  bawn,  or  strong  court- 
yard ;  the  second  class  within  two  years 

'  to  build  a  stone  or  brick  house  with  a  bawn ; 
the  third  class  a  bawn  only.    The  first 

I  were  to  plant  on  their  lands  within  three 
years  forty-eight  able  men,  eighteen  years 
old  or  upward,  born  in  England  or  the  in- 

I  land  parts  of  Scotland ;  the  others  to  do 
the  same  in  proportion  to  their  estates. 
All  the  grantees  were  to  reside  within  five 
years,  in  person  or  by  approved  agents,  and 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


G97 


to  keep  sufficient  store  of  arms  ;  they  were 
not  to  alienate  their  lands  without  the  king's 
license,  nor  to  let  them  for  less  than  twen- 
ty-one years  ;  their  tenants  were  to  live  in 
houses  built  in  the  English  manner,  and  not 
dispersed,  but  in  villages.  The  natives  held 
their  lands  by  the  same  conditions,  except 
that  of  building  fortified  houses;  but  they 
were  bound  to  take  no  Irish  exactions  from 
their  tenants,  nor  to  sutler  the  practice  of 
wandering  with  their  cattle  from  place  to 
place.  In  this  manner  were  these  escheat- 
ed lands  of  Ulster  divided  among  a  hundred 
and  four  English  and  Scots  undertakers, 
fifty-six  sei-vitors,  and  two  hundred  and 
eighty-six  natives.  All  lands  which  through 
the  late  anarchy  and  change  of  religion  had 
been  lost  to  the  Church,  were  restored,  and 
some  further  provision  was  made  for  the 
beneficed  clergy.  Chichester,  as  was  just, 
received  an  aUotmeut  in  a  far  ampler  meas- 
ure than  the  connnon  servants  of  the  crown.* 
This  noble  design  was  not  altogether 
Injustice  at-  Completed  according  to  the  plat- 
tendingihem.  fomi.  The  native  Irish,  to  whom 
some  regard  was  shown  by  these  regula- 
tions, were  less  equitably  dealt  with  by 
the  colonists,  and  by  those  other  adventur- 
ers whom  England  continually  sent  forth  to 
enrich  themselves  and  maintain  her  sover- 
eignty. Pretexts  were  sought  to  establish 
the  crown's  title  over  the  possessions  of 
the  Irish ;  they  were  assailed  through  a 
law  which  they  had  but  just  adopted,  and 
of  which  they  knew  nothing,  by  the  claims 
of  a  litigious  and  encroaching  prerogative, 
against  which  no  prescription  could  avail, 
nor  any  plea  of  fairness  and  equity  obtain 
favor  in  the  sight  of  English-born  judges. 
Thus,  in  the  King's  and  Queen's  counties, 
and  in  those  of  Leitrim,  Longford,  and 
Westmeath,  385,000  acres  were  adjudged 
to  the  crown,  and  66,000  in  that  of  Wick- 
low.  ■  The  greater  part  was  indeed  regrant- 
ed  to  the  native  owners  on  a  permanent 
tenure;  and  some  apology  might  be  found 
for  this  harsh  act  of  power  in  the  means  it 
gave  of  civilizing  those  central  regions,  al- 
ways the  shelter  of  rebels  and  robbers ;  yet 

*  Carte's  Life  of  Ormond.  i.,  15.  Leland,  429. 
Farmer's  Chronicle  of  Sir  Arthur  Chichester's  gov- 
ernment in  Desiderata  Curiosa  Hibemica,  i.,  32 : 
an  important  and  interesting  narrative ;  also  vol. 
ii.  of  the  same  collection,  37.  Bacon's  Works,  i., 
657. 


this  did  not  take  off  the  sense  of  forcible  spo- 
liation, which  every  foreign  tyranny  ren- 
ders so  intolerable.  SuiTcnders  were  ex- 
torted by  menaces ;  juries  refusing  to  find 
the  crown's  title  were  fined  by  the  council; 
many  were  dispossessed  witliout  any  com- 
pensation, and  sometimes  by  gross  perjury, 
sometimes  by  barbarous  cruelty.  It  is  said 
that  in  the  countj'  of  Longford  the  Irish 
had  scarcely  one  third  of  tlieir  former  pos- 
sessions assigned  to  them,  out  of  three 
fourths  which  had  been  intended  by  the 
king.  Those  who  had  been  most  faith- 
ful— those,  even,  who  had  conformed  to 
the  Protestant  Church,  were  little  better 
ti'eated  than  the  rest.  Hence,  though  in 
many  new  plantations  great  signs  of  im- 
provement were  perceptible,  though  trade 
and  tillage  increased,  and  towns  were  built, 
a  secret  rankling  for  those  injuries  was  at 
the  heart  of  Ireland  ;  and  in  these  two  lead- 
ing gi'ievances,  the  penal  laws  against  re- 
cusants, and  the  inquisition  into  defective 
titles,  we  trace,  beyond  a  sliadow  of  doubt, 
the  primary  source  of  the  rebellion  in  1641.* 

*  Leland,  437,  466.  Carte's  Omiond,  22.  De- 
siderata Curiosa  Hibemica,  238,  243,  378,  et  alibi ; 
ii.,  37,  et  post.  In  another  treatise  published  in 
this  collection,  entitled  a  Discourse  on  the  State 
of  Ireland,  1614,  an  approaching  rebellion  is  re- 
markably predicted.  "  The  next  rebellion,  when- 
soever it  shall  happen,  doth  threaten  more  danger 
to  the  state  than  any  that  hath  preceded  ;  and  my 
reasons  are  these  :  1.  They  have  the  same  bodies 
they  ever  had  ;  and  therein  they  have  and  had  ad- 
vantage over  us.  2.  From  their  infancies  they 
have  been  and  are  exercised  in  the  use  of  arms. 
3.  The  realm,  by  reason  of  long  peace,  was  never 
so  full  of  youth  as  at  this  present.  4.  That  they 
are  better  soldiers  than  heretofore,  their  continual 
employments  in  the  wars  abroad  assure  us;  and 
they  do  conceive  that  their  men  are  better  than 
ours.  5.  That  they  are  more  politic,  and  able  to 
manage  rebellion  with  more  judgment  and  dexter- 
ity than  their  elders,  their  experience  and  educa- 
tion are  sufficient.  6.  They  will  give  the  first 
blow ;  which  is  very  advantageous  to  them  that 
will  give  it.  7.  The  quarrel  for  which  they  rebel 
will  be  under  the  veil  of  religion  and  liberty,  than 
which  nothing  is  esteemed  so  precious  in  the  hearts 
of  men.  8.  And,  lastly,  their  union  is  such,  as  not 
only  the  old  English  dispersed  abroad  in  all  parts 
of  the  realm,  but  the  inhabitants  of  the  pale  cities 
and  towns,  are  as  apt  to  take  arms  against  us, 
which  no  precedent  time  hath  ever  seen,  as  the 
ancient  Irish."— Vol.  i.,  432.  "I  think  that  little 
doubt  is  to  be  made,  but  that  the  modem  English 
and  Scotch  would  in  an  instant  be  massacred  in 
their  houses." — P.  433.  This  rebellion  the  author 
expected  to  be  brought  about  by  a  league  with 
Spain,  and  with  aid  from  France. 


698  CONSTITUTIONAL  HISTORY  OF  ENGLAND  [Chap.  XVIH. 


4.  Before  the  reign  of  James,  Ireland 
had  been  regarded  either  as  a  conquei-ed 
country,  or  as  a  mere  colony  of  English, 
according  to  the  persons  or  the  provinces 
which  were  in  question.  The  whole  island 
now  took  a  common  character,  that  of  a 
subordinate  kingdom,  inseparable  from  the 
English  crown,  and  dependent  also,  at  least 
as  was  taken  for  granted  by  our  lawyers, 
on  the  English  Legislature,  but  governed 
after  the  model  of  our  Constitution,  by 
nearly  the  same  laws,  and  claiming  entire- 
ly the  same  liberties.  It  was  a  natural  con- 
sequence that  an  Irish  Parliament  should 
represent,  or  affect  to  represent,  every 
part  of  the  kingdom.  None  of  Irish  blood 
.     had  ever  sat,  either  lords  or  com- 

Constitution 

of  Irish  Par-  nioners,  till  near  the  end  of  Hen- 
hameut.  ^.^  yjij  'g  reign.  The  repre- 
sentation of  the  twelve  counties  into  which 
Munster  and  part  of  Leinster  were  divided, 
and  of  a  few  towns  which  existed  in  the 
reign  of  Edward  III.,  if  not  later,  was  re- 
duced by  the  defection  of  so  many  English 
families  to  the  limits  of  the  four  shires  of 
the  pale.*  The  old  counties,  when  they 
returned  to  their  allegiance  under  Henry 
VIII.,  and  those  afterward  formed  by  Ma- 
ry and  Elizabeth,  increased  the  number  of 
the  Commons ;  though  in  that  of  1567,  as 
has  been  mentioned,  the  writs  for  some  of 
them  were  arbitrarily  withheld.  The  two 
queens  did  not  neglect  to  create  new  bor- 
oughs, in  order  to  balance  the  more  inde- 
pendent representatives  of  the  old  Anglo- 
Irish  families  by  the  English  retainers  of 
the  court.  Yet  it  is  said  that  in  seventeen 
counties  out  of  thirty-two,  into  which  Ire- 
land was  finally  parceled,  there  was  no 
town  that  returned  burgesses  to  Parlia- 
ment before  the  reign  of  James  I.,  and  the 
whole  number  in  the  rest  was  but  about 
thirty. f  He  created  at  once  forty  new 
boroughs,  or,  possibly,  rather  more ;  for 

•  The  famous  Parliament  of  Kilkenny,  in  1367, 
is  said  to  have  been  veiy  numerously  attended. — 
Leland,  i.,  319.  We  find,  indeed,  an  act,  10  Hen. 
VII.,  c.  23,  annulling  what  was  done  in  a  preced- 
ing Parliament,  for  this  reason,  among  others,  that 
the  writs  had  not  been  sent  to  all  the  shires,  but 
to  four  only.  Yet  it  appears  that  the  writs  would 
not  have  been  obeyed  in  that  age. 

t  Speech  of  Sir  John  Davis  (lf>12),  on  the  Par- 
liamentary constitution  of  Ireland,  in  Appendix  to 
Lelaud,  vol.  ii..  p.  490,  with  the  latter's  obsei-va- 
tions  on  it.— Carte's  Ormond,  i.,  18.  Lord  Mount- 
morres's  Hist,  of  Irish  Parliament. 


the  number  of  the  Commons  in  1C13  ap- 
pears to  have  been  232.*  It  was  several 
times  afterward  augmented,  and  reached 
its  complement  of  300  in  1692. f  These 
grants  of  the  elective  franchise  were  made, 
not,  indeed,  improvidently,  but  with  very 
sinister  intents  toward  the  freedom  of  Par- 
liament, two  thirds  of  an  Irish  House  of 
Commons,  as  it  stood  in  the  eighteenth 
century,  being  returned  with  the  mere 
farce  of  election  by  wretched  tenants  of 
the  aristocracy. 

The  province  of  Connaught,  with  the  ad- 
joining county  of  Clare,  was  still  free  from 
the  intrusion  of  English  colonists.  The 
Irish  had  complied,  both  under  Elizabeth 
and  James,  with  the  usual  conditions  of 
surrendering  their  estates  to  the  crown  in 
order  to  receive  them  back  by  a  legal  ten- 
ure ;  but  as  these  grants,  by  some  negli- 
gence, had  not  been  duly  enrolled  in  Chan- 
cery (though  the  proprietors  had  paid  large 
fees  for  that  security),  the  council  were  not 
ashamed  to  suggest,  or  the  king  to  adopt, 
an  iniquitous  scheme  of  declaring  the  whole 
country  forfeited,  in  order  to  form  another 
plantation  as  extensive  as  that  of  Ulster. 
The  remonstrances  of  those  whom  such 
a  project  threatened  put  a  present  stop  to 
it,  and  Charles,  on  ascending  the  throne, 
found  it  better  to  hear  the  proposals  of  his 
Irish  subjects  for  a  composition.  After 
some  time,  it  was  agieed  between  Charles  1. 
the  court  and  the  Irish  agents  in  p^""""' 

^  graces  to 

London  that  the  kingdom  should  the  insh. 
voluntarily  contribute  =£120,000  in  three 

*  In  the  letter  of  the  lords  of  the  pale  to  King 
James  above  mentioned,  they  express  their  appre- 
hension that  the  erecting  so  many  insignificant 
places  to  the  rank  of  boroughs  was  with  the  view 
of  bringing  on  fresh  penal  laws  in  religion,  "  and 
so  the  general  scope  and  institution  of  Parliament 
frustrated,  they  being  ordained  for  the  assurance 
of  the  subjects  not  to  be  pressed  with  any  new 
edicts  or  laws,  but  such  as  should  pass  with  their 
general  consents  and  approbations." — P.  158.  The 
king's  mode  of  replying  to  this  constitutional  lan- 
guage was  characteristic.  "  What  is  it  to  you 
whether  I  make  many  or  few  boroughs?  My 
council  may  consider  the  fitness,  if  I  require  it. 
But  what  if  I  had  created  40  noblemen  and  400 
boroughs  ?  The  more  the  merrier,  the  fewer  the 
better  cheer."— Desid.  Cur.  Hib.,  308. 

t  Mountraorres,  i..  166.  The  whole  number  of 
peers  in  1634  was  122,  and  those  present  in  Par- 
liament that  year  were  66.  They  had  the  privi- 
lege not  only  of  voting,  but  even  protesting  by 
proxy ;  and  those  who  sent  none  were  sometimes 
fined.— Id.,  vol.  i.,  316. 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


699 


years  by  equal  payments,  in  return  for  cer- 
tain graces,  as  they  were  called,  which  the 
king  was  to  bestow.  These  went  to  se- 
cure the  subject's  title  to  his  lands  against 
the  crown  after  sixty  years'  possession,  and 
gave  the  people  of  Connaught  leave  to  en- 
roll their  grants,  relieving,  also,  the  settlers 
in  Ulster  or  other  places  from  the  penalties 
they  had  incurred  by  similar  neglect.  The 
abuses  of  the  council-chamber  in  meddling 
with  private  causes,  the  oppression  of  the 
Court  of  Wards,  the  encroachments  of 
militaiy  authority  and  excesses  of  the  sol- 
diers, were  restrained.  A  free  ti-ade  with 
the  king's  dominions  or  those  of  friendly 
powers  was  admitted.  The  recusants  were 
allowed  to  sue  for  lively  of  their  estates  in 
the  Court  of  Wards,  and  to  practice  in 
courts  of  law,  on  taking  an  oath  of  mere 
allegiance  instead  of  that  of  supremacy. 
Unlawful  exactions  and  severities  of  the 
clergy  were  prohibited.  These  reforma- 
tions of  unquestionable  and  intolerable  evils, 
as  beneficial  as  those  contained  nearly  at 
the  same  moment  in  the  Petition  of  Right, 
would  have  saved  Ireland  long  ages  of  ca- 
lamity, if  they  had  been  as  faithfully  com- 
pleted as  they  seemed  to  be  graciously 
conceded.  But  Charles  I.  emulated,  on 
this  occasion,  the  most  perfidious  tyrants. 
It  had  been  promised  by  an  article  in  these 
Does  not  con-  graces  that  a  Parliament  should 
firm  them.  ^e  held  to  Confirm  them.  Writs 
of  summons  were  accordingly  issued  by  the 
lord-deputy,  but  with  no  consideration  of 
that  fundamental  rule  established  by  Poy- 
ning's  law,  that  no  Parliament  should  be 
held  in  Ireland  until  the  king's  license  be 
obtained.  This  irregularity  was  of  course 
discovered  in  England,  and  the  writs  of 
summons  declared  to  be  void.  It  would 
have  been  easy  to  remedy  this  mistake,  if 
such  it  were,  by  proceeding  in  the  regular 
course  with  a  royal  license.  But  this  was 
withheld ;  no  Parliament  was  called  for  a 
considerable  time ;  and  when  the  three 
years  had  elapsed  during  which  the  volun- 
tai-y  conti-ibution  had  been  payable,  the  king 
threatened  to  sti-aiten  his  graces  if  it  were 
not  renewed.* 

He  had  now  placed  in  the  viceroyalty  of 
Ireland  that  star  of  exceeding  brightness  but 
sinister  influence,  the  willing  and  able  in- 

*  Carte's  Ormond,  i.,  48.  Leland,  ii.,  475,  et 
post. 


strument  of  despotic  power,  Lord  j^jmi.ijstra- 
Strafford.  In  his  eyes  the  coun-  tionofStraf- 
try  he  governed  belonged  to  the 
crown  by  right  of  conquest ;  neither  the 
original  natives,  nor  even  the  descendants 
of  the  conquerors  themselves,  possessing 
any  privileges  which  could  interfere  with 
its  sovereignty.  He  found  two  parties  ex- 
tremely jealous  of  each  other,  yet  each  loth 
to  recognize  an  absolute  prerogative,  and 
thus,  in  some  measure,  having  a  common 
cause.  The  Protestants,  not  a  little  from 
bigotry,  but  far  more  from  a  persuasion  that 
they  held  their  estates  on  the  tenure  of  a 
rigid  religious  monopoly,  could  not  endure 
to  hear  of  a  toleration  of  popery,  which, 
though  originally  demanded,  was  not  even 
mentioned  in  the  king's  graces,  and  disap- 
proved the  indulgence  shown  by  those  gra- 
ces to  recusants,  which  is  said  to  have  been 
followed  by  an  impolitic  ostentation  of  the 
Romish  worship.*  They  objected  to  a  re- 
newal of  the  contribution,  both  as  the  price 
of  this  dangerous  tolerance  of  recusancy, 
and  as  debarring  the  Protestant  subjects  of 
their  constitutional  right  to  grant  money 
only  in  Parliament.  Wentworth,  howev- 
er, insisted  upon  its  payment  for  another 

*  Leland,  iii.,  4,  et  post.  A  vehement  protesta- 
tion of  the  bishops  about  this  time,  witli  Ulster  at 
their  head,  against  any  connivance  at  popery,  is  a 
disgrace  to  their  memory.  It  is  to  be  met  vrith  in 
many  books.  Strafford,  however,  was  far  from  any 
real  hberality  of  sentiment.  His  abstinence  from 
religious  persecution  was  intended  to  be  tempora- 
ry, as  the  motives  whereon  it  was  founded.  "  It 
will  be  ever  far  forth  of  my  heart  to  conceive  that 
a  conformity  in  religion  is  not  above  all  other  things 
principally  to  be  intended ;  for,  undoubtedly,  till 
we  be  brought  all  under  one  form  of  divine  serv- 
ice, the  crown  is  never  safe  on  this  side,  &c.  It 
were  too  much  at  once  to  distemper  them  by 
bringing  plantations  upon  them,  and  disturbing 
them  in  the  exercise  of  their  religion,  so  long  as  it 
be  without  scandal ;  and  so,  indeed,  very  inconsid- 
erate, as  I  conceive,  to  move  in  this  latter  till  tiiat 
former  be  fully  settled,  and  by  that  means  the 
Protestant  party  become  by  much  the  stronger, 
which  in  truth  I  do  not  yet  conceive  it  to  be."- — 
Straff.  Letters,  ii.,  39.  He  says,  however,  and  I 
believe  truly,  that  no  man  had  been  touched  for 
conscience'  sake  since  he  was  deputy. — Id.,  112. 
Every  parish,  as  we  find  by  Bedell's  life,  had  its 
priest  and  mass-house ;  in  some  places  mass  was 
said  in  the  churches;  the  Romish  bishops  exer- 
cised their  jurisdiction,  which  was  fully  obeyed ; 
but  "the  priests  were  grossly  ignorant  and  open- 
ly scandalous,  both  for  drunkenness  and  all  sort  of 
lewdness." — P.  41,  76.  More  than  ten  to  one  ift 
his  diocese,  the  county  of  Cavan,  were  recusants. 


700 


CONSTITUTIONAL  HISTORY  OP  ENGLAND 


[Chap.  XVIII. 


year,  at  the  expiration  of  which  a  Parlia- 
ment was  to  be  called.* 

The  king  did  not  come  without  reluct- 
ance into  this  last  measure,  hating,  as  he  did, 
the  very  name  of  Parliament ;  ljut  the  lord- 
deputy  confided  in  his  own  energy  to  make 
it  innoxious  and  sei-viceable.  They  conspir- 
ed together  how  to  extort  the  most  from 
Ireland,  and  concede  the  least ;  Charles, 
in  truth,  showing  a  most  selfish  iudifiier- 
ence  to  any  thing  but  his  own  revenue,  and 
a  most  dishonorable  unfaithfulness  to  his 
word.f  The  Parliament  met  in  1634, 
with  a  strong  desire  of  insisting  on  the 
confirmation  of  the  graces  they  had  already 
paid  for ;  but  Wentworth  had  so  balanced 
the  Protestant  and  recusant  parties,  em- 
ployed so  skillfully  the  resources  of  fair 
promises  and  intimidation,  that  he  procured 
six  subsidies  to  be  granted  before  a  proro- 
gation, without  any  mutual  concession  from 
the  crown. t    It  had  been  agreed  that  a  sec- 

*  Some  of  the  council-board  having  intimated  a 
doubt  of  their  authority  to  bind  the  kingdom,  "  I 
was  tlien  put  to  my  last  refuge,  which  was  plainly 
to  declare  that  there  was  no  necessity  which  in- 
duced me  to  take  counsel  in  this  business  ;  for, 
rather  than  fail  in  so  necessary  a  duty  to  my  mas- 
ter, I  would  undertake,  upon  the  peril  of  my  head, 
to  make  the  king's  army  able  to  subsist,  and  to 
provide  for  itself  among  them,  without  their  help." 
—Strafford  Letters,  i.,  98. 

+  Id.,  i.,  183.    Carte,  61. 

t  The  Protestants,  he  wrote  word,  had  a  major- 
ity of  eight  in  the  Commons.  He  told  them,  "  it 
was  veiy  inditferent  to  him  what  resolution  the 
House  might  take  ;  that  there  were  two  ends  he 
had  in  view,  and  one  he  would  infallibly  attain : 
either  a  submission  of  the  people  to  his  majesty's 
just  demands,  or  a  just  occasion  of  breach,  and 
either  would  content  the  king  ;  the  first  was  unde- 
niably and  evidently  best  for  them." — Id.,  277,  278. 
In  his  speech  to  the  two  Houses,  he  said,  "  His 
majesty  expects  not  to  find  you  muttering,  or,  to 
name  it  more  truly,  mutinying  in  corners.  I  am 
commanded  to  carry  a  very  watchful  eye  over 
these  private  and  secret  conventicles,  to  punish 
the  transgression  with  a  heavy  and  severe  hand ; 
therefore  it  behooves  you  to  look  to  it." — Id.,  289. 
"Finally,"  he  concludes,  "I  wish  you  had  a  right 
judgment  in  all  things ;  yet  let  me  not  prove  a 
Cassandra  among  you,  to  speak  truth  and  not  be 
believed.  However,  speak  truth  I  will,  were  I  to 
become  your  enemy  for  it.  Remember,  therefoi'e, 
that  I  tell  you,  you  may  easily  make  or  mar  this 
Parliament.  If  you  proceed  with  respect,  without 
laying  clogs  and  conditions  upon  the  king,  as  wise 
men  and  good  subjects  ought  to  do,  you  shall  in- 
fallibly set  up  this  parliament  eminent  to  posteri- 
ry,  as  the  very  basis  and  foundation  of  the  gi-eatest 
happiness  and  prosperity  that  ever  befell  this  na- 


ond  session  should  be  held  for  confirming 
the  graces ;  but  in  this,  as  might  be  expect- 
ed, the  supplies  having  been  provided,  the 
request  of  both  Houses  that  they  might  re- 
ceive the  stipulated  reward  met  with  a  cold 
reception ;  and  ultimately  the  most  essen- 
tial articles,  those  establishing  a  sixty  years' 
prescription  against  the  crown,  and  secur- 
ing the  titles  of  proprietors  in  Clare  and 
1  Con  naught,  as  well  as  those  which  relieved 
the  Catholics  in  the  Court  of  Wards  from 
the  Oath  of  Supremacy,  were  laid  aside. 
Statutes,  on  the  other  hand,  were  borrow- 
ed from  England,  especially  that  of  uses, 
which  cut  off  the  methods  they  had  hither- 
to employed  for  evading  the  law's  severity.* 
Sti-afford  had  always  determined  to  exe- 
cute the  project  of  the  late  reign  with  re- 
spect to  the  western  counties.  He  pro- 
ceeded to  hold  an  inquisition  in  each  county 
of  Connaught,  and  summoned  juries  in  or- 
der to  preserve  a  mockery  of  justice  in  the 
midst  of  tyranny.  They  were  required  to 
find  the  king's  title  to  all  the  lands,  on  such 
evidence  as  could  be  found  and  was  thought 
fit  to  be  laid  before  them ;  and  were  told 
that  what  would  be  best  for  their  own  in- 
terest would  be  to  return  such  a  verdict  as 
the  king  desired,  what  would  be  best  for 
his,  to  do  the  contrary ;  since  he  was  able 
to  establish  it  without  their  consent,  and 
wished  only  to  invest  them  graciously  with 
a  large  part  of  what  they  now  unlawfully 
witliheld  froin  him.    These  menaces  had 


tian ;  but  if  you  meet  a  great  king  witb  narrow, 
circumscribed  hearts,  if  you  will  needs  be  wise 
and  cautious  above  the  moon  [sic],  remember  again 
that  I  tell  you,  j  ou  shall  never  be  able  to  cast  your 
mists  before  the  eyes  of  a  discerning  king ;  yon 
shall  be  found  out ;  your  sons  shall  wish  they  had 
been  the  children  of  more  believing  parents  ;  and 
in  a  time  when  you  look  not  for  it,  when  it  will  be 
too  late  for  j  ou  to  help,  the  sad  repentance  of  an 
unadvised  heart  shall  be  yours,  lasting  honor  shall 
be  my  master's." 

These  subsidies  were  reckoned  at  near  £41,000 
each,  and  were  thus  apportioned :  Leinster  paid 
£13,000  (of  which  £1000  from  the  citj-  of  Dublin), 
Munster  £11,000,  Ulster  £10,000,  Connaught 
£6800.— Mountmorres,  ii.,  16. 

*  Irish  Statutes,  10  Car.  I.,  c.  1,  2,  3,  &c.  Straf- 
ford Letters,  i.,  279,  312.  The  king  expressly  ap- 
proved the  denial  of  the  graces,  though  promised 
formerly  by  himself. — Id.,  345.    Leland,  iii.,  20. 

"I  can  now  say,"  Strafford  obsen'es  (Id.,  344), 
"  the  king  is  as  absolute  here  as  any  prince  in  the 
whole  world  can  be ;  and  may  still  be,  if  it  be  not 
spoiled  on  that  side." 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


701 


their  effect  in  all  comities  except  that  of 
Galway,  where  a  juiy  stood  out  obstinate- 
ly against  the  crown,  and  being  in  conse- 
quence, as  well  as  the  sheriff,  summoned 
to  the  castle  in  Dublin,  were  sentenced  to 
an  enormous  fine.  Yet  the  remonstrances 
of  the  western  pi'oprietors  were  so  clamor- 
ous that  no  steps  were  immediately  taken 
for  cariying  into  effect  the  designed  plant- 
ation, and  the  great  revolutions  of  Scotland 
and  England  which  soon  ensued  gave  an- 
other occupation  to  the  mind  of  Lord  Sti-af- 
ford.*  It  has  never  been  disputed  that  a 
more  uniform  administration  of  justice  in 
ordinaiy  cases ;  a  stricter  coercion  of  out- 
rage ;  a  more  extensive  commerce,  evi- 
denced by  the  augmentation  of  customs ; 
above  all,  the  foundation  of  the  great  linen 
manufacture  in  Ulster,  distinguished  the  pe- 
riod of  his  government,  f  But  it  is  equally 
manifest  that  neither  the  reconcilement  of 
parties,  nor  their  affection  to  the  English 
crown,  could  be  the  result  of  his  arbitrary 
domination ;  and  that,  having  healed  no 
wound  he  found,  he  left  others  to  break  out 
after  his  removal.  The  despotic  violence 
of  this  minister  toward  private  persons,  and 
those  of  great  eminence,  is,  in  some  instan- 
ces, well  known  by  the  proceedings  on  his 
impeachment,  and  in  others  is  sufficiently 
familiar  by  our  historical  and  biographical 
literature.  It  is,  indeed,  remarkable,  that 
we  find  among  the  objects  of  his  oppression 
and  insult  all  that  most  illustrates  the  co- 
temporary  annals  of  Ireland,  the  venerable 
learning  of  Usher,  the  pious  integrity  of 
Bedell,  the  experienced  wisdom  of  Cork, 
and  the  early  virtue  of  Clanricarde. 

The  Parliament  assembled  by  Strafford 
in  1640  began  with  loud  professions  of  grat- 
itude to  the  king  for  the  excellent  governor 
he  had  appointed  over  them ;  they  voted 
subsidies  to  pay  a  large  army  raised  to 
serve  against  the  Scots,  and  seemed  eager 
to  give  every  manifestation  of  zealous  loy- 
alty.t  But  after  their  prorogation,  and 
during  the  summer  of  that  year,  as  rapid  a 

*  Strafford  Letters,  i.,  353,  370,  402,  442,  451, 
454,  473;  ii.,  113,  139,  366.  Leland,  iii.,  30,  39. 
Carte,  82. 

t  It  is,  however,  true  that  he  discouraged  the 
woolen  manufacture,  in  order  to  keep  the  kingdom 
more  dependent,  and  that  this  was  part  of  liis  mo- 
tive in  promoting  the  other. — Sti'aff.  Lett,  ii.,  19. 

{  Leland,  iii.,  51.  Strafford  himself  (ii.,  397) 
speaJks  highly  of  their  disposition. 


tendency  to  a  gi-eat  revolution  became  vis- 
ible as  in  England;  the  Commons,  when 
they  met  again,  seemed  no  longer  the  same 
men  ;  and,  after  the  fall  of  their  great  vice- 
roy, they  coalesced  with  his  English  ene- 
mies to  consummate  liis  destruction.  Hate 
long  smothered  by  fear,  but  inflamed  by  the 
same  cause,  broke  forth  in  a  remonstrance 
of  the  Commons  presented  through  a  com- 
mittee, not  to  the  king,  but  a  superior  pow- 
er, the  Long  Parliament  of  England.  The 
two  Houses  united  to  avail  themselves  of 
the  advantageous  moment,  and  to  extort, 
as  they  very  justly  might,  from  the  neces- 
sities of  Charles,  that  confirmation  of  his 
promises  which  had  been  refused  in  his 
prosperity.  Both  parties.  Catholic  as  well 
as  Protestant,  acted  together  in  this  nation- 
al cause,  shunning  for  the  present  to  bring 
forward  those  differences  which  were  not 
the  less  implacable  for  being  thus  deferred. 
The  catalogue  of  temporal  grievances  was 
long  enough  to  produce  this  momentary  co- 
alition :  it  might  be  groundless  in  some  ar- 
ticles, it  might  be  exaggerated  in  more,  it 
might  in  many  be  of  ancient  standing ;  but 
few  can  pretend  to  deny  that  it  exhibits  a 
true  picture  of  the  misgovernment  of  Ire- 
land at  all  times,  but  especially  under  the 
Earl  of  Sti-afford.  The  king,  in  May,  1641, 
consented  to  the  greater  pait  of  their  de- 
mands, but,  unfortunately,  they  were  never 
granted  by  law.* 

But  the  disordered  condition  of  his  af- 
fairs gave  encouragement  to  hopes  far  be- 
yond what  any  Parliamentaiy  remonstran- 
ces could  realize ;  hopes  long  cherished 
when  they  had  seemed  vain  to  the  world, 
but  such  as  courage,  and  bigotry,  and  re- 
sentment would  never  lay  aside.  The  court 
of  Madrid  had  not  abandoned  its  connection 
with  the  disaflected  Irish,  especially  of  the 
priesthood  ;  the  son  of  Tyrone,  and  many 
followers  of  that  cause,  served  in  its  armies; 
and  there  seems  much  reason  to  believe 


*  Carte's  Ormond,  100,  140.  Leland,  iii.,  54, 
et  post.  MountmoiTes,  ii.,  29.  A  remonstrance 
of  the  Commons  to  Lord-deputy  Waudesford 
against  vaiious  giievances  was  presented  7th  of 
November,  1640,  before  Lord  Strafford  had  been 
impeached. — Id.,  39.  As  to  confirming  the  graces, 
the  delay,  whether  it  proceeded  from  the  king  or 
his  Irish  representatives,  seems  to  have  caused 
some  suspicion.  Lord  Clanricarde  mentions  the 
ill  consequences  that  might  result,  in  a  letter  to 
Lord  Bristol. — Carte's  Ormond,  iii.,  40. 


702 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIIl. 


that  in  the  beginning  of  1641  the  project  of 
insurrection  was  formed  among  the  expa- 
triated Irish,  not  without  the  concun'ence 
of  Spain,  and  perhaps  of  Richelieu.*  The 
government  had  passed  from  the  vigorous 
hands  of  Strafford  into  those  of  two  lords- 
justices.  Sir  William  Parsons  and  Sir  John 
Boilasc,  men  by  no  means  equal  to  the 
critical  circumstances  wherein  they  were 
placed,  though  possibly  too  severely  cen- 
sured by  those  who  do  not  look  at  their  ex- 
traordinary difficulties  with  sufficient  can- 
dor. The  primary  causes  of  the  rebellion 
are  not  to  be  found  in  their  supineness  or 
misconduct,  but  in  the  two  great  sins  of  the 
English  government :  in  the  penal  laws  as 
to  religion,  which  pressed  on  almost  the 
whole  people,  and  in  the  systematic  iniqui- 
ty which  despoiled  them  of  their  posses- 
sions. They  could  not  be  expected  to  miss 
such  an  occasion  of  revolt ;  it  was  an  hour 
of  revolution,  when  liberty  was  won  by 

*  Sir  Henry  Vane  communicated  to  the  lords- 
justices,  by  the  king's  command,  March  16,  1640- 
41,  that  advice  had  been  received  and  confirmed 
by  the  ministers  in  Spain  and  elsewhere,  which 
"  deserved  to  be  seriously  considered,  and  an  es- 
pecial care  and  watclifulness  to  be  had  therein : 
that  of  late  there  have  passed  from  Spain  (and  the 
like  maj'  well  have  been  from  other  parts)  an  un- 
speakable number  of  Irish  churchmen  for  England 
and  Ireland,  and  some  good  old  soldiers,  under 
pretext  of  asking  leave  to  raise  men  for  the  King 
of  Spain ;  whereas  it  is  observed  among  the  Irish 
friars  there,  a  whisper  was,  as  if  they  expected  a 
rebellion  in  Ireland,  and  particularly  in  Connaught." 
— Carte's  Ormond,  iii.,  30.  This  letter,  which 
Carte  seems  to  have  taken  from  a  printed  book,  is 
authenticated  in  Clarendon  State  Papers,  ii.,  143. 
I  have  mentioned  in  another  part  of  this  work. 
Chap.  VIII.,  the  provocations  which  might  have  in- 
duced the  cabinet  of  Madrid  to  foment  disturban- 
ces in  Charles's  dominions.  The  lords-justices  are 
taxed  by  Carte  with  supineness  in  paying  no  at- 
tention to  this  letter,  vol.  i.,  166  ;  but  how  he  knew 
that  they  paid  none  seems  hard  to  say. 

Another  imputation  has  been  thrown  on  the 
Irish  government  and  on  the  Parliament  for  object- 
ing to  permit  levies  to  be  made  for  the  Spanish 
service  out  of  the  army  raised  by  Strafford,  and 
disbanded  in  the  spring  of  1641,  which  the  king 
had  himself  proposed. — Carte,  i.,  133;  and  Leland, 
82,  who  follows  the  former  implicitly,  as  he  always 
does.  The  event,  indeed,  proved  that  it  would 
have  been  far  safer  to  let  those  soldiers,  chiefly 
Catholics,  enlist  under  a  foreign  banner;  but,  con- 
sidering the  long  connection  of  Spain  with  that 
party,  and  the  apprehension  always  entertained 
that  the  disaffected  might  acquire  military  experi- 
ence in  her  service,  the  objection  does  not  seem  so 
very  unreasonable. 


arms,  and  ancient  laws  were  set  at  naught; 
the  very  success  of  their  worst  enemies, 
the  Covenanters  in  Scotland,  seemed  the 
assurance  of  their  own  victory,  as  it  was 
the  reproach  of  their  submission.* 

The  rebellion  broke  out,  as  is  well  known, 
by  a  sudden  massacre  of  the  Scots  Rebellion 
and  English  in  Ulster,  designed,  no  of  1641. 
doubt,  by  a  vindictive  and  bigoted  people 
to  extirpate  those  races,  and,  if  cotemporary 
authorities  are  to  be  credited,  falling  little 
short  of  this  in  its  execution.  Their  evi- 
dent exaggeration  has  long  been  acknowl- 
edged; but  possibly  the  skepticism  of  later 
writers  has  extenuated  rather  too  much  the 
horrors  of  this  massacre,  f    It  was  certainly 

*  The  fullest  writer  on  the  Irish  Kebellion  is 
Carte,  in  his  Life  of  Ormond,  who  had  the  use  of 
a  vast  collection  of  documents  belonging  to  that 
noble  family,  a  selection  from  which  forms  his  third 
volume.  But  he  is  extremely  partial  against  all 
who  leaned  to  the  Parliamentary  or  Puritan  side, 
and  especially  the  lords-justices.  Parsons  and  Bor- 
lase,  which  renders  him,  to  say  the  least,  a  very 
favorable  witness  for  the  Catholics.    Leland,  with 

'  much  candor  toward  the  latter,  but  a  good  deal  of 
the  same  prejudice  against  the  Presbyterians,  is 
little  more  than  the  echo  of  Carte.    A  more  vigor- 

I  0U8,  though  less  elegant  historian,  is  Warner, 
whose  impartiality  is  at  least  equal  to  Leland's, 
and  who  may,  perhaps,  upon  the  whole,  be  reck- 
oned the  best  modem  authority.  Sir  John  Temple's 
History  of  Irish  Rebellion,  and  Lord  Clanricarde'f 
Letters,  with  a  few  more  of  less  importance,  are 
valuable  cotemporary  testimonies. 

The  Catholics  themselves  might  better  leave 
their  cause  to  Carte  and  Leland  than  excite  prej- 
udices instead  of  allaying  them  by  such  a  tissae 
of  misrepresentation  and  disingenuousness  as  Cur- 
ry's Historical  Account  of  the  Civil  Wars  in  Ire- 
land. 

t  Sir  John  Temple  reckons  the  number  of  Protes- 
tants murdered,  or  destroyed  in  some  manner,  from 
the  breaking  out  of  the  rebellion  in  October,  1641,  to 
the  cessation  in  September,  1643,  at  three  hundred 
thousand,  an  evident  and  enormous  exaggeration; 
so  that  the  first  edition  being  incorrectly  printed,  and 
with  numerals,  we  might  almost  suspect  a  cipher  to 
have  been  added  by  mistake,  p.  15  (edit.  Maseres). 
Clarendon  says  fortj'  or  fifty  thousand  were  mur- 
dered in  the  &st  insurrection.  Sir  William  Petty, 
in  his  Political  Anatomy  of  Ireland,  from  calcula- 
tions too  vague  to  deserve  confidence,  puts  the 
number  massacred  at  thirty-seven  thousand.  War- 
ner has  scrutinized  the  examinations  of  witnesses, 
taken  before  a  commission  appointed  in  1643,  and 
now  deposited  in  the  library  of  Trinity  College, 
Dublin,  and,  finding  many  of  the  depositions  un- 
sworn, and  others  founded  on  hearsay,  has  thrown 
more  doubt  than  any  earlier  writer  on  the  extent 
of  the  massacre.  Upon  the  whole,  he  thinks  twelve 
thousand  lives  of  Protestants  the  utmost  that  can 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


703 


not  the  crime  of  the  Catholics  generally  ; 
nor,  perhaps,  in  the  other  provinces  of  Ire- 
land are  they  chargeable  with  more  cinjel- 
ty  than  their  opponents.*    Whatever  may 

be  allowed  for  the  direct  or  indirect  effects  of  the 
rebellion,  during  the  two  first  years,  except  losses 
in  war  (History  of  Irish  Rebellion,  p.  397),  and  of 
these  only  one  third  by  murder.  It  is  to  be  re- 
marked, however,  that  no  distinct  accounts  conld 
be  preserved  in  formal  depositions  of  so  promiscu- 
oas  a  slaughter,  and  that  the  very  exaggerations 
show  its  tremendous  nature.  Tlie  Ulster  colony, 
a  numerous  and  brave  people,  were  evidently  un- 
able to  make  head  for  a  considerable  time  against 
tlie  rebels,  which  could  hardly  have  been  if  they 
had  only  lost  a  few  thousands.  It  is  idle  to  throw 
an  air  of  ridicule  (as  is  sometimes  attempted)  on 
the  depositions  because  they  are  mingled  with 
some  fabulous  circumstances,  such  as  tlie  appear- 
ance of  the  ghosts  of  the  murdered  on  the  bridge 
at  Cavan,  which,  by-the-way,  is  only  told,  in  the 
depositions  subjoined  to  Temple,  as  the  report  of 
the  place,  and  was  no  cold-blooded  fabrication, 
bat  the  work  of  a  fancy  bewildered  by  real  horrors. 

Carte,  who  dwells  at  length  on  every  circum- 
stance unfavorable  to  the  opposite  party,  dispatch- 
es the  Ulster  massacre  in  a  single  short  paragraph, 
and  coolly  remarks,  that  there  were  not  many  mur- 
ders, "considering  the  nature  of  such  art  affair," 
in  the  first  week  of  the  insuirection. — Life  of  Or- 
mond,  i.,  175-177.  This  is  hardly  reconcilable  to 
fair  deahng.  Curry  endeavors  to  discredit  even 
Warner's  very  moderate  estimate,  and  affects  to 
call  him  in  one  place,  p.  184,  "  a  writer  highly 
prejudiced  against  the  insurgents,"  which  is  gross- 
ly false.  He  praises  Carte  and  Nalson,  the  only 
Protestants  he  does  praise,  and  bestows  on  the 
latter  the  name  of  impartial.  I  wonder  he  does 
not  say  that  no  one  Protestant  was  murdered.  Dr. 
Lingard  has  lately  given  a  short  account  of  the 
Ulster  rebellion  (Hist,  of  England,  x.,  154),  omit- 
ting all  mention  of  the  massacre,  and  endeavoring, 
in  a  note  at  the  end  of  the  volume,  to  disprove,  by 
mere  scraps  of  quotation,  an  event  of  such  notorie- 
ty, that  we  must  abandon  all  faith  in  public  fame 
if  it  were  really  unfounded. 

"  Carte,  i.,  253,  266;  iii.,  51.  Leland,  154.  Sir 
Charles  Coote  and  Sir  William  St.  Leger  are 
charged  with  great  cruelties  in  Munster.  The 
Catholic  confederates  spoke  with  abhorrence  of 
the  Ulster  massacre. — Leland,  161.  Warner,  203. 
They  behaved,  in  many  parts,  with  humanity ;  nor, 
indeed,  do  we  find  frequent  instances  of  violence, 
except  in  those  counties  where  the  proprietors  had 
been  dispossessed.  [It  has  been  not  unfrequent 
with  Catholic  writers  to  allege  that  3000  Irish  had 
been  massacred  by  the  Protestants  in  Isle  Magee, 
near  Carricfergus,  before  the  rebellion  broke  out. 
Curry,  in  his  grossly  unfair  History  of  the  Civil 
Wars,  and  Plowden,  in  his  not  less  unfair,  an-d 
more  superficial  Historical  Review  of  the  State  of 
Ireland,  are  among  these ;  the  latter  having  been 
misled,  or  affected  to  be  persuaded,  by  a  passage 
in  the  appendix  to  Clarendon's  Historical  Accoujit 
of  Irish  Affairs,  which  appendix  evidently  was  not 


have  been  the  original  intentions  of  the  lords 
of  the  pale,  or  of  the  Anglo-Irish  professing 
the  old  religion  in  general  (which  has  been 
a  problem  in  history),  a  few  months  only 
elapsed  before  they  were  almost  universally 
engaged  in  the  war.*  The  old  distinctions 
written  by  that  historian  himself,  but  subjoined  by 
some  one  to  the  posthumous  work.  Carte,  though 
he  seems  to  be  staggered  by  the  numbers,  gives 
some  credit  to,  or  at  least  states  as  not  improbable, 
the  main  fact,  that  this  massacre  occurred  anteced- 
ently to  any  committed  by  the  Irish  themselves. 
— Life  of  Ormond,  i.,  188.  But  Leland  refers  to 
the  original  depositions  in  Trinity  College,  Dub- 
lin, whence  it  appears  that  some  Scots  soldiers,  in 
gan-ison  at  Carricfergus,  sallied  out  in  January, 
when  the  rebellion  was  at  its  height,  and  slaugh- 
tered a  few  families  of  unoffending  natives  i:i  Isle 
Magee. — Leland,  iii.,  129.  Dr.  Lingard,  it  must  in 
justice  be  added,  does  not  repeat  this  slander. — 
1845.] 

*  Carte  and  Leland  endeavor  to  show  that  the 
Irish  of  the  pale  were  driven  into  rebellion  by  the 
distrust  of  the  lords-justices,  who  refused  to  furnish 
them  with  arms  after  the  revolt  in  Ulster,  and 
permitted  the  Parliament  to  sit  for  one  day  only, 
in  order  to  publish  a  declaration  against  the  rebels. 
But  the  prejudice  of  these  writers  is  very  glaring. 
The  insurrection  broke  out  in  Ulster,  October  23, 
1641,  and  in  the  beginning  of  December  the  lords 
of  the  pale  were  in  arms.  Surely  this  affords 
some  presumption  that  Warner  has  reason  to 
think  them  privy  to  the  rebellion,  or,  at  least,  not 
very  averse  to  it. — P.  146.  And  with  the  suspi- 
cion that  might  naturally  attach  to  all  Irish  Catho- 
lics, could  Borlase  and  Parsons  be  censurable  for 
declining  to  intrust  them  with  arms,  or,  rather,  for 
doing  so  with  some  caution  .' — Temple,  56.  If 
they  had  acted  otherwise,  we  sliould  certainly 
have  heard  of  their  incredible  imprudence.  Again, 
the  Catholic  party  in  the  House  of  Commons  were 
so  cold  in  their  loyalty,  to  say  the  least,  that  they 
objected  to  giving  any  appellation  to  the  rebels 
worse  than  that  of  discontented  gentlemen. — Le- 
land, 140.  See,  too,  Clanricarde's  Letters,  p.  33, 
(Sec.  In  fact,  several  counties  of  Leinster  and  Con- 
naught  were  in  arms  before  the  pale. 

It  has  been  thought  by  some  that  the  lords-just- 
ices had  time  enough  to  have  quelled  the  rebell- 
ion in  Ulster  before  it  spread  further. — Warner, 
130.  Of  this,  as  I  conceive,  we  should  not  pretend 
to  judge  confidently.  Certain  it  is  that  the  whole 
ai-my  in  Ireland  was  vei-y  small,  consisting  of  only 
nine  hundred  and  forty-three  horse,  and  two  thou- 
sand two  hundred  and  ninety-seven  foot. — Temple, 
32.  Carte,  194.  I  think  Sir  John  Temple  has  been 
unjustly  depreciated ;  he  was  master  of  the  rolls 
in  Ireland  at  the  time,  and  a  member  of  the  coun- 
cil— no  bad  witness  for  what  passed  in  Dublin ; 
and  he  makes  out  a  complete  justification  as  far  as 
appears,  for  the  conduct  of  the  lords-justices  and 
council  toward  the  lords  of  tlie  pale  and  the  Cath- 
olic gentry.  Nobody  alleges  that  Parsons  and  Bor- 
lase were  men  of  as  much  energy  as  Lord  Straf- 
ford ;  but  those  who  sit  down  in  their  closets,  like 


704 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIH. 


of  Irish  and  English  blood  were  obliterated 
by  those  of  religion ;  and  it  became  a  des- 
perate contention  whether  the  majority  of 
the  nation  should  be  trodden  to  the  dust 
by  forfeiture  and  persecution,  or  the  crown 
lose  eveiy  thing  beyond  a  nominal  sover- 
eignty over  Ireland.  The  insurgents,  who 
might  once,  perhaps,  have  been  content 
with  a  repeal  of  the  penal  laws,  grew  nat- 
urally in  their  demands  through  success, 
or,  rather,  through  the  inability  of  the  En- 
glish government  to  keep  the  field,  and  be- 
gan to  claim  the  entire  establishment  of 
their  religion  ;  terms  in  themselves  not  un- 
reasonable, nor  apparently  disproportionate 
to  their  circumstances,  and  which  the  king 
was,  in  his  distresses,  nearly  ready  to  con- 
cede, but  such  as  never  could  have  been 
obtained  from  a  third  party,  of  whom  they 
did  not  sufficiently  think,  the  Parliament 
and  people  of  England.  The  Commons 
had,  at  the  very  beginning  of  the  Rebellion, 
voted  that  all  the  forfeited  estates  of  the  in- 
surgents should  be  allotted  to  such  as  should 
aid  in  reducing  the  island  to  obedience,  and 
thus  rendci-ed  the  war  desperate  on  the 
part  of  the  Irish.*  No  great  efforts  were 
made,  however,  for  some  years ;  but  after 
the  king's  person  had  fallen  into  their  hands, 
the  victorious  part}'  set  themselves  in  earn- 
est to  effect  the  conquest  of  Ireland.  This 
„  , .    ..      was  achieved  by  Cromwell  and 

Subjugation 

of  the  Irish  his  powerful  army  after  several 
by  Cromwell,  yg^j.g^  with  such  bloodshed  and 
rigor  that,  in  the  opinion  of  Lord  Clarendon, 


L  eland  and  Warner,  more  than  a  century  after- 
ward, to  lavish  the  most  indignant  contempt  on 
their  memory,  should  have  reflected  a  little  on  the 
circumstances, 

*  "I  perceived  (says  Preston,  general  of  the 
Irish,  writing  to  Lord  Clanricarde)  that  the  Catho- 
lic religion,  the  rights  and  prerogatives  of  his  maj- 
esty, my  dread  sovereign,  the  libeities  of  my  conn- 
trj',  and  whether  there  should  be  an  Irishman  or 
no,  were  the  prizes  at  stake." — Carte,  iii.,  120. 
Clanricarde  himself  expresses  to  the  king,  and  to 
his  brother,  Lord  Essex,  in  Januarj-,  1G12,  his  ap- 
prehension tliat  the  English  Parliament  meant  to 
make  it  a  religious  war. — Clanricarde's  Letters, 
61,  et  post.  The  lettei'S  of  this  great  man,  perhaps 
the  most  unsullied  character  in  the  annals  of  Ire- 
land, and  certainly  more  so  than  even  his  illustri- 
ous cotemporarj-,  the  Duke  of  Ormond,  exhibit  the 
struggles  of  a  noble  mind  between  love  of  his  coun- 
try and  bis  religion  on  the  one  hand,  loyalty  and 
honor  on  the  other.  At  a  later  period  of  that  un- 
happy war,  he  thought  himself  able  to  conciliate 
both  principles. 


the  sufferings  of  that  nation,  from  the  outset 
of  the  Rebellion  to  its  close,  have  never 
been  surpassed  but  by  those  of  the  Jews 
in  their  destruction  by  Titus. 

At  the  Restoration  of  Charle?  II.  there 
were  in  Ireland  two  people,  one  Rrsioraiion 
either  of  native,  or  old  English  of  Charles  li. 
blood,  the  other  of  recent  settlement ;  one 
Catholic,  the  other  Protestant;  one  hum- 
bled by  defeat,  the  other  insolent  with  victo- 
ry ;  one  regarding  the  soil  as  his  ancient  in- 
heritance, the  other  as  his  acquisition  and  re- 
ward. There  were  three  religions  ;  for  the 
Scots  of  Ulster  and  the  army  of  Cromwell 
had  never  owned  the  Episcopal  Church, 
which  for  several  years  had  fallen  almost  as 
low  as  that  of  Rome.  There  were  claims, 
not  easily  set  aside  on  the  score  of  right,  to 
the  possession  of  lands,  which  the  entire 
island  could  not  satisfy.  In  England,  little 
more  had  been  necessary  than  to  revive  a 
suspended  Constitution ;  in  Ireland,  it  was 
something  beyond  a  new  Constitution  and 
code  of  law  that  was  required  :  it  was  the 
titles  and  boundaries  of  each  man's  private 
estate  that  were  to  be  litigated  and  adjudg- 
ed. The  Episcopal  Church  was  restored 
with  no  delay,  as  never  having  been  abol- 
ished by  law ;  and  a  Parliament  containing 
no  Catholics,  and  not  many  vehement  Non- 
conformists, proceeded  to  the  great  work 
of  settling  the  struggles  of  opposite  claim- 
ants by  a  fresh  partition  of  the  kingdom.* 

The  king  had  already  published  a  decla- 
ration for  the  settlement  of  Ire-  Act  of  Set- 
land,  intended  as  the  basis  of  an  t'ement. 
act  of  Parliament.  The  adventurers,  or 
those  who,  on  the  faith  of  several  acts 
passed  in  England  in  1642,  with  the  assent 
of  the  late  king,  had  advanced  money  for 
quelling  the  rebellion,  in  consideration  of 
lands  to  be  allotted  to  them  in  certain  stip- 
ulated proportions,  and  who  had,  in  gener- 
al, actually  received  them  from  Cromwell, 
were  confirmed  in  all  the  lands  possessed 
by  them  on  the  7th  of  May,  1659  ;  and  all 
the  deficiencies  were  to  be  supplied  before 
the  next  year.  The  army  was  confii'med 
in  the  estates  already  allotted  for  their  pay, 
with  an  exception  of  Church  lands  and  some 
others.  Those  officers  who  had  served  in 
the  royal  Jirmy  against  the  Irish  before  1649 
were  to  be  satisfied  for  their  pay,  at  least 
to  the  amount  of  five  eighths,  out  of  lands 
*  Carte,  ii.,  221.   Leland,  420. 


Ireland.] 


FaOM  HENRY  VII.  TO  GEORGE  II. 


705 


to  be  allotted  for  that  purpose.  Innocent 
papists,  that  is,  such  as  were  not  concerned 
in  the  Rebellion,  and  whom  Cromwell  had 
arbitrarily  transplanted  into  Connaught, 
were  to  be  restored  to  their  estates,  and 
those  who  possessed  them  to  be  indemni- 
fied. Those  who  had  submitted  to  the 
peace  of  1648,  and  had  not  been  afterward 
in  arras,  if  they  had  not  accepted  lands  in 
Connaught,  were  also  to  be  restored,  as  soon 
as  those  who  now  possessed  them  should  be 
satisfied  for  their  expenses.  Those  who 
had  served  the  king  abroad,  and  thirty-six 
enumerated  persons  of  the  Irish  nobility 
and  gentry,  were  to  be  put  on  the  same 
footing  as  the  last.  The  precedency  of 
restitution,  an  important  point  where  the 
claims  exceeded  the  means  of  satisfying 
them,  was  to  be  in  the  order  above  speci- 
fied.* 

This  declaration  was  by  no  means  pleas- 
ing to  all  concerned.  The  loyal  officers 
who  had  sened  before  1649,  murmured 
that  they  had  little  prospect  of  more  than 
twelve  shillings  and  sixpence  in  the  pound, 
while  the  Republican  army  of  Cromwell 
would  receive  the  full  value.  The  Irish 
were  more  loud  in  their  complaints;  no 
one  was  to  be  held  innocent  who  had  been 
in  the  rebel  quarters  before  the  cessation 
of  1643  ;  and  other  qualifications  were  add- 
ed so  severe  that  hardly  any  could  expect 
to  come  witJim  them.  In  the  House  of 
Commons,  the  majority,  consisting  veiy 
much  of  the  new  interests,  that  is,  of  the 
adventurers  and  army,  Avere  in  favor  of 
adhering  to  the  declaration.  In  the  House 
of  Lords  it  was  successfully  urged  that,  by 
gratifying  the  new  men  to  the  utmost,  no 
fund  would  be  left  for  indemnifying  the 
Loyalists  or  the  innocent  Irish.  It  was 
proposed  that,  if  the  lands  not  yet  disposed 
of  should  not  be  sufficient  to  satisfy  all  the 
interests  for  which  the  king  had  meant  to 
provide  by  his  declaration,  there  should  be 
a  proportional  defalcation  out  of  eveiy  class 
for  the  benefit  of  the  whole.  These  dis- 
cussions were  adjourned  to  London,  where 
delegates  of  the  different  parties  employed 
eveiy  resource  of  inti'igue  at  the  English 
court.  The  king's  bias  toward  the  religion 
of  the  Irish  had  rendered  him  their  friend, 
and  they  seemed,  at  one  time,  likely  to  re- 
verse much  that  had  been  intended  against 
»  Carte,  ii.,  216.  Leland,  414. 
Z  z 


them ;  but  their  agents  grew  rash  with 
hope,  assumed  a  tone  of  superiority  which 
ill  became  their  condition,  affected  to  just- 
ify their  rebellion,  and  finally  so  much  dis- 
gusted their  sovereign  that  he  ordered  the 
Act  of  Settlement  to  be  sent  back  with  lit- 
tle alteration,  except  the  insertion  of  some 
more  Irish  nominees.* 

The  execution  of  this  act  was  intrusted 
to  English  commissioners,  from  whom  it 
was  reasonable  to  hope  for  an  impartiality 
wliich  could  not  be  found  among  the  inter- 
ested classes.  Notwithstanding  the  rigor- 
ous proofs  nominally  exacted,  more  of  the 
Irish  were  pronounced  innocent  than  the 
Commons  had  expected  ;  and  the  new  pos- 
sessors having  the  sway  of  that  assembly, 
a  clamor  was  raised  that  the  popish  inter- 
est had  prevailed ;  some  talked  of  defending 
their  estates  by  arms,  some  even  meddled 
in  fanatical  conspiracies  against  the  govern- 
ment ;  it  was  insisted  that  a  closer  inquisi- 
tion should  be  made,  and  stricter  qualifica- 
tions demanded.  The  manifest  deficiency 
of  lands  to  supply  all  the  claimants  for 
whom  the  Act  of  Settlement  provided, 
made  it  necessary  to  resort  to  a  supple- 
mental measure,  called  the  Act  of  Expla- 
nation. The  adventurers  and  soldiers  re- 
linquished one  third  of  the  estates  enjoyed 
by  them  on  the  7th  of  May,  1659.  Twen- 
ty Irish  nominees  were  added  to  those 
who  were  to  be  restored  by  the  king's  fa- 
vor ;  but  all  those  who  had  not  already  been 
adjudged  innocent,  more  than  three  thou- 
sand in  number,  were  absolutely  cut  off 
j  from  any  hope  of  restitution.  The  great 
I  majority  of  these,  no  question,  were  guilty  ; 
yet  they  justly  complained  of  this  confisca- 
tion without  a  trial,  f  Upon  the  whole  re- 
sult, the  Irish  Catholics  having  previously 
held  about  t^vo  thirds  of  the  kingdom,  lost 
more  than  one  half  of  their  possessions  by 
forfeiture  on  account  of  their  rebellion.  If 
we  can  rely  at  all  on  the  calculations,  made 
almost  in  the  infancy  of  political  arithmetic 
by  one  of  its  most  diligent  investigators,  they 
were  diminished  also  by  much  more  than 
one  third  through  the  calamities  of  that  pe- 
riod, t 

*  Carte,  222,  et  post.    Leland,  420,  et  post. 

t  Carte,  258-316.    Leland,  431,  et  post. 

t  The  statements  of  lands  forfeited  and  restored, 
nnder  the  execution  of  the  Act  of  Settlement,  are 
not  the  same  in  all  writers.    Sir  William  Petty 


706 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[CHAr.  XVIIL 


It  is  more  easy  to  censure  the  particular 
inequalities,  or  even,  in  some  respects,  in- 
justice of  the  Act  of  Settlement,  than  to 
point  out  what  belter  course  was  to  have 
been  adopted.  The  readjustment  of  all 
private  rights  after  so  entire  a  destruction 
of  their  landmarks  could  only  be  effected  by 
the  coarse  process  of  general  i-ules.  Nor 
does  it  appear  that  the  Catholics,  consider- 
ed as  a  great  mass,  could  reasonably  mur- 
mur against  the  confiscation  of  half  their 
estates,  after  a  civil  war  wherein  it  is  evi- 
dent that  so  large  a  proportion  of  them- 
selves were  concerned.*    Charles,  it  is 


estimates  the  superficies  of  Ireland  at  10,500,000 
Irish  acres  (each  being  to  the  English  measure 
nearly  as  thirteen  to  eight),  whereof  7,500,000  are 
of  good  land,  the  rest  being  moor,  bog,  and  lake 
In  1641,  the  estates  of  the  Protestant  owners  and 
of  the  Church  were  about  one  third  of  these  culti- 
vable lands,  those  of  Catholics  two  thirds.  The 
whole  of  the  latter  were  seized  or  sequestered  by 
Cromwell  and  the  Parliament.  After  summing  up 
the  allotments  made  by  the  commissioners  under 
the  Act  of  Settlement,  he  concludes  that,  in  1672, 
the  English,  Protestants,  and  Church,  have  5,140,000 
acres,  and  the  papists  nearly  half  as  much.— Polit- 
ical Anatomy  of  Ireland,  c.  1.  In  Lord  Orrery's 
Letters,  i.,  187,  et  post.,  is  a  statement,  which 
seems  not  altogether  to  tally  with  Sir  William 
Petty's  ;  nor  is  that  of  the  latter  clear  and  consist- 
ent in  all  its  computations.  Lawrence,  author  of 
"The  Interest  of  Ireland  Stated,"  a  treatise  pub- 
lished in  1682,  says,  "of  10,868,949  acres  returned 
by  the  last  survey  of  Ireland,  the  Irish  papists  are 
possessed  but  of  2,041,108  acres,  which  is  but  a 
small  matter  above  the  fifth  part  of  the  whole." — 
Part  ii.,  p.  48.  But,  as  it  is  evidently  below  one 
fifth,  there  must  be  some  mistake.  It  appears  that 
in  one  of  these  sums  he  reckoned  the  whole  ex- 
tent, and  in  the  other  only  cultivable  lands.  Lord 
Clare,  in  his  celebrated  speech  on  the  Union, 
greatly  overrates  the  confiscations.  [It  is  stated 
in  the  English  Journals  of  Commons,  12th  of  Jan., 
1694,  that  the  court  of  claims  (that  is,  the  commis- 
sioners appointed  as  in  the  text)  allotted  4,560,037 
acres  to  the  English,  2,323,809  to  the  Irish,  and  left 
824,391  undisposed.  This,  by  supposing  the  last 
to  have  been  afterward  divided,  would  very  close- 
ly tally  with  Sir  William  Petty's  estimate. — 1845.] 
Petty  calculates  that  above  500,000  of  the  Irish 
"  perished  and  were  wasted  by  the  sword,  plague, 
famine,  hardship,  and  banishment,  between  the  23d 
day  of  October,  1641,  and  the  same  day  1652;" 
and  conceives  the  population  of  the  island  in  1641 
to  have  been  nearly  1,500,000,  including  Protestants. 
But  his  conjectures  are  prodigiously  vague. 

"  Petty  is  as  ill  satisfied  with  the  restoration  of 
lands  to  the  Irish  as  they  could  be  with  the  con- 
fiscations. "  Of  all  that  claimed  innoceucy,  seven 
iu  eight  obtained  it.  The  restored  persons  have 
more  than  what  was  their  own  in  1641  by  at  least 


true,  had  not  been  personally  resisted  by 
the  insurgents  ;  but,  as  chief  of  England,  he 
stood  in  the  place  of  Cromwell,  and  equally 
represented  the  sovereignty  of  the  greater 
island  over  the  lesser,  which  under  no  form 
of  government  it  would  concede. 

The  Catholics,  however,  thought  them- 
selves oppressed  by  the  Act  of  iiopea  of  ih* 
Settlement,  and  could  not  for-  j^''^' ChaX"' 
give  the  Duke  of  Ormond  for  and  James, 
his  constant  regard  to  the  Protestant  inter- 
ests, and  the  supremacy  of  the  English 
crown.  They  had  enough  to  encourage 
them  in  the  king's  bia.s  toward  their  religion, 
which  he  was  able  to  manifest  more  open- 
ly than  in  England.  Under  the  administra- 
tion of  Lord  Berkley  in  1670,  at  the  time 
of  Charles's  conspiracy  with  the  King  of 
France  to  subvert  religion  and  liberty,  they 
began  to  menace  an  approaching  change, 
and  to  aim  at  revoking,  or  materially  weak- 
ening, the  Act  of  Settlement.  The  most 
bigoted  and  insolent  of  the  popish  clergy, 
who  had  lately  rejected  with  indignation  an 
offer  of  more  reasonable  men  to  renounce 
the  tenets  obnoxious  to  civil  governments, 
were  countenanced  at  Dublin  ;  but  the  firet 
alarm  of  the  new  proprietors,  as  well  as 
the  general  apprehension  of  the  court's  de- 
signs in  England,  soon  rendered  it  necessa- 
ry to  desist  from  the  projected  innovations.* 
The  next  reign,  of  course,  reanimated  the 
Irish  party;  a  dispensing  prerogative  set 
aside  all  the  statutes  ;  every  civil  office,  the 
courts  of  justice,  and  the  privy  council, 
were  filled  with  Catholics;  the  Protestant 
soldiers  were  disbanded ;  the  citizens  of 
that  religion  were  disarmed ;  the  tithea 
were  withheld  from  their  clergy  •  they 
were  suddenly  reduced  to  feel  that  bitter 
condition  of  a  conquered  and  proscribed 
people  which  they  had  long  rendered  the 
lot  of  their  enemies. f  From  these  ene- 
mies, exasperated  by  bigotry  and  revenge, 
they  could  have  nothing  but  a  full  and  ex- 
ceeding measure  of  retaliation  to  expect ; 
nor  had  they  even  the  last  hope  that  an 
English  king,  for  the  sake  of  his  crown  and 
country,  must  protect  those  who  formed 
the  strongest  link  between  the  two  islands. 


one  fifth.  Of  those  adjudged  innocents,  not  one  in 
twenty  were  really  so." 

*  Carte,  ii.,  414,  et  post.    Leland,  458,  et  post. 

t  Leland,  493,  et  post.  Mazure,  Hist,  de  la 
nevolut.,  ii.,  113. 


Ireland.] 


FROM  HENRY  VII.  TO  GEORGE  II. 


707 


A  man  violent  and  ambitious,  without  su- 
perior capacity,  the  Earl  of  Tyrconnel,  lord- 
lieutenant  in  1687,  and  commander  of  the 
army,  looked  only  to  his  master's  interests, 
in  subordination  to  those  of  his  countrymen 
and  of  his  own.  It  is  now  ascertained  that, 
doubtful  of  the  king's  success  in  tlie  strug- 
gle for  restoring  popery  in  E  ngland,  he  had 
made  secret  overtures  to  some  of  the  French 
agents  for  casting  off  all  connection  with 
that  kingdom  in  case  of  James's  death,  and, 
with  the  aid  of  Louis,  placing  the  crown  of 
Ireland  on  his  own  head.*  The  revolution 
Warofi689,  in  England  was  followed  by  a 
and  final  re-     ^    ■    Ireland  of  three  years' 

duction  of  •' 

Ireland.  duration,  and  a  war  on  both  sides, 
like  that  of  1641,  for  self-preservation.  In 
the  Parliament  held  by  James  at  Dublin  iu 
1690,  the  Act  of  Settlement  was  repealed, 
and  above  2000  persons  attainted  by  name  ; 
both,  it  has  been  said,  perhaps  with  little 
truth,  agiiinst  the  king's  will,  who  dreaded 
the  impetuous  nationality  that  was  tearing 
away  the  bulwarks  of  his  throne. f  But 
the  magnanimous  defense  of  Deny  and  the 
splendid  victory  of  the  Boyne  restored  the 
Pi-otestaut  cause ;  though  the  Irish,  with 
the  succor  of  French  troops,  maintained  for 
two  yeai's  a  gallant  resistance,  they  could 
not  ultimately  withstand  the  triple  superior- 
ity of  military  talents,  resources,  and  disci- 
pline. Their  bravery,  however,  served  to 
obtain  the  articles  of  Limerick  on  the  sur- 
render of  that  city,  conceded  by  their  noble- 
minded  conqueror  against  the  disjjosition  of 
those  who  longed  to  plunder  and  persecute 
their  fallen  enemy.  By  the  first  of  these 
articles,  "  the  Roman  Catholics  of  this  king- 
dom shall  enjoy  such  privileges  in  the  exer- 
cise of  their  religion  as  are  consistent  with 
the  laws  of  Ireland,  or  as  they  did  enjoy  in 

*  M.  Maznrc  lias  brought  tliis  remarkable  fact  to 
light.  Bonrepos,  a  French  emissary  in  England, 
was  authorized  by  his  court  to  proceed  in  a  nego- 
tiation with  Tyrconnel  for  the  separation  of  the 
two  islands,  in  case  that  a  Protestant  should  suc- 
ceed to  the  crown  of  England.  He  liad,  accord- 
ingly, a  private  interview  with  a  confidential  agent 
of  the  lord-lieutenant  at  Chester,  in  the  month  of 
October,  1G87.  Tyrconnel  undertook  that  in  less 
than  a  year  every  thing  should  be  prepared. — Id., 
ii.,  281,  288  ;  iii.,  430. 

t  Leland,  537.  This  seems  to  rest  on  the  au- 
thority of  Leslie,  which  is  by  no  means  good.  Some 
letters  of  Barillon,  in  1687,  show  that  James  had 
intended  the  repeal  of  the  Act  of  Settlement. — 
Dalrymple,  257,  263. 


the  reign  of  King  Charles  II. ;  and  their 
majesties,  as  soon  as  their  affairs  will  per- 
mit them  to  summon  a  Parliament  in  this 
kingdom,  will  endeavor  to  procure  the  said 
Roman  Catholics  such  further  security  in 
that  particular  as  may  preserve  them  from 
any  disturbance  upon  the  account  of  their 
said  religion."  The  second  secures  to  the 
inhabitants  of  Limerick  and  other  places 
then  in  possession  of  tlie  Irish,  and  to  all 
ofificers  and  soldiers  then  in  arms,  who 
should  return  to  their  majesties'  obedience, 
and  to  all  such  as  should  be  under  their  pro- 
tection in  the  counties  of  Limerick,  Kerry, 
Clare,  Galway,  and  Mayo,  all  their  estates, 
and  all  their  rights,  privileges,  and  immuni- 
ties, which  they  hold  in  the  reign  of  Charles 
II.,  free  from  all  forfeitures  or  outlawries 
incurred  by  them.* 

This  second  article,  but  only  as  to  the 
garrison  of  Limerick  or, other  persons  in 
arms,  is  confirmed  by  statute  some  years 
afterward. f  The  first  article  seems,  how- 
ever, to  be  passed  over.  The  forfeitures 
on  account  of  the  Rebellion,  estimated  at 
1,060,792  acres,  were  somewhat  diminished 
by  restitutions  to  the  ancient  possessors  un- 
der the  capitulation ;  the  greater  part  were 
lavishly  distributed  to  English  grantees.J 
It  appears  from  hence  that  at  the  end  of 
the  seventeenth  century,  the  Irish  or  Anglo- 
Irish  Catholics  could  hardly  possess  above 
one  sixth  or  one  seventh  of  the  kingdom. § 
They  were  still  formidable  from  their  num- 
bers and  their  sufferings ;  and  the  victorious 
party  saw  no  security  but  in  a  system  of 
oppression,  contained  in  a  series  of  laws  dur- 
ing the  reigns  of  William  and  Anne,  which 
have  scarce  a  parallel  in  European  history, 
unless  it  be  that  of  the  Protestants  in  France 
after  the  revocation  of  the  Edict  of  Nantes, 
who  yet  were  but  a  feeble  minority  of  the 
whole  people.    No  papist  was  allowed  to 

*  See  the  articles  at  length  in  Leland,  619. 
Those  who  argue  from  the  treaty  of  Limerick 
against  any  political  disabilities  subsisting  at  pres- 
ent do  injury  to  a  good  cause. — [1827.] 

t  Irish  Stat,  9  Wm.  III.,  c.  2. 

t  Pari.  Hist.,  v.,  1202. 

§  [Vide  supra.  But  of  cultivable  lands,  if  their 
forfeitures  are  to  be  reckoned  in  these  alone,  they 
may  have  retained  about  one  fifth.  As  their  free- 
hold property  at  the  time  of  the  Union  was  very 
much  less  than  this,  we  must  attribute  the  differ- 
ence, partly  to  the  conversion  of  the  wealthier  fam- 
ilies, and  partly  to  the  pressure  of  the  penal  lawn, 
which  induced  men  to  sell  their  lands. — 1845.] 


708 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIH. 


keep  a  school,  or  to  teach  any  in  private 
houses,  except  the  children  of  the  family.* 
Severe  penalties  were  denounced  against 
such  as  should  go  themselves  or  send  oth- 
ers for  education  beyond  seas  in  the  Rom- 
ish religion ;  and,  on  probable  information 
given  to  a  magistrate,  the  burden  of  proving 
the  contraiy  was  thrown  on  the  accused; 
the  offense  not  to  be  tried  by  a  jury,  but 
by  justices  at  quarter  sessions. f  Intermar- 
riages between  persons  of  different  relig- 
ions, and  possessing  any  estate  in  Ireland, 
were  forbidden;  the  children,  in  case  of  ei- 
ther parent  being  Protestant,  might  be  tak- 
en from  the  other,  to  be  educated  in  that 
faith,  t    No  papist  could  be  guardian  to  any 
child  ;  but  the  Court  of  Chancery  might  ap- 
point some  relation  or  other  person  to  bring 
up  the  ward  in  the  Protestant  religion. § 
The  eldest  son,  being  a  Protestant,  might 
turn  his  father's  estate  in  fee  simple  into  a 
tenancy  for  life,  and  thus  secure  his  own  in- 
heritance ;  but  if  the  children  were  all  pa- 
pists, the  father's  lands  were  to  be  of  the 
nature  of  gavelkind,  and  descend  equally 
among  them.    Papists  were  disabled  from 
purchasing  lands  except  for  terms  of  no: 
more  than  thirty-one  years,  at  a  rent  not 
less  than  two  thirds  of  the  full  value.  They 
were  even  to  conform  within  six  months 
after  any  title  should  acci-ue  by  descent, 
devise,  or  settlement,  on  pain  of  forfeiture 
to  the  next  Protestant  heir ;  a  provision 
which  seems  intended  to  exclude  them 
from  real  property  altogether,  and  to  ren- 
der the  others  almost  supererogatory.  || 
Arms,  says  the  poet,  remain  to  the  plun- 
dered ;  but  the  Irish  Legislature  knew  that 
the  plunder  would  be  imperfect  and  insecure 
while  arms  remained ;  no  papist  was  per- 
mitted to  retain  them,  and  search  might  be 
made  at  any  time  by  two  justices. H  The 
bare  celebration  of  Catholic  rites  was  not 
subjected  to  any  fresh  penalties ;  but  regu- 
lar priests,  bishops,  and  others  claiming  ju- 
risdiction, and  all  who  should  come  into  the 
kingdom  from  foreign  parts,  were  banished 
on  pain  of  transportation,  in  case  of  neglect- 
ing to  comply,  and  of  high  treason  in  case 
of  returning  from  banishment.    Lest  these 
provisions  should  be  evaded,  priests  were 

*  7  Wm.  III.,  c.  4.  t  Id. 

t  9  Wm.  III.,  c.  3.  2  Anne,  c.  G. 

j  9  Wm.  III.,  c.  3.  2  Anne,  c.  6. 

i  Id.  IT  7  Wm.  lU.,  c.  5. 


required  to  be  registered ;  they  were  for- 
bidden to  leave  their  own  parishes;  and 
rewards  were  held  out  to  infoi-mers  who 
should  detect  the  violations  of  these  stat- 
utes, to  be  levied  on  the  popish  inhabitants 
of  the  country.*  To  have  exterminated 
the  Catholics  by  the  sword,  or  expelled 
them,  like  the  Moriscoes  of  Spain,  would 
have  been  little  more  repugnant  to  justice 
and  humanity,  but  incomparably  more  pol- 
itic. 

It  may  easily  be  supposed  that  no  poUt- 
ical  privileges  would  be  left  to  . 

'  Dependence 

those  who  were  thus  debarred  of  the  Irish 
of  the  common  rights  of  civil  so-  ghsh  Par^a- 
ciety.  The  Irish  Parliament  had 
never  adopted  the  act  passed  in  the  5th  of 
Elizabeth,  imposing  the  Oath  of  Supremacy 
on  the  members  of  the  Commons.  It  had 
been  full  of  Catholics  under  the  queen  and 
her  two  next  successors.  In  the  second 
session  of  1641,  after  the  flames  of  rebell- 
ion had  enveloped  almost  all  the  island,  the 
House  of  Commons  were  induced  to  ex- 
clude, by  a  resolution  of  their  own,  those 
who  would  not  take  that  oath  ;  a  step  which 
can  only  be  judged  in  connection  with  the 
general  circumstances  of  Ireland  at  that  aw- 
ful crisis. f  In  the  Parliament  of  1661,  no 
Catholic,  or  only  one,  was  returned  ;t  but 
the  House  addressed  the  lords-justices  to 
issue  a  commission  for  administeiing  the 
Oath  of  Supremacy  to  all  its  members. 
A  bill  passed  the  Commons  in  1663  for 
imposing  that  oath  in  future,  which  was 
stopped  by  a  prorogation ;  and  the  Duke 
of  Ormond  seems  to  have  been  adverse  to 
it.§  An  act  of  the  English  Parliament  after 
the  Revolution,  reciting  that  "great  disquiet 
and  many  dangerous  attempts  have  been 
made  to  deprive  their  majesties  and  their 
royal  predecessors  of  the  said  realm  of  Ire- 
land by  the  liberty  which  the  popish  recu- 
sants there  have  had  and  taken  to  sit  and 
vote  in  Parliament,"  requires  every  mem- 
ber of  both  houses  of  Parliament  to  take 
the  new  oaths  of  allegiance  and  supremacy, 
and  to  subscribe  the  declaration  against  ti-an- 

'  9  Wm.  IIL,  c.  1.    2  Anne,  c.  3,  s.  7.    8  Anne, 
c.  3. 

t  Carte's  Ormond,!.,  328.  Warner,  212.  These 
writers  censure  the  measure  as  illegal  and  impolitic. 

t  Leland  says  none ;  but  by  Lord  Orrery's  let- 
ters, i.,  3.5,  it  appears  that  one  papist  and  one  An- 
abaptist were  chosen  for  that  Parliament,  both 
from  Tuam.  {  Monntmorres,  i.,  158. 


FROM  HENRY  VII.  TO  GEORGE  II. 


709 


substantiation  before  taking  his  seat.*  This 
statute  was  adopted  and  enacted  by  the 
Irish  Parliament  in  1782,  after  they  had 
renounced  the  legislative  supremacy  of  En- 
gland under  which  it  had  been  enforced. 
The  elective  franchise,  which  had  been 
rather  singularly  spared  in  an  act  of  Anne, 
was  taken  away  from  the  Roman  Catholics 
of  Ireland  in  1715;  or,  as  some  think,  not 
absolutely  till  1727. f 

These  tremendous  statutes  had,  in  some 
measure,  the  effect  which  their  framers 
designed.  The  wealthier  families,  against 
whom  they  were  principally  leveled,  con- 
formed in  many  instances  to  the  Protestant 
Church.}:  The  Catholics  were  extinguish- 
ed as  a  political  body;  and,  though  any 
willing  allegiance  to  the  house  of  Hanover 
would  have  been  monstrous,  and  it  is  known 
that  their  bishops  were  constantly  nomina- 
ted to  the  pope  by  the  Stuart  princes, §  they 
did  not  manifest  at  any  period,  or  even  dur- 
ing the  rebellious  of  1715  and  1745,  the  least 
movement  toward  a  disturbance  of  the  gov- 
ernment; yet  for  thirty  years  after  the 
accession  of  George  I.  they  continued  to 
be  insulted  in  public  proceedings  under  the 
name  of  the  common  enemy,  sometimes 
oppressed  by  the  enactment  of  new  stat- 
utes, or  the  stricter  execution  of  the  old ; 
till  in  the  latter  years  of  George  II.,  their 
peaceable  deportment,  and  the  rise  of  a  more 
generous  spirit  among  the  Irish  Protestants, 
not  only  sheathed  the  fangs  of  the  law,  but 
elicited  expressions  of  esteem  from  the  rul- 

*  Mouutruorres,  i.,  158.    3W.  &  M.,  c.  2. 

t  Ibid.,  i.,  163.  Plowden's  Hist.  Review  of  Ire- 
land, i.,  263.  The  teirible  act  of  the  second  of 
Anne  prescribes  only  the  oaths  of  allegiance  and 
abjaration  for  voters  at  elections,  ^  24. 

{  Snch  conversions  were  naturally  distrusted. 
Boulter  expresses  alarm  at  the  number  of  psucdo- 
Protcstants  who  practiced  the  law ;  and  a  bill 
was  actually  passed  to  disable  any  one,  who  had 
not  professed  that  religion  for  five  years,  from  act- 
ing as  a  barrister  or  solicitor. — Letters,  i.,  226. 
"  The  practice  of  the  law,  from  the  top  to  the  bot- 
tom, is  almost  wholly  in  the  hands  of  these  con- 
verts." 

$  Evidence  of  State  of  Ireland  in  Sessions  of 
1824  and  1825,  p.  325  (as  printed  for  Murray).  In 
a  letter  of  the  year  1755^  from  a  clergyman  in  Ire- 
l.ind  to  Archbishop  Herring,  in  the  British  Muse- 
um (Sloane  MSS.,  4164,  11),  this  is  also  stated.  The 
■writer  seems  to  object  to  a  repeal  of  the  penal 
laws,  which  the  Catholics  were  supposed  to  be  at- 
tempting; and  says  they  had  the  exercise  of  their 
religion  as  openly  as  the  Protestants,  and  monas- 
teries in  many  places. 


ing  powers,  which  they  might  justly  con- 
sider as  the  pledge  of  a  more  tolerant  poli- 
cy. The  mere  exercise  of  their  religion 
in  an  obscure  manner  had  long  been  per- 
mitted without  molestation.* 

Thus  in  Ireland  there  were  three  nations, 
the  original  natives,  the  Anglo-Irish,  and 
the  new  English  ;  the  two  former  Catholic, 
except  some,  chiefly  of  the  upper  classes, 
who  had  conformed  to  the  Church ;  the 
last  wholly  Protestant.  There  were  three 
religions,  the  Roman  Catholic,  the  estab- 
lished or  Anglican,  and  the  Presbyterian ; 
more  than  one  half  of  the  Protestants,  ac- 
cording to  the  computation  of  those  times, 
belonging  to  the  last  denomination,  f  These, 
however,  in  a  less  degree,  were  under  the 
ban  of  the  law  as  truly  as  the  Catholics 
themselves ;  they  were  excluded  from  all 
civil  ,Tnd  military  offices  by  a  test  act,  and 
even  their  religious  meetings  were  denounc- 
ed by  penal  statutes ;  yet  the  House  of 
Commons  after  the  Revolution  always  con- 
tained a  sti'ong  Presbyterian  body,  and  being 
unable,  as  it  seems,  to  obtain  an  act  of  in- 
demnity for  those  who  had  taken  commis- 
sions in  the  militia  while  the  Rebellion  of 
1715  was  raging  in  Great  Britain,  had  re- 
course to  a  resolution,  that  whoever  should 
prosecute  any  Dissenter  for  accepting  such 
a  commission  is  an  enemy  to  the  king  and 
the  Protestant  interest. J  They  did  not 
even  obtain  a  legal  toleration  till  1720.§  It 
seems  as  if  the  connection  of  the  two  isl- 
ands, and  the  whole  system  of  constitution- 
al laws  in  the  lesser,  subsisted  only  for  the 
sake  of  securing  the  privileges  and  emolu- 
ments of  a  small  number  of  ecclesiastics, 
frequently  strangers,  who  rendered  very 
little  return  for  their  enormous  monopoly. 
A  gi'eat  share,  in  fact,  of  the  temporal  gov- 

*  Plowden's  Historical  Review  of  State  of  Ire- 
land, vol.  i.,  passim. 

t  Sir  William  Petty,  in  1672,  reckons  the  inhab- 
itants of  Ireland  at  1,100,000  ;  of  whom  200,000  En- 
glish, and  100,000  Scots ;  above  half  the  former  be- 
ing of  the  Established  Church. — Political  Anatomy 
of  Ireland,  chap.  ii.  It  is  sometimes  said  in  modem 
times,  tliough  erroneously,  that  the  Presbyterians 
form  a  majority  of  Protestants  in  Ireland  ;  but  their 
proportion  has  probably  diminished  since  the  be- 
ginning of  the  eighteenth  century.  [It  appears  by 
a  late  census,  in  1837,  that  the  Established  Church 
reckoned  near  800,000  souls,  the  Presbyterians 
660,000 ;  the  Catholics  were  above  six  millions. 
—1845.]  t  Plowden,  243. 

5  Irish  Stat.,  6  Geo.  I.,  c.  5. 


710 


CONSTITUTIONAL  HISTORY  OF  ENGLAND 


[Chap.  XVIII. 


emment  under  George  II.  was  thrown  suc- 
cessively into  the  hands  of  two  primates, 
Boulter  and  Stone ;  the  one  a  worthy  but 
narrow-minded  man,  who  showed  his  egre- 
gious ignorance  of  policy  in  endeavoring  to 
promote  the  wealth  and  happiness  of  the 
people,  whom  he  at  the  same  time  studied 
to  depress  and  discourage  in  respect  of  po- 
litical freedom  ;  the  other  an  able,  but  prof- 
ligate and  ambitious  statesman,  whose  name 
is  mingled,  as  an  object  of  odium  and  en- 
mity, with  the  first  great  struggles  of  Irish 
patriotism. 

The  new  Irish  nation,  or,  rather,  the 
Protestant  nation,  since  all  distinctions  of  or- 
igin have,  from  the  time  of  the  great  rebell- 
ion, been  merged  in  those  of  religion,  par- 
took in  large  measure  of  the  spirit  that  was 
poured  out  on  the  advocates  of  liberty  and 
the  Revolution  in  the  sister  kingdom.  Their 
Parliament  was  always  strongly  Whig,  and 
scarcely  manageable  during  the  later  years 
of  the  queen.  They  began  to  assimilate 
themselves  more  and  more  to  the  English 
model,  and  to  cast  off  by  degrees  the  fet- 
ters that  galled  and  degraded  them.  By 
Poyning's  celebrated  law,  the  initiative 
power  was  reserved  to  the  English  council. 
This  act,  at  one  time  popular  in  Ireland, 
was  afterward  justly  regarded  as  destruct- 
ive of  the  rights  of  their  Parliament,  and  a 
badge  of  the  nation's  dependence.  It  was 
attempted  by  the  Commons  in  1641,  and  by 
the  Catholic  confederates  in  the  Rebellion, 
to  procure  its  repeal;  which  Charles  I. 
steadily  refused,  till  he  was  driven  to  refuse 
nothing.  In  his  son's  reign,  it  is  said  that 
"  the  council  framed  bills  altogether ;  a  neg- 
ative alone  on  them  and  their  several  provi- 
soes was  left  to  Parliament ;  only  a  gener- 
al proposition  for  a  bill  by  way  of  address  to 
the  lord-lieutenant  and  council  came  from 
Parliament ;  nor  was  it  till  after  the  Revo- 
lution that  heads  of  bills  were  presented  : 
these  last,  in  fact,  resembled  acts  of  Par- 
liament or  bills,  with  only  the  small  differ- 
ence of  '  We  pray  that  it  may  be  enacted,' 
instead  of  '  Be  it  enacted.'  "*  They  as- 
sumed, about  the  same  time,  the  examina- 


*  Moantmorres,  ii.,  142.  As  one  Hoase  could 
not  regularly  transmit  heads  of  bills  to  the  other, 
the  advantage  of  a  joint  recommendation  was  ob- 
tained by  means  of  conferences,  which  were  con- 
sequently moch  more  usual  than  in  England. — Id., 
179. 


tion  of  accounts,  and  of  the  expenditure  of 
public  money.* 

Meanwhile,  as  they  gradually  emancipa- 
ted themselves  from  the  ascendency  of  the 
crown,  they  found  a  more  formidable  pow- 
er to  contend  with  in  the  English  Parlia- 
ment. It  was  acknowledged,  by  all,  at  least, 
of  the  Protestant  name,  that  the  crown  of 
Ireland  was  essentially  dependent  on  that 
of  England,  and  subject  to  any  changes  that 
might  affect  the  succession  of  the  latter. 
But  the  question  as  to  the  subordination  of 
her  Legislature  was  of  a  different  kind. 
The  precedents  and  authorities  of  early  ages 
seem  not  decisive ;  so  far  as  they  extend, 
they  rather  countenance  the  opinion  that 
English  statutes  were  of  themselves  valid 
in  Ireland ;  but  from  the  time  of  Henri' 
VI.  or  Edward  IV.  it  was  certainly  estab- 
lished that  they  had  no  operation,  unless 
enacted  by  the  Irish  Parliament. f  This, 
however,  would  not  legally  prove  that  they 
might  not  be  binding,  if  express  words  to 
that  effect  were  employed  ;  and  such  was 
the  doctrine  of  Lord  Coke  and  of  other  En- 
glish lawj-ers.  This  came  into  discussion 
about  the  eventful  period  of  1641.  The 
Irish,  in  general,  protested  against  the  legis- 
lative authority  of  England,  as  a  novel  the- 
ory which  could  not  be  maintained  ;t  and 
two  treatises  on  the  subject,  one  ascribed  to 
Lord-chancellor  Bolton,  or,  more  probably, 
to  an  eminent  lawyer,  Patrick  Darcy,  for 
the  independence  of  Ireland,  another,  in  an- 
swer to  it,  by  Sergeant  Mayart,  may  be  read 
in  the  Hibernica  of  Harris. §  Very-  few 
instances  occurred  before  the  Revolution 
wherein  the  English  Parliament  thought  fit 
to  include  Ireland  in  its  enactments,  and 
none,  perhaps,  wherein  they  were  carried 
into  effect;  but  after  the  Revolution  sever- 
al laws  of  great  importance  were  passed  in 
England  to  bind  the  other  kingdom,  and  ac- 
quiesced in  without  express  opposition  by 
its  Parliament.  Molyneux,  however,  in  his 
celebrated  "  Case  of  Ireland's  being  bound 
by  Acts  of  Parliament  in  England  stated," 
published  in  1697,  set  up  the  claim  of  his 
country  for  absolute  legislative  independen- 
cy. The  House  of  Commons  at  Westmin- 
ster came  to  resolutions  against  this  book ; 
and,  with  their  high  notions  of  Parliament- 

*  Id.,  184.  t  Vide  supra. 

{  Carte's  Ormond,  iii.,  55. 

J  Vol.  ii.    Mountmorres,  i.,  360. 


Ireland.] 


PROM  HENRY  VII.  TO  GEORGE  U. 


711 


ary  sovereignty,  were  not  likely  to  desist 
from  a  pretension  which,  like  the  very  simi- 
lar claim  to  impose  taxes  in  America,  sprung, 
in  fact,  from  the  semi-Republican  scheme 
of  constitutional  law  established  by  means 
of  the  Revolution.*  It  is  evident  that  while 
the  sovereignty  and  enacting  power  was  sup- 
posed to  reside  wholly  in  the  king,  and  only 
the  power  of  consent  in  the  two  houses  of 
Parliament,  it  w.is  much  less  natural  to  sup- 
pose a  control  of  the  English  Legislature 
over  other  dominions  of  the  crown,  having 
their  own  representation  for  similar  purpo- 
ses, than  after  they  had  become,  in  effect 
and  in  general  sentiment,  though  not  quite 
in  the  statute  book,  co-ordinate  partakers  of 
the  supreme  authority.  The  Irish  Pai-lia- 
ment,  however,  advancing,  as  it  were,  in  a 
parallel  line,  had  naturally  imbibed  the  same 
sense  of  its  own  supremacy,  and  made,  at 
length,  an  effort  to  assei't  it.  A  judgment 
from  the  Court  of  Exchequer  in  1719  having 
been  reversed  by  the  House  of  Lords,  an 
appeal  was  brought  before  the  Lords  in 
England,  who  affirmed  the  judgment  of  the 
Exchequer.  The  Irish  Lords  resolved 
that  no  appeal  lay  from  the  Court  of  Ex- 
chequer in  Ireland  to  the  king  in  Parlia- 
ment in  Great  Britain ;  and  the  barons  of 
that  court  having  acted  in  obedience  to  the 
order  of  the  English  Lords,  were  taken 
into  the  custody  of  the  black  rod.  That 
House  next  addressed  the  king,  setting 
forth  their  reasons  against  admitting  the 
appellant  jurisdiction.  But  the  Lords  in 
England,  after  requesting  the  king  to  con- 
fer some  favor  on  the  barons  of  the  Ex- 
chequer who  had  been  censured  and  ille- 
gally imprisoned  for  doing  their  duty,  or- 
dered a  bill  to  be  brought  in  for  better  se- 
curing the  dependency  of  Ireland  upon  the 


•  Journals,  27th  of  June,  1698.  Pari.  Hist,  v., 
1181.  They  resolved  at  the  same  time  that  the 
conduct  of  the  Irish  Parliament  in  pretending  to 
re-enact  a  law  made  in  England  expressly  to  bind 
Ireland,  h.id  given  occasion  to  these  dangerous  po- 
sitions. On  the  30th  of  June  they  addressed  the 
king  in  consequence,  requesting  him  to  prevent 
any  thing  of  the  like  kind  in  future.  In  this  ad- 
dress, as  Krst  drawn,  the  legislative  authority  of 
the  kingdom  of  England  is  asserted.  But  this 
phrase  was  omitted  afterward,  I  presume,  as  rath- 
er novel ;  tliough  by  doing  so  they  destroyed  the 
basis  of  their  proposition,  which  could  stand  much 
better  on  the  new  theory  of  the  Constitution  than 
the  ancient. 


crown  of  Great  Britain,  which  declares 
"  that  the  king's  majesty,  by  and  with  the 
advice  and  consent  of  the  Lords  spiritual 
and  temporal,  and  Commons  of  Great  Brit- 
ain, in  Parliament  assembled,  had,  hath, 
and  of  right  ought  to  have,  full  power  and 
authority  to  make  laws  and  statutes  of  suf- 
ficient force  and  validity  to  bind  the  people 
and  the  kingdom  of  Ireland ;  and  that  the 
House  of  Lords  of  Ireland  have  not,  nor 
of  right  ought  to  have,  any  jurisdiction  to 
judge  of,  reverse,  or  affirm  any  judgment, 
sentence,  or  decree  given  or  made  in  any 
court  within  the  said  kingdom  ;  and  that  all 
proceedings  before  the  said  House  of  Lords 
upon  any  such  judgment,  sentence,  or  de- 
cree, are,  and  are  hereby  declared  to  be, 
utterly  null  and  void,  to  all  intents  and  pur- 
poses whatsoever."* 

The  English  government  found  no  better 
method  of  counteracting  this  rising  spirit  of 
independence  than  by  bestowing  the  chief 
posts  in  the  State  and  Church  on  strangers, 
in  order  to  keep  up  what  was  called  the 
English  interest. t  This  wretched  policy 
united  the  natives  of  Ireland  in  jealousy 
and  discontent,  which  the  latter  years  of 
Swift  were  devoted  to  inflame.  It  was 
impossible  that  the  kingdom  should  become, 
as  it  did  under  George  II.,  more  flourishing 
through  its  great  natural  fertility,  its  extens- 
ive manufacture  of  linen,  and  its  facilities 
for  commerce,  though  much  restricted,  the 
domestic  alarm  from  the  papists  also  being 
allayed  by  their  utter  prostration,  without 
writhing  under  the  indignity  of  its  subordi- 
nation ;  or  that  a  House  of  Commons,  con- 
structed so  much  on  the  model  of  the  En- 
glish, could  hear  patiently  of  liberties  and 
privileges  it  did  not  enjoy.    These  aspi- 


*  6  Geo.  I.,  0.  5.  Plowden,  244.  [There  was 
some  opposition  made  to  this  bill  by  Lord  Moles- 
worth,  and  others  not  so  much  connected  as  he  was 
with  Ireland:  it  passed  by  140  to  83.— Pari.  Hist., 
vii.,  642. — 1845.]  The  Irish  House  of  Lords  had, 
however,  entertained  writs  of  error  as  early  as 
1644,  and  appeals  in  equity  from  16G1. — Mount- 
morres,  i.,  339.  The  English  peers  might  have  re- 
membered that  their  own  precedents  were  not 
much  older. 

\  See  Boulter's  Letters,  passim.  His  plan  for 
governing  Ireland  was  to  send  over  as  many  En- 
glish-horn bishops  as  possible.  "  The  bishops," 
he  says,  "  are  the  persons  on  whom  the  govern- 
ment must  depend  for  doing  the  public  business 
here." — I.,  238.  This,  of  course,  disgusted  the 
Irish  Church. 


712 


CONSTITUTIONAL  HISTORY  OF  ENGLAND,  ETC.        [Chap.  XVIIL 


Growth  of  rations  for  equality  fii'st,  perhaps, 
a  patriotic  ^j.Qije  Qut  into  audible  complaints 

party  in  ' 

1753.  in  the  year  1753.  The  country 
was  in  so  thriving  a  state  that  there  was  a 
surplus  revenue  after  payment  of  all  char- 
ges. The  House  of  Commons  determin- 
ed to  apply  this  to  the  liquidation  of  a  debt. 
The  government,  though  not  unwilling  to 
admit  of  such  an  application,  maintained 
that  the  whole  revenue  belonged  to  the 
king,  and  could  not  be  disposed  of  without 
his  previous  consent.  In  England,  where 
the  grants  of  Parliament  are  appropriated 
according  to  estimates,  such  a  question  could 
hardly  arise  ;  nor  would  there,  I  presume, 
be  the  slightest  doubt  as  to  the  control  of 
the  House  of  Commons  over  a  surplus  in- 
come ;  but  in  Ireland,  the  practice  of  ap- 
propriation seems  never  to  have  prevailed, 
at  least  so  strictly,*  and  the  constitutional 

*  MouDtmorres,  i.,  424. 


right  might,  perhaps,  not  unreasonably  be 
disputed.  After  long  and  violent  discus- 
sions, wherein  the  speaker  of  the  Com- 
mons and  other  eminent  men  bore  a  lead- 
ing part  on  the  popular  side,  the  crown 
was  so  far  victorious  as  to  procure  some 
motions  to  be  carried,  which  seemed  to  im- 
ply its  authority  ;  but  the  House  took  care, 
by  more  special  applications  of  the  reve- 
nue, to  prevent  the  recun'ence  of  an  undis- 
posed surplus.*  From  this  era  the  great 
Parliamentaiy  history  of  Ireland  begins, 
and  is  terminated  after  half  a  centuiy  by 
the  Union  :  a  period  fruitful  of  splendid  el- 
oquence, and  of  ardent,  though  not  always 
uncompromising  patriotism  ;  but  which,  of 
course,  is  beyond  the  limits  prescribed  to 
these  pages. 


*  Ploveden,  306,  et  post.  Hardy's  Life  of  Lord 
Charlemont. 


INDEX 


Abbey  Lands,  appropriation  of  them  considered,  52,  55, 

note  * ;  lawfulness  of  seizing,  53  ;  distribution  of,  54  ; 

retained  by  the  Parliament  under  Mary,  55 ;  increase 

the  power  of  the  nobility,  &c.,  ibid. ;  charity  of  the 

early  possessors  of,  ibid. ;  confirmed  hy  the  pope  to 

their  new  possessor.^,  69. 
Abbot  (George,  archbishop  of  Canterbury),  sequestered, 

239,  and  note  *  ;  his  Calvinistic  zeal,  269  ;  popish  ti-acts 

in  his  library,  275,  note  §. 
Abbots,  surrenders  of,  to  Henry  Vni.  probably  unlawful, 

51 ;  seats  of,  in  Parliament,  and  their  majority  over  the 

temporal  peers,  52,  and  note  *. 
Abjuration,  Oath  of,  clause  introduced  into  by  the  Tories, 

59(i,  note  *. 
AboUtion  of  military  tenures,  410. 

Act  of  Indemnity,  406 ;  exclusion  of  the  regicides  from 
the,  ibid. ;  Commons  vote  to  exclude  seven,  yet  add 
several  more,  ibid.,  and  notes. 

Act  of  Uniformity,  424 ;  clauses  against  the  Presbyterians, 
425 ;  no  person  to  hold  any  preferment  in  England 
without  Episcopal  ordination,  ibid.,  and  note  *;  every 
minister  compelled  to  give  his  assent  to  the  Book  of 
Common  Prayer  on  pain  of  being  deprived  of  his  bene- 
fice, ibid.,  and  7tote  t ;  schoolmasters  obUgcd  to  sub- 
scribe to,  ibid. 

Act  for  suppressing  conventicles,  430,  451,  4.52 ;  opposed 

by  Bishop  Wilkms,  452 ;  supported  by  Sheldon  imd 

others,  ibid. 
Act  of  Supremacy,  particulars  of  the,  455. 
Act  of  Security,  persons  eligible  to  Parliament  by  the, 

597,  note  * ;  in  Scotland,  674. 
Act  of  1700  against  the  growth  of  popery,  588,  and  note  t ; 

severity  ot  its  penalties,  589 ;  not  carried  into  eftect, 

ibid. 

Act  of  Settlement,  589;  limitations  of  the  prerogative 
contained  in  it,  591 ;  remarkable  cause  of  the  fourth 
remedial  article,  592;  its  precaution  against  the  influ- 
ence of  foreigners,  594,  note  *  ;  importance  of  its  sixth 
article,  594,  505,  and  note  *. 

Act  of  Toleration,  a  scanty  measure  of  religious  liberty, 
586. 

Act  against  wrongous  imprisonment  in  Scotland,  673. 
Act  for  settlement  of  Ireland,  704  ;  its  insufficiency,  705. 
Act  of  Explanation,  705.  • 
Acts,  harsh,  against  the  native  Irish  in  settlement  of  col- 
onies, 698. 

Acts  replacing  the  crown  in  its  prerogatives,  419.  See 
Bills  and  Statutes. 

Adamson,  archbishop  of  St.  Andrew's,  obliged  to  retract 
before  the  General  Assembly  of  the  Church  of  Scot- 
land, 663. 

Addresses,  numerous  servile,  from  all  parties  to  James 

II.,  5.32,  and  note  *,  533. 
Administration  of  Ireland,  in  whom  vested,  683. 
Adultery,  canon  laws  concerning,  67,  note. 
Agitators  estalihshed  in  every  regiment,  354. 
.\ix  la  Chapelle,  peace  of,  44.5. 
Alienation,  ancient  English  laws  on.  19. 
Allegiance,  extent  and  power  of,  180,  note  *. 
Allegiance,  Oath  of,  administered  to  papists  under  James 

I.,  203. 

Allen,  ,  his  treacherous  purposes  against  Elizabeth, 

91,  and  note  *. 
Almanza,  battle  of.  619. 
Altars  removed  in  churches,  59. 

Alva  (Duke  of),  his  designed  invasion  of  England,  85,  and 
note  t,  88. 

Ambassadors,  exempt  from  criminal  process,  100;  ex- 
tent of  tVieir  privilege  examined,  ibid.,  note. 

Andrews  (Dr.  Launcelot,  bishop  of  Winchester),  his  sen- 
timents on  transubstantiation,  272,  note  t ;  singular 
phrase  in  his  epitaph,  273,  note  *. 

Anecdotes,  two,  relating  to  King  Charles  I.  and  Crom- 
well, 355,  note  t. 

Anglesea  (lord-privy-seal),  statement  of,  in  the  case  of 
Lord  Danby,  465,  note  t. 


Anglican  Church,  ejected  members  of,  their  claims,  413. 

Anjou  (Duke  of),  his  proposed  marriage  with  Uueen 
EUzabeth,  81,  note  *,  86,  138,  note  §. 

Anne  (Princess  of  Denmark),  her  repentant  letter  to 
James  II..  559,  note  J ;  a  narrow-minded,  foolish  woman, 
id.  ibid. ;  her  dark  intrigues  with  the  court  of  St.  Ger- 
main, id.  ibid. 

Anne  (Queen  of  Great  Britain),  her  incapacity  for  gov- 
ernment, 605 ;  her  confidence  in  Godolphin  a7)d  Marl- 
borough, ibid. ;  revolutions  in  her  ministry,  ibid.  ; 
alarmed  at  the  expedition  of  the  Pretender,  612 ;  her 
secret  intentions  with  respect  to  the  Pretender  never 
divulged,  614,  and  note  *  ;  her  death,  617. 

Appeals  in  civil  suits  in  Scotland  lay  from  the  baron's 
court  to  that  of  the  sheriti'  or  lord  of  regahty,  and  ulti- 
mately to  the  Parliament,  661. 

Argyle  (Earl  of),  refuses  to  subscribe  the  test,  670 ;  con- 
victed of  treason  upon  tlie  statute  of  leasing  making, 
and  escapes,  ibid. ;  is  executed  after  his  rebellion  upon 
his  old  sentence,  ibid. 

Aristocracy,  EngUsh,  in  Ireland,  analogy  of,  to  that  of 
France,  681. 

Aristocracy  of  Scotland,  influence  of  the,  in  the  reign  of 
James  IV.,  658  ;  system  of  suppressing  the,  659. 

Arlington  (Henry  Bennet,  earl  of),  one  of  the  Cabal,  444  ; 
obliged  to  change  his  policy,  456. 

Anninian  Controversy,  view  of  the,  229-232,  and  notes. 

Arms,  provided  by  freeholders,  &c.,  for  the  defense  of 
the  nation,  311,  jiole  J. 

Armstrong  (Sir  Thomas),  given  up  by  the  States,  and 
executed  without  trial,  490. 

Army,  conspiracy  for  bringing  in,  to  overawe  the  Parlia- 
ment, 299,  300,  note  *. 

Army  of  Scotland  enters  England,  330. 

Army,  Parliamentary,  new  modeled,  337 ;  advances  to- 
ward London,  352. 

Army,  proposals  of  the,  to  Iving  Charles  I.  at  Hampton 
Court,  .3.54  ;  rejected  by  him,  ibid. ;  innovating  spirit  in, 
360 ;  publishes  a  declaration  for  the  settlement  of  the 
nation,  361 ;  principal  oflicers  of,  determine  to  bring  tho 
king  to  justice,  ibid.,  and  7iote  t,  362. 

Army  disbanded,  411 ;  origin  of  the  present,  ibid. 

Army,  great,  suddenly  raised  by  Charles  II.,  458,  and 
note  t. 

Army,  intention  of  James  II.  to  place  the,  under  the  com- 
mand of  Catholic  officers,  522. 

Army,  standing,  Charles  the  Second's  necessity  for,  447  ; 
its  illegality  in  time  of  peace,  549,  and  note  *.  [See 
Standing  Army.]    Apprehensions  from  it,  634. 

Army  reduced  by  the  Commons,  568. 

Anny  recruited  by  violent  means,  608,  and  note  |. 

Array,  commissions  of,  312. 

Arrest,  exemption  from,  claimed  by  the  House  of  Com- 
mons, 157-159 ;  ParUamentary  privilege  of  exemption 
from,  176. 

Articles,  lords  of  the,  their  origin  and  power,  658 ;  regu- 
larly named  in  the  records  of  every  Parliament  from 
the  reign  of  James  IV.,  ibid. ;  what  they  propounded, 
when  ratified  by  the  three  estates,  did  not  require  the 
king's  consent  to  give  it  vaUdity.  660;  abolished,  673. 

Articles  of  the  Church  of  England,  real  presence  denied 
in  the,  64 ;  subsequently  altered,  64,  and  note  ^  ;  orig- 
inal drawing  up  of  the,  67,  and  note  t ;  brought  before 
Parliament,  117 ;  statute  for  subscribing,  ibid. ;  miniB- 
ters  deprived  for  refusing,  ibid.,  note  t. 

Articles,  Thirty-nine,  denial  of  any  of  the,  made  excom- 
munication, 176,  note  }. 

Articles  of  the  Church  on  predestination,  229. 

Articuli  Cleri,  account  of  the,  187. 

Artillery  company  estabUshed,  311. 

Anmdel  (Thomas  Howard,  earl  of),  his  committal  to  the 
Tower,  217. 

Arundel  (Henry  Howard,  earl  of),  his  case  in  Parha- 

ment,  512,  note  *. 
Ashby,  a  burgess  of  Aylesbury,  sues  the  returning  officer 

for  refusing  his  vote,  641. 


714 


INDEX. 


Ashley  (Anthony,  Lord,  afterward  Earl  of  Shaftesbury), 

one  of  the  Cabal,  444. 
Ashley  (Sergeant),  his  speech  in  favor  of  prerogative, 

223,  note  '. 

Ashton  (John),  remarks  on  his  conviction  for  high  treason 
on  presumptive  evidence.  579. 

Association  abjuring  the  title  of  James  II.,  and  pledging 
the  subscribers  to  revenge  the  death  of  William  III., 
generally  signed,  5C3,  and  note  *. 

Atkinson  (  ),  his  speech  in  the  House  of  Com- 
mons against  the  statute  for  the  queen's  power,  7G, 
note  *. 

Attainders  against  Russell,  Sidney,  Cornish,  and  Arm- 
strong, reversed,  579. 

Atterbury  (Dr.),  an  account  of  his  book  entitled  Rights 
and  Privileges  of  an  English  Convocation,  6'25;  pro- 
moted to  the  see  of  Rochester,  ibid. ;  disaflection  to  the 
house  of  Hanover,  629 ;  deprived  of  hiB  see,  and  ban- 
ished for  life,  ibid. 

Augsburg  Confession,  consubstantiation  acknowledged 
in  the,  61. 

Augsburg,  League  of,  540. 

Aylmcr  (John,  bishop  of  London),  his  persecution  of  pa- 
pists, 90,  note\\  his  covctousness  and  prosecution  of 
the  Puritans,  12.'i,  and  note  §  ;  Ehzabeth's  tyranny  to, 
135,  note  t ;  his  answer  to  Knox  against  female  mon- 
archy, 1C4  ;  passage  from  his  book  on  the  limited 
power  of  the  English  crown,  ibid. 

Bacon  (Sir  Francis,  Lord  Verulam),  his  praise  of  the  laws 
of  Henry  VII.,  18;  bis  error  concerning  the  Act  of 
Benevolence,  20,  note  *  ;  his  account  of  causes  belong- 
ing to  the  Court  of  Star  Chamber,  42  ;  his  apology  for 
the  execution  of  Catholics,  102,  note;  his  charact**r  of 
Lord  Burleigh,  12.3,  124;  excellence  and  moderation 
of  his  Advertisement  on  the  Controversies  of  the  Church 
of  England,  136,  and  note  *  ;  disliked  agreeing  with 
the  House  of  Lords  on  a  subsidy,  162 ;  his  advice  to 
James  I.  on  summoning  a  Parliament,  195 ;  acquainted 
with  the  particulars  or  Overbury's  murder,  203,  and 
note  * ;  impeached  for  bribery,  206 ;  extenuation  of, 
ibid.,  note  *  ;  his  notice  of  the  Puritans,  226,  note  * ; 
recommends  mildness  toward  the  papists,  234,  note  *. 

Bacon  (Sir  Nicholas),  gi-eat  seal  given  to,  72,  note  t ;  abili- 
ties of,  72 ;  suspected  of  favoring  the  house  of  Suflolk, 
82 ;  his  reply  to  the  speaker  of  the  House  of  Com- 
mons, 149. 

BailUe  (Robert),  his  account  of  the  reception  and  im- 
peachment of  the  Earl  of  Stratford  in  England,  295, 
note  *. 

Ball  (Bishop  of  Ossory),  persists  in  being  consecrated  ac- 
cording to  the  Protestant  form,  689,  note  t. 

Ballot^  the,  advocated  in  the  reign  of  Anne,  602,  7iote  t. 

Balmerino  (Lord),  tried  for  treason  on  the  Scottish 
statute  of  leasing-making,  667. 

Bancroft  (Riehai'd),  archbishop  of  Canterbury,  endeavors 
to  increase  the  ecclesiastical  jurisdiction.  187,  and  note  *  ; 
Puritan  clergymen  deprived  by,  226,  and  note  • ;  de- 
fense of  episcopacy,  ibid.,  note  *. 

Bangorian  Controversy,  626 ;  character  of  it,  ibid.,  note  *. 

Bank  of  England,  its  origin  and  depreciation  of  its  notes, 
566. 

Banks  (Sir  John),  attorney-general,  his  defense  of  the 
king's  absolute  power,  231. 

Baptism  by  midwives  abolished.  111,  note  J. 

Barebone's  ParUamcnt  372 ;  apply  themselves  %vith  vigor 
to  reform  abuses,  373  ;  vote  for  the  abolition  of  the 
Court  of  Chancery,  ibid. ;  alarm  the  clergy,  ibid. ;  sur- 
render their  power  to  Cromwell,  ibid. 

Barillon  (the  French  ambassador),  favors  the  opposition, 
460,  note  *  ;  sums  given  to  members  of  Parliament 
mentioned  by,  461  ;  remarks  on  that  corruption,  462 ; 
suspicions  against,  482 ;  extract  from,  concerning  an 
address  from  the  Commons  to  the  king,  520,  note  *. 

Barnes  (Dr.  Thomas),  appointed  to  defend  the  mar- 
riage of  Henry  VIII.  with  Catharine  of  Aragon,  45, 
note  f. 

Baronets  created  by  James  I.  to  raise  money,  195,  and 
note  J. 

Barons  of  Piirliament,  the  title  of,  objected  to,  207,  note  \. 

Barons,  English,  their  acquisitions  in  Ireland,  680. 

Barrier  treaty  of  Lord  Townshend,  609. 

Baxter,  extract  from  his  hfe,  descriptive  of  the  Episco- 
palians of  his  day,  414,  note  \. 

Beal  (  ),  his  book  against  the  ecclesiastical  system 

of  England,  93,  iiote  *. 

Beauchnmp  (William  Seymour,  lord),  honors  of  his 
family  restored  to,  170,  note  |. 

Bedford  (Francis  Russell,  second  earl  of),  imprisoned 


under  Queen  Mary  on  account  of  his  religion,  69 ;  his 

deati),  304,  and  note  *. 
Bedford  (William  Russell,  fifth  carl  of),  joins  King  Charles 

I.  at  Oxford,  .325 ;  is  ill  received,  ibid. ;  returns  to  the 

Parliament,  ibid. 
Beggars  caused  by  the  alms  of  moDasteries,  56 ;  statute 

against  giving  to.  ibid.,  note  *. 
Bell  (Mr.),  his  attack  on  licenses,  150;  elected  speaker, 

ibid.,  and  note  t. 
Bellarmine  (Cardinal  Robert),  opposes  the  test  oath  of 

James  I.,  2.'j;3. 

Bellay  (Joachim  du,  bishop  of  Bayonne),  reports  that  « 
revolt  was  expected  in  England  on  the  divorce  of 
Henry  VIII.,  49. 

Benefices,  first  fruits  of,  taken  from  the  pope,  47. 

Benevolence,  exaction  so  called  in  1545,  25 ;  conse- 
quences of  refusing  to  contribute  to  it,  26 ;  taken  by 
Queen  Elizabeth,  145,  7iote  *. 

Benevolences,  oppression  of  under  Edward  IV.,  SO : 
abolished  under  Richard  III.,  and  revived  by  Henry 
VII.,  20 ;  granted  by  private  persons,  20,  note  *  j  re- 
quired under  James  I.,  197. 

Bennet  (Dr.),  his  proposal  on  the  divorce  of  Henry  VIII., 
48,  7iote  *. 

Bennet  (  ),  an  informer  against  papists,  96,  note  f. 

Benison  (  ),  his  imprisonment  by  Bi-shop  Aylraer, 

123. 

Berkley  (Sir  John),  justice  of  the  King's  Bench,  defends 
ship-money,  248,  and  note  * ;  and  the  king's  absolute 
power,  251  ;  ParUamentary  impeachment  of,  315, 
note  *. 

Berkley  (Charles,  first  earl  of),  hia  administration  in  Ire- 
land in  1670,  706. 

Berwick,  right  of  election  extended  to,  by  Henry  VIIL, 
514. 

Best  (Paul),  ordinance  against,  for  writing  against  tho 
Trinity,  349,  note  *. 

Bible,  1535,  Church  translation  of  the,  proscribed,  57; 
liberty  of  reading,  procured  by  Cromwell,  and  recalled 
by  Henry  VIII.,  57,  and  note  *. 

Bill  of  Exclusion,  drawn  in  favor  of  the  Duke  of  York's 
daughters,  475 ;  of  Rights,  548  ;  of  Indemnity,  553  ;  for 
regulating  trials  upon  charges  of  high  treason,  580  ;  of 
7th  of  Queen  Anne  aft'ording  peculiar  privileges  to  tho 
accused,  581 ;  to  prevent  occasional  conformity,  passes 
the  Commons,  and  is  rejected  by  the  Lords,  627 ; 
passed  by  next  Parliament,  ibid. ;  repealed  by  the 
Whigs,  ibid.,  628,  note  *. 

Birch  (Dr.  Thomas),  confirms  the  genuineness  of  Gla- 
morgan's commissions,  344,  and  note  *. 

Birth  of  the  Pretender,  suspicions  attending  the,  537. 

Bishops  of  England,  authority  of  the  pope  in  their  elec- 
tion taken  away,  48 ;  their  adherence  to  Rome  the 
cause  of  their  aboUtion  by  the  Lutherans,  62 ;  less  of- 
fensive in  England  than  Germany,  ibid. ;  defend  Church 
property  in  England,  67;  some  inclined  to  the  Puri- 
tans, 111 ;  conference  of  with  the  House  of  Commons, 
127  ;  Commons  opposed  to  the,  ibid. ;  Puritans  object 
to  their  titie,  134.  note  *  ;  character  of,  under  Elizabeth, 
136,  note  *  ;  tyranny  of  the  queen  toward  them,  ibid.. 
and  note  *  ;  conference  of,  with  the  Puritans  at  Hamp- 
ton Court,  173 ;  proceedings  of  the,  against  the  Puri- 
tans, 225 ;  jurisdiction  of  the,  264,  and  note  * ;  moder- 
ate government  of,  proposed,  301,  and  notes ;  proceed- 
ings on  abolishing,  302 ;  excluded  from  Parliament,  303. 
and  note  *  ;  reflections  on  that  measure,  303,  304  ;  im- 
peachment of  the  twelve,  317,  note  t ;  restored  to  their 
seats  in  the  House  of  Lords,  419 ;  their  right  of  voting 
denied  by  the  Commons  m  the  case  of  Lord  Danby, 
465 ;  discussion  on  the  same,  ibid. ;  restored  to  Scot- 
land after  six  years'  aboUtion,  665 ;  and  to  part  of  their 
revenues,  ibid. ;  their  protestations  against  any  con- 
nivance at  popery.  699,  note  *. 

Bishops,  popish,  endeavor  to  discredit  the  Englisih  Scrip- 
tures, 57,  note  *  ;  refuse  to  officiate  at  Ehzabeth's  coro- 
nation, 72,  and  notef;  deprived  under  Elizabeth,  TJ ; 
their  subsequent  treatment,  75. 

Bishoprics  despoiled  in  the  Reformation  under  Henry 
VIII.,  63. 

Black,  one  of  the  ministers  of  St  Andrew*?,  summoned 
before  the  privy  council  of  Scofland,  664. 

Blackstone  (Sir  William),  his  misunderstanding  of  the 
statute  of  allegiance,  11th  Henry  VII.,  17,  nolel ;  inad- 
vertent assertion  of,  483. 

Blair  (Sir  Adam),  impeached  for  high  treason,  483. 

Bland  (  ),  fined  by  authority  of  Parliament,  160. 

Blount  (John),  sentenced  by  the  Lords  to  imprisonment 
and  hard  labor  in  Bridewell  for  hfe,  644. 

Boleyn  (Anne),  her  weakness  of  character,  29,  note  ' ; 


INDEX. 


715 


undoubted  innocence  of;  her  indiscretion ;  infamous 
proceedings  upon  her  trial ;  her  levities  in  discourse 
brought  as  cliarges  against  her  ;  confesses  a  precon- 
tract with  Lord  Percy  ;  her  marriage  witli  the  king  an- 
nulled, 30 ;  act  settling  the  crown  on  the  king's  children 
by,  or  any  subsequent  wife,  31 ;  time  of  her  marriage 
with  Henry  VIH.  considered,  46,  iiote  * ;  interested  in 
the  Reformed  faith,  49. 

Bolingbroke  (Henry  St.  John),  Lord,  remarkable  passage 
in  his  Letters  on  History,  449,  ?iote  t ;  engaged  in  cor- 
respondence with  the  Pretender,  fil3,  and  note  *  ;  im- 
peached of  high  treason,  618 ;  his  letters  in  the  Ex- 
aminer answered  by  Lord  Cowper,  654,  note  J ;  char- 
acter of  his  writings,  654. 

Bolton  (Lord-chancellor),  his  treatise  on  the  independ- 
ence of  Ireland,  710. 

Bonaght,  usage  of,  explained,  679. 

Bonaght  and  coshering,  barbarous  practice  of,  C84. 

Bonaparte  (Napoleon),  character  of,  compared  with  that 
of  OUver  Cromwell,  384,  38.5,  and  note. 

Bonner  (Edmund,  bishop  of  London),  his  persecution, 
64  ;  treatment  of,  by  Edward  VL's  council,  6.5,  note ; 
royal  letter  to,  for  the  persecution  of  heretics,  70, 
note  *  ;  imprisoned  in  the  Marshalsea,  76  ;  denies  Bish- 
op Horn  to  be  lawfully  consecrated,  ibid. 

Books  of  tlie  Reformed  religion  imported  from  Germany 
and  Flanders,  57 ;  statute  against,  ibid.,  note  *  ;  books 
against  the  queen  prohibited  by  statute,  87. 

Books,  restiictions  on  printing,  selling,  possessing,  and  im- 
porting, 141,  142,  and  notes. 

Booth  (Sir  George),  rises  in  Cheshire  in  favor  of  Charles 
n.,  391. 

Boroughs  and  burgesses,  elections  and  wages  of,  under 
Elizabeth,  155.  and  7Wte 

Boroughs,  twenty-two  created  in  the  reign  of  Edward 
VI.,  37 ;  fourteen  added  to  the  number  under  Mary, 
ibid.,  and  twenty-one,  514  ;  state  of  those  that  return 
members  to  Parliament,  513  ;  fourteen  created  by  Ed- 
ward VI.,  514  ;  many  more  by  EUzabeth,  ibid. 

Boroughs,  royal,  of  Scotland,  common  usage  of  the,  to 
choose  the  deputies  of  other  towns  as  their  proxies,  659. 

Bossuet  (Jaques),  his  invective  against  Cranmcr.  65. 

Boucher  (Joan),  execution  and  speech  of,  64,  and  iiote  *. 

Boulter,  primate  of  Ireland,  his  great  share  in  the  gov- 
ernment of  Ireland  in  the  reign  of  George  II.,  709,  710  ; 
his  character,  710. 

Bound  (Dr.),  founder  of  the  Sabbatarians,  227,  note  *. 

Boyne,  splendid  victory  of  the,  gained  by  Wilham  UI., 
707. 

Brady  (Dr.  Thomas),  remarks  on  his  writings,  492 ;  on 

his  treatise  on  boroughs,  515, 
Brehou,  customs  of,  murder  not  held  felony  by  the,  678, 

and  note  t. 

Brewers  complain  of  an  imposition  on  malt,  208,  note  *  ; 
proclamation  concerning,  253. 

Bribery,  first  precedent  for  a  penalty  on,  157;  impeach- 
ments for,  206 ;  prevalent  in  the  court  of  Charles  II., 
433  ;  its  prevalence  at  elections,  656,  and  notes  t*. 

Bridgman  (Sir  Orlando),  succeeds  Clarendon,  444. 

Brihuega,  seven  thousand  EngUsh  under  Stanhope  sur- 
render at,  608. 

Bristol  (John,  lord  Digby,  earl  of),  refusal  of  summons 
to,  &c.,  217,  218,  note  *. 

Bristol  (George  Digby,  earl  of),  converted  to  popery, 
427 ;  attacks  Clarendon,  439,  note  p 

Frodie  (Mr,),  his  e.vposure  of  the  misrepresentations  of 
Hump,  166,  note  *. 

Browne  (Sir  Thomas),  his  abilities,  279. 

Brownists  and  Barrowists,  most  fanatic  of  the  Puritans, 
129 ;  emigi"ate  to  Holland,  ibid. ;  execution  of,  ibid., 
and  note  *. 

Crucc  (Edward),  his  invasion  of  Ireland,  685. 
ncer  (Martin),  his  permission  of  a  concubine  to  the 
Landgrave  of  Hesse,  49,  note  t ;  objected  to  the  English 
vestments  of  priests,  68  ;  his  doctrines  concerning  the 
Lord's  Supper,  61 ;  politic  ambiguity  of,  ibid.,  note  * ; 
assists  in  drawing  up  the  Forty -two  Articles,  65,  note  *. 

Buckingham  (Edward  Stafford,  duke  of),  his  trial  and 
execution  under  Henry  VIII.,  27,  and  note  *  ;  his  im- 
peachment, 217. 

Buckingham  (George  Vilhers,  duke  of),  his  connection 
with  Lord  Bacon's  impeachment,  206,  and  note  *  ;  sets 
aside  the  protracted  match  with  Spain,  213  ;  deceit  of, 
216,  and  note  *  ;  his  enmity  to  Spain,  234,  and  notes; 
his  scheme  of  seizing  on  American  gold  mines,  ibid., 
note  t. 

Buckingham  (son  of  the  preceding),  one  of  the  Cabal 
ministry,  444  ;  driven  from  the  king's  councils,  456 ; 
administration  of,  during  tlie  reign  of  Charles  U.,  499. 


Buckingham  (John  ShefEeld,  duke  of),  engaged  in  the 
interest  of  the  Pretender,  613,  and  note  *. 

Bull  of  Pius  V.  deposing  Elizabeth,  87 ;  prohibited  in 
England  by  statute,  ibid. 

Bullinger  (Henry),  objected  to  the  EngUsh  vestments  of 
priests,  68. 

Burchell  (Peter),  in  danger  of  martial  law  under  Eliza- 
beth, 143,  and  note  *. 

Burgage  tenure,  513 ;  opinion  of  the  author  concerning 
ancient,  516. 

Burgesses,  wages  of  boroughs  to,  155,  note  * ;  debate  on 
non-resident,  in  the  House  of  Commons,  156. 

Burgundy  (Duke  of),  eS'ect  of  his  death  on  the  French 
succession,  610. 

Burnet  (Dr.  Gilbert,  bishop  of  Salisbury),  denies  the  an- 
swer of  Henry  VIII.  to  Luther,  44,  note  t ;  and  the 
king's  bribery  of  the  universities  on  his  divorce,  45, 
note  t ;  his  doubts  on  the  time  of  Anne  Boleyn's  mar- 
riage, 46,  note  *  ;  his  valuation  of  the  suppressed  mon- 
asteries, 53 ;  his  observations  on  the  persecutions  of 
Mary,  70,  note  t;  anecdote  related  by,  438,  note  *  ;  his 
remarkable  conversation  with  Bentinck,  546,  note  *  ; 
remark  ot,  on  the  statute  for  regulating  trials  in  cases 
of  high  treason,  581. 

Burton  (Henry),  and  Edward  Bastwick,  prosecuted  by 
the  Star  Chamber,  259. 

Bushell,  a  juryman,  committed  for  non-pa5Tnent  of  bis 
fine  imposed  on  him  in  the  case  of  Penn  and  Mead,  498. 

Butler  (Mr.  Charles),  his  candid  character  of  Cr:mmer, 
66,  7iote  t ;  his  discussion  of  the  Oath  of  Supremacy, 
74,  Twtc. 

Cabal  ministry,  account  of  the,  444. 

Cabmet  council,  question  of  its  responsibility,  592,  and 
note  t,  593,  and  notes ;  members  of  the.  answerable  for 
the  measures  adopted  by  its  consent,  594. 

Calais,  right  of  election  extended  to,  514. 

Calamy  (Edmund),  irregularly  set  at  liberty  by  the  king's 
order,  429. 

Calvin  (John),  adopts  Buccr's  doctrine  on  the  Lord's 

Supper,  61 ;  malignity  of,  64  ;  objected  to  the  English 

vestments  of  priests,  68. 
Calvinism  in  England,  230,  and  note 
Calvinists,  severe  act  against  the,  430. 
Cambridge  University,  favorable  to  Protestantism,  113. 
Camden  (William,  Clarenceux  king  of  aims),  remarks 

of,  concerning  Elizabeth's  appointment  of  a  successor, 

81,  note  t. 

Cameronian  rebellion,  669 ;  the  Cameronians  publish  a 
declaration  renouncing  their  allegiance  to  Charles  II., 
670. 

Campian  (Edmund),  executed  for  popery,  92 ;  his  torture 

justified  by  Lord  Burleigh,  91. 
Canon  laws,  commissioners  appointed  for  framing  a  new 

series,  67,  notes ;  character  ot  the  canons,  whicn  were 

never  enacted,  ibid. ;  amendments  of  attempted,  117. 
Canons,  ecclesiastical,  new  code  of,  under  James  1.,  176, 

and  notes      \  defending  the  king's  absolute  power, 

186,  and  note  t. 
Cardwell's  "Annals  of  the  Church,"  remarks  upon  a 

passage  in,  226,  note  *. 
Carleton  (Sir  Dudley),  his  unconstitutional  speech  on 

Parliaments,  217,  note  *. 
Came  (Sir  Edward),  ambassador  at  Rome,  to  Queen 

Mary,  71,  72,  and  note  *. 
Carte  (Thomas),  his  censure  of  the  character,  &c.,  of 

Queen  Mary,  69,  note  t ;  his  anecdotes  of  Godolphin 

and  Harley,  611,  note  t ;  his  life  of  the  Duke  of  Ormond, 

702,  note  *  ;  the  fullest  writer  on  the  Irish  rebellion, 

ibid. 

Carte  and  Leland,  their  account  of  the  causes  of  the  re- 
bellion m  Ireland  in  1641,  703,  note  *. 

Cartwright  (Thomas),  founder  of  the  Puritans,  113  ;  his 
character,  ibid. ;  his  Admonition,  114  ;  his  opposition 
to  civil  authority  in  the  Church,  ibid. ;  his  probable  in- 
tent of  its  overthrow,  ibid.,  note  t ;  design  of  his  labors, 
115  ;  objected  to  the  seizure  of  Church  property,  ibid.^ 
note*;  summoned  before  the  ecclesiastical  commission^ 
125  ;  disapproved  of  the  Puritan  libels,  126 ;  assertione 
of,  concerning  Scripture,  130,  note. 

Catharine  of  Aragon,  queen  of  Henry  VIII.,  his  marriage 
with  her,  and  cause  of  dislike,  45,  and  note  *  ;  divorce 
from,  ibid. ;  feelings  of  the  nation  in  her  favor.  49. 

CathoUc  religion,  presumption  of  the  establishment  of 
the,  450 ;  remarks  on  James  the  Second's  intention  to 
re-establish,  521. 

Catholics,  laws  of  Elizabeth  respecting  the,  71-104  ;  a 
proud  and  obnoxious  faction  in  the  reign  of  Charles  I., 
331 ;  natural  enemies  to  peace,  ibid. ;  hated  by  both 


716 


INDEX. 


parties,  334 ;  Charles  I.  gave  mnch  offense  by  accepting 
their  protfered  services,  ibid, ;  promises  of  Charles  li. 
to,  426 ;  loyalty  of,  ibid, ;  Charles  II. 's  bias  in  favor  of, 
Vh ;  laws  against,  enforced  in  Ireland,  694,  695 ;  claim 
the  re-establishment  of  their  reUgion,  704  ;  aim  at  re- 
voking the  Act  of  Settlement,  706 ;  their  hopes  under 
Charles  II.  and  James  II.,  ibid, ;  their  possessions  at 
the  end  of  the  seventeenth  century,  707 ;  severity  of 
the  laws  against  them  during  the  reigns  of  William 
III.  and  Anne,  ibid.,  708;  severe  penalties  imposed 
upon  them,  708. 

Cavaliers,  ruined,  inadequate  reUef  voted  to,  417.  ' 

Cavendish  (Richard),  proceedings  concerning  his  oflBce 
for  writs,  163,  note 

Cecil,  William  (Lord  Burleigh),  his  great  talents,  72 ;  pa- 
per of,  on  religious  reform,  ibid.,  note  ' ;  his  memo- 
randa concerning  the  debates  on  the  succession  under 
Elizabeth,  81,  notei  ;  his  conduct  concerning  Eliza- 
beth's marriage,  80 ;  arguments  of,  relating  to  the 
Archduke  Charles  and  the  Earl  of  Leicester,  ibid., 
note  t ;  procures  an  astrological  judgment  on  her  mar- 
riage with  the  Duke  ofAnjou,  ibid.,  note  I;  favors  her 
marriage  with  the  Archduke  Charles,  81,  note  ' ;  sus- 
pected of  favoring  the  house  of  Suffolk,  82,  and  note  *  ; 
memorandum  of,  concerning  the  Queen  of  Scots,  84 ; 
fears  of,  concerning  the  nation,  86 ;  his  proceedings 
against  Mary  Stuart  restrained  by  Elizabeth,  88  ; 
pamphlets  of,  in  defense  of  EUzabeth,  94,  and  nou; 
answered  by  Cardinal  .yien,  and  supported  by  .'^tubbe, 
ibid.,  note  *  ;  his  memorial  on  the  Oath  of  .Supremacy. 
95 ;  his  advice  for  repressing  of  papists,  ibid. ;  fidelity 
of  his  spies  on  Mary,  queen  of  Scots,  97  ;  continues  his 
severity  to  the  papists,  104 ;  his  strictness  over  Cam- 
bridge University,  113,  note  * ;  averse  to  the  severity 
of  Whitgift,  1^ ;  his  apology  for  the  Puritans,  123 ;  his 
constant  pliancy  toward  ETizabeth,  124  ;  his  spoliation 
of  Church  property,  134 ;  project  of  for  raising  money, 
145 ;  interests  himself  in  affairs  of  private  indi\-iduals,  i 
146,  and  TWte  t ;  his  policy  in  doing  so,  ibid. ;  foresight 
the  character  of  his  administration,  146.  : 

Cecil,  Robert  (Earl  of  .SaUsbury),  his  innocence  of  the 
gunpowder  conspiracy,  232,  Twte  *. 

Celibacy  of  priests,  its  origin  and  evils  considered,  61, 62,  I 
TWte 

Census  of  1837,  result  of  the,  in  Ireland,  709,  note  t. 

Ceremonies,  superstitious,  abolished  in  England,  59. 

Chambers  (Richard),  proceedings  against,  for  refusing  to 
pay  customs,  &c.,  243. 

Chancery,  Court  of;  its  practice  concerning  charitable  be-  ' 
quests,  55,  note  *.  ^ 

Chancery,  origin  and  power  of  the  Court  of  198  ;  dispute 
on  the  extent  of  its  jurisdiction,  198, 199 ;  its  aboUtion  : 
voted,  373.  | 

Chantries,  acts  for  abolishing,  63 ;  disposition  of  their  ! 
revenues,  ibid. 

Charles  I.  (King  of  England),  Constitution  of  England 
under,  from  1625-1629,  215-240 ;  favorable  features  of 
his  character,  215,  and  note  * ;  succeeds  to  the  throne 
in  preparations  for  war,  215 ;  privileges  of  Parliament 
infringed  by,  217,  218;  determines  to  dissolve  it,  218, 
and  note  *  ;  demands  a  loan,  and  consequent  tumult, 
219,  and  note  t ;  arbitrary  proceedings  of  his  council, 
id.  ibid.  ;  summons  a  new  Parliament,  222,  and  note  J ; 
his  dislike  to  the  Petition  of  Right,  223,  224;  answer 
concerning  tonnage  and  poimdage,  and  prorogues  the 
Parliament,  225 ;  bis  engagement  to  the  Spanish  papists  I 
when  Prince  of  Wales,  235  :  conditions  for  his  marriage 
with  the  Princess  Henrietta  Maria,  236 ;  view  of  his 
third  Parliament  compared  with  his  character,  239 ; 
Constitution  of  England  under,  from  1029-1640,240-290; 
declaration  of,  after  the  dissolution,  241,  and  Twte  *  ; 
his  proclamations,  252;  proceedings  against  the  city,  [ 
253 ;  offer  of  London  to  buUd  the  king  a  palace,  254, 
note  J ;  principal  charges  against  his  government,  254, 
255  ;  his  court,  &c.,  suspected  of  favoring  popery, 
270-272 ;  supposed  to  have  designed  the  restoration  of 
Church  lands,  275;  attempts  to  draw  him  into  the 
Romish  Church,  278  ;  aversion  to  calling  a  ParUament, 
286 ;  vain  endeavor  to  procure  a  supply  from,  287  ; 
dissolved,  288  ;  his  means  for  raising  money,  289  ;  sum- 
mons the  council  of  York,  ibid.;  assents  to  calling  a 
Parliament  ibid. ;  Constitution  of  England  under,  from 
1640-1642,  290-.321 ;  his  desire  of  saving  Lord  Strafford, 
297,  note  *  ;  recovers  a  portion  of  his  subjects'  confi- 
dence, 304 ;  his  sincerity  still  suspected,  306 ;  his  at- 
tempt to  seize  members  of  Parliament,  308,  notes  ; 
effects  of,  on  the  nation,  308  ;  his  sacrifices  to  the  Par- 
liament, 313 ;  nineteen  propositions  offered  to,  ibid. ; 
powers  claimed  by,  in  the  luneteen  propositions,  314 ; 


comparative  merits  of  his  contest  with  the  Parliament, 
314-321 ;  his  concessions  important  to  his  cause,  320 ; 
his  intentions  of  levying  war  considered,  ibid.,  note  '  ; 
probably  too  soon  abandoned  the  Parliament,  320, 321 ; 
his  success  in  the  first  part  of  the  civil  war,  .322 ;  his 
error  in  besieging  Gloucester,  ibid. ;  affair  at  Brentford 
injurious  to  his  reputation,  323 ;  his  strange  promise  to 
the  queen,  ibid. ;  denies  the  two  Houses  the  name  of  a 
ParUament,  325 ;  Earls  of  Holland,  Bedford  and  Clare 
join,  ibid. ;  their  bad  reception,  and  return  to  the  Par- 
liament, ibid.;  is  inferior  in  substantial  force,  326; 
yeomanry  and  trading  classes  general  against  hiin,  330 ; 
remarks  on  the  strength  and  resources  of  the  two  par- 
ties, ibid. ;  loses  groimd  during  wiuter,  ibid. ;  makes 
a  truce  with  the  rebel  Catholics,  who  are  beaten  at 
Namptwich,  ibid. ;  success  over  Esses  in  the  west, 
331 ;  summons  the  Peers  and  Commons  to  meet  at  Ox- 
ford, ibid. ;  vote  of  Parliament  summoning  him  to  ap- 
pear at  Westminster,  332 ;  his  useless  and  inveterate 
habit  of  falsehood,  334,  and  note  t;  does  not  sustain 
much  loss  in  the  west,  337 ;  defeat  of  at  Naseby,  3:{e ; 
observations  on  his  conduct  after  his  defeat,'  ibid. ; 
surrenders  himself  to  the  .Scots,  339 ;  reflections  on  his 
situation,  340;  tideUty  to  the  English  Church,  ibid.; 
thinks  of  escaping,  342 ;  imprudence  of  preserving  the 
queen's  letters,  which  fell  into  the  hands  of  Parlia- 
ment, ibid.,  and  note  *  ;  disavows  the  power  granted  to 
Glamorgan,  344;  is  dehvered  up  to  the  Parliament, 
345 ;  remarks  on  that  event,  346,  and  nous  "i ;  offers 
made  by  the  army  to,  3.52 ;  taken  by  Joyce,  ibid. ; 
treated  with  indulgence,  353 ;  his  ill  reception  of  the 
proposals  of  the  army  at  Hampton  Court  35}  ;  escapes 
from  Hampton  Court  356 ;  declines  passing  four  bills, 
ibid. ;  placed  in  solitary  confinement  ibid. ;  remarks 
on  his  trial,  362 ;  reflections  on  his  execution,  charac- 
ter, and  government  363,  and  note  "  ;  his  innovations 
on  the  law  of  Scotland,  411 ;  state  of  the  Church  in 
Ireland  in  the  reign  of,  694,  note  t;  his  promise  of 
graces  to  the  Irish,  698,  699;  his  perfidy  on  the  occa- 
sion, 699. 

Charles  II.  (King  of  England),  seeks  foreign  assistance, 
375 ;  attempts  to  interest  the  pope  in  his  favor,  ibid. : 
his  court  at  Brussels,  390 ;  receives  pledges  from  many 
friends  in  England,  391 ;  pressed  by  the  Royalists  to 
land  in  England,  392 ;  fortunate  in  making  no  pubhc  en- 
gagement with  foreign  powers.  393 ;  hatred  ol  the  army 
to,  :397 ;  his  restoration  considered  imminent  early  in 
the  year  1660,  ibid.,  and  note  J ;  constitution  of  the  Con- 
vention Parliament  greatly  in  his  favor.  4<X),  and  note  '  ; 
his  declaration  from  Breda,  406 ;  proclamation  soon 
after  landing,  407 ;  re-enters  on  the  crown  lands,  408, 
409 ;  income  settled  on,  410 ;  character  ot  by  opposite 
parties,  412.  and  note  *  413 ;  promises  to  grant  hberty 
of  conscience,  413 ;  his  declaration  in  favor  of  a  com- 
promise, 415 ;  violates  his  promise  by  the  execution 
of  Vane.  418 ;  his  speech  to  Parliament  concerning  the 
Triennial  Act  420  ;  violates  the  spirit  of  his  declara- 
tions, 426 ;  wishes  to  mitigate  the  penal  laws  against 
the  CathoUcs,  427 ;  his  inclination  toward  that  mode 
of  faith,  427,  and  nou  *  ;  publishes  a  declaration  in  fa- 
vor of  liberty  of  conscience,  428 ;  private  life  of  432 ; 
not  averse  to  a  commission  of  inquiry  into  the  public 
accounts,  435 ;  Commons  jealous  of  his  designs,  436 ; 
solicits  money  from  France,  442 ;  intrigues  with  France, 
445  i  his  desire  of  absolute  power,  ibid„  446 ;  complains 
of  the  freedom  of  poUtical  conversations,  446 ;  advice 
of  some  courtiers  to,  on  the  fire  of  London,  ibid. ;  mv 
popularity  ot  447  ;  endeavors  to  obtain  aid  from 
France,  ibid. ;  desires  to  testify  pubhcly  his  adherence 
to  the  Romish  communion,  ibid. ;  his  conference  with 
the  Duke  of  York,  CUfford,  and  Arlington,  for  the  ad- 
vancement of  the  Catholic  faith,  448  ;  his  personal 
hatred  to  the  Dutch,  449  ;  joins  with  Louis  to  subvert 
Holland,  ibid.  ;  confesses  to  Louis  XIV.'s  ambassador 
the  national  dislike  to  French  alliance,  450 ;  his  evasive 
conduct  toward  Louis  XIV.,  ibid. ;  hopes  of  his  court, 
451 ;  his  prerogative  opposed  by  the  Commons,  453 ; 
complains  to  the  Lords  of  the  opposition  of  the  Com- 
mons, 454 ;  gives  way  to  the  public  voice  about  the 
Suspension  Bill,  ibid.,  and  noU  *  ;  compelled  to  make 
peace  with  Holland,  456 ;  his  attachment  to  French  in- 
terests, ibid. ;  receives  money  from  France.  458  ;  his 
secret  treaties  with  France.  462 ;  his  insincerity,  ibid. ; 
his  proposal  to  Louis  XIV.  of  a  league  to  support 
Sweden,  463;  his  death  anxiously  wished  for  by  the 
Jesuits,  470 ;  his  unsteadiness,  476,  and  nou  *  ;  tells 
Hyde  it  will  not  be  in  his  power  to  protect  the  Duke 
of  York,  ibid. ;  offers  made  by  bim  in  the  case  of  ex- 
clusion, 477 ;  implores  the  aid  of  Louis  XIV.  against 


INDEX. 


717 


his  council  and  Parliiinicnt,  479 ;  his  dissimulation,  480 ; 
consultations  against  his  goverament  begin  to  be  held, 
487;  his  connection  with  Louis  XIV.  broken  off,  493; 
his  death,  494  ;  no  geueriJ  infriugemeuts  of  public 
Uberty  during  his  reign,  ibid. ;  tyrannical  form  of  his 
government  in  Scotland,  (iOS  ;  state  of  the  Protestants 
and  CathoUcs  in  Ireland  at  his  restoration,  704  ;  state, 
character,  and  religion  of  the  parties  in  Ireland  at  the 
restoration  of,  ibid. ;  his  declaration  for  the  settlement 
of  Ireland,  ibid. ;  claims  of  the  different  pai  ties,  ibid., 
705 ;  not  satisfactory  to  all  concerned,  7U5 ;  disgusted 
with  the  Irish  agents,  ibid. 

Charles  IX.  (King  of  France),  his  persecution  of  the 
Protestant  faitli,  87. 

Charles  V.  (Emperor  of  Germany),  his  influence  over 
the  pope  on  Henry  VIII. 's  divorce,  46 ;  intercedes  fur 
the  Princess  Mary  to  enjoy  her  religion,  64. 

Charles  (Archduke  of  Austria),  a  suitor  for  the  hand  of 
Elizabeth,  79,  89 :  Cecil's  ai'guments  in  his  favor,  80, 
note  I ;  recognized  as  King  of  Spain,  606 ;.  elected 
emperor,  608,  609. 

Charles  Louis  (elector  palatine),  suspected  of  aspiring  to 
the  throne,  359,  note  t. 

Chamock,  one  of  the  conspirators  to  assassinate  William 
III.,  563,  7iote  *. 

Chatelherault,  verses  displayed  at  the  entry  of  Francis 
II.  nt,  83,  note  t. 

Chester,  right  of  election  extended  to,  514. 

Chichester  (Sir  Arthur,  lord-deputy),  his  capacity,  696 ; 
the  great  colony  of*  Ulster  carried  into  effect  by  his 
means,  ibid. 

Chieftains  (Irisli),  compelled  to  defend  their  lands,  681. 

Chillingworth  (Dr.  William),  his  examination  of  popery, 
279 ;  effect  of  the  Covenant  upon  his  fortunes,  ^J29. 

Cholmley  (Su-  Henry),  his  letter  to  the  Mayor  of  Chester 
on  a  loan  to  Queen  Ehzabeth,  145,  7iote  *. 

Christ  Church  College,  Oxford,  endowed  by  Wolsey 
from  the  suppressed  monasteries,  50. 

Church  of  England,  \iew  of,  under  Henry  VIII.,  Edward 
VI.,  and  Queen  Mary,  43-70. 

Church  ceremonies  and  Liturgy  disliked  by  the  Reform- 
ers, 105  ;  proposal  for  abohshing,  108,  note  *  ;  conces- 
sion ot]  benelicial,  109 ;  irregularly  observed  by  the 
clergy,  ibid. ;  Ehzabeth's  reported  offer  of  abohshing, 
135,  note 

Church  of  England,  its  tenets  and  homihes  altered  un- 
der Edward  VI.,  59 ;  Liturgy  of,  chiefly  a  translation 
of  the  Latin  rituals,  ibid.,  and  note  *  ;  images  removed 
from,  ibid.,  and  note  *;  altiurs  taken  domi  and  cere- 
monies abolished  in  the,  ibid. ;  principally  remodeled 
by  Cranmer,  65 ;  alterations  in  the,  under  Elizabeth, 
71,  note  *  :  its  Liturgy  amended,  7'2,  and  Jio:e  t :  entire- 
ly separated  from  Rome,  73 ;  opposition  of  Cartwright 
to  the,  114,  note  t ;  moderate  party  ol",  the  least  numer- 
ous under  Ehzabeth,  113;  attack  on.  by  Sh'ickland, 
116 ;  its  abuses,  ibid.  ;  articles  of,  brought  before  Par- 
liament, 117;  innovations  meditated  in  the,  301,  303, 
and  notes;  Parliamentary  orders  for  protecting,  302, 
note  t,  303,  note  *. 

Church  of  Scotland,  its  immense  wealth,  6C1 ;  wholly 
changed  in  chai-acter  since  the  restoration  of  the  bish- 
ops, 666 ;  in  want  of  a  regular  Liturgy,  ibid. ;  English 
model  not  closely  followed ;  consequences  of  this, 
ibid. 

Church  lands  restored  at  the  Restoration,  408,  409. 
Church  plate  stolen  in  the  Reformation  under  Edward 

VI.,  63,  note  *. 
Church  revenues,  spohation  of,  in  England,  134. 
Civil  war  under  Charles  I.,  commencement  of,  321; 

great  danger  of,  in  the  reign  of  Charles  II.,  483. 
Clanricardc  (Marquis  of),  his  unsulUed  character,  701. 

note  *. 

Clare  (Earl  of),  joins  the  king,  is  ill  received,  and  rcttUTis 
to  the  Parliimient,  355. 

Clarence  (Lionel,  duke  of).  Parliament  held  by,  at  Kil- 
kenny, for  reform  of  abuses,  684. 

Clarendon  (Edward  Hyde,  earl  of),  character  of  his 
talents  and  works,  281 ;  MSS.  and  interpolation  of  his 
history  and  life,  ibid.,  note  t ;  imperfections  and  preju- 
dices of  the  work,  282,  283,  and  7Wte  *,  285,  note  §,  289, 
TWte  *  ;  observations  on,  339,  note  t ;  against  Monk,  397 ; 
resolution  of,  to  replace  the  Church  in  its  property  at 
the  Restoration,  409  ;  his  integrity,  417,  and  note  I ;  the 
principal  adviser  of  Charles  II.,  421  ;  prejudices  of,  422, 
note  * ;  against  any  concession  to  the  Catholics,  428  ; 
averse  to  some  of  the  clauses  in  the  Act  of  Uniformity, 
ibid. ;  his  account  of  the  prevnihng  discontents  of  his 
time,  432,  433,  note  * ;  inveighs  against  a  proviso  in  a 
money  bill,  43-1;  his  bigotry  to  the  Tory  party,  435; 


opposes  the  commission  of  inquiry,  435,  436;  clandes- 
tine marriage  of  his  daughter  with  the  Duke  of  York, 
436,  and  note  t;  decUne  of  his  power,  ibid.  ;  suspected 
of  promoting  the  marriage  ot  Miss  Stewart  and  the 
Duke  of  Richmond,  438 ;  liis  notions  of  the  English 
Constitution,  ibid. ;  strongly  attached  to  Protestant 
principles,  439  ;  will  not  favor  the  king's  designs  against 
the  established  religion,  ibid.;  coaUtion  against,  ibid., 
and  note  *  ;  his  loss  of  the  king's  favor,  440 ;  severity 
of  his  treatment,  ibid. ;  bis  impeachment,  ibid. ;  unlit 
for  the  government  of  a  free  country,  ibid. ;  articles 
of  his  unpeacluuent  greatly  exaggerated,  441 ;  fears  the 
hostihty  of  the  Commons,  ibid. ;  charged  with  effecting 
the  sale  of  Dunkirk,  ibid. ;  his  close  connection  with 
France,  442  ;  conjectures  on  his  poUcy,  ibid. ;  advises 
Charles  to  soUcit  money  from  France,  ibid. ;  his  faults 
as  a  minister,  ibid. ;  further  remarks  on  his  History  of 
the  Rebelhon,  ibid.,  and  note  *  ;  his  disregard  lor 
truth,  and  pusillanimous  flight,  443 ;  banishment,  ibid. ; 
justilicarion  of  it,  443,  444,  and  note  t ;  severe  remark 
of,  on  the  clergy,  626. 

Clarendon  (Henry,  earl  of),  succeeded  by  Tyrconnel  iu 
the  government  of  Ireland,  528. 

Clark  (Baron  of  the  Exchequer),  his  speech  on  the  royal 
po%ver,  184. 

Clement  VII.  (Cardinal  Juhus),  pope,  his  artful  conduct 
toward  Henry  VIII.,  45  ;  dirticulties  of  deciding  on  the 
king's  divorce,  46 ;  forced  to  give  sentence  against  him, 
ibid. ;  probably  could  not  have  recovered  his  authority 
in  England,  47 ;  last  bulls  of,  in  the  reign  of  Henry 
VIII,,  48 ;  advice  to  the  king  on  his  divorce,  49,  notei. 

Clement  VIII.  (pope),  favors  Arabella  Stuart's  title  to 
the  En"hsh  crown,  167  ;  his  project  of  conquering 
England,  ibid.,  note  *. 

Clergy,  levy  on  their  possessions  under  Henry  VIII.,  22, 
24  ;  immunity  of  the,  from  civil  authority,  44  ;  com- 
pelled to  plead  their  privilege,  ibid. ;  to  be  branded  for 
felony,  ibid. ;  benetit  of  taken  from  robbers,  »fcc.,  with 
exemptions,  ibid. ;  their  privileges  tried  and  defeated, 
ibid.  ;  popular  opposition  to  the,  ibid. ;  attacked  in  the 
House  of  Commons,  47 ;  convicted  of  prismnmre,  ibid. ; 
petition  the  king  for  mercy,  and  acknowledge  him 
supreme  head  of  the  Church,  ibid. ;  cause  of  then-  dis- 
hke  of  the  king's  divorce,  49 ;  unwilling  to  quit  the 
CathoUc  Church,  ibid. ;  jealousy  excited  by  their 
wealth,  50;  subdued  by  separation  from  Rome,  and 
the  dissolution  of  monasteries,  56 ;  dramatic  satires  on 
the,  58,  and  note  *  ;  their  answers  to  libels  against  them, 
ibid. ;  their  unportance  aided  by  the  Latin  ritual,  59 ; 
their  celibacy  abolished  by  statute,  62 ;  conciUated  by 
this  measure,  ibid. ;  conlbnning,  but  averse  to  the  m- 
novations  of  the  Reformation,  62 ;  the  superior,  hi 
England,  less  offensive  than  in  Germany,  66 ;  expelled 
from  their  cures  by  Queen  Mary  for  having  married, 
69,  and  note  t ;  the  same  restored  under  Ehzabeth,  73. 
note  * ;  Protestant,  emigration  of,  to  Germany,  105 ; 
divisions  of,  on  the  Church  service,  ibid.  ;  marriage  of, 
disapproved  by  Ehzabeth,  107 ;  her  injunctions  con- 
cerning it,  and  iUegitimacy  of  their  children,  ibid.,  note 
t ;  their  in-cguliu'  observance  of  Church  ceremonies, 
109 ;  Archbishop  Parker's  orders  for  their  discipline, 
110  ;  the  Puritan  advised  not  to  separate  from  the 
Church  of  England,  111 ;  deficiency  and  ignorance  of,  in 
the  English  Church,  112,  and  notes ;  certificates  order- 
ed of,  ibid. ;  endeavors  to  supply  their  deficiency  by 
meetings  called  prophesying?,  119,  120;  ci  officio  oatti 
given  to  the,  122  ;  aid  raised  on  the,  under  Elizabeth, 
144,  note  t;  support  the  doctrme  of  absolute  power  in 
the  king,  186-188 ;  to  promote  their  own  authority, 
187;  disliked,  from  their  doctrine  of  non-resistance. 
269 ;  deprived  for  refusing  the  Book  of  Sports,  ibid. ; 
oath  impo.sed  on  the,  by  the  Convocation.  301 ;  Epis- 
copal, restored  to  their  benefices  at  the  Restoration. 
412;  nati-onal  outciy  azaiiist  the  Catholics  raised  by 
the,  472 ;  refuse  the  Oath  of  Allegiance  to  WilHam  and 
Mary,  551,  and  note  * ;  their  Jacobite  principles,  587 ; 
remarks  on  the  taxation  of,  624,  note ;  Presbyterian, 
of  Scotiand,  three  hundred  and  fifty  ejected  from  their 
benefices,  669  ;  of  Ireland,  their  state.  679. 

Cleves  and  Juhers,  disputed  succession  in  the  ducliies 
of,  192,  193,  and  note  *. 

Clifford,  Sir  'Thomas,  one  of  the  Cabal  ministry,  444. 

Chft'ord,  Thomas,  lord-treasurer,  obUged  to  retire,  455. 

Cloths,  impositions  on,  without  consent  of  ParUament, 
183,  and  note  *. 

Club-men,  people  so  called,  who  united  to  resist  the 
marauders  of  both  parties  during  the  troubles,  336, 
note  t. 

Coffee-houses,  proclamation  for  shutting  up,  497. 


718 


INDEX- 


Coke  (Sir  Edward),  hia  statement  of  the  number  of 
Catholic  martyrs  under  Elizabeth,  101,  note  § ;  his  de- 
fection from  the  court,  and  summary  of  his  character, 
193  ;  defense  of  laws,  and  treatment  of  by  James,  ibid., 
and  note  *  ;  his  report  concerning  arbitrary  proclama- 
tions, 194;  his  sentiments  on  benevolences,  197;  ob- 
jects to  the  privately  conferring  with  judges,  198;  op- 
poses the  extended  jurisdiction  of  the  Court  of  Chan- 
cery, 199  ;  his  defense  of  the  twelve  judges,  200  ;  sus- 
pension, restoration,  and  subsequent  life  and  character, 
200,  201 ;  his  MSS.,  &c.,  seized,  254 ;  extract  from  his 
fourth  institute.  517 ;  his  explanation  of  the  law  regard- 
ing the  king's  prerogative,  530 ;  his  timid  judgment  in 
the  law  of  treason,  578. 

Coleman  (Edward),  remarkable  confession  of,  461  ; 
seizure  of  his  letters,  470. 

Colepepper  (Lord),  dictatorial  style  of  his  letters  to 
Charles  I.,  .341. 

Colepepper  (Mr.),  ordered  into  custody  of  the  sergeant- 
at-arms  for  presenting  the  Kentish  petition,  640,  and 
note  *. 

College,  ,  gross  iniquity  practised  on  his  trial,  484, 

and  note  t. 

Collier,  Jeremy,  advocates  auricular  confession,  60,  notes. 
Commcndams,  royal  power  of  granting,  disputed,  199. 
Commerce,  its  stagnation  in  the  reign  ot  WilhamIII.,5G5. 
Commission  of  public  accounts,  4:i5. 
Commission  of  divines  revise  the  Liturgy,  586. 
Commitments  for  breach  of  privilege.  C37. 
Committee  of  secrecy  appointed  after  the  resignation  of 

Sir  Robert  Walpole,  636,  637,  and  note  *. 
Commonalty,  risings  of  the,  highly  dangerous,  38  ;  in 

Cornwall,  ibid. ;  in  consequence  of  Wolsey's  taxation, 

ibid. ;  simultaneous  in  several  counties,  ibid. 
Commoners  of  England,  ancient  extent  of  the,  15. 
Common  council,  two  acts  of  the,  considered  as  sufficient 

misdemeanors  to  warrant  a  forfeiture  of  the  charter 

of  the  city  of  London,  486. 
Common-law  right  of  election,  515. 

Commons  of  Ireland,  their  remonstrance  to  the  Long 
ParUament  of  England,  701. 

Commons,  House  of.  rejects  bills  sent  from  the  Lords,  36 ; 
two  witnesses  required  by  the,  in  treason,  ibid.  ;  re- 
jects a  bill  for  attainting  Tunstal,  bishop  of  Durham, 
ibid. ;  unwilhng  to  coincide  with  court  measures,  ibid. ; 
incn^ased  weight  of  ibid. ;  persons  belonging  to  the 
court  elected  as  knights  of  shires,  37 ;  persons  in  office 
form  a  large  part  of  the,  ibid. ;  Oath  of  Supremacy  im- 
posed on  the,  73 ;  desirous  that  Queen  Ehzabeth  should 
marry,  79,  note  *,  80;  address  of,  to  her,  to  settle  tiie 
succession,  82  ;  Puritan  members  address  Ehzabeth 
against  the  Queen  of  Scots,  88 ;  against  the  papists,  91 ; 
papists  excluded  from,  and  chiefly  Puritanical,  116 ; 
Articles  of  the  Church  examined  by  the,  117 ;  dissatis- 
fied with  the  Church,  127 ;.  articles.  Sec,  for  reforming, 
prepared  by  the,  ibid. ;  its  disposition  and  duties,  146, 
147;  character  of  under  Ehzabeth,  147;  imperfection 
of  early  Parliamentary  history,  ibid. ;  more  copious 
under  Elizabeth,  ibid. ;  dispute:  of,  with  the  queen  on 
the  succession,  &c.,  148  ;  Mr.  Yclverton's  defense  of  its 
privileges,  149 ;  vainly  interferes  in  the  reformation 
of  ecclesiastical  abuses,  150;  first  complaint  on  abuses 
in  her  government,  ibid. ;  proceedings  concerning 
Queen  Mary,  ibid. ;  restricted  as  to  bills  on  religious 
matters,  ibid. ;  its  privileges  defended  by  Peter  Went- 
worth,  151 ;  examines  him,  &e.,  on  his  speech,  ibid. ; 
Puritanical  measures  of  reform  in.  ibid.  ;  members 
of  the,  imprisoned,  1.52  ;  triumphant  debate  of  on 
monopolies,  154  ;  subsidies  solicited  from  the,  155 ; 
general  view  of  its  members  under  Ehzabeth,  ibid.  ; 
increased  by  her,  155,  and  note  *;  influence  of  the 
crown  in,  156.  7iote  *  ;  bill  against  non-resident  bur- 
gesses in,  ibid.  ;  exemption  of,  from  arrest  during 
bession  claimed  by,  157 ;  power  of  committal  for  con- 
tempt, &c.,  159,  160 ;  rignt  of  expulsion  and  deter- 
mining its  own  elections,  160,  161 ;  privileges  of  con- 
cerning money  bills,161, 162  ;  debate  on  the  election  of 
Goodwin  and  Fortescue,  175  ;  proceedinfts  of  on  the 
arrest  of  Sir  Thomas  Shirley,  176  ;  remonstrances  of 
against  grievances,  ibid. ;  proceedings  of,  on  purvey- 
ance, 177 ;  temper  of  the,  concerning  grants  of  money, 
ibid. ;  vindication  of  its  privileges  to  the  king,  ibid. ; 
proceedings  of  on  the  design  of  a  union  with  Scotiand. 
179. 7iote  t ;  continual  bickerings  of,  with  the  king,  181 ; 
proceedings  of  concerning  Spanish  grievances,  182 ; 
debate  and  remonstrance  on  imposition  of  James  f., 
185,  186 ;  proceedings  of  against  Cowell's  Interpreter, 
188;  brought  forward  by,  to  be  redressed,  189  ;  com- 
plaint of,  against  proclamations,  189,  190 ;  negotiation 


with  the  king  for  giving  up  feudal  tenures,  190 ;  di«eo- 
lution  of  Parliament,  191 ;  customs  again  disputed  in 
the,  196;  Parliament  dissolved  witljout  a  bill  passing, 
197 ;  proceedings  against  Mompesson,  205 ;  against 
Lord  Bacon,  206,  and  note  *  ;  against  Floyd,"  207  ; 
Lords  disagree  to  tities  assumed  by  the,  207.  and  nou  J ; 
proceedings  of  for  reformation,  209 ;  sudden  adjourn- 
ment of,  by  the  king,  and  unanimous  protestation, 
ibid. ;  meets  and  debates  on  a  grant  for  the  German 
war,  ibid.  ;  petition  and  remonstrances  against  poperj', 
ibid. ,-  king's  letter  on,  to  the  speaker,  210  ;  petition  in 
reply,  ibid.  ;  debate  and  protestation  in  consequence 
of  the  king's  answer,  211;  adjourned  and  dissolved, 
ibid. ;  subsidies  voted  by  the,  213  ;  summary  of  its  pro- 
ceedings under  James  I.,  214 ;  first  one  of  Charles  I., 
215 ;  penurious  measures  and  dissolution  of  21.5,  216 ; 
ill  temper  of  continued  in  the  second,  216,  and  note  *  ; 
dissolution  of  218,  and  note  *  ;  a  new  Parliament  eum- 
moned,  222 ;  proceedings  of  on  the  Petition  of  Right, 
223 ;  disputes  the  king's  right  to  tonnage  and  pound- 
age, 225 ;  prorogued,  ibid. ;  assembled  again  and  dis- 
solved, ibid. ;  religious  disputes  commenced  by,  ibid. ; 
proceedings  on  bill  for  observance  of  Sunday,  229  ;  re- 
monstrates against  Calvinism  and  popery,  231 ;  view 
of  the  third  Parliament  of  Charles  I.,  239,  and  note  t : 
the  king's  declaration  after  its  dissolution,  240 ;  mem- 
bers of  it  committed  and  proceeded  against  241;  Par- 
hament  of  1640  summoned,  287;  confer  upon  griev- 
ances, ibid.;  character  of  the  members,  ibid.,  nolet; 
opposition  of  to  ship-money,  ibid. ;  dissolution  of,  288 ; 
desire  of  the  nation  for  a  Parhament,  289 ;  the  Long 
Parliament  convoked,  ibid,  (see  Long  Parliament)  ;  at- 
tempt to  seize  five  members  of  the,  307,  and  note  t, 
308 ;  proceedings  on  the  mihtia  question,  309,  note  *, 
312,  note  *,  31.3,  and  notes ;  estimate  of  the  dispute  be- 
tween Charles  L  and  the  Parhament,  314-321 ;  faults 
of  in  the  contest,  314,  315 ;  resolve  to  disband  part  of 
the  army,  351 ;  form  schemes  for  getting  rid  of  Crom- 
well, ibid.,  and  notes  t{ ;  vote  not  to  alter  the  funda- 
mental government,  357 ;  restore  eleven  members  to 
their  seats,  ibid. ;  large  body  of  new  members  admitted, 
360 ;  favorable  to  the  army,  ibid. ;  petition  to,  ordered 
to  be  burned  by  the  hangman,  361  ;  resolution  of, 
against  any  further  addresses  to  the  king,  ibid. ;  Lords 
agree  to  this  vote,  ibid.  ;  observations  ot  the  members 
who  sat  on  the  trial  of  Charles,  362;  vote  that  all  just 
power  is  in  the  people,  and  for  the  abohtion  of  mon- 
archy, 3G6 ;  Constitutional  party  secluded  from  the, 
367  ;  resolve  that  the  House  of  Peers  is  useless,  368 ; 
protected  by  the  army,  ibid. ;  members  do  not  much 
exceed  one  hundred,  3*70  ;  retain  great  part  of  the  ex- 
ecutive government,  ibid. ;  charges  of  injustice  against, 
ibid.  vote  for  their  own  dissolution,  372,  and  note  *  ; 
give  offense  to  the  Republicans,  ibid. ;  their  faults  ag- 
gra^•ated  by  Cromwell,  ibid. ;  question  the  Protector's 
authority,  374 ;  agree  with  the  Lords,  on  the  Restora- 
tion, that  the  government  ought  to  be  in  kings.  Lords, 
and  Commons,  404  ;  pass  several  bills  of  importance. 
ibid. ;  prepare  a  bill  for  restoring  ministers,  413,  and 
notes  *t ;  object  to  the  scheme  of  indulgence,  429  ;  estab- 
lish two  important  principles  with  regard  to  taxation. 
434  ;  appoint  a  committee  to  inspect  accounts  and 
nominate  commissioners,  with  full  powers  of  inquiring 
into  public  accounts,  435;  extraordinary  powers  of 
436  ;  important  privilege  of  right  of  impeachment 
estiiblished,  443 ;  address  of  to  Charles  II.,  about  di«- 
biuiding  the  army,  447;  not  unfriendly  to  the  court, 
4.52  ;  the  court  loses  the  confidence  of  453 ;  testify 
their  sense  of  public  grievances,  456 ;  strongly  adverse 
to  France  and  popery,  457,  and  note  I ;  connection  of 
the  popular  party  with  France,  458,  459,  and  notes  *t ; 
many  leaders  of  the  opposition  receive  money  from 
France,  461 ;  impeach  Lord  Danby,  463 ;  culpable  vio- 
lence of  the,  465 ;  deny  the  right  of  the  bishops  to  vote, 
ibid. ;  remarks  on  the  jurisdiction  of  ibid. ;  expel 
Withens,  481 ;  take  Thompson,  Cann,  and  others,  into 
custody,  ibid. ;  their  impeachment  of  Fitzharris,  and 
their  right  to  impeach  discussed,  482 ;  its  dispute  with, 
and  resistance  to,  the  Lords,  .502-505  ;  its  proceedings 
in  the  case  of  Skinner  and  the  East  India  Company, 
505  ;  its  proceedings  in  the  case  of  Shirley  and  Fagg, 
507  ;  its  violent  dispute  with  the  Lords,  507,  and  note 
*,  508.  and  notes  *^ ;  its  exclusive  right  as  to  money 
bills,  508 ;  its  originating  power  of  ta.xation,  509 ;  its 
state  from  the  earliest  records,  512,  513;  its  numbers 
from  Edward  I.  to  Henry  VIII.,  and  unequal  repre- 
sentation, id.  ibid. ;  accession  of  its  members  not  de- 
rived from  popular  principle,  514  ;  address  of  to  James 
II.,  concerning  unqualified  officers,  525;  its  augmented 


INDEX. 


719 


authority,  555 ;  its  true  motive  for  limiting  the  revenue, 
5!)7 ;  its  jealousy  of  a  standing  army,  5()8  ;  its  conduct 
with  regard  to  the  Irish  I'orfeitures,  .570 ;  special  com- 
mittee to  inquire  into  the  miscarriages  of  the  war  in 
Ireland,  ibiit.  ;  power  of  the,  to  direct  a  prosecution  by 
the  attorney-general,  for  offenses  of  a  public  nature, 
644. 

Commonwealth,  engagement  to  live  faithful  to  the,  taken 
with  great  reluctance,  368. 

Companies,  chartered,  established  in  evasion  of  the  stat- 
ute of  monopolies,  245 ;  revoked,  ibid. 

Compositions  for  knighthood,  244,  and  note  t ;  taken 
away,  293. 

Comprehension,  Bill  of,  clause  proposed  in  the,  for 
changing  the  oaths  of  supremacy  and  allegiance,  re- 
jected, 586. 

Compton  (Sir  William),  expense  of  proving  his  will,  47, 
note  *. 

Con.  nuncio  from  the  court  of  Rome,  271,  278. 
Confession,  auricular,  consideration  of  its  benefits  and 

mischiefs,  60. 
Confessions  extorted  by  torture  in  .Scotland,  669. 
Confirmatio  Chartarum,  statute  of,  183 ;  cited  in  the  case 

of  Hampden,  249,  950. 
Conformity,  proclamation  for,  by  King  James  I.,  173. 
Conformity,  bill  to  prevent  occasional,  rejected  by  the 

Lords,  627. 

Connaught,  divided  into  five  counties,  693  ;  province  of, 
infamously  declared  forfeited,  698  ;  inquisition  held  in 
each  county  of,  by  Straftbrd,  700. 

Conscience,  treatment  and  limits  of,  in  government,  136, 
note  *. 

Consecration  of  churches  and  burial-grounds,  272,  and 
note  *. 

Conspiracy,  supposed  to  be  concerted  by  the  Jesuits  at 
St  Omer's,  470. 

Conspiracy  to  levy  war  against  the  king's  person,  may  be 
given  in  evidence  as  an  overt  act  of  treason,  575  ;  not 
reconciliible  to  the  interpretation  of  the  statute,  ibid., 
note  *  ;  first  instance  of  this  interpretation,  ibid. ;  con- 
firmed in  Harding's  case,  576,  and  notes  \X ;  for  an  in- 
vasion from  Ppjiin,  629,  and  note  *. 

Conspirators,  military,  destitute  of  a  leader,  389. 

Constitution  of  England  from  Henry  III.  to  Mary  I., 
13-43 ;  under  James  I.,  166-214 ;  under  Charles  I., 
1625-29,  21.5-240  ;  1629-40,  240-290  ;  1640-42,  290-321 ; 
from  the  commencement  of  the  civil  war  to  the  Res- 
toration, 321-405  ;  from  the  Restoration  to  the  death 
of  Charles  II.,  405—194  ;  from  the  accession  of  James 
II.  to  the  Revolution,  494-547;  under  William  III., 
547-599  ;  under  Queen  Anne,  and  George  I.  and  II., 
599-657  ;  design  of  a  party  to  change,  300  ;  nothing  s^ 
deetnirtive  to.  as  the  exclusion  of  the  electoral  body 
from  their  franchises,  487 ;  original,  hiahly  aristocrat- 
ical,  502 ;  improvements  in  the,  under  William  III.,  572. 

Constitution,  forms  of  the  English,  estabhshed  in  Ireland, 
680. 

Constitutional  law,  important  discussions  on  the,  in  the 
case  of  Lord  Danby,  464. 

Constructive  treason,  first  case  of,  575,  and  note  * ;  con- 
firmed in  Harding's  case,  576.  and  note  tj ;  its  great 
latitude,  ibid.,  582 ;  confirmed  and  rendered  perpetual 
by  36  smd  57  George  III.,  577 ;  Hardy's  case  of,  ibid., 
note  %. 

Consubstantiation,  Luther's  doctrine,  so  called,  61. 
Controversy,  religious  conduct  of,  by  the  Jesuits,  &c., 
279. 

Controversy  between  the  Episcopal  and  Presbyterian 

Churches  of  Scotland,  672. 
Conventicles,  act  against,  430,  and  note  t ;  its  severity, 

ihid. 

Convention  P.irlinment,  the  proceedings  of,  406 ;  balance 
of  parties  in,  408,  nolet;  dissolved,  416;  attack  on  its 
legality,  ibid.,  note  *  ;  Convention  of  1688,  proceedings 
of  the,  543.  ,544  ;  question  of  the  best  and  safest  way  to 
preserve  the  religion  and  laws  of  the  kingdom,  544  ; 
conference  between  the  Lords  and  Commons,  545  ; 
House  of  Lords  give  way  to  the  Commons,  .546  ;  sum- 
mary of  its  proceedings,  ibid. ;  its  impolicy  in  not  ex- 
tending the  Act  of  Toleration  to  the  Catholics,  588. 

Convents,  inferior,  suppressed,  51 ;  vices  of  greater  than 
in  large  abbeys,  &c.,  ibid.,  notes  ;  evils  of  their  indis- 
criminate suppression,  53 ;  excellence  of  several  at  the 
dissolution,  ibid. 

Convocation  (House  of),  to  be  advised  with  in  ccclesias. 
tical  matters,  586. 

Convocation  of  the  province  of  Canterbury,  its  history, 
623  ;  Commons  refer  to  it  the  question  of  reforming 
the  Liturgy,  625 ;  its  aims  to  assimilate  itself  to  the 


House  of  Commons,  ibid.;  and  finally  prorogued  in 
1717,  626. 

Cope  (Mr.),  his  measures  for  ecclesiastical  reform  in  tlie 
House  of  Commons,  151 ;  committed  to  the  Tower,  152. 

Copley  (Mr.),  jjovver  of  the  ParUament  over,  159. 

Coronation  Oath,  dispute  on  its  meaning  and  construc- 
tion, 314,  and  note  f. 

Coi-porate  property,  more  open  than  private  to  altera- 
tion, 53. 

Corporation  Act,  419 ;  severely  affects  the  Presbyterian 
party,  420. 

Corporations,  informations  brought  against  several,  486 ; 
forfeiture  of  their  charters,  ibid. ;  receive  new  ones, 
ibid. ;  freemen  of  primary  franchise  attached  to  the, 
515  ;  their  great  preponderance  in  elections,  517  ;  their 
forfeiture  and  re-grant  under  restrictions,  520;  new 
modeling  of  the,  5.33 ;  bill  for  restoring,  particular  clause 
in,  544. 

Coshery,  custom  of,  in  Ireland,  679,  684. 
Cotton  (Sir  Robert),  his  books,  &c.,  seized,  254. 
Council  of  State,  under  the  Commonwealth,  consisted 

principally  of  Presbyterians,  399. 
Counselors  (Oxford)  of  Charles  I.,  solicit  the  king  for 

titles,  326  ;  their  motives,  ibid. 
Court,  Inns  of,  examined,  concerning  religion,  89. 
Court  of  Parliiiment,  the  title  disputed,  207.  7iote 
Court  of  Supremacy,  commission  for,  in  1583. 122,  note  *. 
Court  of  Charles  II.,  wicked  and  artful  policy  of,  to  se- 
cure itself  from  suspicion  of  popery,  485. 
Courts  of  law,  the  three,  under  the  Plantagenets,  how 

constituted,  15 ;  mode  of  pleading  in,  ibid.,  7iote  *. 
Courts,  inferior,  under  the  Plantagenets,  county  courts, 

hundred  courts,  manor  courts,  their  influence,  16. 
Court  of  Star  Chamber,  origin  and  powers  cf,  39,  note  t, 

40,  and  note  *.    See  Star  Chamber, 
Courts,  ecclesiastical,  their  character  and  abuses,  127, 128, 

and  note  *. 

Covenant,  solemn  league  and  negotiations  concerning  the, 
327  ;  particular  account  of,  328 ;  want  of  precision  in 
the  language  of  ibid.  ;  imposed  on  all  civil  ami  militai-y 
officers,  ibid. ;  number  of  the  clergy  ejected  by,  among 
whom  were  the  most  learned  and  virtuous  men  of  that 
age,  ibid: ;  burned  by  the  common  hangman,  417. 

Covenant  of  Scotland,  national,  its  origin,  666. 

Covenanters  (Scotch),  heavily  fined,  668. 

Coventry  (Thomas),  lord-keeper,  his  address  to  the  Honue 
of  Commons,  216.  note  *. 

Coventry  (Sir  William),  his  objection  to  the  arbitrary  ad- 
vice of  Clarendon,  446 ;  outrageous  assault  on,  452,  and 
note  *. 

Coverdale  (Miles),  his  translation  of  the  Bible,  57. 

Cowell  (Dr.  John),  attributes  absolute  power  to  the  king 
in  his  Interpreter,  1607,  188,  and  note  *  ;  the  book  sup- 
pressed, ibid.,  note  t. 

Cowper  (William),  Lord,  made  chancellor,  605. 

Cox  (Rich.ard),  Bishop  of  Ely,  defends  Church  ceremc^ 
nies  and  habits,  106, 107 ;  Elizabeth's  violence  to,  134, 
and  note  t. 

Coyne  and  livery,  or  coshering  and  bonaght,  barbarous 
practice  of,  684. 

Cranlield  (Lord),  his  arguments  to  the  Commons  on  a 
grant  for  German  war,  209,  note  \\. 

Cranmer  (Thomas),  Archbishop  of  Canterbury,  probably 
voted  for  the  death  of  Cromwell,  29,  note  *  ;  his  part 
in  the  execution  of  Cathaiine  Howard,  30,  note  t ;  letter 
on  the  marriage  of  Anne  Boleyn,  46,  itotc  *  ;  made  arch- 
bishop, 48;  active  in  Henry  Vlll.'s  divorce.  49 ;  induces 
Henry  VIII.  to  sanction  the  principles  of  Luther,  56; 
procures  Edward  VI.  to  bum  Joan  Boucher,  .59,  note ; 
marriage  of  62 ;  compelled  to  separate  from  his  v/ife, 
ibid. ;  protests  against  the  dcstruL-tion  of  chantries,  63, 
7iote  f ;  recommended  the  abolition  of  the  coUegiato 
clergy,  ibid.,  note  *  ;  liberality  of,  to  the  Princess  Mary, 
64,  and  7iote  | ;  censurable  concerning  Joan  Boucher, 
&c..  64  ;  one  of  the  principal  reformers  of  the  English 
Church,  65  :  his  character  variously  depicted,  ibid. ; 
Articles  of  the  Church  drawn  up  by,  6.5,  66,  jiole  *  ;  dis- 
ingonuousness  of  his  character,  ibid. ;  protest  of,  before 
his  consecration,  6.5,  66,  and  note  *  ;  hU  recantations 
and  character.  66,  note  t ;  his  moderation  in  the  meas- 
ures of  reform,  ibid. ;  comphance  of,  with  the  royal  su- 
premacy, ibid. ;  some  Church  ceremonies  and  habit£ 
retained  by,  67,  68. 

Cranmer's  Bifile,  1539,  peculiarities  of,  57,  note  *. 

Cranmer  (Bishop),  his  sentiments  on  Episcopacy,  226, 
notef. 

Craven  (Earl  of),  unjust  sale  of  his  estates,  37,  note  J. 
Crichton  (  ),  his  memoir  for  invading  England  on  bo- 
half  of  the  papists,  97,  note  *, 


720 


INDEX. 


Crighton  and  Ogilvy,  their  case.  668. 

Croke  (Sir  George),  his  sentence  for  Hampden  in  the 
cause  of  ship-money,  2.51,  note  *. 

Cromwell,  earl  of  Essex,  his  question  to  the  judges  re- 
specting condemnations  for  treason,  28 ;  himself  the 
tirst  victim  of  their  opinion,  29 ;  causes  which  led  to 
his  execution,  ibid, ;  his  visitation  and  suppression  of 
the  monastic  orders,  51 ;  ad\-ises  the  distribution  of 
abbey  lands,  &c.,  to  promote  the  Reformation,  .5.5 ;  his 
plan  for  the  revenues  of  the  lesser  monasteries,  54, 
note  t ;  procures  the  dispersion  of  the  Scriptures,  with 
hberty  to  read  them,  57,  note  *. 

Cromwell  (Oliver),  rising  power  of,  332 ;  excluded  from 
the  Commons,  but  continues  lieutenant-general,  338 ; 
historical  difficulties  in  the  conduct  of,  353 ;  wavers  as 
to  the  settlement  of  the  nation,  361 ;  victory  at  Wor- 
cester, its  consequences  to,  369  ;  two  remarkable  con- 
versations of,  with  WTiitelock  and  others,  369,  370 ;  his 
discourse  about  taking  the  title  of  kin",  370 ;  policy  of, 
372,  and  note  t ;  assumes  the  title  of  Protector,  373 ; 
observations  on  his  ascent  to  power,  374  ;  calls  a  Par- 
liament, ibid. ;  his  authority  questioned,  ibid, ;  dissolves 
the  Parliament,  ibid, ;  project  to  assassinate,  376 ;  di- 
vides the  kingdom  into  districts,  377 ;  appoints  military 
magistrates,  ibid,  ;  his  high  court  of  justice,  ibid,  ;  exe- 
cutions by,  ibid.,  and  note  t ;  summons  a  Parliament 
in  165G,  378 ;  excludes  above  ninety  members,  379,  and 
note  t ;  aspires  to  the  title  of  king,  379  ;  scheme  fails 
through  opposition  of  the  army,  380 ;  abolishes  the 
civil  power  of  the  major-generals,  ibid. ;  refuses  the 
crown,  381,  and  note  * ;  the  charter  of  the  Common- 
wealth tmder,  changed  to  the  "  Petition  and  Advice," 
381 ;  particulars  of  that  measure,  ibid.,  and  note  *  ;  his 
unliinited  power,  362 ;  oath  of  allegiance  taken  by 
members  of  Parliament,  ibid. ;  his  House  of  Lords  de- 
scribed, ibid. ;  dissolves  the  ParUament,  ibid. ;  his  great 
design  an  hereditary  succession,  363  ;  referred  to  a 
council  of  nine,  ibid. ;  his  death  and  character,  and 
foreign  policy,  ibid. ;  management  of  the  army,  364 ; 
paralleled  with  Bonaparte,  ibid. ;  his  conquest  of  Ire- 
land, 704. 

Cromwell  (Richard),  succeeds  his  father,  385;  inex- 
perience of,  ibid. ;  no  proofs  of  liis  appointment  by  his 
father,  ibid.,  and  note  *  ;  gains  some  friends,  386  ;  stead- 
ily supported  by  Pierpoint  and  St.  John,  ibid. ;  his  con- 
duct commended  by  Tlmrloe,  366,  and  note  * ;  sum- 
mons a  Parliament,  which  takes  the  Oath  of  Allegiance 
to  him  as  Protector,  387 ;  proceedings  of  the  Parlia- 
ment under,  ibid.,  and  notes  ;  disappoints  the  hopes  of 
the  Royalists,  388 ;  does  not  refuse  to  hear  the  agents 
of  Charles  II.,  391,  and  note  t ;  hopes  entertained  of  his 
relinquishing  the  government,  391. 

Crown  (officers  of  the),  under  the  Plantagenets,  violence 
used  by,  15 :  juries  influenced  by,  ibid. 

Crown  of  Enaland,  uncertain  succession  of  the,  between 
the  houses  of  Scotland  and  Suffolk,  79,  82, 166, 167, 168. 

Crown  and  Parliament,  tormination  of  the  contest  be- 
tween the,  599. 

Crown  (the),  personal  authority  of,  its  diminution,  650 ; 
the  reason  of  it,  ibid. ;  of  material  constitutional  impor- 
tance, 6.53. 

Cro^vn  (the),  its  jealousy  of  the  prerogative,  630. 
Crucifix,  its  la\vfulness  in  the  English  churches  discussed, 

106  ;  EUzabeth's  partiality  for  the,  ibid.,  note  *. 
Customs  on  woad  and  tobacco.  141,  and  note  *  :  on  cloths 

and  wines,  144, 183, 184 ;  tre-ble,  against  the  EngHsh  law, 

184,  and  7wte  " ;  arbitrary,  imposed  by  James  I.,  184, 

and  note  t. 

Cy  Pres,  proceeding  of,  in  the  Cotirt  of  Chancery,  55, 
note  *. 

Damaree  (Daniel),  and  George  Purchase,  their  trial  for 

high  treason.  578,  note  t. 
Damport  (Mr.),  his  cautious  motion  concerning  the  laws, 

152. 

Danby  (Thomas  Osborne,  earl  of),  his  administration,  456 ; 
his  virtues  as  a  minister,  457 ;  marriage  of  the  Prince 
of  Orange  and  Princess  Mary  owng  to  his  influence, 
ibid.,  and  7iote  * ;  concerned  in  the  king's  receipt  of 
money  from  France,  458,  and  note  *  ;  caiise  of  his  fall, 
and  his  impeachment,  463 ;  argument  urged  in  defense 
of;  ibid. :  questions  arising  from  his  impeachment,  464  ; 
intemperance  of  the  proceedings  against  him,  ibid. ; 
important  discussions  in  the  case  of,  ibid.,  and  note  t ; 
committed  to  the  Tower,  465 ;  pleads  his  pardon,  ibid. ; 
Lords  resist  this  plea.  ibid. ;  confined  in  the  Tower 
three  years,  468 ;  admitted  to  bail  by  Judge  Jefferies, 
ibid. 

Darien  Company,  the  business  of  the,  674. 


Dauphin  (son  of  Louis  XIV.),  effect  of  his  death  on  the 
French  succession,  610. 

David  U.,  Parliament  at  Scone  under  him,  6.58. 

Dead,  prayers  for  the.  in  the  first  Liturgy  of  Edward  VI., 
59 ;  omitted  on  its  revlsal,  60. 

Deaths  of  the  Dauphin  and  Dukes  of  Burgundy  and 
Berry,  610  ;  effect  of  their  deaths  on  the  French  suc- 
cession, ibid. 

Debt  (public),  its  amount  in  1714,  608,  nMe  * ;  alarm  ex- 
cited at  its  magnitude,  ^.56. 

Df  Burgh,  or  Burke,  family  of,  in  Ireland,  fall  off  from 
their  subjection  to  the  crown,  663. 

Declaration  published  by  the  army  for  the  settlement  of 
the  nation,  .361 ;  in  favor  of  acompromise.  415  ;  in  favor 
of  liberty  of  conscience,  428  ;  of  Indulgence,  453  ;  op- 
posed by  ParUament,  ibid. ;  of  Rights,  518. 

Denization,  charters  of,  granted  to  particular  persons,  682. 

Dependence  of  Irish  on  English  ParUament,  710. 

Derry,  noble  defense  of,  70t. 

Desiderata  Curiosa  Hibernica,  extract  from  that  work 
concerning  the  prediction  of  the  rebellion  in  1641, 697, 
note  *. 

Desmond  (Earl  of),  attends  the  Irish  ParUament,  687 ;  his 
rebeUion  in  1583,  and  forfeiture  of  his  lands,  696 ;  hia 
lands  parceled  out  among  English  undertakers,  ibid. 

Difference  between  the  Lords  and  Commons  on  the 
Habeas  Corpus  Bill,  499,  500. 
I  Digby  (John,  lord),  his  speech  concerning  Strafford,  298 ; 
letters  taken  on  the  rout  of  at  Sherborne,  344,  nou  %. 

Digges  (Sir  Dudley),  his  committal  to  the  Tower,  217. 

Discontent  of  the  Rjoyalists,  409. 

Discontent  of  the  nation  with  the  government  of  Williain 
III.,  550. 

Discontent  of  the  nation  at  the  conduct  of  Charles  II.,  431, 
432. 

Discussions  between  the  two  houses  of  Parliament  on  the 
exclusion  of  the  regicides  and  others,  406,  407. 

Dispensation,  power  of,  preserved  after  the  Reformation, 
116 ;  attempt  to  take  away,  ibid. 

Dispensations  granted  by  Charles  I.,  254. 

Dissensions  between  Lords  and  Commons  of  rare  oc- 
currence, 502. 

Divinity,  study  of^  in  the  seventeenth  century,  273,  and 
note  *. 

Divorce  of  Henry  VIIL  from  Queen  Catharine,  historical 
account  of  its  rise,  progress,  and  effects,  45-48. 

Divorces,  canon  law  concerning,  under  Edward  VL,  68, 
note;  Henry  VIII.'s  two,  creating  an  imcertainty  in 
the  line  of  succession.  Parliament  enable  the  king  to 
bequeath  the  kingdom  by  his  will,  31. 

Podd's  Church  History,  important  letters  to  be  found  in, 
relative  to  the  CathoUc  intrigues  on  the  succession,  167, 
note. 

Domesday  Book,  burgesses  of,  were  inhabitants  within 

the  borough,  516. 
Dort,  Synod  of.  King  James's  conduct  to  the,  230,  and 

note  *. 

Douay  College,  intrigues  of  the  priests  of,  87 ;  account 

of  the  foundation,  ibid.,  note. 
Downing  (Sir  George),  proviso  introduced  by,  into  the 

Subsidy  Bill,  434. 

Drury  (  ),  execution  of,  23.3,  note  t. 

Dublin,  citizens  of,  committed  to  prison,  for  refusing  to 

frequent  the  Protestant  Church,  694. 
Dugdale  (Sir  WilUam^,  garter  king  at  arms,  his  account 

of  the  Earl  of  Hertford's  marriage,  170.  and  note  *. 
Dunkirk,  sale  of,  by  Charles  U.,  432 ;  particulars  relating 

to  the  sale  of  441,  and  note  *. 
Durham,  county  and  city  of,  right  of  election  granted  to 

the,  514. 

Dutch,  mortgaged  towns  restored  to  the,  197 ;  fleet  in- 
sults our  coasts,  441 ;  armies  mostly  composed  of  Cath- 
oUcs,  588. 

Ecclesiastical  Commission  Court,  122,  and  note  *. 

Ecclesiastical  courts,  their  character  and  abuses,  1528, 
note  *  :  restrained  by  those  of  law,  189 ;  their  jurisdic- 
tion. 264,  note  "  ;  commission  of  1666  issued  by  James 
n.,  527. 

Ecclesiastics  of  Ireland,  their  enormous  monopoly,  709. 
EdgehiU,  battle  oC  322;  its  consequences  in  favor  of 
Charles,  ibid. 

Edward  I.,  his  letter  to  the  justiciary  of  Ireland,  granting 
permission  to  some  septs  to  live  under  English  law,  682. 

Edward  II.  (King  of  England),  Legislature  estaoUshed  by 
statute  of  14,  and  TWte  *. 

Edward  IIL  (King  of  England),  remarkable  clause  re- 
lating to  treason  in  the  act  of,  464. 

Edward  VI.  (King  of  England),  attached  to  the  Reformed 


INDEX. 


721 


religion,  58 ;  abilities  of  his  letters  and  journal,  ibid., 
nole  *  ;  harsh  treatment  of  (lis  eister  Wary,  and  reluc- 
tance to  execute  Joan  Boucher,  ,'58,  nott  *,  note;  al- 
terations in  the  English  Church  under,  5!) ;  tlie  Ref- 
ormation in  his  minority  conducted  with  violence  and 
rapacity,  fi3  ;  denies  the  Princess  Mary  enjoying  her 
own  reUgion,  64  ;  positive  progress  of  the  Reformation 
under,  68  ;  his  laws  concerning  religion  rc-enactcd,  72  ; 
omission  of  a  prayer  in  his  Liturgj',  ibid.,  note  t ;  dif- 
ferences between  the  Protestants  commenced  under, 
107  ;  his  death  prevented  the  Genevan  system  from 
spreading  in  the  English  Church,  ibid. 

Effect  of  the  press,  492 ;  resti  ictions  upon  it  in  the  reign 
of  Henry  VIII.,  495,  496. 

Ejection  of  Non  conformist  clergy,  424. 

Election,  rights  of,  513 ;  four  diil'erent  theories  relating 
to  the,  515  ;  their  relative  merits  considered,  ibid. 

Elections,  regulated  by  Ehzabeth's  ministers,  156,  and 
note  *  \  debate  concerning,  ibid. ;  first  penally  for  brib- 
ery in,  157 ;  right  of  determining,  claimed  by  Parlia- 
ment, 161 ;  interference  of  Jajnes  I.  in,  175. 

Elections,  remarks  on  their  management,  517,  and  note  *. 

Elective  franchise  in  ancient  boroughs,  difficult  to  de- 
termine by  what  class  of  persons  it  was  possessed,  515 ; 
different  opinions  regarding  the,  ibid. 

Eliot  (Sir  John),  his  committal  to  the  Tower,  217 ;  com- 
mittal and  proceedings  against,  241. 

Elizabeth  (Princess),  treasonable  to  assert  her  legitimacy. 
31. 

Elizabeth  (Queen  of  England)  population  of  the  realm 
imder,  16,  note  * ;  revision  of  Church  Articles  under, 
61 ;  a  dangerous  prisoner  to  Queen  Mary,  69,  7iote  t ; 
easily  re-establishes  Protestantism,  70 ;  lavvs  of,  respect- 
ing Catholics,  71-104  ;  her  popularity  and  Protestant 
feelings,  71 ;  suspected  of  being  engaged  in  Wyatt's 
conspiracy,  ibid.,  note  *  ;  announces  her  accession  to 
the  pope,  but  proceeds  slowly  in  her  rehgious  reform, 
71,  72  ;  her  council  and  Parliament  generally  Protes- 
tant, 72 ;  her  acts  of  supremacy  and  uniformity,  73  ; 
Oath  of  Supremacy  to,  explained,  ibid.,  note  *  ;  re- 
straint of  Roman  Cathohc  worship  in  her  tirst  years, 
74  ;  embassy  to,  from  Pius  IV.,  ibid.  :  her  death  proph- 
esied by  the  Romanists,  75,  and  note  I ;  statute  prevent- 
ing, ibid.;  conspiracy  against,  ibid.,  note ^  ;  letters  of 
the  Emperor  Ferdinand  to,  on  behalf  of^  the  English 
Cathohcs,  77,  and  note  *  ;  her  answer  against  them, 
ibid. ;  circumstancee  of  her  reign  affected  her  conduct 
toward  them,  79  ;  the  crown  settled  on  her  by  act  3.5th 
Henry  VIII.,  ibid. ,-  uncertainty  of  her  succession,  ibid. ; 
her  marriage  desired  by  the  nation,  80 ;  suitors  to  her, 
the  Archduke  Charles,  and  Dudley,  carl  of  Leicester, 
ibid. ;  her  unwillingness  to  marry,  and  coquetry,  ibid., 
147  ;  astrological  prediction  on  that  match,  80,  note  f  : 
objects,  with  her  council,  to  tolerate  popery,  80,  and 
note  *,  91 ;  improbability  of  her  having  issue,  80, 81,  and 
note  * ;  offended  by  the  Queen  of  .Scots  bearing  the  arms, 
&c.,  of  England,  83  ;  pressed  to  decide  on  her  successor, 
81,  147  ;  proceedings  of,  against  Lady  Grey,  81,  82 ; 
intrigues  with  the  malcontents  of  France  and  Scotland 
to  revenge  herself  on  Mary,  83,  note  f ;  not  unfavorable 
to  her  succession,  83 ;  courses  open  to,  after  Mary's 
abdication,  84 ;  bull  of  exconamunication  and  deposi- 
tion published  against  her  by  Pope  Pius  V.,  85,  86  ;  in- 
surrections against,  and  dangerous  state  of  England, 
had  she  died,  86  ;  her  want  of  foreign  alliances,  86,  87  ; 
Htatutes  for  her  security  against  the  papists,  87,  88, 
note  *  ;  addressed  by  the  Puritans  against  the  Queen 
of  Scots,  88 ;  restrains  the  Parhament's  proceedings 
against  her,  88, 150 ;  advised  to  provide  for  her  secu- 
rity, 88 ;  inchned  and  encouraged  to  proceed  against 
the  papists,  88,  89 ;  her  declaration  for  uniformity  of 
worship,  89  ;  on  doubtful  terms  with  Spain,  91 ;  foreign 
policy  of,  justifiable,  91,  note  *  ;  her  intention  to  avoid 
capital  penalties  on  account  of  rehgion,  91 ;  papists  ex- 
ecuted on  her  statutes,  ibid. ;  acknowledged  queen  by 
Campian  the  Jesuit,  92  ;  torture  used  in  her  reign,  93  ; 
persecutions  of^  procure  her  to  be  published  as  a  ty- 
rant, ibid. ;  Lord  Burleigh's  defenses  of,  94  ;  her  perse- 
cutions an  argument  against  the  reign  of  Henry  IV.  of 
France,  93,  note  t ;  commands  the  torture  to  be  dis- 
used, 95  ;  an  inquisition  made  after  her  enemies,  and 
some  executed,  96 ;  her  assassination  contemplated, 
97,  note  t ;  disaffection  of  the  papists  to,  caused  by  her 
unjust  aggressions  on  their  liberty  of  conscience,  ibid., 
note  *  ;  an  association  formed  to  defend  her  person, 
98 ;  her  affectation  concerning  the  death  of  Queen 
Mary,  99  ;  number  of  CathoUc  martyrs  under,  101 ; 
character  of  her  rehgious  restraints,  104 ;  her  laws 
respecting  Fr.otestant  Non-conformists,  105-136;  her 
A  A  A 


policy  to  maintain  her  ecclesiastical  power,  105 ;  Pro^ 
estants  recalled  by  her  accession,  106;  ditl'erence  of 
her  tenets  and  ceremonies,  ibid.,  and  note  t ;  disap- 
proves of  the  clergy  marrying,  107 ;  coarse  treatment 
of  Archbishop  Parker's  wife,  ibid.,  note  J ;  probable 
cause  of  her  retaining  some  ceremonies.  109 ;  prevents 
the  abolisliing  of  licenses  and  dispensations,  116 ;  orders 
fbr  suppression  of  prophesy ings,  119-121 ;  supported 
the  Scottish  clergy,  126  ;  omits  to  summon  Parliament 
for  five  years.  127 ;  anxious  for  the  good  government 
of  Church  and  State,  but  jealous  of  interference,  ibid. : 
her  violence  toward  Bishop  Cox,  134  ;  tyranny  of,  to- 
ward her  bishops,  135,  nole  *  ;  her  reported  offer  to 
the  Puritans,  ibid.,  note  *  ;  Walsingham's  letter  in  de- 
fense of  her  government,  136,  and  note  *  ;  view  of  her 
civil  government,  137-106  ;  character  of  her  adminis- 
tration chiefly  rehgious,  137;  her  adviintages  for  ac- 
quiring extensive  authority,  ibid. ;  her  course  of  gov- 
ernment ilhistrated,  139,  note  '  ;  unwaiTanted  authority 
of  some  of  her  proclamations,  141 ;  disposition  to  adopt 
martial  law,  143  ;  her  illegal  commission  to  Sir  Thomas 
Wilford,  ibid. ;  did  not  assert  arbitrary  taxation,  144  ; 
her  singular  frugality,  144,  145;  borrowed  money  by 
im\y  seals,  but  punctual  in  repayment,  145 ;  instance 
of  her  returning  money  illegally  collected,  ibid.,  note*  ; 
dispute  of  with  the  Parliament,  on  her  marriage  and 
succession,  and  the  common  prayer,  147, 148  ;  instances 
of  her  interference  and  authority  over  her  Parliaments, 
148,  150-155  ;  resigned  monopolies,  154 ;  compelled  to 
solicit  subsidies  of  her  later  Parliaments,  155 ;  added 
to  the  members  of  the  House  of  Commons,  ibid. ;  her 
monarchy  hmited,  162,  163,  note  *  ;  supposed  power 
of  her  crown,  165  ;  Philip  11.  attempts  to  dethrone  her, 
167,  note ;  intended  James  I.  for  her  successor,  168,  and 
note  *  ;  her  popularity  abated  in  her  latter  years,  172, 
and  note  *  ;  probable  causes  of,  172  ;  probable  reasons 
for  her  not  imposing  customs  on  foreign  goods,  184 ; 
mutilation  ordered  by  the  Star  Chamber,  during  her 
reign,  257  ;  alienation  of  part  of  Ireland  in  the  reign  of. 
688 ;  reasons  for  establishing  the  Protestant  religion  in 
Ireland  in  the  reign  of,  689. 
Empson  (Sir  Richard),  and  Edmimd  Dudley,  prostitutf 
instruments  of  the  avarice  of  Henry  VII.,  20 ;  put  to 
death  on  a  frivolous  charge  of  high  treason,  21,  ami 
note 

England,  state  of  reUgion  in,  at  the  beginning  of  the  16tli 
century,  43 ;  preparations  in,  for  a  reformation  of  the 
Church,  ibid. ;  means  of  its  emancipation  from  the  pa- 
pal power,  48 ;  foreign  politics  of;  under  James  1., 
192. 

England,  view  of,  previous  to  the  Long  Parliament,  382- 
289  ;  divided  into  districts  by  Cromwell.  377  ;  state  of, 
since  the  Revolution  in  1688,  compared  with  its  con- 
dition under  the  Stuarts,  556  ;  its  danger  of  becoming 
a  province  to  France,  565. 

England,  New,  proclamation  against  emigrations  to,  270, 
and  note  *. 

English  nation  not  unsuited  to  a  RepubUcan  form  of 
government,  390  ;  unwillingness  of  the,  to  force  the  re- 
luctance of  their  sovereign,  474  ;  English  settlers  in  Ire- 
land, their  degeneracy,  082 ;  settlements  of,  in  Munster. 
Ulster,  and  other  parts,  695,  696 ;  injustice  attending 
them,  697. 

Episcopacy,  House  of  Commons  opposed  to,  127 ;  divine 
right  of,  maintained,  226,  and  note  *,  274,  and  note  *  ; 
moderation  of,  designed,  301,  and  note  t ;  bill  for  abol- 
ishing, 327 ;  revived  in  Scotland,  669 ;  jurisdiction  of 
the  bishops  unlimited,  ibid, ;  Episcopal  discipline  re- 
vives with  the  monarchy,  413,  414  ;  clergy  driven  out 
injuriously  by  the  populace  from  their  livings,  673  ; 
permitted  to  hold  them  again,  ibid. 

Episcopalians  headed  by  Selden,  348,  and  note  t. 

Erastianism,  the  Church  of  England  in  danger  of,  74, 
noti., 

Erudition  of  a  Christian  Man,  1540,  Reformed  doctrines 
contained  in,  by  authority  of  Henry  Vin.,  56 ;  charac- 
ter of,  ibid.,  note  *. 

Escheats,  frauds  of,  under  Henry  VII.,  20 ;  act  for  emend- 
ing, 21. 

Essex  (county  of),  extent  of  royal  forests  in,  245. 

Essex  (Robert  Devereaux,  earl  of),  injudicious  conduct 
of,  after  the  battle  of  Edgehill,  322,  note  t ;  raises  the 
siege  of  Gloucester,  3'27  ;  suspected  of  being  reluctant 
to  complete  the  triumph  of  the  Parliament,  337,  and 
note  *. 

Estates,  the  convention  of,  turned  into  a  Parhament,  673  r 
forfeited,  in  Ireland,  allotted  to  those  who  would  aid  in 
reducing  the  island  to  obedience,  704. 

£t  catera  oath  imposed  on  the  clergy,  301. 


722 


INDEX. 


Europe,  absolute  sovereigni!  of,  in  the  sixteenth  century, 
165. 

Kxchequer,  Court  of^  trial  in,  on  the  king's  prerogative 
of  imposing  duties,  183,  and  note  * ;  cause  of  ship-money 
tried  in  the  court  of,  249,  and  note  *  ;  court  of.  an  in- 
termediate tribunal  between  the  King's  Bench  and  Par- 
liament, 504. 

Excise  on  liquor,  first  imposition  of,  in  England,  336,  and 
nou\  \  granted  in  lieu  of  military  tenures,  410;  pre- 
rogative of  the  crown  reduced  by  the,  411 ;  amount  of 
duty  on  beer,  under  William  III.,  5.55,  note  t. 

Exclusion  of  the  Duke  of  York  proposed  and  discussed, 
474,  475;  of  placemen  and  pensioners  from  Parliament, 
597,  and  not£  *. 

E.xeter,  bishopric  of,  despoiled  in  the  Reformation,  63. 

Ex  qffi.cu>  oath  in  the  High  Commission  Court,  1'22 ;  at- 
tacked in  the  House  of  Commons,  127. 

Expulsion,  right  of,  claimed  by  Parliament,  ICQ. 

Factions  of  Pym  and  Vane,  326  ;  cause  of  their  aversion 
to  pacilic  measures,  ibid. ;  at  Oxford,  331. 

Fairfax  (Sir  Thomas),  and  Oliver  Cromwell,  superiority 
of  their  abiUties  for  war,  337. 

Falkland  (Henry  Carey,  lord),  account  of,  331,  note  *. 

Family  of  Love,  said  to  have  been  employed  by  the  pa- 
pists, 78,  note  t. 

Feckcnham  (John,  abbot  of  Westminster),  imprisoned 
under  Ehzabeth,  76,  note  t. 

Felton  (  ),  executed  for  fixing  the  pope's  bull  on  the 

Bishop  of  London's  palace,  87.  • 

Fcnwick  (Sir  John),  strong  opposition  to  his  attainder  in 
Parharaent,  564;  his  imprudent  yet  true  disclosure, 
ibid. 

F'erdinand  (Emperor  of  Germany),  writes  to  Elizabeth 
on  behijf  of  the  Enghsh  Catholics,  77,  and  note  * ;  his 
Uberal  religious  policy,  ibid.,  note  t. 

Ferrers  (George),  his  illegal  arrest,  157,  158,  and  note  *. 

Festivals  in  the  Church  of  England,  227. 

Feudal  rights  perverted  under  Henry  VII.,  20 ;  system, 
the,  introduction  of,  657 ;  remarks  on  the  probable 
cause  of  its  decline,  661. 

Filmer  (Sir  Robert),  remarks  oa  his  scheme  of  govern- 
ment, 492. 

Finch  (Heneage),  chief-justice  of  the  Common  Pleas,  ad- 
viser of  ship-money,  248 ;  defends  the  king's  absolute 
power,  251 ;  Pariiamentary  impeachrscnt  of,  315,  note  *. 

Fines,  statute  of,  misunderstood,  19. 

Fire  of  London,  446 ;  advice  to  Charles  on  the,  ibid. ;  pa- 
pists suspected,  ibid. ;  odd  circumstance  connected 
with,  447,  note  *. 

Fish,  statutes  and  proclamations  for  the  eating  of,  in  Lent, 
227,  note  t. 

Fisher  (John,  bishop  of  Rochester),  his  defense  of  the 
clergy,  47 ;  beheaded  for  denying  the  ecclesiastical  su- 
premacy, 27. 

Fitiharris  (Edward),  his  impeachment,  482;  constitu- 
tional question  on,  discussed,  ibid.,  483. 

Fitzstephen,  his  conquests  in  Ireland,  680. 

Flanders,  books  of  the  Reformed  religion  printed  in,  57. 

Fleetwood  (Lieutenant-general  Charles),  opposes  Crom- 
well's assuming  the  title  of  king,  381 ;  the  title  of  lord- 
general,  with  power  over  all  commissions,  proposed  to 
be  conferred  on,  386;  his  character,  393,  and  note  *. 

Fleming  (Thomas),  chief  baron  of  the  Exchequer,  his 
speech  on  the  king's  power,  184. 

Flesh,  statutes,  &c.,  against  eating,  in  Lent,  227.  note  t. 

Fletcher  (John,  bishop  of  London),  suspended  by  Ehza- 
beth, 135,  note  t. 

Floyd  (Mr.),  violent  proceedings  of  the  ParUament  against, 
207,  208 ;  the  infamous  case  of,  conduct  of  the  Com- 
mons in.  643. 

Forbes  (Sir  David),  fined  by  the  Star  Chamber,  258. 

Forest  laws,  enforcement  and  oppression  of,  under 
Charles  I.,  245,  and  note  *  ;  extent  of  forests  fixed  by  act 
of  Parliament,  293. 

Forfeiture  of  the  charter  of  London,  486 ;  observations 
on  the  proceedings  on,  ibid. 

I'ortcscue  (Sir  John),  question  of  his  election,  175. 

Fostering,  Irish  custom  of,  explained,  682,  note  t ;  severe 
penalty  against,  684. 

Vox.  (Edward,  bishop  of  Hereford),  excites  Wolsey  to 
reform  the  monasteries,  50. 

Fox  (Right  Honorable  C.  J.),  his  doubt  whether  James 
II.  aimed  at  subverting  the  Protestant  estabUshment 
examined,  521 ;  anecdote  of,  and  the  Duke  of  New- 
castle, concerning  secret  service  money,  636,  note  t. 

France,  its  government  despotic  when  compared  with 
that  of  England,  162 ;  authors  against  the  monarchy  of, 
163,  Tiote  *  ;  pubUc  misery  of,  609,  and  note  *. 


Franchise,  electire,  taken  away  from  the  CatfaoUc*  of 

Ireland,  709,  and  nou  t. 
Francis  I.  (King  of  France),  his  mediation  between  the 

pope  and  Henry  VUI.,  4b. 
Francis  II.  (King  of  France),  display  of  his  pretensions  to 

the  crown  of  England,  83,  and  note  t. 
Frankfort,  divisions  of  the  Protestants  at,  105,  106,  nou'. 
Freeholder,  privileges  of  the  English,  253  ;  under  the 

Saxons  bound  to  defend  the  nation,  311. 
French  government,  moderation  of  the,  at  the  treaty  of 

Aix  la  Chapelle,  653. 
Fresh  severities  against  Dissenters,  451. 
Fulham,  destruction  of  trees,  &c.,  at  the  palace  of,  by 

Bishop  Aylmer,  123,  note  t. 
Fuller  (Mr.),  imprisonment  of,  by  the  Star  Chamber,  201. 

Gardiner  (Stephen,  bishop  of  Winchester),  prevails  on 
Henry  VIII.  to  prohibit  the  English  Bible,  57,  nou  *  ; 
forms  a  list  of  words  in  it  unfit  for  translation,  ibid.  ; 
a  supporter  of  the  popish  party,  58 ;  in  disgrace  at  the 
death  of  Henry  Vlll.,  ibid. ;  character  and  virtues  ol, 
64,  note  t ;  his  persecution  palliated,  65,  note. 

Garnet  (Henry),  his  probable  guilt  in  the  Gunpowder 
Plot,  232,  note  *. 

Garraway  and  Lee  take  money  from  the  court  for  soft- 
ening votes,  457,  and  nou  *. 

Garrisons,  ancient  military  force  kept  in.  311. 

Gauden  (Dr.  John),  the  supposed  author  of  Icon  Basilik6, 
366,  and  note  *. 

Gavel-kind,  tenure  of  Irish,  explained,  677,  678,  and  nou 
*  ;  determined  to  be  void,  695. 

Gentry,  or  land-owners,  under  the  Plantagenets,  without 
any  exclusive  privilege,  15 ;  disordered  state  of,  under 
Henry  VI.  and  Edward  IV.,  17  ;  of  the  north  of  Eng- 
land, their  turbulent  spirit,  41 ;  repressed  by  Henry 
VIII.  and  the  Court  of  Star  Chamber,  ibid.,  and  nou  '  ; 
why  inclined  to  the  Reformation,  49  ;  of  England,  be- 
came great  under  the  Tudors,  deriving  their  estates 
from  the  suppressed  monasteries,  55. 

George  I.  (King  of  England),  his  accession  to  the  crown, 
617 ;  chooses  a  Whig  ministry,  ibid. ;  great  disatl'ection 
in  the  kingdom,  ibid.,  and  jiote  t,  618,  7tote ;  causes  of 
his  unpopularity,  6'22,  62.3 ;  Habeas  Corpus  Act  several 
times  suspended  in  his  reign,  623,  nou  t ;  incapable  of 
speaking  English,  trusted  his  ministers  with  the  man- 
agement of  the  kingdom,  651. 

George  I.  and  George  II.  (Kings  of  England),  their  per- 
sonal authority  at  the  lowest  point,  652. 

George  II.,  character  of,  652,  note  *. 

Geraldines,  family  ot^the,  restored,  687. 

Gerard  (Mr.),  executed  for  plotting  to  kill  CromweU. 
376,  and  note  l- 

Germany,  less  prepared  for  a  religious  reformation  than 
England,  43 ;  books  of  the  Reformed  religion  printed 
in,  57  ;  celibacy  of  priests  rejected  by  the  Protestants 
of,  62;  troops  of,  sent  to  quell  commotions,  ibid.,  and 
note  t ;  mass  not  tolerated  by  the  Lutheran  princes  of, 
64,  and  note  *  ;  Reformation  caused  by  the  covetous- 
ness  and  pride  of  superior  ecclesiastics,  66;  war  with, 
Commons'  grant  for,  in  1621,  208. 

Gertruydenburg.  conferences  broken  off  and  renewed  at 
607 ;  remark  of  Cunningham  on  the,  ibid.,  note  *. 

Glamorgan  (Edward  Somerset,  earl  of),  discovery  of  a 
secret  treaty  between  him  and  the  Irish  Catholics,  344  ; 
certainty  ot,  confirmed  by  Dr.  Birch,  ibid.,  and  7iou '. 

Godfrey  (Sir  Edmondbury),  his  very  extraordinary 
death,  470;  not  satisfactorily  accounted  for,  471,  and 
notes. 

Godolphin  (Sidney,  earl  of),  preser\'e3  a  secret  connec- 
tion with  the  court  of  James,  611 ;  his  partiaUty  to  the 
Stuart  cause  suspected,  612. 

Godstow  nunnery,  interceded  for  at  the  dissolution,  53. 

Godwin  (William),  important  circumstances,  omitted  by 
other  historians,  respecting  the  Self  denying  Ordinance, 
pointed  out  by,  in  his  History  of  the  Commonwealth. 
338,  nou ;  his  book  characterized  as  a  work  in  which 
great  attention  has  been  paid  to  the  order  of  time,  346, 
note  *. 

Gold  coin,  Dutch  merchants  fined  for  exporting,  197. 
Goodwin  (Sir  Francis),  question  of  his  election,  175, 176, 
note  *. 

Gossipred,  682.  note  t ;  severe  penalty  against,  684. 

Government  of  England,  ancient  form  of,  a  Uraited  mon- 
archy, 162-164,  and  163,  note  *  ;  erroneously  asserted 
to  have  been  absolute,  162 ;  consultations  against  the, 
of  Charles  II.  begin  to  be  held,  487 ;  difficult  problem 
in  the  practical  science  of  542 ;  always  a  monarchy 
Umited  by  law,  547  ;  its  preJominating  character  ari*- 
tocratical,  ibid. ;  new  and  revolutionary,  remarks  on  a 


INDEX. 


723 


552 ;  Locke  and  Montesquieu,  authority  of  their  names 
on  that  subject,  628 ;  studious  to  promote  distinguished 
men,  ibid. ;  executive,  not  deprived  of  so  much  power 
by  the  Revolution  as  is  generally  supposed,  650 ;  arbi- 
trary, of  Scotland,  667. 
Government,  Irish,  its  zeal  for  the  reformation  of  abuses, 
684 1  of  Ireland,  benevolent  scheme  in  the,  695,  and 
note  *. 

Uovemors  of  districts  in  Scotland  take  the  title  of  earls, 
657. 

Ciowrie  (Earl  of),  and  his  brother,  executed  for  con- 
spiracy, 667,  668,  and  note  *. 

(jrafton  (Thomas),  his  Chronicle  imperfect,  29,  note  *. 

Graham  and  Burton,  solicitors  to  the  treasury,  committed 
to  the  Tower  by  the  council,  and  afterward  put  in  cus- 
tody of  the  sergeant  by  the  Conunons,  64;j. 

Granville  (Lord),  favorite  minister  of  George  II.,  652 ; 
bickering  between  him  and  the  Pelhams,  ibid. 

Gregory  XIII.,  his  explanation  of  the  bull  of  Pius  V.,  92. 

Grenville  (Right  Honorable  George),  his  excellent  statute 
respecting  controverted  elections,  518. 

Grey  (Lady  Catharine),  presumptive  heiress  to  the  En- 
glish throne  at  the  beginning  of  Elizabeth's  reign,  79, 
148;  proceedings  of  the  queen  agai!ist  her,  82,  and  note 
* ;  her  party  deprived  of  influence  by  their  ignoble 
connections,  83  ;  legitimacy  of  her  marriage  and  issue, 
170 ;  present  representative  of  this  claim,  171,  and  note 
i ;  her  former  marriage  with  the  Earl  of  Pembroke, 
ibid. 

Grey  (Leonard,  lord-deputy  of  Ireland),  defeats  the  Irish, 
687. 

Grey  (Sir  Arthur),  his  severity  in  the  government  of  Ire- 
landi^  691.  * 

Griliin  (  ),  Star  Chamber  information  against,  256, 

note  X' 

Grimston  (Sir  Harbottle),  extract  from  his  speech,  396, 
note  t ;  elected  speaker,  403,  and  note  *. 

Grindal  (Edmund,  bishop  of  London),  his  letter  concern- 
ing a  private  priest,  74. 

Grindal  (Edmund,  archbishop  of  Canterbury),  prosecutes 
the  Puritans,  118  ;  tolerates  their  meetings  called 
"  prophesyings,"  120 ;  his  consequent  sequestration  and 
independent  character,  120,  121.  and  note  *. 

Gunpowder  Plot,  probable  conspirators  in  the,  232,  and 
note  *. 

Habeas  Corpus,  trial  on  the  right  of,  220-222,  224, 241 ;  act 
of,  first  sent  up  to  the  Lords,  456 ;  passed,  500,  and 
note  t ;  no  new  principle  introduced  by  it,  500  ;  power 
of  the  Court  of  Common  Pleas  to  issue  writs  of,  ibid., 
and  note  ' ;  particulars  of  the,  ibid. ;  its  eft'ectual  reme- 
dies, 501. 

Hale  (Sir  Matthew),  and  other  judges,  decide  on  the  il- 
legality of  fining  juries,  498 ;  his  timid  judgment  in 
cases  of  treason,  578. 

Hales  (John),  his  defense  of  Lady  Catharine  Grey,  82, 
and  note  t ;  his  character  and  Treatise  on  Schism,  280. 

Hales  (Sir  Edward),  case  of,  526,  527. 

Halifax  (George  .Savile,  marquis  of),  gives  offense  to 
James  II.,  519 ;  Declaration  of  Rights  presented  by,  to 
the  Prince  of  Orange,  548 ;  retires  from  power,  533. 

Hall  (Arthur),  proceedings  of  Parliament  against,  160, 
and  note  *  ;  famous  case  of,  the  first  precedent  of  the 
Commons  punishing  one  of  their  own  members,  160, 
637. 

Hall  (Edward),  his  Chronicle  contains  the  best  account 
of  the  events  of  the  reign  of  Henry  VllL,  22,  note  * ; 
his  account  of  the  levy  of  1525,  23,  note  *. 

Hall  (Dr.  Joseph,  bishop  of  Exeter),  his  defense  of  Epis- 
copacy, 274,  note  *. 

Hamilton  (James,  duke  of),  engaged  in  the  interest  of 
the  Pretender,  614  ;  killed  in  a  duel  with  Lord  Mohun, 
ibid. 

Hampden  (John),  levy  on,  for  ship-money,  248,  and  note 
*  :  trial  of,  for  refusing  payment,  248-252,  and  notes; 
mentioned  by  Lord  Strafibrd,  266. 

Hampton  Court  conference  with  the  Puritans,  173. 

Hanover,  settlement  of  the  crown  on  the  house  of,  591 ; 
limitations  of  the  prerogative  contained  in  it,  ibid.,  and 
note  *  ;  remarkable  cause  of  the  fourth  remedial  arti- 
cle. 592. 

Hanover,  the  house  of,  spoken  of  with  contempt,  615,  and 
note  *  ;  acquires  the  duchies  of  Bremen  and  Verden 
in  1716,  62:j. 

Hanoverian  succession  in  danger  from  the  ministry  of 
Queen  Anne,  614,  and  note  *,  615. 

Harcourt  (Simon,  lord-chancellor),  engaged  in  the  inter- 
est of  the  Pretender,  614. 

Harding's  case,  constructive  treason  in,  576,  and  notes  tj. 


Hardwicke  (lord-chief- justice),  his  arguments  in  opposing 

a  bill  to  prevent  smuggling,  649. 
Uarley  (Sn-  Robert),  Puritan  spoliations  of,  304,  and 

note  t. 

Ilarley  (Robert,  earl  of  Oxford),  his  censure  on  the  Par- 
Uamentary  proceedings  against  Floyd,  208,  note  t. 

Ilarmer,  his  valuation  of  monastic  property  in  England, 
50,  54,  note  *. 

Harrington  (Sir  John),  notice  of  James  I.  by,  172,  note  *. 

Hatton  (Sir  Christopher),  his  lenity  toward  papists,  103, 
and  note  f  ;  an  enemy  to  the  Puritans,  122  ;  his  spolia- 
tion of  Church  property,  134  ;  attempt  to  assassinate, 
143  ;  his  forest  amercement,  245. 

Heath  (Robert),  attorney-general,  his  speech  on  the  case 
of  habeas  corpus,  221 ;  on  the  Petition  of  Right,  241 ; 
denies  the  criminal  jurisdiction  of  Parhament,  ibid. 

Heath  (Thomas),  seized  with  sectarian  tracts,  78,  note  t. 

Henrietta  Maria  (queen  of  Charles  I.),  conditions  of  her 
marriage  with  him,  236 ;  letter  of,  concerning  the  reli- 
gion of  Charles  I.,  277,  note  *  ;  her  imprudent  zeal  for 
popery,  306,  7tote  +  ;  fear  of  impeachment^  ibid.,  note^'i 
sent  from  England  with  the  crown  jewels,  315,  and 
note  *  ;  Charles  the  First's  strange  promise  not  to 
make  any  peace  without  her  mediation,  323,  324 ;  im- 
peachment of,  for  high  treason,  the  most  odious  act  of 
the  Long  Parliament,  324  ;  her  conduct,  339 ;  and  ad- 
vice to  Charles,  ibid. ;  writes  several  imperious  letters 
to  the  kina  341 ;  forbids  him  to  think  of  escaping,  342, 
and  note  T  ;  ill  conduct  of,  342 ;  abandons  all  regard 
to  English  interest,  ibid. ;  plan  formed  by,  to  deliver 
Jersey  up  to  France,  ibid. ;  power  given  her  by  the 
king  to  treat  with  the  Catholics,  343  ;  anecdote  of  the 
king's  letters  to  her,  ibid.,  note. 

Henry  II.  (King  of  England),  institutes  itinerant  justiceti 
16  ;  invasion  of  Ireland  by,  679. 

Henry  VI.,  clericai  laws  improved  under,  44. 

Heiiry  VII,  (King  of  England),  state  of  the  kingdom  at 
his  accession,  17 ;  Parliament  called  by,  not  a  servile 
one,  ibid. ;  proceedings  for  securing  the  crown  to  hia 
posterity,  ibid. ;  his  marriage,  and  vigilance  in  guarding 
the  crown,  made  his  reign  reputable,  but  not  tranquil, 
ibid. ;  statute  of  the  11th  of,  concerning  the  duty  of  al- 
legiance, ibid. ;  Blackstone's  reasoning  upon  it  errone- 
ous, that  of  Hawkins  correct,  ibid.,  note  t ;  did  not 
much  increase  the  power  of  the  crown,  ibid. ;  laws 
enacted  by,  overrated  by  Lord  Bacon,  18  ;  his  mode 
of  taxation,  19 ;  subsidies  being  unpopular,  he  has  re- 
course to  benevolences,  20  ;  and  to  amercements  and 
forfeitures,  ibid. ;  made  a  profit  of  all  offices,  even 
bishoprics,  ibid. ;  wealth  amassed  by  him  soon  dissi- 
pated by  his  son,  21 ;  council  court  formed  by,  existing 
at  the  fall  of  Wolsey,  41 ;  not  that  of  Star  Chamber,  nor 
maintainable  by  his  act,  ibid,,  note  *  ;  his  fatal  suspi- 
cion, 43  ;  enacts  the  branding  of  clerks  convicted  of 
felony,  44  ;  probable  pohcy  of,  in  the  marriage  of 
Henry  Vlll.,  45,  and  note  t ;  low  point  of  bis  authority 
over  Ireland,  685 ;  confined  to  the  four  counties  of  the 
Enghsh  pale,  ibid. 

Henry  VIII.,  his  foreign  policy,  21 ;  his  profusion  and 
love  of  magnificence,  ibid. ;  acts  passed  by,  to  conciU- 
ate  the  discontents  excited  by  his  father,  ibid. ;  exten- 
sive subsidies  demanded  of  ParUament  by  him,  ibid. ; 
exaction  by,  miscalled  benevolence,  in  1525,  22,  23  ;  in- 
stance of  his  ferocity  of  temper,  27,  28,  29  ;  reilectiong 
on  his  government  and  character,  32 ;  did  not  concih- 
ate  his  people's  aftections,  ibid. ;  was  open  and  gener- 
ous, but  his  foreign  politics  not  sagacious,  ibid. ;  mem- 
ory revered  on  account  of  the  Reformation,  ibid. ;  was 
uniformly  successful  in  his  wars,  ibid. ;  as  good  a  king 
as  Francis  I.,  ibid.,  note  *  ;  suppresses  the  turbulence 
of  the  northern  nobility,  ic,  ibid. ;  Star  Chamber  in 
full  power  under,  42,  7iote  *  ;  his  intention  of  behead- 
ing certain  members  of  Parliament,  42 ;  fierce  and 
lavish  eft'ects  of  his  wayward  humor,  43  ;  religious  con- 
tests the  chief  support  of  his  authority,  ibid. ;  Lollards 
burned  under,  ibid. ;  controversial  answer  to  Luther, 
44  ;  ability  of,  for  religious  dispute,  ibid.,  note  t ;  appa- 
rent attachment  of,  to  the  Romish  Church,  45 ;  his 
marriage,  and  aversion  to  Catharine  of  Aragon,  ibid, ; 
time  of  his  maniage  with  Anne  Boleyn,  46,  and  note  *  ; 
sends  an  envoy  with  his  submission  to  Rome,  ibid. ; 
throws  off  its  authority  on  receiving  the  papal  sen- 
tence, 46  :  his  previous  measures  preparatory  to  doing 
so,  47  ;  takes  away  the  first  fruits  from  Rome,  48  ;  be- 
comes supreme  head  of  the  EngUsh  Church,  ibid.,  and 
note  *  ;  delays  his  separation  from  Queen  Catharine, 
from  the  temper  of  the  nation,  49  ;  expedient  concern- 
ing his  divorce,  ibid. ;  proceeds  in  the  Reformation 
from  policy  and  disposition,  50 ;  the  history  of  his  time 


724 


INDEX. 


written  with  partiality,  ibid.,  note  * ;  not  enriched  by 
the  revenues  of  suppressed  monasteries,  53  ;  his  alien- 
ation of  their  lands  beneficial  to  England,  ibid.  ;  should 
have  diverted  rather  than  have  confiscated  their  rev- 
enues, ibid. ;  doubtful  state  of  his  reUgious  doctrines, 
and  his  inconsistent  cruelty  in  consequence,  56  ;  sanc- 
tions the  principles  of  Luther,  ibid. ;  bad  poUcy  of  his 
persecutions,  ibid. ;  prohibits  the  reading  of  Tyndale'a 
Bible,  57,  note  *  ;  state  of  religion  at  his  death,  58  ;  his 
law  on  the  cehbacy  of  priests,  62 ;  his  Reformed  Church 
most  agreeable  to  the  English,  69,  note  *  ;  his  pro- 
visions for  the  succession  to  the  crown,  79 ;  supports 
the  Commons  in  their  exemption  from  arrest,  1.58  ;  his 
vrill  disposing  of  the  succession,  169 ;  doubt  concerning 
the  signature  of  it,  ibid. ;  account  of  his  death,  and  of 
that  instrument,  ibid.,  note  '  ;  disregarded  on  the  ac- 
cession of  James,  172  ;  institution  of  the  Cojuicil  of  the 
North  by,  262. 

Henry  IV.  (King  of  France)  opposes  the  claim  of  Arabella 

Stuart  on  the  EngUsh  crown,  168,  note. 
Henry  (Prince  of  Wales,  son  of  James  I.),  his  death ; 

suspicion  concerning  it,  202,  note  * ;  design  of  marry- 
ing him  to  the  Infanta,  204,  and  note  *. 
Herbert  (Edward,  lord  of  Cherbury),  fictitious  speeches 

in  his  History  ojf  Henry  VIII.,  21,  note  t. 
Herbert  (Chief-justice),  his  judgment  in  the  case  of  .Sir 

Edward  Hales,  527  ;  remarks  on  his  decision,  ihid. ; 

reasons  of  his  resignation,  550,  note 
Heresy,  canon  laws  against,  framed  under  Edward  VI., 

67,  note  t. 

Hertford  (Edward  Seymour,  earl  of),  his  private  mar- 
riage with  Lady  Grey,  82 ;  imprisonment  and  subse- 
quent story  of  ibid.,  and  note  '  ;  inquiry  into  the  legiti- 
macy of  his  issue,  170,  and  notes  t't ;  Dugdale's  ac- 
count of  it,  171,  note  *. 

Hexham  Abbey,  interceded  for  at  the  dissolution,  53. 

Heyle,  Sergeant,  his  speech  on  the  royal  prerogative, 
154,  notel.  \ 

Heylin  (Dr.  Peter),  his  notice  of  the  Sabbatarian  Bill,  229, 
note  I ;  his  conduct  toward  Prynne,  259.  I 

Heywood  (Mr.  Sergeant),  extract  Srom  his  Vindication  ' 
of  Mr.  Fox's  History,  521,  note  *. 

High  Commission,  Court  of,  1583,  its  powerful  natur  . 
122,  and  ?iote  *  ;  act  for  abolishing  the,  292,  and  note 

High  and  low  churchmen,  their  origin  and  description, 
586,  note  I,  623. 

Histriomastiz,  volume  of  invectives  so  called,  259. 

Hoadley  (Benjamin,  bishop  of  Bangor),  attacked  by  the 
Convocation,  625 ;  his  principles,  ibid. 

Hobby  (Sir  Phihp).  recommends  the  bishop's  revenues 
being  decreased,  ()3,  note  *. 

Hobby  (Sir  Edward),  his  bill  concerning  the  Exchequer, 
152. 

Holingshed  (Raphael),  his  savage  acco<mt  of  the  perse-  \ 
cution  of  the  papists,  92,  note  *  ;  his  description  of  the 
miserable  state  of  Ireland,  691. 

Holland  (Henry  Rich,  earl  of),  chief  justice  in  eyre,  245 ; 
joins  the  Icing  at  Oxford,  325 ;  is  badly  received,  ibid. ; 
returns  to  the  Parliament,  ibid. 

Holland,  war  with,  great  expense  of  the,  446 ;  Charles  II. 
receives  large  sums  from  France  during  the,  450 ;  in- 
famy of  the,  452. 

Hollis  (Denzil,  lord),  committal  and  proceedings  against, 
241,  242. 

Hollis  (Lord),  sincerely  patriotic  in  his  clandestine  inter- 
course with  France,  460,  and  note  *. 

Holt  (Chief-justice),  his  opinion  concerning  the  power  of 
the  Commons  to  commit,  645. 

Homihes,  duty  of  non-resistance  maintained  in  the,  238, 
note 

Hooker  (Richard),  excellence  of  his  Ecclesiastical  Polity, 
129 ;  character  and  force  of  his  argument,  130 ;  relative 
perfection  of  the  various  books,  ibid. ;  imperfections 
oi,  131 ;  justness  and  hberahty  of,  in  his  views  of  gov- 
ernment, 132 ;  interpolations  in  the  posthumous  books 
considered,  ibid.,  and  note  *  ;  his  view  of  the  national 
constitution  and  monarchy,  133 ;  dangerous  view  of 
the  coimection  of  Church  and  State,  132,  and  note  *, 
133. 

Hooker,  member  for  Athenry,  extract  from  his  speech 
in  the  Irish  Parliament,  692. 

Hopes  of  the  Presbyterians  from  Charles  II.,  412. 

Houses  built  of  timber  forbidden  to  be  erected  in  Lon- 
don after  the  great  fire,  497. 

Howard  (Catharine),  her  execution  not  an  act  of  tyranny, 
her  licentious  habits  probably  continued  after  marriage, 
30,  and  notes  tj. 

Howard  (Sir  Robert),  and  Sir  R.  Temple,  become  place- 
men, 457. 


Howard  (Lord  of  Escrick),  his  perfidy  caused  the  deaths 

of  Russell  and  Essex,  487. 
Howell  (James),  letters  concerning  the  elevation  of  Bish- 
op Juxon,  261,  note  *. 
Huguenots  of  France,  their  number,  109,  TWU. 

Huic,  (  ),  physician  to  Queen  Elizabeth,  accused  of 

dissuading  her  from  marrying,  81,  note  ". 
Hume  (David),  his  estimate  of  the  value  of  suppressed 
monasteries,  54,  note  *  ;  perversion  in  his  extracts  of 
Parhamentary  speeches,  155,  note  •  ;  his  erroneous  as- 
sertion on  the  government  of  England,  163.  note  '  ;  his 
partial  view  of  the  English  Con.stitution  imder  EUza- 
beth,  166,  note  *;  his  account  of  Glamorgan's  com- 
mission, 344,  345. 
Hun  (Richard),  eft'ects  of  his  death  in  the  Lollards'  tower, 
44. 

Huntingdon  (George  Hastings,  earl  of),  his  title  to  the 
i     English  crown,  167. 

Hutchinson  (Mrs.),  her  beautiful  expression  of  her  hus- 
I     band's  feelings  at  the  death  of  the  regicides,  418. 
I  Hutchinson  (Colonel),  died  in  confinement,  440. 
I  Hutton  (Mr.,  justice),  his  statement  concerning  a  benev- 
j     olence  collected  for  EUzabeth,  14.5,  note  *. 
I  Hyde  (Sir  Nicholas,  chief  justice),  his  speech  on  the  trial 
j     of  habeas  corpus,  221. 

;  Hyde  and  Keeling  (chief  justices)  exercise  a  pretended 

power  with  regard  to  juries,  498,  and  note  *. 
t  Hyde,  Lord-chancellor,  extract  from  his  speech  at  the 
prorogation  of  the  Convention  Parliament,  416,  »oM  \. 

Jacobite  faction,  origin  of  the,  552 ;  party  rendered  more 
formidable  by  the  faults  of  government,  630;  their 
strength,  632;  strength  of,  in  Scotland,  in  the  reigns 
of  George"!,  and  II.,  67.5,  676. 
Jacobites,  intrigues  of  the,  611 ;  their  disaffected  clergy 

send  forth  Ubels,  ibid. ;  decline  of  the,  629. 
Jacubitism  of  the  ministers  of  Queen  Anne,  614,  note  * ; 

of  Swift,  615,  note  *  ;  its  general  decline.  676. 
James  I.  (King  of  England),  view  of  the  English  Consti- 
tution under,  166-214 ;  his  quiet  accession,  notwith- 
standing the  numerous  titles  to  the  crown,  166 ;  his  and 
the  other  claims  considered,  166-171,  and  notes ;  Eliza- 
beth's intrigues  against  167,  note ;  four  proofs  against 
his  title,  169 ;  his  affection  for  hereditary  right,  171 : 
posture  of  England  at  his  accession,  172 ;  his  early  un- 
popularity, ibid. ;  hasty  temper  and  disregard  of  law, 
ibid.,  note  * ;  his  contempt  for  Elizabeth,  173,  note  ; 
the  Millenary  petition  presented  to,  173,  and  note  t ;  his 
conduct  to  the  Puritans  at  the  Hampton  Court  confer- 
ence, ibid.,  and  notes  J*t ;  proclamation  for  conformity. 
ibid. ;  his  first  Parliament  summoned  by  irregular  proc- 
lamation, 174, 175 ;  employed  in  publishing  his  maxim"  ' 
on  the  power  of  princes,  174  ;  dispute  with,  on  the 
election  of  Fortescue  and  Goodwin,  175 ;  artifice  of, 
toward  the  Commons  on  a  subsidy,  177 ;  discontent 
of,  at  their  proceedings,  ibid.,  191,  notei;  his  scheme 
of  a  union  with  Scotland,  179,  and  note  t,  180,  and 
notes  **t;  his  change  of  title,  181,  note ;  continual  bick- 
erings with  his  ParUaments,  181 ;  his  impolitic  partiality 
for  Spain,  181,  and  note  t,  182,  and  note  *,  204,  21iJ,  and 
notes  "t,  234,  and  note  t ;  duties  imposed  by,  183,  and 
note  *  ;  defects  of  his  character,  191,  and  notes  *t : 
foreign  pohtics  of  England  under,  192 ;  his  treatment 
of  Lord  Coke,  193,  7tote  *  ;  his  use  of  proclamations. 
194,  note  * ;  his  endeavors  to  raise  money  by  loans 
titles,  &.C.,  19.5.  and  note  J ;  dissolves  the  Parliament 
197,  and  note  t ;  his  letter  and  conduct  to  the  twelve 
judges,  199,  200 ;  his  unpopularity  increased  by  the  cir- 
cumstances of  Arabella  Stuart,  Overbury,  and  Raleigh. 
201-204 ;  his  probable  knowledge  of  the  murder  of 
Overbury,  203.  and  note  *  ;  calls  a  new  Parliament,  205 : 
his  sudden  adjourmnent  of  it,  209 ;  his  letter  to  the 
speaker  of  the  Commons  on  petitions  against  popery. 
210 ;  reply  of,  to  a  second  petition,  ibid. ;  adjourmnent, 
dissolution,  and  proceedings  against  members  of  both 
Houses,  211,  212,  note;  Ubels  against,  212,  and  note 
his  declaration  of  sports,  228 ;  opposes  the  Arminian 
heresy,  229, 230,  notes  |l*tj ;  suspected  of  inclination  to 
the  papists,  23L  and  note  *,  232 ;  answers  Cardinal  Bel- 
larmine,  233 ;  state  of  papists  under,  231-237,  and  notes : 
his  reign  the  most  important  in  the  constitutional  his- 
tory of  Ireland,  693. 
James  U.  (King  of  England),  attributes  his  return  to  po- 
pery to  the  works  of  Hooker,  131,  Ttote ;  his  schemes 
of  arbitrary  power,  519 ;  issues  a  proclamation  for  the 
pa3rment  of  customs,  ibid.,  and  note  t ;  his  prejudice  in 
favor  of  the  Cathohc  religion,  521 ;  his  intention  to  re- 
peal the  Test  Act,  ibid, ;  his  remarkable  conversation 
with  BariUon,  ibid.,  and  nou  t ;  deceived  in  the  dispo- 


INDEX. 


725 


sitaon  of  his  subjects,  523 ;  supported  by  his  brother's  i 
party,  524,  and  note  t  ;  prorogues  the  Parhameiit.  525;  i 
his  scheme  for  subverting  the  establislied  rehgion,  528  ;  j 
his  success  against  Monmouth  inspires  liim  with  false  ] 
confidence,  529.  530  ;  rejects  tlie  plan  for  excluding  the 
Princess  of  Orange,  530 ;  dissolves  the  Parliament,  533  ;  ' 
attempts  to  violate  the  right  of  electors,  ibid. ;  solicits 
votes  for  repealing  tlie  tost  and  penal  laws,  534 ;  ex- 
pels the  fellows  from  Magdalen  College,  ibid.  ;  his  in- 
fatuation, 535 ;  his  impolicy,  53(i ;  received  500,000  livres 
from  Louis  XIV.,  ibid.  ;  his  coldness  to  Louis  XIV., 
ibid. ;  his  uncertain  policy  discussed,  ibid.  ;  his  char- 
acter, 536,  and  note  t ;  rotlections  on  his  go\'ernment, 
538 ;  compared  with  his  lather,  ibid. ;  has  a  numerous 
army,  5311 ;  influenced  by  his  confessor  Pctre,  540 ; 
considered  an  enemy  to  the  Prince  of  Or.'mge  and  the 
Knglish  nation,  ibid. ;  his  sudden  flight,  ibid.  ;  his  re- 
turn to  London  and  subsequent  flight,  541,  and  note  t ; 
vote  against  him  ill  the  Convention,  544  ;  compassion 
excited  for  him  by  historians,  551  ;  large  proportion 
of  the  Tories  engaged  to  support  him,  551) ;  various 
schemes  for  his  restoration,  and  conspiracy  in  his  fa- 
vor, 561  ;  issues  a  declaration  from  St  Germain's,  ibid., 
562,  nou  t ;  diarged  by  Burnet  with  privity  to  the 
scheme  of  Grandval,  563,  note  *  ;  his  commission  to 
Crosby  to  seize  the  Prince  of  Orange,  ibid. ;  civil  offices, 
courts  of  justice,  and  the  privy  council  in  Ireland  filled 
with  CathoUcs  in  the  reign  of,  706. 

James  IL  (King  of  Scotland),  statute  of,  to  prevent  the 
alienation  of  the  royal  domains,  660. 

James  VI.  (King  of  Scotland),  his  success  in  restraining 
the  Presbyterians,  663;  his  aversion  to  the  Scottish 
presbytery,  665 ;  forces  on  the  people  of  Scotland  the 
live  articles  of  Perth,  666. 

James  VII.  (King  of  Scotland),  his  reign,  670 ;  his  cruel- 
ties, ibid. ;  attempts  to  introduce  popery,  ibid. ;  national 
rejection  of  him  from  that  kingdom,  671. 

Icon  Hasilikfe.  account  of,  366. 

Jefferies  (Judge),  violence  of,  527. 

Jenkes,  committed  by  the  king  in  council  for  a  mutinous 
speech,  499. 

Jenkins  (Judge),  confined  in  the  Tower  by  the  Long  Par- 
liament, 644. 

Jenner  (a  baron  of  the  Exchequer),  committed  to  the 

Tower  by  the  council,  and  atterward  to  the  custody 

of  the  sergeant  by  the  Commons,  643. 
Jermyn  (Henry,  lord),  dictatorial  style  assumed  by  him 

in  his  letters  to  Charles  I.,  341. 
Jesuits,  their  zeal  for  the  Catholic  faith,  103 ;  missionaries 

of,  in  Kngland,  272,  and  note  *. 
Jewell  (John,  bishop  of  Salisbury),  opposes  Church 

ceremonies  and  habits,  106,  and  7wte  t,  107,  note  t. 
Jews  permitted  to  settle  in  England,  412. 
Images,  destruction  of,  under  Edward  VI.,  59,  and 

note*. 

Impeachment,  Parliamentary  chaj  acter  and  instances  of, 
205,  'i06,  213  ;  question  on  the  king's  right  of  pardon  in 
cases  of,  466 ;  decided  by  the  Act  of  Settlement  against 
the  king's  right,  ibid. ;  abatement  of,  by  dissolution  of 
Parliament,  467 ;  decided  in  the  case  of  Hastings,  469  ; 
of  commoners  for  treason  copstitutiona!,  482. 

Impositions  on  merchandise  without  consent  of  ParUa- 
mcnt,  183, 184,  and  note  * ;  argument  on,  184-186  ;  again 
disputed  in  the  House  of  Commons,  196. 

Impressment,  statute  restraining,  293. 

Imprisonment  illegal,  banished  from  the  English  Con- 
stitution, 139;  flagrant  instances  of.  under  EUzabeth, 
ibid.,  note  *  ;  remonstrances  of  the  judges  against,  140. 

Incident  (transaction  in  Scotland  so  called),  alarm  ex- 
cited by  the,  306. 

Inclosures,  rebellion  concerning,  62. 

Independence  of  judges,  597 ;  this  important  provision 
owing  to  the  Act  ot  Settlement,  ibid. 

Independent  party  (the),  their  first  great  victory  the  Self- 
denying  Ordinance,  337  ;  new-model  the  army,  ibid. ; 
two  essential  characters  of,  347,  note  t ;  first  bring  for- 
ward principles  of  toleration,  350. 

Independents,  liability  of  the,  to  severe  laws,  128 ;  origin 
of  the  name,  129 ;  emigrate  to  Holland,  ibid. ;  and  to 
America,  270. 

Influence  of  the  crown  in  both  houses  of  Parhament  re- 
marks on  the,  637. 

Innes,  Father,  the  biographer  of  James  II.,  extract  from, 
533. 

Innocent  VIII.  (Pope),  his  bull  for  the  reformation  of 
moniisteries,  51,  note  t. 

Institution  of  a  Christian  Man,  1537,  Reformed  doctrines 
contained  in,  by  authority  of  Henry  Vlll.,  56  ;  charac- 
ter of,  ibid.,  note  *. 


Insurgents  iu  the  Rebellion  of  1641,  their  success,  704  ; 
claim  the  rc-estabUshment  of  the  Catholic  religion, 
ibid. 

Insurrections  on  account  of  forced  loans,  24 ;  on  the 
king's  supremacy,  28 ;  concerning  inclosures,  62 ;  of 
Sir  Thomas  Wyatt  &c.,  71,  note. 
Intcrcommuning,  letters  of,  published  in  Scotland,  669. 
Intrigues  of  Charles  II.  with  France,  446. 
Johnson  (Dr.  Samuel),  error  of,  with  respect  to  Lord 

Shaftesbury,  581,  note  *. 
Joseph  (Emperor  of  Gcnnany),  his  deatli,  608,  609. 
Ireland,  mismanagement  of  tlie  atfairs  of,  553,  and  note  *  ; 
ancient  state  of,  676 ;  necessity  of  understanding  the 
state  of  society  at  the  time  of  Henry  the  Second's  iii. 
vasion,  ibid. ;  its  division,  677  ;  king  of  how  chosen, 
ibid. ;  its  chieftains,  ibid. ;  rude  state  of  society  there, 
678;  state  of  the  clergy  in,  679;  ancient  government 
of,  nearly  aristocratical,  ibid. ;  its  reduction  by  Henry 
II.,  ibid. ;  its  greater  part  divided  among  ten  English 
famiUes,  680  ;  the  natives  of  expelled,  ibid.  ;  English 
laws  established  in,  ibid. ;  natives  of,  claim  protection 
from  the  throne,  681 ;  its  disorderly  state,  684  ;  miser- 
ies of  the  natives,  ibid. ;  its  hostiUty  to  the  government, 
ibid.  ;  its  northern  provinces,  and  part  of  the  southern, 
lost  to  the  crown  of  England,  685  ;  its  conduct  during 
the  contest  between  the  houses  of  Y  ork  and  Lancaster, 
686  ;  royal  authority  over  it  revives  under  Henry  VIII., 
687 ;  raised  to  the  dignity  of  a  kingdom,  ibid.  ;  elec- 
tions declared  illegal  in,  692 ;  rising  of  the  people  to  re- 
store the  Catholic  worship,  694  ;  priests  ordered  to 
quit  ibid. ;  English  laws  established  throughout  695 ; 
scheme  for  perfecting  its  conquest,  ibid.  ;  Edmund 
Spenser,  his  account  of  the  state  of  Ireland,  696  ;  con- 
stitution of  its  Parliament  698 ;  its  voluntary  contribu- 
tion for  certain  graces,  ibid.,  &J9  •  free  trade  to  be  ad- 
mitted, 6'!)9  ;  rebelhon  of  1640,  701 ;  its  misgovemment 
at  all  times,  ibid. ;  its  fresh  partition,  704  ;  declaration 
for  its  settlement  by  Charles  II.,  ibid. ;  difl'erent  par- 
ties in.  their  various  claims,  ibid.,  705 ;  declaration  not 
satisfactory,  705  ;  complaints  of  the  Irish,  ii/id. ;  natu- 
ral bias  of  Charles  II.  to  the  religion  of  ibid. ;  unpopu- 
larity of  the  Duke  of  Ormond  with  the  Irish  Catholics, 
706  ;  Lord  Berkley's  administration  in  1670,  ibid. ;  the 
civil  offices  of,  filled  with  Catholics  in  the  reign  of 
James  II.,  ibid. ;  civil  war  of  in  1689,  707  ;  treaty  of 
Limerick,  ibid. ;  Oath  of  Supremacy  imposed  on  the 
Parliament  of,  708  ;  three  nations  and  their  reUgions  in, 
709;  its  dependence  on  the  English  Parliament,  710; 
rising  spirit  of  independence  in,  711  ;  jealousy  and  dis- 
content of  the  natives  of,  against  the  English  govern- 
ment ibid. ;  result  of  the  census  of  1837,  as  showing 
the  relative  numbers  belonging  to  the  different  rehgious 
bodies,  709,  note. 
Irish  agents  for  the  settlement  of  Ireland  disgust  Charles 
II.,  705. 

Irish  Catholics,  penal  laws  against  707,  708. 
Irish  forfeitures  resumed,  569. 

Irish  lords  surrender  their  estates  to  the  crown,  695. 
Irish  natives,  claim  the  protection  of  the  throne.  681 ;  not 
equitably  treated  in  the  settlement  of  the  colonies,  686 ; 
origin  of  the,  676  ;  their  ancient  condition,  679 ;  their 
character,  678,  679  ;  disaft'ected,  tlieir  comiection  with 
Spam,  701. 
Joyce,  seizure  of  Charles  by,  352. 

Judges  in  the  reign  of  Henry  VIII.,  their  opinion  that  at- 
tainders in  Parliament  could  not  be  reversed  in  a 
court  of  law,  28 ;  of  the  Court  of  Star  Chamber,  42, 
and  note  * ;  of  Elizabeth,  remonstrate  against  illegal 
imprisonments,  139 ;  privately  conferred  with,  to  se- 
cure their  determination  for  the  crown,  198,  and  note 
*  ;  the  twelve  disregard  the  king's  letters  for  delay  of 
judgment  199.  '2(KJ ;  their  answers  on  the  Petition  of 
Right  223,  224  ;  instances  of  their  independence  in 
their  duty,  242 ;  their  sentiments  on  ship-money.  248  : 
sentence  on  the  cause  of,  251  ;  account  Stratt'ord 
guilty,  297,  and  note  *  ;  their  conduct  on  the  trial  of 
Vane,  418  ;  in  the  reign  of  Charles  II.  and  James  IL, 
.  their  brutal  manners  and  gioss  injustice,  471,  and  note 
t;  Scroggs,  North,  and  Jones,  their  conduct  472,  and 
note  t;  devise  various  means  of  subjecting  juries  to 
their  own  direction,  497.  498  ;  their  general  behavior 
infamous  under  the  Stuarts,  597;  independence  of  the, 
ibid. ;  this  important  constitutiona!  provision  owing  to 
the  Act  of  Settlement  ibid.  ;  Pt  mberton  and  Jones, 
two  late  judges,  summoned  by  the  Commons  ui  the 
ciise  of  Topbara,  645  ;  Powis,  Gould,  and  Powell,  their 
opinions  concerning  the  power  of  the  Commons  to 
commit  ibid. 

Juries  governed  by  the  crown  under  Elizabeth,  139  , 


726 


INDEX. 


fined  for  verdicts,  39.  498  ;  question  of  the  right  of,  to 
return  a  general  verdict.  498,  499. 

Jury,  trial  by,  its  ancient  establishment,  15,  note  *. 

Jury,  grand,  their  celebrated  ignoramus  on  the  indict- 
ment against  .Shaftesbury,  484,  and  note  t. 

Justice,  open  administration  of,  the  best  security  of  civil 
liberty  in  England,  138  ;  courts  of,  sometimes  corrupt- 
ed and  perverted,  139. 

.lustices  of  the  peace  under  the  Plantagenets,  their  juris- 
diction, 16 ;  Umitation  of  their  power,  21. 

Juxon  (Dr.  WilUam,  bishop  of  London),  made  lord- 
treasurer,  260,  261,  and  note  *  ;  well  treated  in  the  Par- 
liament, 341,  Tiote  *. 

KeeUng  (Chief-justice),  strong  resolutions  of  the  Com- 
mons against,  for  fining  juries,  498. 
Kentish  petition  of  1701,  639,  C40. 

Kerns  and  gallowglasses,  names  of  mercenary  troops  in  ! 
Ireland,  679.  | 

Kildare  (Earls  of),  their  great  influence  in  Ireland,  687  ;  I 
(Earl  of),  his  son  takes  up  arms.  ibid. ;  sent  prisoner  i 
to  London,  and  committed  to  the  Tower,  ibid. ;  exe- 
cuted vrith  five  of  his  uncles,  ibid. 

KilUgrew  and  Delaval,  ParUamentary  inquiry  into  their 
conduct,  571. 

King,  ancient  limitations  of  his  authority  in  England,  14  ; 
iu3  prerogative  of  restraining  foreign  trade,  165,  and 
note  t ;  ecclesiastical  canons  on  the  absolute  power  of 
the,  186 ;  his  authority  styled  absolute,  188  ;  command  j 
of  the,  can  not  sanction  an  illegal  act,  231 ;  his  power 
of  committing,  220-222,  and  222,  note  *,  241 ;  power  of  j 
the,  over  the  mihtia  considered,  312,  and  note  *. 

Kings  of  England,  vote  of  the  Commons  against  the  ec- 
clesiastical prerogative  of,  453;  their  difficulties  in  the 
conduct  of  government,  652  ;  their  comparative  power 
in  politics,  ibid. ;  of  Scotland,  always  claim  .supreme 
judicial  power,  660. 

King's  Bench  (Court  of),  its  order  prohibiting  the  pub- 
lishing a  pamphlet,  496 ;  formed  an  eirticle  of  impeach- 
ment against  Scroggs,  496,  497. 

Knight  (  ),  proceedings  against,  by  the  University 

of  Oxford,  238,  and  7!OI«  *. 

Knight's  ser\ice,  tenure  of,  309, 310,  and  note  *  ;  statutes 
amending,  310. 

Knighthood,  conferred  by  James  I.,  4:c.,  to  raise  money,  | 
195,  and  note  X.  244,  and  note  t,  245,  and  note  *,  293 ;  i 
compulsory,  abolished,  293. 

Knollys  (Sir  Francis),  friendly  to  the  Puritans,  88,  note  *, 
122;  opposed  to  Episcopacy,  126,  note  t,  128. 

Knox  (John),  persecuting  spirit  of  against  the  papists,  89, 
note  *  ;  supports  the  cUssenting  innovations  at  Frank- 
fort, 105 ;  his  book  against  female  monarchy,  164 ; 
foimder  of  the  Scots  Reformation,  particulars  of  his 
scheme  of  Ch<irch  pohty,  662. 

Lacy,  his  conquests  in  Ireland,  680. 

Lambert  (General),  refuses  the  oath  of  allegiance  to 
Cromwell,  382,  note  * ;  ambitious  views  of,  386 ;  a  prin- 
cipal actor  in  expelling  the  Commons,  389 ;  cashiered 
by  Parliament,  ibid. ;  his  character,  393 ;  panic  oc-  1 
casioned  by  his  escape  from  the  Tower,  402  ;  sent  to  | 
Guernsey,  419 ;  suspected  to  have  been  privately  a  ( 
Catholic,  427. 

Landed  proprietors,  their  indignation  at  the  rise  of  new  | 
men,  608.  1 

Land  owners  of  England,  became  great  under  the  Tu-  | 
dors,  many  of  their  estates  acquired  from  the  suppress- 
ed  monasteries.  53.  54. 

Land-tax,  its  origin.  566 ;  its  inequality,  ibid. 

Lands,  ancient  English  laws  concerning  their  aUenation,  i 
18,  19  ;  crown  and  Church,  restoration  of,  408,  409  ;  in  ] 
Ireland,  act  for  their  restitution,  704,  705 ;  its  insuiS- 
ciency,  705 ;  three  thousand  claimants  unjustly  cut  ofl^ 
from  any  hope  of  restitution,  ibid. 

Latimer  (Hugh,  bishop  of  Worcester),  intercedes  for 
Malvern  priory  at  the  dissolution,  53  ;  zealous  speech 
of  against  the  temporizing  clergy,  62.  note  *. 

Latin  ritual  antiquity  and  excellence  of  the,  59. 

Latitudinarian  divines,  men  most  conspicuous  in  their 
writings  in  the  reign  of  King  Charles  II.,  523. 

Laud  (WUliam,  archbishop  of  Canterbury),  his  assertion 
concerning  bishops,  226,  note  *,  264,  note  *,  265,  note  ; 
high  religious  influence  of  231,  note;  his  talents  and 
character,  260,  and  notes  t*  ;  his  correspondence  with 
Lord  Strafford,  263-268,  and  268,  noU  *,  285,  and  nou  t ; 
accused  of  prosecuting  Prynne,  &c.,  265 ;  his  conduct 
in  the  Church,  268 ;  prosecution  of  the  Puritans.  268, 
269,  note  * ;  procures  a  proclamation  to  restrain  emi- 
grants,  270,  and  note  * ;  cardinal's  hat  oflered  to,  271, 


nou  1 ;  charges  of  popery  against,  272,  and  note  *.  273 ; 
union  with  the  CathoUcs  intended  by,  275 ;  turns  against 
them,  278, 279,  and  note  *  ;  impeached  for  high  treason. 
329 ;  confined  in  the  Tower,  and  in  great  indigence, 
ibid. ;  particulars  of  the  charges  aiainit  him,  ibid. ; 
defends  himself  with  courage  and  ability,  ibid. ;  judges 
determine  the  charges  contain  no  legal  treason,  330 ; 
Commons  change  their  impeachment  into  an  ordinance 
for  his  execution,  ibid. ;  peers  comply,  ibid. ;  number 
of  peers  present,  ibid. 

Lauderdale  (Duke  of),  one  of  the  Cabal  444  ;  obliged  to 
confine  himself  to  Scotch  affairs,  455 ;  act  of  the.  re- 
specting the  order  of  king  and  council  to  have  the  force 
of  law  in  Scotland,  668 ;  his  tyranny,  669. 

Law  (the  ecclesiastical),  reformed,  67,  68.  and  notes  ;  less 
a  security  for  the  civil  Uberty  of  England  than  the  open 
administration  of  justice,  138  ;  its  ordinances  for  regu- 
lating the  press,  142. 

Laws  against  theft  severity  of,  16 ;  of  England,  no  alter- 
ation of  ever  attempted  without  the  consent  of  Par- 
liament, 162 ;  not  enacted  by  kings  of  England  without 
the  advice  of  their  great  council,  14,  162 ;  penal,  ex- 
tension of  the,  648,  649,  and  note  *  ;  their  gradual  prog- 
ress and  severity,  649 :  have  excited  little  attention  as 
they  passed  through  the  houses  of  Parliament,  ibid. ; 
several  passed  in  England  to  bind  Ireland,  710. 

Lawyers,  their  jealous  dislike  of  the  ecclesiastical  courts. 
128 ;  Whitgift's  censure  of  ibid.,  note  J  ;  dislike  of,  by 
Archbishop  Laud  and  the  Earl  of  Strafford,  264. 

Layer  (  ),  accuses  several  peers  of  conspiring  in 

Atterbury's  plot,  629,  note  *. 

Leeds  (Henry  Osbom,  duke  of),  in  the  Stuart  interest. 
614,  note  '. 

Leicester,  (Robert  Dudley,  carl  of),  a  suitor  for  the  hand 
of  Elizabeth,  79 ;  Cecil's  arguments  against  bim,  80, 
Twte  t ;  assumes  an  interest  in  the  queen,  ibid. ;  con- 
nection with,  broken  off,  ibid. ;  combines  with  the 
Cathohc  peers  against  Cecil,  81,  nou  t. 

Leicester  (Robert  Sidney,  earl  of),  Archbishop  Laud's 
dislike  to,  274,  note 

Leighton  (Alexander),  prosecution  of,  by  the  Court  of 
Star  Chamber,  259. 

Leinster,  rebellion  of  two  septs  in,  leads  to  a  reduction  of 
their  districts,  now  called  King's  and  Queen's  counties. 
688. 

Lent,  proclamations  of  Elizabeth  for  observing  of,  141. 

and  note  §  :  statutes  and  proclamations  for  the  ob 

serrance  of,  227,  note  t,  ^8,  note ;  hcenses  for  eating 

flesh  in,  228.  note. 
Leslie,  remarks  on  his  writings,  588,  note*;  author  of  The 

Rehearsal,  a  periodical  paper  in  favor  of  the  Jacobites, 

611. 

Lesley  (Bishop  of  Ross,  ambassador  of  Mary,  queen  of 
Scots),  his  answer  concerning  Elizabeth.  93,  nou. 

L'Estrange  (Sir  Roger),  business  of  licensing  books  in- 
trusted to  him,  496. 

Lethington  (Maitland  of),  his  arguments  on  the  title  of 
Mary  Stuart  to  the  English  crown,  83,  84,  nou  *  ;  his 
account  of  the  death  and  will  of  Henry  VIII.,  169.  tioU  *. 

Levelers,  and  various  sects,  clamorous  for  the  king's 
death,  362 ;  favorably  spoken  of  by  Mrs.  Hutchinson, 
371,  mote 

Levies  of  1524-5,  letters  on  the  difSculty  of  raising,  22. 
note  *. 

Libel  Oaw  oO.  indefinite,  582 ;  falsehood  not  essential  to 
the  law  of  583,  and  note  *  ;  Powell's  definition  of  a  libel 
in  the  case  of  the  seven  bishops,  584,  tiou  ;  settled  by 
Mr.  Fox's  libel  bUl  in  1792,  584. 

Libels  published  by  the  Puritans,  124,  and  tioU  * ;  against 
James  I.,  212,  and  note  *. 

Liberty  of  the  subject,  comparative  view  of  the,  in  En- 
gland and  France  in  the  reign  of  Henry  VIIL,  24 ;  civil, 
its  securities  in  England.  138 ;  of  conscience,  declara- 
tion for,  531,  532;  its  motive.  532;  observations  on  its 
effects,  ibid. ;  similar  to  that  pubhshed  in  Scotlaiid. 
ibid. ;  of  the  press,  532 ;  particulars  relating  to  the, 
ibid..  583. 

Licenses  granted  for  eating  flesh  in  Lent  ^28,  note. 
Licensing  acts,  495 ;  act  particulars  relating  to  the,  582. 
Lichfield  (bishopric  of),  despoiled  in  the  Reformation,  63. 
Limerick,  treaty  of,  707 ;  its  articles,  ibid. 
Lincoln  (TheophQus  Chnton,  earl  of),  refuses  to  take  the 

Covenant  and  is  excluded  from  the  House  of  Peers. 

328,  nou  t. 

Lingard  (Dr.  John),  artifice  of  in  regard  to  the  history 
of  Anne  Boleyn.  30.  note  ;  his  insinuation  with  regard 
to  Catharine  Howard  and  Lady  Rochford,  ibid.,  nou  }  ; 
his  notice  of  the  bill  on  the  papal  supremacy.  48,  nou  *  : 
his  estimate  of  the  value  of  suppressed  monasteries, 


INDEX. 


727 


54,  note  * ;  his  observationa  on  the  canon  laws,  and  on  | 
Cranmer,  67, 68,  «o(« ;  his  extenuations  of  Queen  Mary's  | 
conduct,  69,  nole  t.  | 

Litany,  translated  in  1542,  59,  note  *. 

Littleton  (Lord  keeper),  carries  away  the  great  seal,  327. 

Liturgy,  chiefly  translated  from  the  Latin  service-book, 

59,  and  note  *  ;  prayers  for  the  departed  first  kept  in, 
59  :  taken  out  on  its  first  revisiU,  60 ;  amendments 
of  the  English,  under  Elizabeth,  72,  and  nMc  t ;  statute 
detending,  74  ;  revised,  586 ;  the,  estabUshed,  the  dis- 
Cinsuishing  marks  of  the  Angfican  Church,  587. 

IJandaft'  (Kishopric  of),  despoiled  in  the  Reformation,  63. 

Loan  on  property  in  1524-25,  raised  by  Cardinal  Wolsey, 
23-24,  and  7io(«j ;  remitted  to  Henry  VII.  by  Parlia- 
ment, 25  ;  to  Elizabeth,  not  quite  voluntary,  nor  with- 
out intimidation,  145,  and  note  *  ;  always  repaid,  ibid. ; 

-  solicited  under  James  I.,  195  ;  demanded  by  Charles  I., 
and  conduct  of  the  people  on  it,  219,  andnofc  t ;  commit- 
tal and  trial  of  several  refusing  to  contribute,  220 ;  their 
demand  of  a  habeas  corpus,  ibid. ;  their  right  to  it  de- 
bated and  denied,  220-222. 

Lollards,  the  origin  of  the  Protestant  Church  of  England, 
43 ;  their  re-appearance  and  character  before  Luther, 

London  Gazette,  amusing  extract  from,  479,  note  *. 

London,  levies  on  the  city  of,  22-26 ;  citizens  of,  inclined 
to  the  Reformation,  49 ;  increase  of,  prohibited  by 
proclamation,  141 ;  tumultuous  assembUes  of.  resigned 
to  martial  law,  143  ;  remonstrates  against  paying  ship- 
money,  246  ;  proclamation  against  buildings  near,  253, 
and  note  §  ;  proposed  improvements  in,  253 ;  lands  in 
Derry  granted  to,  254;  offer  of;  to  erect  the  king  a 
palace  in  lieu  of  a  fine,  &c.,  ibid.,  note  J  ;  corporation 
of,  information  against  the,  and  forfeiture  of  their 
charter,  486;  purchases  the  continued  enjoyment  of 
its  estates  at  the  expense  of  its  municipal  independ- 
ence, ihid. 

Long  (Thomas),  member  for  Westbury,  pays  £4  to  the 
mayor,  &c.,  for  his  return  in  1571,  157. 

Long  Parliament  summoned,  289  ;  different  pohtical 
views  of  the,  290  ;  its  measures  of  reform,  ibid.,  291 ; 
made  but  little  change  from  the  Constitution  under 
the  Plantagenets,  293;  errors  of  the,  294-299;  bill  of, 
enacting  their  not  being  dissolved  against  their  own 
consent,  3(X),  and  jwlc  *. 

Lord-lieutenant,  institution  of  the  office  of,  312. 

Lords  Portland,  Oxford,  Somers,  and  Halifax,  impeached 
on  account  of  the  treaties  of  partition,  572. 

Lords,  singularity  of  their  sentence  pronounced  upon 
Anne  Boleyn,  30,  note  *  ;  House  of,  cold  reception  of 
the  articles  on  religious  reform  prepared  by  the  Com- 
mons, 127 ;  disagreements  of  the  House  of  Commons 
with  the,  161,  162.  and  note  *  ;  impeachment  of  Lord 
Latimer  at  the  bar  of  the,  205 ;  sentence  of  the,  on 
Mompeseon,  206 ;  object  to  titles  assumed  by  the  Com- 
mons, 207,  note  J  ;  unable  to  withstand  the  inroads  of 
democracy,  367  ;  reject  a  vote  of  the  Commons,  ibid. ; 
motion  to  take  into  consideration  the  settlement  of  the 
government  on  the  death  of  the  king,  tbid. ;  their  mes- 
sengers refused  admittance  by  the  Commons,  368  ;  re- 
lain  their  titles,  ibid. ;  Cromwell's  description  of,  382  ; 
embarrassing  question  concerning  the  eligibility  of 
peers,  403  ;  Commons  desire  a  conference  with  the, 
iiuf.,  and  note  *  ;  receive  a  letter  from  Charles  II.,  404  ; 
declare  the  government  ought  to  be  in  the  king.  Lords, 
and  Commons,  ibid. ;  vote  to  exclude  all  who  signed 
Ifae  death-warrantof  Charles  I.  from  Act  of  Indemnity, 
406,  and  notes  ;  in  the  case  of  Lord  Banby,  not  wTong 
in  refusin"  to  commit,  465,  and  note  t ;  inquiry  of  the, 
in  cases  of  appeals,  468  ;  their  judicial  power  historical- 
ly traced,  502,  503  ;  make  orders  on  private  petitions 
of  an  original  nature,  503  ;  antiquity  of  their  ultimate 
jurisdiction,  ibid. ;  pretensions  of  the,  about  the  time 
of  the  Restoration,  504  ;  their  conduct  in  the  case  of 
Skinner  and  the  East  India  Company,  505  ;  state  of, 
under  the  Tudors  and  Stuarts,  511 ;  numbers  from 
1454  to  1661,  ibid.,  512  ;  and  of  the  spiritual  lords,  .')12; 
every  peer  of  full  age  entitled  to  his  writ  of  summons, 
ibid. ;  privilege  of  voting  by  proxy,  originally  by  spe- 
cial permission  of  the  king,  ibid. ;  proceedings  of  the. 
In  the  Convention  of  1688,  544  ;  dispute  with,  about 
Aylesbury  election,  642 ;  spiritual,  in  Scotland,  choose 
the  temporal  to  the  number  of  eight.  666,  667. 

Lord's  Supper,  controversies  and  four  theories  on  the, 

60,  61 ;  modern  Romish  doctrines  on  the,  61,  notes  *t. 
I.,oudon  (Dr.  ).  his  violent  proceedings  toward  the 

monasteries,  51,  note  *. 
Louis  XIV.,  his  object  in  the  secret  treaty  with  Charles 
U.,  448;  mutual  distrust  between  them,  450;  secret 


'  connections  formed  by  the  leaders  of  opposition  with, 
I  4.58.  459,  and  notes  *t ;  his  motives  for  the  same,  459, 
I  and  notes,  460 ;  secret  treaties  with  Charles,  462  ;  mis- 
trusts Charles's  inclinations,  and  refuses  him  the  pen- 
sion stipulated  for  in  the  private  treaty,  463 ;  connec- 
tion between  Charles  II.  and,  broken  of!"  493,  494 ;  his 
views  in  regard  to  Spain  dangerous  to  the  Uberties  of 
Europe,  567  ;  makes  overtures  for  negotiations,  607, 
and  note*;  exhausted  state  of  his  country,  609;  ac- 
knowledges the  son  of  James  II.  as  King  of  England, 
598. 

Love  (Christopher),  executed  for  a  conspiracy,  369; 

effects  of  his  trial  and  execution,  ibid.,  and  note  *. 
Luders  (Mr.),  observations  in  his  report  of  election  cases, 
516,  note  t. 

Ludlow  (General),  and  Algernon  Sidney,  project  an  in- 
surrection. 440. 
Lundy  (Colonel),  inquiry  into  his  conduct,  570. 
Luther  (Martin),  his  doctrines  similar  to  those  of  Wick- 
lifle,  43;  treatise  of,  answered  by  Henry  VIII.,  44, 
his  rude  reply  and  subsequent  letter  to  the  king,  ibid., 
45,  and  note  *  ;  his  allowance  of  double  marriages,  49, 
note  t ;  his  doctrine  of  consubstantiation,  61 ;  rejects 
the  behef  of  Zuingle,  ibid. 
Lutherans  of  Germany,  less  disposed  than  the  Catholics 
to  the  divorce  of  Henry  VIll.,  49,  and  note  t. 

M  Crie  (Dr.)  his  misconception  of  a  passage  in  Hooker's 

Ecclesiastical  PoUty,  132,  note  *. 
Macdiarmid  (John),  his  Lives  of  British  Statesmen,  261, 
note  *. 

Macdonalds,  their  massacre  in  Glencoe,  673,  and  nole  *. 
Mackenzie  (Sir  George),  account  of  his  Jus  Regium,  49a, 
493. 

Macpherson  (John),  extract  from  his  Collection  of  State 
Papers,  559,  note  J. 

Mados  (Dr.  ,  bishop  of  Worcester),  his  Answer  to 

Neal's  History  of  the  Puritans,  125,  note  t. 
Magdalen  College,  Oxford,  expulsion  of  the  fellows  from, 

534  ;  mass  said  in  the  chapel  of,  ibid. 
Magistrates  under  Elizabeth  inclined  to  popery,  90,  and 
note  *. 

Mainwaring  (  ),  his  assertion  of  kingly  power,  238. 

Malt,  irapotition  set  upon,  208,  note  *. 
Malvern  priory  interceded  for  at  the  dissolution,  53. 
Manchester  (Edward  Montagu,  earl  of),  suspected  of 
being  reluctant  to  complete  the  triumph  of  the  Parlia- 
ment in  the  contest  with  Charles  I.,  337. 
Mann,  Sir  Horace,  notice  of  his  Letters  from  Florence, 
632,  note  *. 

Maritime  glory  of  England  first  traced  from  the  Common- 
wealth, 383. 

Mnrkham  (Chief-justice),  his  speech  on  the  trial  of  habeas 
corpus,  221. 

Marlborough  (John,  earl  of),  and  Sidney  (earl  of  Go- 
dolphin),  Fenwick's  discoveries  obhged  them  to  break 
ofl'  their  course  of  perfidy,  565. 
Marlborough  (John,  duke  of),  abimdons  the  cause  of  the 
Revolution.  560,  note  ;  his  whole  Ufe  fraught  with 
meanness  and  treachery,  ibid. ;  preserves  a  secret 
connection  with  the  court  of  James,  611 ;  extreme  self- 
ishness and  treachery  of  his  ch,iracter,  612. 
Marlborough  (Sarah,  duchess  of),  her  influence  over 

Queen  Anne,  606. 
Marriages  ordered  to  be  solemnized  before  justices  of 

the  peace,  373. 
Martial  law,  origin,  benefits,  and  evils  of,  143;  instances 
of  its  use,  ibid. ;  ordered  under  Charles  I.,  223,  and 
note  *  ;  restrained  by  the  Petition  of  Right,  223,  224. 
Martin  Mar-prelate,  Puritan  Ubels  so  called,  124,  and 

note  *,  125,  and  note  *. 
Martyr  (Peter),  assists  the  Reformation  in  England,  61 ; 
and  in  drawing  up  the  Forty -two  Articles,  65,  note  *  ; 
objected  to  the  English  vestments  of  priests,  68. 
Martyrs  under  Queen  Mary,  their  numbers  considered, 
69,  note  t. 

Mary  (Princess),  unnatural  and  unjust  proceedings  in  re- 
gard to,  31 ;  denied  the  enjoyment  of  the  privileges  of 
her  own  religion,  58,  note  *,  64,  and  note  J. 
Mary  (Queen  of  England),  restores  the  Latin  Liturgy,  35 ; 
married  clergy  expelled,  ibid. ;  averse  to  encroach  on 
the  privileges  of  the  people,  ibid.  ;  her  arbitrary 
measures  attributed  to  her  counselors,  ibid. ;  duty  on 
foreign  cloth  without  assent  of  ParUament,  ibid. ;  tor- 
ture more  frequent  than  in  all  former  ages,  ibid. ;  un- 
precedented act  of  tyranny,  36  ;  sends  a  knight  to  the 
Tower  for  his  conduct  in  Parliament,  42;  her  re-estab- 
lishment of  popery  pleasing  to  a  large  portion  of  the 
nation,  68  ;  Protestant  services  to,  ilnd. ;  her  unpopu- 


728 


INDEX. 


larity,  ibid. ;  her  rafirriage  with  Philip  of  Spain  dis- 
liked, 69 ;  cruelty  of  her  religion  productive  of  aver- 
sion to  it,  ibid.,  70  ;  and  of  mauy  becoming  Prottstanta, 
70  ;  her  dislike  of  Elizabeth,  and  desire  of  changing  the 
succession.  71,  note  ;  origin  of  the  High  Commission 
Court  under,  122,  note  * ;  use  of  martiiJ  law  by,  143; 
Kno.K's  attack  on  her  government,  and  Aylmer'e  de- 
fense of,  164  ;  imposes  duties  on  merchandise  without 
consent  of  Parliament,  183. 

Mary  (queen  of  WilUam  111.),  letters  of,  published  by 
Dalrymple,  5.59,  note  ^. 

Mary  SUuirt  (queen  of  Scots),  her  prior  right  to  the  throne 
of  England,  79 ;  her  malevolent  letter  to  P'.lizateth,  81, 
note  * ;  her  offensive  and  peculiar  manner  of  bearing  her 
arms,  83,  and  note  t ;  her  claim  to  the  English  throne,  83 ; 
Ehzabeth  intrigues  against,  Ihougli  not  unfavorable  to 
her  succession,  83,  and  note  t ;  htrr  dilficulties  in  Scot- 
land, and  ijnprudcnt  conduct.  84 ;  Elizabeth's  treatment 
of,  considered,  ibid. ;  strength  of  her  party  claim  to  Eng- 
land, ibid. ;  her  attachment  to  popery,  and  intent  of 
restoring  it,  8.5,  and  note  *  ;  combination  in  favor  of  85  ; 
statute  against  her  supporters,  and  allusion  to  herself, 
87,  88,  note  * ;  bill  against  her  succession  considered, 
87;  her  succession  feared  by  the  Puritans,  89,  and 
TWte  *  ;  in  confinement,  and  her  son  educated  a  Protest- 
ant, 91 ;  her  deUverance  designed  by  the  CathoUcs,  97 ; 
her  correspondence  regularly  intercepted,  98  ;  statute 
intended  to  procure  her  exclusion,  ibid. ;  her  danger 
from  the  common  people  ibid.;  reflections  on  her  trial, 
imprisonment,  death,  and  guilt,  99 ;  her  reg.'d  title  and 
pririlcges  examined,  ibid.,  100. 

Masham  (Lady),  in  the  interest  of  the  Pretender,  614,  and 
note  *. 

Mass  (service  of  the),  not  tolerated  in  Germany  and  Eng- 
land. 64,  and  note  *  ;  performance  of  the,  interdicted  by 
the  Act  of  Uniformity,  74  ;  secretly  permitted,  ibid. ; 
instances  of  severity  against  Catholics  for  healing,  ibid. ; 
]>t;nalty  for,  and  imprisonments,  probably  illegal,  ibid., 
note  t. 

Massacre  of  the  Scots  and  English  in  Ulster,  702,  and 
note  t. 

Massachusetts  Bay,  granted  by  charter,  270. 

Massey,  a  Cathohc,  collated  to  the  deanery  of  Christ 

Church,  528,  and  note  t. 
Matthew's  Bible,  1537,  Coverdale's  so  called,  57 ;  notes 

against  popery  in,  ibid.,  note  *. 
Maximilian,  his  religious  toleration  in  Germany,  77,  and 

note  t ;  said  to  have  leagued  against  the  Protestant  faith, 

87,  and  Twtc  *. 

Mayart  (Sergeant),  his  treatise  in  answer  to  Lord  Bolton, 
710. 

Mayne  (  ),  persecution  of,  for  popery,  91. 

Mazure  (F.  A.  J.),  extracts  from  his  Histoirc  de  la  Rerolur 
tion,  relating  to  James  II.  and  the  Prince  of  Orange, 
530,  noi.e\,  531,  note  *  ;  to  the  vassalage  of  James  II.  to 
Louis  XIV.,  536,  note  t ;  another  extract  concerning 
James  II, 's  order  to  Crosby  to  seize  the  Prince  of  Or- 
ange. 563,  note  *  ;  his  account  of  the  secret  negotiations 
between  Lord  Tyrconnel  and  the  French  agent  Bon- 
repos,  for  the  separation  of  England  and  Ireland,  707, 
note  *. 

Melancthon  (Philip),  his  permission  of  a  concubine  to  the 
Landgrave  of  Hesse,  49,  note  t :  allowed  of  a  hmited 
episcopacy,  66  ;  declared  his  approbation  of  the  death 
of  Servetus,  79,  note  '. 

Melville  (Andrew),  and  the  General  Assembly  of  Scotland, 
restrain  the  bishops,  663 ;  some  of  the  bishops  submit, 
ibid. ;  he  is  summoned  before  the  council  for  seditious 
language,  ibid.  ;  flies  to  England.  664. 

Members  of  Parliament,  free  from  personal  arrest,  176, 
638,  6.39. 

Merchants,  petition  on  grievances  from  Spain,  183,  note; 
petition  against  arbitrary  duties  on  goods,  183. 

Merchandise,  impositions  on,  not  to  be  levied  but  by  Par- 
liament, 18,3:  book  of  rates  on,  published,  185. 

Michele  (Venetian  ambassador),  his  slander  of  the  Eng- 
lish, 69,  note  *  ;  states  that  Elizabeth  was  suspected  of 
Protestantism,  71,  note. 

-Michcll  (  ),  committed  to  the  Tower  by  the  House 

of  Commons,  205. 

Middlesex  (Lionel  Cranfield,  earl  of),  hia  Parliamentary 
impeachment  213,  and  note 

Military  force  in  England,  historical  view  of,  309-312,  and 
notes. 

Mihtary  excesses  committed  by  Maurice  and  Goring's 
armies,  .336,  and  TWtcs  *t ;  by  the  Scotch,  336. 

Military  power,  the  two  effectual  securities  against,  573  ; 
always  subordinate  to  the  civil,  635. 

Militia,  dispute  on  the  question  o^  between  Charles  I.  and 


the  Parliament,  309,  and  nou     .312;  it«  origin,  834; 
considered  as  a  means  of  recruiting  the  army,  635 ;  es- 
tablished in  Scotland,  668. 
Millenary  Petition,  treatment  of,  by  Jamee  I.,  173,  and 
note  t. 

Ministers  of  the  crown,  responsibility  of  463,  619,  note  t ; 
necessity  of  their  presence  in  Parliament.  .596. 

Ministers,  mechanics  admitted  to  beneticcs  in  England, 
112 ;  early  Presbyterian,  of  Scotland,  were  eloquent, 
learned,  and  zealous  in  the  cause  of  the  ileformation, 
063;  their  influence  over  the  people,  ibid.;  interfere 
with  the  civil  pohcy,  ibid. 

Mist's  Journal,  the  printer  Mist  committed  to  Newgate  by 
the  Commons  for  libel  in,  644. 

Mitchell,  confessing  upon  promise  of  pardon,  executed 
in  .Scotland  at  the  instance  of  Archbishop  .Sharp,  669. 

Molyneux,  his  celebrated  "  Case  of  Ireland's  being  bound 
by  Acts  of  Parliament  in  England  slated,"  710;  resolu- 
tions of  the  House  of  Commons  against  his  book,  ibid. 

Mompesson  (Sir  Giles),  his  patents  questioned,  205. 

Monarchy  of  England  limited,  13 ;  erroneously  asserted 
to  have  been  absolute,  162. 

Monarchy  established,  tendency  of  the  English  govern- 
ment toward,  from  Henry  VI.  to  Henry  VIII.,  .38 ;  not 
attributable  to  military  force,  ibid. ;  abolished,  366 ;  ex- 
traordinary change  in  our,  at  the  Revolution,  546,  and 
note  *  ;  absolute  power  of  detioed,  650. 

Monasteries,  their  corruptions  exposed  by  the  visitations 
of,  50 ;  resignation  and  suppression  of.  51  ;  papal  buU 
for  reforming,  ibid.,  note  t ;  act  reciting  their  vices,  ibid., 
note  *;  feelings  and  effects  of  their  suppression,  52; 
might  lawfully  and  wisely  have  been  abolished,  ibid., 
53 ;  several  interceded  for  at  the  dissolution,  53 ;  evils 
of  their  indiscriminate  destruction,  ibid. ;  immense 
wealth  procured  by  their  suppression,  ibid.,  54,  and 
note  *  ;  how  bestowed  and  distributed,  51,  and  note  '  ; 
alms  of  the,  erroneously  supposed  to  support  the  poor, 
55 ;  in  Ireland,  in  the  seventh  and  eighth  centuries, 
learning  preserved  by,  (>79. 

Monastic  orders  averse  to  the  Reformation,  49,  50 ;  their 
possessions  great,  but  unequal,  .50,  and  note  f ;  evils  of, 
in  the  reign  of  Henry  VIII.,  50;  reformed  and  sup- 
pressed by  Wolsey,  ibid.,  and  note  t ;  visitations  of  the, 
truly  reported,  51 ;  Protestant  historians  in  favor  of, 
ibid.,  note  t ;  pensions  given  to  the,  on  their  suppression, 
52,  and  riote  *. 

Money  bills,  privilege  of  the  Commons  concerning,  162 ; 
ancient  mode  of  proceeding  in,  discussed,  .5<^. 

Monk  (General  George),  his  strong  attachment  to  Crom- 
well, 393 ;  his  advice  to  Richard  Cromwell,  394 ;  ob- 
servations on  his  conduct,  ibid.,  and  note  t ;  takes  up 
his  quarters  in  London,  395 ;  his  first  tender  of  service 
to  the  king,  396  ;  can  hardly  be  said  to  have  restored 
Charles  II.,  but  did  not  oppose  him  so  long  as  he  mi^ht 
have  done,  ibid.,  note  t ;  not  secure  of  the  army,  397 : 
represses  a  mutinous  spirit,  and  writes  to  the  gentry 
of  Devon,  ibid.,  and  note  i;  his  slowness  in  declaring 
for  Charles,  398 ;  urges  the  most  rigid  hmitations  to 
the  monarchy,  399;  suggests  the  sending  the  king's 
letter  to  the  two  houses  of  ParUament,  ibid. ;  his  char- 
acter, 404,  405 ;  advises  the  exclusion  of  only  four  reg- 
icides from  the  Act  of  Indemnity,  405,  406. 

Monks,  pensions  given  to,  on  their  suppression,  52,  and 
note 

Monmouth  (James,  duke  of),  remark  on  the  death  o£  534, 
and  note  *. 

Monmouth's  rebeUion,  numbers  executed  for,  529,  530, 
TWte  *. 

Monmouth  (town),  right  of  election  extended  to.  514. 

Monopohes,  nature  of,  1.53,  154  ;  victorious  debate  on,  in 
the  House  of  Commons,  154  ;  Parliamentary  proceed- 
ings against,  205,  206. 

Montagu  (.4bbe),  committed  by  the  Commons  for  pub- 
lishing a  book,  643. 

Montagu  (Dr.  Richard,  bishop  of  Chichester),  his  Roman 
Catholic  tenets,  272,  273 ;  his  intrigues  with  Panzani, 
276,  277. 

Montagu  (Lord),  his  speech  in  the  House  of  Lords 
against  the  statute  for  the  queen's  power,  75,  76,  and 
note* ;  brings  a  troop  of  horse  to  Eliliabeth  at  Tilbury, 
101,  and  note  *. 

Jlonteagle  (Lord),  his  suit  with  the  Earl  of  Hertford,  170, 
and  note 

Montreuil.  his  opinion  on  the  plan  of  flight  contemplated 
by  Charles  I.,  338,  note  *  ;  negotiation  of,  342,  and  note  *. 

Mordaunt  (Lord),  charges  against,  443. 

More  (Sir  Thomas),  opposes  the  granting  a  subsidy  to 
Henry  VII.,  19,  note  t ;  his  conduct  upon  another  mo- 
tion for  a  large  grant,  21, 23 ;  apology  for  his  proceed- 


INDEX. 


729 


ing3  against  Wolscy,  25 ;  beheaded  for  denying  the  ' 
king's  ecclesiastical  supremacy.  27,  28 ;  inclined  to  the  ' 
divorce  of  Henry  VIII.,  48,  and  7iotc  *. 

Morgan  (Thomas),  his  letter  to  Mary  Stuart,  99,  note*. 

Morice  (  ,  attorney  of  the  Court  of  Wards),  attacks  / 

the  oath  ez  officio,  128;  his  motion  on  ecclesiastical 
abuses,  153  ;  his  imprisonment  and  letter,  ibid.  ' 

Mortmiiin,  effect  of  the  statutes  of  on  the  clergy,  50.  1 

Morton  (.lohn,  archbishop  of  Canterbury),  his  mode  of  > 
soUciting  benevolences,  called  "  Morton's  fork,"  20  ;  his 
charge  against  the  abbey  of  St.  Alban's,  51,  note  t. 

Mortuaries,  fees  of  the  clergy  on,  limited,  47. 

Mountnorris  (Lord),  conduct  of  Lord  StraUbrd  to,  263, 
and  note  *. 

Moyle  (Walter),  his  Argument  against  a  Standing  Army, 
568,  note  *. 

Murderers  and  robbers  deprived  of  the  benefit  of  clergy, 
44  ;  the  question  of  pardons  to,  considered,  549,  note  J. 

Murray  (William),  employed  by  King  Charles  to  sound 
the  Parliamentary  leaders,  341.  i 

Murray  (Mr.  Alexander),  arbitrary  proceedings  of  the 
Commons  against  him,  642,  643  ;  causes  himself  to  be 
brought  by  habeas  corpus  before  the  King's  Bench,  646. 

Mutiny  Bill  passed,  573. 

Naaeby,  defeat  of  Charles  I.  at,  338 ;  consequences  of,  ' 
ibid. 

Nation,  state  of  the,  proposition  for  an  inquiry  into  the, 
571. 

National  antipathy  to  the  French  not  so  great  before  the 

reign  of  Charles  11.,  455. 
National  debt  at  the  death  of  William  III.,  565,  note  *  ; 

rapid  increase  of  the,  608. 
Nations,  three,  and  tliree  reUgions,  in  Ireland,  709. 
Naval  transactions  in  the  reign  of  William  111.,  567. 
Navy  of  Charles  I.,  reasons  for  increasing,  246. 
Neal  (Daniel),  his  History  of  the  Furitaiis  and  Answer  to  : 

Bishop  Mador,  125.  note  t ;  statement  of  the  Puritan 

controversy  tmder  EUzabeth,  ibid.  \ 
Netherlands,  Charles  I.  negotiates  with  the  disalfected  in  i 

the,  246. 

Neville  (.Sir  Henry),  his  memorial  to  James  I.  on  sum- 
moning a  Parliament,  195. 

Newark,  charter  granted  to,  enabling  it  to  return  two 
members,  514. 

Newbury,  battle  of,  its  consequences  to  the  prevaiUng 
party,  327. 

Newport,  treaty  of,  357 ;  observations  on  the,  358,  and 
note. 

News,  to  publish  any,  without  authority,  determined  by 
the  judges  in  1680  to  be  illegal,  496,  and  note  t- 

Newspapers,  their  great  circuliitiou  in  the  reign  of  Anne, 
C54  ;  stamp  duty  laid  on,  ibid. 

Neylc  (Dr.  Richard,  bishop  of  Lichfield),  proceedings  of 
the  House  of  Commons  against,  196. 

Nicolas  (Henry),  a  fanatic  leader,  78,  note  t. 

Nicolas  (Sir  Harris),  notice  of  his  "  Proceedings  and  Ordi- 
nances of  the  Privy  Council  of  England,"  41,  note  *. 

Nimeguen,  treaty  of,  hasty  signature  of  the,  463. 

Nine,  Council  of  383,  and  note  *. 

Noailles  (ambassador  in  England  from  Henry  II.  of 
France),  his  conduct  secures  the  nationid  independ- 
ence, 37,  note  §  ;  unpopularity  of  Queen  Mary  report- 
ed by,  68 ;  his  account  of  her  persecutions,  70,  note  t. 

Noailles  (Marshid  de),  extract  from  his  memoirs  relating 
to  Philip  of  Anjou,  607,  note  *. 

Nobility,  pliant  during  the  reign  of  Henry  VIII.,  38  ;  re- 
sponsible for  various  illegal  and  sanguinary  acts,  ibid. ; 
of  the  North,  repressed  by  Henry  Vlll.  and  the  Court 
of  Star  Chamber,  41 ;  why  inclined  to  the  lleformation, 
49;  of  England,  become  great  under  the  Tudors,  de- 
riving their  estates  from  the  suppressed  monasteries, 
55 ;  averse  to  the  bill  against  the  celibacy  of  priests,  62 ; 
and  to  the  Reformation,  ibid. ;  such  advanced  into 
power  under  Mary,  68,  69 ;  censured,  &c.,  for  reliinoa 
under  that  queen,  69,  note  *  ;  combination  of  the  Cath- 
olic, for  Mary  Stuart,  85. 

Non-conformists,  Protestant,  laws  of  EUzabeth  respect- 
ing, 105-136  ;  summoned  and  suspended  by  Archbishop 
Parker,  110;  number  of  in  the  clergy,  112,  note  t;  de- 
prived by  Archbishop  Whitgift,  121.  and  note  I;  in- 
creased under  Elizabeth,  135  ;  remarks  on  acts  against, 
430;  avail  themselves  of  the  toleration  held  out  by 
James  II.,  534. 

Non-jurors,  schism  of  the,  its  beginning,  551 ;  send  forth 
numerous  libelous  pamphlets,  623. 

Non-resistance  preached  by  the  clergy,  and  enforced  in 
the  Homilies,  238,  and  note  *  . 

Norl'olk  (Thomas  Howard,  duke  of),  his  letter  to  Wolsey 


on  the  grant  of  1.525, 22,  note  *  ;  letter  of  the  council  to, 
during  the  Rebellion,  28,  note  *  ;  combines  with  the 
Catholic  peers  against  Cecil,  82,  note  J. 

Norfolk  (John,  lord  Howard,  duke  of),  confidential  min- 
ister of  Henry  Vlll.,  ruined  by  the  intiuence  of  the 
two  Seymours;  execution  prevented  by  the  death  of 
Henry,  29 ;  continued  in  prison  during  Edward's  reign, 
and  is  restored  under  Mary,  ibid. ;  prevails  on  Ueury 
Vlll  to  prohibit  the  English  Scriptures,  57,  note  *  ;  a 
supporter  of  the  popish  party,  58  ;  in  prison  at  the 
death  of  Henry  VIII.,  ibid. ;  proposed  union  of,  with 
Mary  Stuart,  85 ;  character,  treason,  and  trial  of  Miid. 

Norfolk,  county  of  assists  to  place  Mary  on  the  throne, 
and  suftt?r8  greatly  from  persecution,  68,  and  noteX; 
Parliamentary  inquiry  into  the  returns  for,  161. 

Norman  families,  great  number  of  settle  in  Scotland,  and 
become  the  founders  of  its  aristocracy,  657. 

North  of  England,  slow  proaress  of  the  Reformation  in, 
62;  council  of  the,  its  institution  and  power,  262  ;  act 
for  abolishing,  292.  and  note  J. 

North  (Chief  justice),  proclamation  drawn  up  by,  against 
petitions,  480. 

North  and  Rich  (sheriffs),  illegally  put  into  office,  489. 

Northampton  (Henry  Howard,  earl  of),  declines  to  for- 
ward the  merchants'  petitions  against  Spain.  182. 

Northampton,  payment  of  ship-money  complained  of  in, 
285,  note  ||. 

Northumberland  (Algernon  Percy,  earl  of),  his  connec- 
tion with  the  gunpowder  conspiracy,  233,  note  ;  and 
others,  take  measures  against  a  standing  army,  447. 

Norton  (Mr.)  his  defense  of  the  bill  against  non-resident 
burgesses.  156,  157. 

Nottingham  (Daniel  Finch,  earl  of),  holds  offices  of  trust 
under  William  III.,  552 ;  unites  with  the  Whigs  against 
the  treaty  of  peace,  627. 

Nowell  (Alexander),  Parliamentary  inquiry  into  his  elec- 
tion, 161. 

Noy  (William),  discovers  an  early  tax  imposed  for  ship- 
ping, 246. 

"  Nuisance,"  introduction  of  this  word  into  Uie  Irish  bill, 
526,  note  *. 

Oath,  called  ex  officio,  in  the  High  Commission  Court, 
122  ;  attacked  hi  the  House  of  Commons,  128  ;  admin- 
istered to  papists  under  James  I.,  233 ;  to  the  clergy, 
1640,  301  ;  of  Abjurarion,  598. 

October  Club,  generally  Jacobites,  614. 

CEcolampadius  (John),  his  doctrines  on  the  Lord's  Sup- 
per, 61. 

Offices,  new,  created  at  unreasonable  salaries,  as  bribes 

to  members  of  Parliament,  595. 
Officers  of  the  crown,  undue  power  exerted  by,  14. 
O'Neil,  attainted  in  the  Parliament  of  1569,  and  his  land 

forfeited  to  the  crown,  696. 
Onslow  (Speaker),  his  assertion  of  the  property  of  the 

subject,  163. 
Opposition  to  the  court  of  Charles  II.,  420. 
O'Quigley  (Patrick),  his  case  compared  with  Ashton'fi, 

579. 

Orange  (William,  prince  of),  declares  against  the  plan 
of  restrictions.  478 ;  remarks  on  his  conduct  before  the 
Revolution,  529  ;  derived  great  benefit  from  the  re- 
bellion of  Monmouth.  530;  overtures  of  the  malcon- 
tents to,  .531 ;  receives  assurances  of  attachment  from 
men  of  rank  in  England,  537  ;  invitation  to  him,  ibid., 
and  note  f ;  his  design  of  forming  an  alliimce  against 
Louis  XIV.,  .540  ;  requested  to  take  the  administration 
of  the  government  of  England  upon  himself  543  ;  vote 
of  the  Convention,  declaring  him  and  the  Princess  of 
Orange  king  and  queen  of  England,  546. 

Ordinance,  a  severe  one  of  Cromwe.l,  412. 

Ordinance,  Self-denying,  judiciously  conceived,  337,  and  # 
note  *. 

Origin  of  the  present  regular  army,  411. 
Orkney  (Countess  of),  receives  large  griUits  from  William 
III.,  569. 

Orleans  (Duchess  of),  sister  of  Charles  II.,  her  famous 
journey  to  Dover,  449. 

Orleans  (Duke  of),  favors  the  Pretender,  62.3,  note  {. 

Ormond  (Duke  of),  engaged  in  the  interests  of  the  Pre- 
tender, 613,  and  note  *  ;  his  unpopularity  with  the  Irish 
Catholics,  706. 

Ormond  (James  Butler,  marquis  of),  sent  to  England  by 

Charies  II.,  .390. 
Orrery  (Roger  Boyle,  earl  of),  a  Cathohc,  451. 
Overbury  (.Sir  Thomas),  his  murder,  202 ;  examination 

of  203,  note  *. 

Oxford  (Univer.sity  of),  measure  adopted  to  procure  its 
judgment  in  favor  of  Henry  the  Eighth's  divorce,  49 ; 


730 


INDEX. 


attached  to  popery.  112,  -JiJ  note  t;  proceedings  on 
doctrine  of  non  refiistance,  238,  and  note  *  ;  decree  of 
the,  against  pernicious  books,  493;  opposes  the  meas 
ures  of  James  11.,  534,  535 ;  tainted  with  Jacobite  prej- 
udices, i>M,  and  note  *. 

Oxford,  short  l';irhament  held  at,  in  March,  1681,  483. 

Oxford  (.lohn  De  Vere,  earl  of),  tined  for  his  retainers, 
20  ;  censured  by  Queen  Mary's  council  for  his  rehgion, 
69,  note  *. 

Oxford  (Robert  Harley,  earl  of),  sends  Abb6  Gaultier  to 
Marshal  Berwick  to  trcatof  the  Ilestoration,  612 ;  prom- 
ises to  send  a  plan  for  carrying  it  into  eflect,  ibid. ;  ac- 
count of  pamphlets  written  on  his  side,  iOid.,  note  t,  613, 
note;  hated  by  both  parties,  617;  impeaciied  of  high 
treason,  618 ;  committed  to  the  Tower,  619  ;  impeach- 
ment against  him  abandoned,  ibid.^  and  TWte  t ;  his 
speech  when  the  articles  were  brought  up,  619.  I 

Paget  (William,  first  lord),  his  remark  on  the  doubtful 
state  of  religion  in  England.  63,  note  '  ;  advises  the  send-  ' 
ing  for  German  troops  to  quell  commotions,  ibid. ;  his  j 
lands  increased  by  the  bishopric  of  Lichfield,  63.  i 

Palatinate,  negotiation  of  Charles  I.  for  its  restoration,  246,  ' 
247.  j 

Palatine  jurisdiction  of  some  counties  under  the  Planta- 
genets.  16. 

Pale,  old  English  of  the,  ill  disposed  to  embrace  the  Re- 
formed religion  in  Ireland,  692 ;  deputation  sent  from 
Ireland  to  England,  in  the  name  of  all  the  subjects  of 
the,  693 ;  delegates  from,  conamitted  to  the  Tower, 
ibid.,  and  note 

Palgrave,  Sir  Francis,  notice  of  his  "Essay  upon  the 
Original  Authority  of  the  King's  Council,"  41,  Twte 

Pamphlets,  account  of  some  in  the  reign  of  Charles  and  ' 
James  II.,  584,  note  *,  535,  note  ;  and  poUtical  tracts,  ! 
their  character  and  influence  on  the  pubhc  mind  at  the 
commencement  of  the  last  century,  654. 

Panzani,  a  priest,  ambassador  to  Charles  I.,  271 ;  his  re- 
port to  the  pope  of  papists  in  England,  276,  note. 

Papists  proceeded  against  for  hearing  mass,  74 ;  tracts 
and  papers  to  recall  the  people  ot  England  to  their 
faith,  7o,  and  note  J. 

Papists  of  England,  the  Emperor  Ferdinand's  intercession 
for,  77  ;  subsequent  persecution  of,  77,  78,  and  notes  ; 
attended  the  English  Church,  78 ;  combinations  of, 
under  Ehzabeth,  84  ;  more  rigorously  treated,  and  emi- 
gration of,  88,  note  J: ;  their  strength  and  encourage- 
ment under  Elizabeth,  90 ;  emissaries  from  abroad, 
numbers  and  traitorous  purposes  of,  90,  91 ;  executed 
for  their  reUgion  under  Elizabeth,  91 ;  concealment  of 
their  treacherous  purposes,  94 ;  Lord  Burleigh's  pro- 
visions against,  in  the  Oath  of  Supremacy,  95,  96 ;  his 
opinion  that  they  were  not  reduced  by  persecution,  but 
severity  against,  productive  of  hypocrites,  95;  petition 
against  the  banishment  of  priests,  96 ;  heavy  penalties 
on,  97,  and  7iote  *  ;  the  queen's  death  contemplated  by, 
ibid. ;  become  disatlVcted  to  Elizabeth,  ibid.,  note  *  ; 
excellent  conduct  of,  at  the  Sp;inish  invasion,  ibid., 
note  *,  101,  note  * ;  dej)ressod  state  of,  101  ;  continued 
persecution  of,  between  1588  and  1603,  ibid.,  and  note  '  ; 
statute  restricting  their  residence,  101 ;  executed  for 
safety  of  the  government,  and  not  their  religion,  102  ; 
their  simple  behef  construed  into  treason,  ibid. ;  the 
nature  of  their  treason  considered,  ibid.,  note  * ;  pro- 
portion o£  in  England,  under  Elizabeth,  108,  note  t ; 
excluded  from  the  House  of  Commons,  116;  treatment 
of,  imder  James  I.,  2:Jl-237,  and  notes ;  state  and  in- 
dulgence of,  under  Charles  I.,  236,  and  note  ^,  237,  note, 
270,  271 ;  inclined  to  support  the  king,  271,  and  note  1 ; 
report  of,  in  England,  by  Panzani,  276,  note  " ;  contri- 
butions raised  by  the  gentry,  285. 
Parker  (Matthew),  made  Archbishop  of  Canterbury,  72, 
note];  his  Uberal  treatment  of  Bishop  Tunstall,  76, 
nou  t ;  his  consecration  admitted,  ibid.,  note  J ;  his  sen- 
tence against  Lady  Grey,  82 ;  his  advice  against  Mary, 
queen  of  Scots,  88  ;  speech  of,  against  the  papists,  89  ; 
defends  the  Church  Liturgy  and  ceremonies,  107,  110, 
113,  and  note  * ;  EUzabetR's  coarse  treatment  of  his 
wife,  107,  note  J;  his  order  for  the  discipline  of  the 
clergy,  110,  7tote  f ;  summons  Non-conformists,  110; 
orders  certificates  of  the  clergy,  112,  note  *  ;  discussion 
of  Church  authority  with  Mr.  Wentworth,  117  ;  prose- 
cutes the  Puritans,  118 ;  suppresses  their  "  prophesy- 
ings,"  120  ;  defends  the  title  of  bishops,  134,  note  '. 
Parker  (Samuel,  bishop  of  O.Tford),  account  of  his  His- 
tory of  his  Own  Time,  452,  note  t. 
ParliaInen^  the  present  constitution  of,  recognized  in  the 
leign  of  Edward  II.,  14;  of  Henry  VII.  secure  the 
crown  to  his  posterity,  17  ;  anxious  for  his  union  with 


Elizabeth  of  York,  ibid. ;  power  of  the  privy  coancil 
over  the  members  of,  42;  struggles  ot;  against  the 
crown,  ibid. ;  complaint  of  the  House  of  Commons 
against  Fisher,  47 ;  divorce  of  Henry  VIII.  brought  be- 
fore the  houses  of,  ibid. ;  addresses  of,  moved  for 
Henry  VIII.  to  receive  back  Queen  Catharine,  49;  in- 
fluence of  the  crown  over,  155 ;  statutes  for  holding, 
291,  and  note  *  ;  enormous  extension  of  its  privileges, 
315,  316,  and  note  *  ;  few  acts  of  justice,  humanity,  gen- 
erosity, or  of  wisdom  from,  manifested  by,  from  tneir 
quarrel  with  the  king  to  their  expulsion,  321,  322 ;  de- 
ficient in  military  force,  323  ;  offers  terms  of  peace  to 
Charles  I.  at  Newcastle,  340  ;  deficient  in  pohtical  cour- 
age, 352  ;  eleven  members  charged  with  treason,  ibid.  ; 
duration  of^  proposed,  355  ;  has  no  means  to  withstand 
the  power  of  Cromwell,  368 ;  is  strongly  attached  to 
the  Established  Church,  371  ;  new  one  called  decidedly 
Royalist,  417;  its  implacable  resentment  against  the 
sectaries,  428  ;  session  of,  held  at  Oxford  in  1665,  430  ; 
tendency  of  long  sessions  to  form  opposition  in.  433  ; 
supphes  granted  by,  only  to  be  expended  for  specific 
objects,  434  :  strenuous  opposition  made  by,  to  Charles 
II.  and  the  Duke  of  York,  450  ;  Convention  dissolved, 
558;  its  spirit  of  inquiry  after  the  Revolution,  570; 
annual  assembly  of,  rendered  necessary,  573 ;  its  mem- 
bers influenced  by  bribes,  594 ;  its  rights  out  of  danger 
since  the  Revolution,  596  ;  influence  over  it  by  places 
and  pensions,  635,  636;  its  practice  to  repress  disor- 
derly behavior,  637 ;  assumed  the  power  of  incapacita- 
tion, &18  ;  debates  in,  account  of  their  first  pubUcation, 
6.55 ;  their  great  importance,  ibid. ;  seat  in,  necessary 
qualification  for,  656,  657. 

Parliament  of  1685,  remarks  on  its  behavior,  520. 

Parhament  (Convention),  accused  of  abandoning  pubhe 
liberty  at  the  Restoration,  400 ;  pass  several  bills  of  im- 
portance, 400. 

Parhament  (Long),  called  back  by  the  council  of  officer*, 
389  ;  expelled  again,  ibid. ;  of  seventeen  years'  dura- 
tion dissolved,  473,  and  note  \ ;  long  prorogation  of,  AT^. 

Parliaments,  probable  effect  of  Wolsey's  measures  for 
raising  supphes  without  their  intervention,  22-24  ;  bili 
for  triennial,  573  ;  for  septennial,  620. 

Parliament  of  Scotland,  its  model  nearly  the  same  as  that 
of  the  Anglo-Norman  sovereigns,  657  ;  its  mode  of  con- 
vocation, 658 ;  law  enacted  by  James  I.  relating  to,  ibid. ; 
royal  boroughs  in  the  fifteenth  century,  659 ;  its  legis- 
lative authority  higher  than  that  of  England,  660 ;  sum- 
moned at  his  succession  by  James  H.,  acknowledgcii 
the  king's  absolute  power,  670. 

Parhament  of  Ireland,  similar  to  an  English  one,  683 ;  its 
constitution,  698  ;  meet  in  1634  ;  its  desire  to  insist  on 
the  confirmation  of  the  graces,  700 ;  opposition  in  the, 
to  the  crown,  708 ;  in  1661,  only  one  Cathohc  returned 
to,  ibid. 

Parliament  of  the  new  Protestant  nation  of  Ireland  al- 
ways Whig,  710. 

Parliamentary  Party  (old),  assemble  to  take  measures 
against  a  standing  array,  447. 

Parliamentary  privilege,  observations  respecting,  648, 
note  *. 

Parry  (Dr.  William),  executed  for  a  plot  against  Eliza- 
beth, 97  ;  account  of  him,  ibid.,  note  t. 

Parry  (Dr.),  committal  and  expulsion  ot  by  Parhament 
160. 

Parry  (Thomas),  his  letter  concerning  the  papists  under 

James  I.,  232.  note  *. 
Parsons  (Sir  WUUam),  and  Sir  John  Borlase  (lords-jus. 

tices),  succeed  Lord  Strafford  in  the  government  of 

Ireland,  702. 

Partition  treaty.  Earl  of  Portland  and  Lord  Somers  the 
only  ministers  proved  to  be  concerned  in  the.  593. 594. 

Party  (Moderate),  endeavor  to  bring  about  a  pacification 
with  Charles,  322 ;  negotiation  with  the  king,  broken 
off  by  the  action  at  Brentiord,  323 ;  three  peers  of  the, 
go  over  to  the  king,  325. 

Passive  obedience  (doctrine  of),  passed  from  the  Homi- 
hes  into  the  statutes,  420 ;  remarks  on  the  doctrine  of, 
491. 

Paul  IV.  (Pope),  his  arrogant  reply  to  the  message  of 
Ehzabeth,  71,  72,  and  note  *,  74. 

Paulet  (Sir  Amias),  his  honorable  and  humane  conduct 
to  Mary  Sf -art,  99,  noU 

Peacham  (Rev.  ),  prosecution  of,  for  a  hbelous  ser- 
mon, 197,  198. 

Pearce  (Dr.  Zachary.  bishop  of  Rochester),  his  right  to  a 
seat  in  Parliament  after  resigning  his  see,  .52.  note  *. 

Peasantry  of  England  under  the  Plantasenets,  15. 

Peers  of  England,  under  the  Plantagenets.  a  small  body. 
15 ;  their  privileges  not  considerable,  ibid. ;  disordered 


INDEX. 


731 


state  of,  under  Henry  VI.  and  Edward  IV.,  17;  au- 
thority and  influence  of  abbots,  &c.,  in  the  House  of, 
oO :  freedom  of  the,  from  the  Oath  of  Supremacy,  75 ; 
their  interference  with  elections  opposed,  357;  pro- 
ceedings of  James  I.  against,  for  conduct  in  ParUament, 
211,  212,  note  *  ;  not  of  the  council  could  not  sit  in  the 
Star  Chamber,  255,  note. 

Peerage  of  England,  probably  supported  the  Commons 
against  the  crown,  42. 

Peerages,  several  conferred  on  old  Irish  families,  687. 

Peerage  Bill,  particulars  of  the,  621. 

Pelhams  (the),  resign  their  offices,  and  oblige  George  II. 
to  give  up  Lord  Granville,  652. 

Pemberton  (Sir  Francis,  chief  justice),  unfair  in  all  trials 
relating  to  popery,  472 ;  his  conduct  on  the  trial  of 
Lord  Russell,  488. 

Pembroke  (WilUam  Herbert,  earl  of),  peers'  proxies  held 
by.  217,  note  '. 

Pembroke  (Philip  Herbert,  carl  of),  sits  in  tlie  House  of 
Commons,  368. 

Penal  statiites,  power  of  the  crown  to  dispense  with,  453  ; 
severity  of  the,  454  ;  laws  enforced  against  some  un- 
fortunate priests,  481,  and  note  * ;  against  Catholics  in 
Ireland,  707,  708. 

Penruddock  enters  Salisbury,  and  seizes  the  judge  and 
sheriff",  376,  and  note  §. 

Penry  (John.  Martin  Mar-prelate),  tried  and  executed  for 
Ubels  against  Queen  Elizabeth,  &c.,  124,  and  note  *.  138. 

Pensioners,  during  the  pleasure  of  the  crown,  excluded 
from  the  Commons,  597. 

Pepys  (Samuel),  his  Diary,  cited  concerning  Lent,  227, 
note  t,  228,  note ;  extract  from,  concerning  money  ex- 
pended by  Charles  II..  435,  yiote  *. 

Permanent  military  force,  national  repugnance  to,  633 ; 
its  number  during  the  administration  of  ,Sir  Robert 
Walpole,  ibid.    (See  Army,  and  .Standing  Army.) 

Perrott  (Sir  John),  his  justice  in  the  government  of  Ire- 
land, 691,  692 :  falls  a  sacrifice  to  court  intrigue,  692.  | 

Persecution,  religious,  greater  under  Charles  II.  than  du-  ' 
ring  the  Commonwealth,  432. 

Persons  (Father),  his  book  on  the  succession  to  the  En-  j 
glish  crown,  166,  note  t ;  his  Leicester's  Commonicealtk,  ' 
167,  7wte. 

Petition  of  Right,  its  nature  and  proceedings  in,  223-225, 
and  notes,  241. 

Petition  and  Advice,  particulars  of  the,  381 ;  empowers 
Cromwell  to  appoint  a  successor,  385. 

Petitions,  law  relating  to,  419 ;  for  the  meeting  of  Parlia- 
ment checked  by  a  proclamation  of  Charles  II.,  drawn 
up  by  Chief-justice  North,  480;  interfering  with  the 
prerogative  repugnant  to  the  ancient  principles  of  our 
monarchy,  ibid. 

Petre  (Father),  with  a  few  Catholics,  takes  the  mjinage- 
ment  of  affairs  under  James  II.,  528,  and  note  t ;  James 
II.'s  intention  of  conferring  the  archbishopric  of  York 
on,  535,  and  note 

Petty  (Sir  WiUiam),  his  account  of  the  land  forfeited  and 
restored  in  Ireland,  705,  note  J,  706,  note  *. 

Philip  II.  (King  of  Spain),  his  temptation  to  the  English 
to  dethrone  Elizabeth,  167,  note.  | 

Philopater  (Andreas  Persons),  his  account  of  the  con- 
federacy against  Cecil,  82,  note  J ;  justifies  deposing  a  1 
heretic  sovereign,  93,  note.  \ 

Pickering  (Lord-keeper),  his  message  to  the  House  of  j 
Commons,  153.  I 

Pierpoint  (Henry,  lord),  hopes  to  settle  the  nation  under 
Richard  Cromwell,  386  ;  his  aversion  to  the  recall  of 
Charles  II.,  398.  j 

Pitt  (William,  earl  of  Chatham),  the  inconsistency  of  his 
political  conduct,  653. 

Pius  IV.  (Pope),  his  embassy  to  Elizabeth,  74 ;  modera- 
tion of  his  government,  75  ;  falsely  accused  of  sanction- 
ing the  murder  of  Elizabeth,  ihid.,  note  &. 

Pius  V.  (Pope),  his  bull  deposing  Elizabeth,  85,  86 ;  most 
injurious  to  its  own  party,  87 ;  his  bull  explained  by- 
Gregory  XIII.,  92. 

Place  BiU  of  1743.  636,  and  note  *. 

Plague  in  1665,  446. 

Plan  for  setting  aside  Mary,  princess  of  Orange,  at  the 
period  of  the  Revolution,  530,  and  note  *. 

Plantagenets,  state  of  the  kingdom  under  the,  14-16 ;  priv- 
ileges of  the  nation  under  the,  15 ;  \iolence  used  by 
their  officers  of  the  crown,  ibid. ;  inconsiderable  priv- 
ileges of  the  peers,  gentry,  and  yeomanry,  ibid. ;  their 
courts  of  law,  16 ;  Constitution  of  England  under  the, 
166.  293 :  conduct  of,  with  regard  to  the  government 
of  Ireland,  686. 

Plays  and  interludes,  satirizing  the  clergy,  58 ;  suppression 
of  plays  reflecting  on  the  conduct  of  the  king,  212,  note  *. 


Pleadings,  their  nature  and  process  explained,  15,  note  *. 

Plunket  (titular  archbishop  of  Dublin),  executed,  485,  and 
note  t ;  sacrificed  to  the  wicked  policy  of  the  court,  ibid. 

Pluralities,  the  great^;st  abuse  of  the  Church,  116,  note 
127  ;  bill  for  restraining,  128. 

Pole  (Cardinal  Reginald),  actively  employed  by  the  pope 
in  fomenting  rebellion  in  England,  28,  and  note  *  ;  pro- 
cures the  pope's  confirmation  of  grants  of  abbey  lands, 
69  ;  conspiracy  of  his  nephew  against  Queen  Elizabeth, 
75,  note  §. 

Polity  of  England  at  the  accession  of  Henry  V^ll.,  13,  14. 

Political  writings,  their  influence,  654. 

Poor,  the,  erroneously  supposed  to  have  been  maintained 

by  the  alms  of  monasteries,  55,  56 ;  statutes  for  their 

provision,  56,  and  note  *. 
Pope,  his  authority  in  England,  how  taken  away,  47-49 ; 

his  right  of  deposing  sovereigns,  92. 
Popery  preferred  by  the  higher  ranks  in  England,  68 ; 

becomes  disliked  under  Queen  Mary,  69. 
Popish  Plot,  great  national  delusion  of  the,  469. 
Popular  party,  in  the  reign  of  Charles  II.,  its  connection 

with  France,  458,  459. 
Population,  stiite  of,  under  the  Plantagenets,  16,  and  note  *. 
Portland  (WilUam  Bentinck,  earl  of),  receives  large 

grants  from  William  III..  569. 
Pound  (Mr.),  sentenced  by  the  Star  Chamber.  257,  note  t. 
Power,  despotic,  no  statutes  so  effectual  against  as  the 

vigilance  of  the  people,  6,53,  654. 
Poyning's  Law,  or  Statute  of  Drogheda.  provisions  of  686 ; 

its  most  momentous  article,  687  ;  bill  for  suspending, 

692 ;  attempts  to  procure  its  repeal,  710. 
Predestination,  canon  law  against,  under  Edward  VI.,  67, 

note  t ;  dispute  on,  229,  230,  and  notes. 
Prerogative,  confined  nature  of  the  royal.  13 ;  strength- 
ened by  Henry  VII.,  18;  undue  assumption  of,  on  the 

dissolution  of  Pariiament,  by  Charles  I.,  237  ;  of  a 

Catholic  king,  act  for  limiting  the,  477  ;  of  the  kings  of 

England  in  granting  dispensations,  526. 
Prejudices  against  the  house  of  Hanover,  630. 
Presbyterians,  their  attempt  to  set  up  a  government  of 

tlieir  own,  125 ;  erroneous  use  of  Scripture  by,  130 ; 

consider  the  treaty  of  Newport  as  a  proper  basis  for 

the  settlement  of  the  kingdom,  401 ;  deceived  by  the 

king,  422 ;  remarks  on  Charles  II.'s  conduct  to,  428  ; 

implore  his  dispensation  for  their  non-conformity, 

ibid. 

Presbyterian  party,  supported  by  the  city  of  London, 
349;  regain  their  ascendency,  357;  ministry  solicit  a 
revision  of  the  Liturgy,  414,  415  ;  clergy  of  Scotland, 
their  power  and  attempts  at  independence,  662 ;  re. 
strained  by  James  VI.,  664  ;  intermeddle  again  with 
public  aflairs,  ibid. ;  church,  its  obstinacy,  672. 

Presbyterian  discipline  of  the  Scottish  Church  restored. 
666. 

Presence,  the  real,  zeal  of  Henry  VIII.  in  defending,  56 ; 
principal  theories  concerning  the,  60,  61,  and  notes ; 
only  two  doctrines  in  reality,  61,  note  *  ;  believed  in 
England  in  the  seventeenth  century,  272,  273,  note. 

Press,  liberty  of  the,  582,  and  note  t,  583,  and  note  *. 

Pretender  (James  Stuart,  the),  acknowledged  King  of 
England  by  France,  and  attainted  of  high  treason  by 
ParUament,  598 ;  has  friends  in  the  Tory  government, 
613.  and  note  *  ;  lands  in  Scotland,  and  meets  with 
great  success,  618  ;  invades  England,  ibid. ;  the  Kin^ 
of  Sweden  leagues  with  for  his  restoration.  623.  ana 
note  t ;  becomes  master  of  Scotland,  and  advances  to 
the  center  of  England,  630;  rebelUon  of  1745  con- 
clusive against  the  possibUity  of  his  restoration,  ibid., 
and  note  * ;  deserted  by  his  own  pjirty,  631 ;  insulted 
by  France,  ibid. 

Priests,  antiquity  and  evils  of  their  celibacy.  62.  note  * ; 
Catholic,  resigned  or  deprived  tinder  Elizabeth,  73; 
pensions  granted  to,  ibid.,  note  *  ;  Romish,  persecution 
lor  harboring  and  supporting,  77 ;  the  most  essential 
part  of  the  Romish  ritual,  78 ;  secret  travels  and  de- 
ceitful labors  of  ibid.  ;  unite  with  sectarians,  ibid.;  or- 
dered to  depart  from  England,  unless  they  acknowl- 
edge the  queen's  allegiance,  103. 

Priests  and  Jesuits,  intrigues  of,  against  EUzabetb,  87; 
statute  against,  ibid. 

Priests  (popish  seminary),  executed  under  Elizabeth.  92 ; 
Lord  Burleigh's  justification  of  their  persecution,  94  ; 
ordered  to  quit  the  kingdom,  96. 

Priests  (Romish),  in  Ireland,  engage  in  a  conspiracy  with 
the  court  of  Spain,  694 ;  ordered  to  quit  Ireland  by 
proclamation,  ibid. 

Prince  of  Wales  (son  of  James  II.),  suspicions  attending 
the  birth  of  unfounded,  5:57,  and  note  t. 

Principles  of  toleration  fully  established,  628. 


732 


INDEX. 


Pi-inting,  bill  for  the  regulation  oC  405. 

rrinting  and  bookselling  regulated  by  proclamations,  141, 

and  note  ^,  142,  and  notes. 
Priors,  pension.s  given  to,  on  their  suppression,  52,  note  *. 
Prisoners  of  war  made  amenable  to  the  laws  of  England, 

100. 

Privilege,  breach  of,  members  of  Parliament  committed 
for,  637  ;  punishment  of,  extended  to  strangers,  638  ;  ; 
never  so  fiequent  as  in  the  reign  of  Wiiliara  III.,  ibid. 

Privilege  of  Parliament  discussed,  506, 507  ;  not  controlla-  ^ 
ble  by  courts  of  law,  644 ;  imporbuit,  the  power  of 
committing  all  who  disobey  its  orders  to  attend  as  I 
witnesses,  643 ;  danger  of  stretching  too  far,  646,  and  \ 
note  *  ;  uncontrollable,  draws  with  it  unUmited  power  ■ 
of  punishment.  659,  and  note 

Privy  council,  illegal  jurisdiction  exercised  by  the,  37 ;  I 
the  principal  grievance  under  the  Tudors,  38  ;  its  prob-  j 
able  connection  with  the  Court  of  .Star  Chamber,  40 ;  I 
authority  of  the,  over  Parliament,  ibid. ;  illegal  com- 
mitments of  the,  under  Elizabeth,  139 ;  power  of  its 
proclamations  considered,  141  ;  all  matters  of  state 
formerly  resolved  in,  200,  note  *  ;  its  power  of  impris- 
oning, 220,  and  note  ;  commission  for  enabbng  it  to  in- 
terfere with  courts  of  justice,  244,  note  '  ;  without 
power  to  tax  the  realm,  250 ;  of  Ireland,  filled  with 
Catholics  by  James  II.,  706. 

Privy  seal,  letter  of,  for  borrowing  money,  144,  note  t, 
145,  notes,  219. 

Proceedings  against  Shaftesbury  and  College,  483,  and 
■note  I,  484,  and  7)otcs. 

Proclamation  of  Henry  VII.  controlling  the  subject's  j 
right  of  doing  all  tilings  not  unlawful,  15  ;  of  the  sov-  [ 
ereign  in  council,  authority  attached  to,  141 ;  imwar- 
ranted  power  of  some  of  those  under  Elizabeth,  ^id. ; 
of  martial  law  against  Ubels,  &c.,  143  ;  of  James  I.  for  , 
conformity,  173 ;  for  summoning  his  first  Parliament, 
174  ;  House  of  Commons,  complaint  against,  189  ;  de- 
bate of  judges,  (fcc,  on,  194 ;  illegaUty  of,  ibid.,  and  ' 
note  ;  issued  under  Charles  I,,  2.52.  I 

Projects  of  Lord  William  Russell  and  Colonel  Sidney,  487.  I 

Prophesying?,  religious  exercises  so  called,  119 ;  sup. 
pression  of.  120  ;  tolerated  by  some  prelates,  ibid. 

Propositions  (the  nineteen),  ofiered  to  Charles  I.  at  York, 
313,  and  note  t  I 

Protestants,  origin  of  the  name,  64,  note  *  ;  number  of, 
executed  under  Queen  Mary,  70,  note  *  ;  increased  by 
her  persecution,  70 ;  never  approved  of  religious  per- ' 
secution.  79,  note  * ;  faith,  league  of  the  Catholic  i 
princes  against  the,  87,  note    ;  origin  of  the  diflerences  1 
between,  105 ;  emigration  of,  to  Germany,  ibid. ;  dis-  i 
like  of  to  the  EngUsh  Liturgy  and  ceremonies,  106-108,  ! 
and  108,  note ;  proportion  of,  in  England  under  Eliza-  : 
beth,  108,  note  t ;  favor  Arabella  Stuart's  claim  on  the  j 
crown,  167,  168,  7iote ;  Dissenters,  bill  to  relieve,  lost  i 
off  the  table  of  the  House  of  Commons,  585;  succes-  1 
sion  in  danger,  616,  and  notes  *t ;  Church  established  ! 
by  EMzabeth  in  Ireland,  689  ;  many  of  the  wealthier 
faraihes  conform  to  the,  709. 

Protestantism,  dissolution  of  the  monasteries  essential  to  ' 
its  estabUshment,  52 ;  strengthened  by  the  distribution  [ 
of  their  revenues,  (fcc,  55 ;  slow  progress  of,  in  the  I 
north  of  England,  62. 

Protestation  of  the  House  of  Commons  against  adjourn- 
ment in  1621,  211. 

Prynne  (William),  prosecution  of,  by  the  Star  Chamber, 
2.59. 

Pulteney  (Mr.),  his  remark  on  the  standing  army,  634. 

Purgatory  (doctrine  of),  abolished  by  the  Reformers,  59. 

Puritans  address  Elizabeth  against  the  Queen  of  Scots, 
88 ;  laws  of  Ehzabeth  respecting,  10.5-186 ;  rapid  in- 
crease of,  under  Elizabeth,  110;  begin  to  form  con-  [ 
Tenticles,  111 ;  advised  not  to  separate,  ibid.,  note  J  ; 
first  instance  of  their  prosecution.  111  ;  supporters  j 
and  opposers  of  in  the  Church  and  State,  ibid.,  112 ; 
their  opposition  to  civil  authority  in  the  Church,  113 ; 
not  all  opposed  to  the  royal  supremacy.  114,  note  I  \  pre-  | 
dominance  of,  under  Elizabeth,  115,  and  note  *;  prose- 
cuted by  the  prelates,  118;  partly  supportedbytheprivy  j 
council,  ibid.  ;  I'olerated  to  preserve  the  Protestant  reli-  i 
gion,  119;  deprived  by  Archbishop  WhitgifL  121,  and  I 
note  J ;  Lord  Burleigh  favorable  to,  122, 12:j ;  libels  pub-  ( 
lished  by,  124.  and  note*,  125,  and  notes "t ;  their  Church 
government  set  up.  125  ;  dangerous  extent  of  their  | 
doctrines,  126 ;  their  sentiments  on  civil  government,  I 
ibid. ;  severe  statute  against,  128  ;  state  of  their  con-  \ 
troversy  with  the  Church  under  Ehzabeth,  129,  note  *  ■  j 
object  to  the  title  of  bishops,  134,  note  "  ;  Ehzabeth's 
reported  otier  to,  135,  note  " ;  civil  liberty  preserved 
by  the,  138 ;  their  expectations  on  the  accession  of  | 


James  I.,  173,  note  } ;  summoned  to  a  conference  at 
Hampton  Court,  173 ;  alarmed  at  the  king's  proceed- 
ings, 176  ;  ministers  of  the,  deprived  by  Archbishop 
Bancroft,  2J6,  and  note'  ;  character  of  the,  ibid.  ;  differ- 
ence with  the  Sabbatarians,  227  j  doctrinal  Puritano, 
ibid.,  and  note  *. 

Purveyance,  abuses  of,  177 ;  taken  away,  293 ;  proceed- 
ings of  Parliament  against,  ibid.,  177,  411. 

Pyrenees,  treaty  of  the,  392. 

Quartering  of  soldiers  (compulsory),  tre.ison  of,  297. 

Raleigh  (Sir  Walter),  instances  of  his  flattery  of  mon- 
archy, 162,  and  note  * ;  his  execution,  character,  and 
probable  guilt  considered,  203,  and  note  *,  204,  and 
7totes  ''fl;  his  first  success  in  the  Munster  colonies,  696. 

Ranke  s  "ilistory  of  the  Popes,"  notice  of,  77,  jiotet. 

Reading,  a  Romish  attorney,  trial  of,  471. 

Real  presence  denied  in  the  articles  of  the  Church  of 
England,  61 ;  the  term  not  found  in  the  writers  of  the 
16th  age,  except  in  the  sense  of  "  corporeal,"  273,  note. 

Ptebellion  (northern),  excited  by  the  harsh  innovations 
of  Henry  VIII. ;  appeased  by  conciUatory  measures, 
but  made  a  pretext  for  several  executions  of  persons 
of  rank,  28;  in  Ireland,  in  1641,  697,  102;  success  of 
the  insurgents  in  the,  704 ;  of  1690,  forfeitures  on  ac- 
count of  the,  707. 

Recovery  (common),  for  cutting  off  the  entail  of  estates, 
its  origin  and  establishment,  19. 

Recusancy,  persecutions  for,  under  Ehzabeth,  77 ;  heavy 
penalties  on,  imder  Ehzabeth,  91 ;  annual  fines  paid 
for,  97,  note  *. 

Recusants,  severity  against,  productive  of  hypocrites,  96 ; 

annual  fines  paid  by,  97.  note  ' ;  statute  restraining  their 

residence,  101 ;  penalties  upon,  under  James  I.,  232, 

note  *,  233,  note. 
Reed  (Alderman  Richard),  his  treatment  for  refusing  to 

contribute  to  the  benevolence  in  1545,  26. 
Reeves  (John),  his  History  of  English  Law,  character  of, 

19,  note  ^. 

Reformation  of  the  Church  gradually  prepared  and  effect- 
ed, 43;  disposition  of  the  people  for  a,  49  ;  uncertain 
advance  of  the,  after  the  separation  from  Rome,  and 
dissolution  of  monasteries,  56 ;  spread  of,  in  England, 
57 :  promoted  by  translating  the  Scriptures,  ibid.,  53 ; 
principal  innovations  of  the,  in  the  Church  of  Eu!:land, 
57-62;  chiefly  in  towns  and  eastern  counties  orEng- 
land,  62;  German  troops  brought  over  at  the  time  of, 
ibid.,  notej;  measures  of,  under  Edward  VI.,  too  zeal- 
ously conducted,  63 ;  toleration  not  considered  practi- 
cable in  the,  ibid.,  64  ;  in  Germany,  caused  by  vices  of 
the  superior  ecclesiastics,  66 ;  its  actual  progress  un- 
der Edward  VI.,  68. 

Refornuiiio  Legum  Ecclesiastic&m,  account  of  the  com- 
pilation and  canons  of,  67,  note  t ;  extract  from,  63, 
7iote. 

Reformers,  their  predilection  for  safirical  libels,  124  ;  for 
the  Mosaic  polity,  126,  note  J ;  of  Scotland,  their  ex- 
treme moderation,  662,  663,  and  note  *. 

Refugees,  popish,  their  exertions  against  Ehzabeth,  87, 91. 

Regalities  of  Scotland,  their  power.  660,  661. 

Regicides,  execution  of  the,  408 ;  some  saved  from  capi- 
tal punishment,  417,  418. 

Religion,  reformation  of,  gradually  prepared  and  effected, 
43  ;  state  of,  in  England,  at  the  beginning  of  the  six- 
teenth century,  ibid. ;  different  restraints  of  govern- 
ments on,  63 ;  Roman  CathoUc,  abohshed  in  Scotland, 
661. 

Rehgious  toleration.  584  ;  infringement  of,  627. 

Remonstrance  on  the  state  of  the  kingdom  imder  Charles 
I.,  305,  and  ncte. 

Repubhcan  party,  first  decisive  proof  of  a,  360;  com- 
posed of  two  parties,  Levelers  and  Anabaptists,  371 ; 
government  by,  ill  suited  to  the  English  in  1659,  390 ; 
no,  in  the  reign  of  WilUam  III.,  557. 

Reresby  (Sir  John),  his  conversation  with  Lord  Halifax, 
482,  and  note  *. 

Restitution  of  crown  and  Church  lands,  408,  409. 

Restoration  of  Charles  II.,  remarks  on  the  unconditional, 
400  ;  popiilar  joy  at  the,  405,  406 ;  chiefly  owing  to  the 
Presbyterians,  417. 

Revenue,  settlement  of  the,  554 ;  statement  of  the,  by 
Ralph,  ibid.,  note  t ;  surplus,  in  Ireland,  dispute  be- 
tween the  Commons  and  the  government  concerning 
its  appropriation,  712. 

Revolution  in  1688,  its  true  basis.  527  ;  its  justice  and  ne- 
cessity, 535  ;  argument  against  it,  538 ;  favorable  cir- 
cumstances attending  the,  540 ;  salutary  consequences 
resulting  from  the,  542 ;  its  great  advantage,  543 ;  its 


INDEX. 


733 


temperate  accomplishment,  550  ;  in  Scotland,  and 
efltablishnient  of  Presbytery,  671. 
Reynolds  (Dr.),  at  the  Hampton  Coui  t  conference,  173, 
note  t. 

Richard  II.,  statute  of,  restraining  the  papal  authority, 
47 ;  supply  raised  under,  250 ;  his  invasion  of  Ireland, 
685. 

Richard  III.,  first  passed  the  statute  of  fines,  18. 

Richelieu  (Cardinal  Armand  du  Plessis),  his  intrigues 
against  England,  247,  note  t. 

Richmond  (Charles  Stuart,  duke  of),  his  marriage  with 
Miss  Stewart,  43ti. 

Richmond  Park  e.xtended,  245,  note  *. 

Ridley  (Nicholas,  bishop  of  London),  liberality  of,  to  the 
Princess  Mary,  64  ;  assists  in  remodeling  the  English 
Church,  65,  note  * ;  firmness  of,  in  the  cause  of  Lady  Jane 
Grey,  66 ;  moderation  in  the  measures  of  reform,  ibid. 

Right  of  the  Commons  as  to  money  bills,  508. 

Robbers  and  murderers  deprived  of  the  benefit  of  clergy, 
44. 

Rochester  (Laur.  Hyde,  lord),  his  dismissal,  528,  and 

note  *  ;  creates  great  alarm,  529,  and  note  *. 
Rockingh;mi  Forest  increased,  245. 

Rockisane  (Archbishop  of  Prague),  his  reply  to  Cardinal 
Carjaval  at  the  Council  of  Basle,  117,  note 

Rockwood  (  ),  persecution  of,  for  popery,  90,  note  t. 

Roman  Cathohc  prelates  of  Scotland,  including  the  reg- 
ulars, allowed  two  thirds  of  their  revenues,  662. 

Romish  priests'  address  to  the  king,  to  send  them  out  of 
the  kingdom,  429,  and  note  *  ;  their  policy,  451 ;  super- 
stition, general  abhorrence  of  the,  523. 

Root  and  Branch  party,  302. 

Ross  (Thomas),  executed  for  publishing  at  Oxford  a 
blasphemous  libel,  668. 

Royal  famihes  of  Ireland  (O'Neal,  O'Connor,  O'Brien, 
O'Malachlin,  and  Mac  Murrough),  protected  by  the 
EngUsh  law,  682. 

Royal  power,  its  constitutional  boundaries  well  establish- 
ed, 494. 

Royalists,  decimation  of  the,  by  Cromwell,  377,  and  note 

t ;  discontent  of  the,  409,  and  note  t,  410. 
Rump,  the  ParUament  commonly  so  called,  36-2,  and  note 

I :  fanaticid  hatred  of,  to  the  king,  ibid. 
Rupert  (Prince),  Bristol  taken  by,  326 ;  and  Newcastle 

defeated  at  Marston  Moor,  331 ;  consequences  of  the 

same,  ibid. 

Russell  (Admiral),  engaged  in  intrigues,  560  ;  his  conduct 
at  the  battle  of  La  Hogue,  and  quarrel  with  the  Board 
of  Admiralty,  ibid.,  561 ;  ParUamentary  inquiry  into 
their  dispute,  571. 

Russell  (Lord),  sincerely  patriotic  in  his  clandestine  in- 
tercourse with  France,  460,  461,  and  notei;  and  the 
Earl  of  Essex  concert  measures  for  a  resistance  to  the 
government,  487 ;  they  recede  from  the  councils  of 
Shaftesbury,  488 ;  evidence  on  his  trial  not  sufficient  to 
justify  his  conviction,  ibid.,  and  note  t. 

Rye-house  Plot,  469,  470,  and  note  *,  471,  487,  note  t. 

Rysmck  (U'eaty  of),  particulars  relating  to,  567. 

Sabbatarians,  origin  and  tenets  of,  227,  and  note  *. 

Salisbury  (Coimtess  of),  her  execution,  causes  of,  28  ; 
not  heard  in  her  defense,  ibid.,  note  t. 

Salisbury  (Robert  Cecil,  earl  of),  extenuates  the  wrongs 
imputed  to  Spain,  182 ;  his  scheme  for  procuring  an 
aimual  revenue  from  the  Commons,  190  ;  his  death 
and  character,  192,  and  notes  t*  ;  (Wilham  Cecil,  earl 
of),  his  forest  amercement,  245. 

Sampson,  the  Puritan,  hia  remonstrance  against  the  pa- 
pists, 89. 

Sancroft  (Thomas,  archbishop  of  Canterbury),  his  scheme 
of  comprehension,  585. 

Sandys  ^Sir  Edwin),  his  commitment  to  the  Tower,  209, 
and  note  t,  213. 

Savoy,  conference  at  the,  in  1661,  423;  animosity  be- 
tween the  parties,  *424  ;  conduct  of  the  Churchmen  not 
justifiable,  423,  and  note  *  ;  only  productive  of  a  more 
exasperated  disunion,  424  ;  general  remarks  on,  ibid. 

Sawyer  (Sir  Robert),  expelled  from  the  House  of  Com- 
mons, 553,  and  note  t. 

Scambler  (Edmund,  bishop  of  Norwich),  his  character, 
134. 

Scandinavia,  colonists  from,  settle  on  the  coasts  of  Ire- 
land, 676,  677. 

Scheme  of  comprehension  and  indulgence,  444 ;  obser- 
vations on  the,  586. 

Schism  in  the  Constitutional  party  under  Charles  I.,  304, 
and  notes      ;  of  the  non-jurors,  587. 

Schools  (free),  in  Ireland,  act  passed  in  the  reign  of 
Elizabeth  for  erecting,  694,  note  f. 


]  Scotland,  micertain  succession  of  the  English  crown  iu 
tlic  royal  family  of,  79-101 ;  its  claims  not  favored,  82 ; 
Puritanical  church  government  established  in,  12C ; 
union  with  England  brought  forward,  179,  180,  and 
7iotcs ;  troubles  commenced  in,  284,  and  note  t;  privy 
council  of,  abolished,  602,  and  notei;  its  early  state 
wholly  Celtic  before  the  twelfth  century,  657 ;  ita 
want  of  records,  658  ;  its  wealth,  661 ;  character  of  its 
history  from  tlie  Reformation,,  ibid. ;  Church  of,  still 
preserves  the  forms  of  the  sixteenth  century,  662,  672; 
establishment  of  Episcopacy  in.  665  ;  could  not  remain 
indifferent  during  the  civil  war  in  England,  668  ;  crown 
of,  tendered  to  William  and  Mary,  67l  ;  Episcopal  and 
Presbyterian,  chief  controversy  between,  672  ;  practice 
observed  in  summoning  the  national  assembly  of  the, 
ibid.,  note  *  ;  assemblies  of  the,  judicious  admixtxire 
of  laymen  in,  672. 

Scots,  the,  conduct  of,  to  Charles  I.,  345,  and  note  *,  346, 
and  notes  "t ;  conclude  a  treaty  with  Charles,  and  in- 
vade England,  357. 

Scots  Presbyterians,  sincerely  attached  to  King  Charles, 
351,  and  note 

Scot  and  lot  boroughs,  very  opposite  species  of  franchise 
in,  516,  and  notet 

Scripture,  English  translations  of,  proscribed,  57;  per- 
mitted to  be  read,  and  prohibited,  ibid.,  and  note  *  ;  ef- 
fect of  their  general  use,  58. 

Scroggs  (Chief-justice),  impeached  for  treason,  483. 

Scudamore  (Lord),  anecdote  of,  274,  and  note  J. 

Seal,  great.  Lord-keeper  Littleton  carries  it  to  the  king; 
327  ;  new  one  ordered  to  be  made  by  Parhament,  ibid. 

Seats  in  Parliament,  sale  of,  656. 

Secret  corruption,  636 ;  service-money  disposed  of  to 

corrupt  the  Parliament,  5'J.>,  and  note  *. 
Secret  treaty  of  1670,  anecdotes  and  particulars  relating 

to,  448,  and  note  *  ;  difterences  between  Charles  and 

Louis  as  to  the  mode  of  its  execution.  449. 
Secret  historical  documents  brought  to  hght  by  Macpher- 

son  and  Dalrymple,  559. 
Sectaries,  persecution  or  toleration  the  only  means  of 

dealing  with,  124. 
Selden  (John),  siimmoned  before  the  Star  Chamber.  220. 
Septs  of  the  north  of  Ireland,  liberty  enjoyed  by,  681 ;  of 

Munster  and  Leinster,  their  oppression,  ibid. ;  offers 

made  by  some  for  permission  to  live  under  the  English 

law,  682. 

Sergeant  of  the  House  of  Commons,  aiithority  of  the, 
157-159. 

Session,  Court  of,  of  Scotland,  its  origin  and  judicature, 
661. 

Settlement,  Act  of,  rights  of  the  reigning  monarch  ema- 
nate from  the  Parliament  and  people,  by  the,  543 ; 
Blackstone's  view  of,  .590,  7iote  ^. 

.'Settlement  of  the  revenue,  410. 

Seymour  (Lord),  of  Sudely,  courts  the  favor  of  the  yoimg 
king,  Edward  VI.,  33 ;  entertains  a  hope  of  marrying 
Princess  Elizabeth,  ibid. ;  accused  of  treason,  and  not 
heard  in  his  defense,  34 ;  wai'rant  for  hia  execution 
signed  by  his  brother,  ibid. 

Seymour  (WilUam,  marquis  of  Hertford),  married  to 
Lady  Aral)ella  .Stuart,  201. 

Seymour  (Sir  Francis),  refusal  to  pay  ship-money,  28.5, 
286,  and  note  *. 

Shaftesbury  (Anthony,  third  earl  of),  declaration  of  in- 
dulgence projected  by,  453  ;  fall  of,  and  his  party,  455 ; 
bad  principles  of,  475 ;  desperate  counsels  of,  387  ;  com- 
mitted to  tlie  Tower  with  three  other  peers,  by  the 
Lords,  for  calling  in  question  the  legal  continuance  of 
Parliament,  after  a  prorogation  of  twelve  months,  645. 

Shaftesbury  and  College,  impeachment  of,  483,  and  note  J, 
484,  and  notes. 

Sharp  (James),  archbishop  of  St.  Andrew's,  an  infamous 
apostate  and  persecutor,  669,  670. 

Sheflield  (Sir  Robert),  confined  in  the  Tower  for  his  com- 
plaint against  Wolsey,  41,  note  *. 

Shelley  (Sir  Richard),  reluctantly  permitted  to  enjoy  hia 
religion,  89. 

Shepherd  (Mr.),  expelled  the  House  of  Commons,  229. 

Sherfield  (  ),  recorder  of  Salisbury,  Star  Chamber 

prosecution  of,  274,  note  §. 

Sherlock  (Dr.),  his  work  entitled  Case  of  Resistance  to 
the  Supreme  Powers,  491,  and  7iote  *,  492,  note;  his  in- 
consistency. 551,  note  *  ;  a  pamphlet,  entitled  A  Second 
Letter  to  a  Friend,  attributed  to  him,  id.  ibid. 

Ship-money,  its  origin  and  imposition,  246 ;  extended  to 
the  whole  kingdom,  248 ;  trials  concerning,  ibid.,  and 
note*;  case  of  Ham])dcn,  ibid.,  and  note],  249.  note; 
the  king's  proposal  of  resigning  for  a  supply,  287,  288, 
note  * ;  declared  illegal,  291. 


734 


INDEX. 


Shirley  (Sir  Thomas),  Parliamentary  proceedings  on  his 
arrest,  176. 

Shirley  (Dr.).  and  Sir  John  Fagg,  case  between,  507. 

Shower,  infamous  address  of  the  barristers  of  the  Middle 
Temple  under  the  direction  of,  532. 

Shrewsbury,  Earl  of,  engaged  in  intrigues,  560 ;  his  letter 
to  King  William  alter  Fenwick's  accusation  of  him, 
ibid.,  and  note  *. 

Shrewsbury  (Lady),  fine  and  imprisonment  o£  202. 

Sibthorp  (  ),  his  assertion  of  kingly  power,  239. 

Sidney  (Sir  Philip),  writes  a  remonstrance  against  Eliza- 
beth's match  with  the  Duke  of  Anjou,  138. 

Sidney  (Algernon),  receives  pecuniary  gratifications  from 
France,  461 ;  was  a  distressed  man,  462  ;  his  dislike  to 
the  Prince  of  Orange,  ibid. ;  his  conviction  illegally  ob- 
tained, 489,  note  * ;  observations  on  his  character  and 
conduct,  ibid.,  490. 

Sidney  (Sir  Henry),  his  representation  to  Queen  Eliza- 
beth of  the  wretched  condition  of  the  Irish,  691,  and 
n&te  *  ;  his  second  government  in  Ireland,  excites  re- 
sistance by  an  attempt  to  subvert  the  liberties  of  the 
pale,  693  ;  his  disappointment  at  the  want  of  firmness 
in  Queen  Elizabeth,  693,  note  *  ;  account  of  the  Prot 
estaiit  Church  in  Ireland,  694,  note  t. 

Silenced  preachers  set  at  liberty,  90,  note  t. 

Six  Articles,  law  of,  on  the  celibacy  of  priests,  62. 

Skinner  (Thomas),  case  of,  against  the  East  India  Com- 
pany, 505 ;  committed  by  the  Commons  for  breach  of 
privilege,  506. 

Smith  (Sir  Thomas,  his  treatise  on  the  Commonwealth 
of  England),  cited  concerning  the  Star  Chamber,  39  ; 
hi?  account  of  causes  belonging  to  the  Court  of  Star 
Chamber,  41 ;  his  natural  son  sent  with  a  body  of  En- 
glish to  settle  in  Ireland,  696. 

Soap,  chartered  company  for  making,  245. 

Somers  (Lord-chancellor),  puts  the  great  seal  to  blank 
powers,  572,  and  notts 

Somers,  Halifax,  Wharton,  Oxford,  and  Simderland,  kept 
out  of  administration  by  the  dishke  of  Queen  Anne,  605.  I 

Somerset  (Edward  Seymour),  duke  of  obtains  a  patent 
constituting  him  protector,  33  ;  discovers  a  rival  in  his 
brother.  Lord  Seymour,  ibid. ;  signs  his  warrant  for 
execution,  34  ;  deprived  of  his  authority,        ;  accused  ' 
of  a  conspiracy  to  murder  some  of  the  privy  counsel- 
ors, ibid. ;  eridence  not  insufficient,  ibid. ;  inclined  to  | 
the  Reformation,  and  powerful  in  the  council,  K ;  his  i 
destruction  ofchurches  to  erect  his  palace,  63;  designed  i 
the  demohtion  of  Westminster  Abbey,  ibid. ;  his  lib-  ! 
eraUty  to  the  Princess  Mary,  64,  note 

Somerset  (Robert  Car,  earl  of  ),his  guilt  of  the  murder  of 
Overbury  examined,  202,  203,  note  *. 

Somerville,  executed  for  a  plot  against  Ehzabeth,  97.  | 

Southampton  (Thomas  Wriothesley),  earl  of,  his  estate 
in  the  New  f  orest  seized,  245 ;  his  opposition  to  the 
statute  against  Non-conformists,  430. 

Southey  (Robert),  his  assertion  on  persecution  and  tol- 
eration in  the  Church  of  England,  79,  note 

Sovereigns,  their  inviolability  to  criminal  process  ex- 
amined, 99 ;  their  power  weakened  by  the  distinction  J 
of  party,  651. 

Spain,  design  of  transferring  England  to  the  yoke  of,  37 ; 
dislike  of  the  EngUsh  to.  under  Queen  Mary,  69,  70 : 
King  James's  partiahty  for,  182,  and  Tiote  *  ;  connection 
with  England  under  James  1.,  192 ;  his  unhappy  predi- 
lection for,  204,  and  note  *  ;  treaty  of  royal  marriage 
with,  210,  212 ;  policy  of  Charles  I.  with,  246,  247.  and 
notes  *t ;  decline  of  the  power  of,  after  the  treaty  of 
the  Pyrenees.  445. 

Speaker  of  the  House  of  Commons,  power  of,  concerning  i 
bills,  155,  note. 

Speech,  freedom  of  in  Parliament,  242. 

Speed  (John),  his  valuation  of  the  suppressed  monaster- 
ies. 54,  note  *. 

Spenser  (Edmund),  his  AccoutU  of  Ireland.  691,  note  *  ; 
the  first  three  books  of  his  Faery  Queen,  where  written, 
696. 

Spies  should  be  heard  with  suspicion  in  cases  of  treason, 
581. 

Spire,  Protestation  of,  by  the  Lutheran  princes  against 
mass,  64,  note  *. 

Sports,  Declaration  of,  by  James  I.,  228,  269. 

Sprot,  a  notary,  executed  in  Scotland  for  concealing  let- 
ters, 667.  668. 

Staflbrd  (William  Howard),  lord,  convicted  of  the  Popish 

Plot,  472,  and  note  *. 
Standing  army,  without  consent  of  Parliament,  declared 

illegal,  549,  and  note  '  ;  national  repugnance  to  its  rise, 

634. 

Standish  (Dr.  ),  denies  the  divine  privileges  of  the 


clergy.  44 ;  censored  in  the  journal  of  Henry  VUL,  ibid., 
nott  *. 

St.  Bartholomew  (day  of),  2000  persona  resign  their  pref- 
erments, 426. 

St.  Germain's  (court  of),  preserve  a  secret  connection 
with  Godolphin  and  Marlborough,  Oil. 

St.  John  (OUver),  declines  to  contribute  to  the  benevo- 
lences, 197  ;  his  statement  of  means  for  defense  of  the 
royal  prerogative,  249. 

St  John's  College,  Cambridge,  non-conformists  of,  in 
1565,  113,  note  '. 

St.  Paul's  Cathedral,  proposed  improvement  of,  254. 

St.  Phehpe,  remarkable  passage  in  his  memoirs,  607, 
note '. 

Star  Chamber,  court  of,  the  same  as  the  ancient  Coneili- 
-um  Regis,  or  Ordinarium,  39,  and  note  t ;  account  of 
the  powers  of  40;  augmented  by  Cardinal  Wolsey. 
41 ;  original  Umitation  and  judges  of  the,  42,  and  Ttou  '  ; 
causes  within  the  cognizance  of  the,  42  ;  its  arbitrary 
and  illegal  powers,  ibid. ;  not  the  court  erected  by 
Henry  VIL,  ibid.,  note  J ;  examination  of  papists  in  the, 
77  ;  security  of  the,  IIT? ;  power  of,  139  ;  instances  of 
its  extended  authority,  201 ;  informations  in  the,  against 
London,  254;  jurisdiction  of  the,  2.35;  caution  of  in 
cases  of  inheritance,  256  ;  offenses  belonging  to,  ibid.  ; 
mode  of  process  in  the,  257 ;  punishments  infiicted  by 
the,  ibid.,  and  notes  **t ;  fines  and  sentences  of  the, 
258 ;  corrupt  and  partial,  ibid. ;  act  for  abolishing,  292, 
and  nou  *  ;  attempt  to  revive  the,  421  ;  report  of  com- 
mittee of  the  Lords  concerning  the,  ibid. 

State,  Co<mciI  of,  consists  of  forty-one  members,  368; 
tests  proposed  to  the,  to  which  only  nineteen  sub- 
scribed, ibid. 

Stationers,  Company  of,  power  given  to,  over  printers 
and  booksellers,  142. 

Statute  of  the  15th  of  Edward  11.,  recognizing  the  exift- 
ence  of  the  present  constitution  of  Parliament,  14  ;  of 
11th  Henry  VII.  protecting  persons  in  the  kings  serv- 
ice, 17 ;  extraordinary,  giving  to  Henry  VIII.  all  moneys 
paid  by  way  of  loan,  &c.,  25 ;  similar  act  releasing  to 
him  all  moneys  he  had  subsequently  borrowed,  ibid.  ; 
11th  Henry  VII.  for  payment  of  arrears  of  benevo- 
lences, 20,  and  note  '  ;  of  fines  enacted  by  Henry  VIL, 
merely  a  transcript  from  one  of  Richard  III.,  18 ;  ob- 
ject of  this  enactment,  ibid. ;  of  Edward  I,  De  Donit 
Condicio7iaUbus,  19;  revived  under  Henry  VII„  and 
their  penalties  enforced,  20;  of  Ist  Henry  VIIL  for 
amendment  of  escheats,  21 ;  of  11th  Henry  VIL  giving 
power  to  justices  of  the  peace,  ibid. ;  for  the  exclusion 
of  Princess  Mary  from  the  succession  in  1534,  31 ;  of 
Henry  VII.  concerning  the  Court  of  Star  Chamber, 
42,  and  notes  *{  ;  of  Henry  VL  for  compelling  clerks  to 
plead  their  privilege,  44 ;  of  4th  Henry  VII.  for  brand- 
ing clerks  convicted  of  felony,  ibid. ;  of  Richard  II.  re- 
straining the  papal  jurisdiction,  47  ;  of  Henry  VIH.  tak- 
ing away  appeals  to  Rome,  48 ;  of  ditto  on  the  conse- 
cration  of  bishops,  ibid. ;  of  mortmain  of  Edward  1. 
and  III.,  50  ;  of  27th  Henry  VIIL  censures  the  rices  of 
monasteries,  51,  nou  * ;  of  Henry  VIIL,  1st  Edward 
VI. ,  14th  Elizabeth,  for  support  of  the  poor,  56,  and 
note  *  ;  of  34th  Henry  VIIL  against  the  sale  and  read- 
ing of  Tyndale's  Bible,  57,  note  '  ;  of  2d,  3d,  and  6th  of 
Edward  VI.  on  the  ceUbacy  of  priests,  62 ;  of  2d  Ed- 
ward VL  against  irreverently  speaking  of  the  sacra- 
ment, 63  :  for  abolishing  chantries,  ibid.,  and  note  t ;  of 
2d  and  3d  Edward  VI.  against  hearins  mass,  64 ;  of 
25th  Henry  VIIL  against  importation  of  foreign  books, 
57,  note  '  ;  of  supremacy  and  uniformity,  Ist  of  Eliza- 
beth, 73 ;  of  5th  Ehzabeth  against  fantastical  prophe- 
cies, 75,  note  J ;  for  the  assurance  of  the  queen's  power, 
75 ;  opposed  by  Mr.  Atkinson  and  Lord  Montague, 
ibid. ;  arguments  for  it,  ibid.,  76,  and  note  *  ;  of  8th  of 
Elizabeth  on  behalf  of  the  bishops,  76,  and  notet  ;  of 
28th  and  35th  Henry  VIIL  on  the  succession,  79 ;  of 
13th  of  Elizabeth,  on  altering  the  succession,  83  ;  13th 
Ehzabeth,  against  papists,  87,  88,  note  94.  nou ;  of 
23d  ditto  against  recusancy,  91  ;  of  25th  Edward  HI. 
against  treason,  92 ;  of  Elizabeth,  commanding  papists 
to  depart  the  kingdom,  96 ;  of  27th  Ehzabeth  for  her 
security,  98;  of  33d  Elizabeth  restricting  their  resi- 
dence, 101 ;  of  13th  Elizabeth  for  subscribing  Church 
articles,  ll'j' ;  of  23d  Ehzabeth  against  seditious  book* 
of  seminary  priests,  wrested  asainst  the  Puritan  hbels, 
124,  129,  138  ;  of  35th  Elizabeth  for  imprisoning  Non- 
conformists, 128  ;  of  Ist  Elizabeth,  restraining  the 
grant  of  ecclesiastical  lands,  134;  of  14th  Ehzabeth  on 
recusants,  144,  noce\;  of  Conjirmaiio  Chartarum  and 
Magna  Ckarta,  183;  of  45th  Edward  III.  against  new 
customs,  185 ;  of  34th  Henry  VIIL  for  Court  of  Coun- 


INDEX. 


735 


cil  of  Wales,  190,  note  t ;  of  34th  of  Henry  VIII.  on 
making  laws  for  Wales,  196;  of  2d  and  3d  Edward 
VI.  for  preserving  Lent,  227,  note  t ;  of  5th,  27th,  and 
35th  of  Elizabeth,  for  increase  of  the  fishery,  ?28,  note  ; 
of  Ist  and  3d  Charles  I.  for  observance  of  Sunday,  229, 
note  {;  of  1st  Edward  II.,  De  Mililibus,  244,  note  t  ;  of 
4th  Edward  III.  for  holding  Parliaments,  291,  and  note 
*  ;  of  16th  Charles  I.  for  abolishing  Court  of  Star 
Chamber,  &.C.,  292,  and  note  *  ;  for  determining  forests, 
restraining  purveyance,  amending  the  stannary  courts, 
levying  troops,  293  ;  of  1st  and  25th  of  Edward  III., 
and  4th  Henry  IV.,  amending  military  service,  310  ;  of 
Winchester,  for  defense  of  the  nation,  311  ;  of  1st 
James  I.  on  furnishing  soldiers,  ibid.,  note  I ;  of  Ed- 
ward III.,  constructive  interpretation  of  by  Chief- 
justice  Eyre,  582  ;  of  leasing-making  in  Scotland,  667 ; 
Enghsh,  question  on  their  vaUdity  in  Ireland,  710. 

Statute  of  Kilkenny,  its  influence  on  the  government  of 
Ireland.  684,  and  note  *. 

Statutes,  Irish,  account  of  the,  683,  664  ;  English,  extend- 
ed to  Ireland,  686,  and  note  *. 

Stawell,  a  gentleman  of  Devonshire,  refuses  compliance 
to  the  speaker's  warrant,  481. 

Steele  (Sir  Richard),  expelled  the  House  of  Commons 
for  writing  a  pamphlet  reflecting  on  the  ministry,  638. 

Stephens  (Kev.  Mr.),  Justice  Powell's  obsen-ations  in 
passing  sentence  on  him  for  a  Ubel  on  ministers,  583, 
note  *. 

Stewart  (Miss),  her  marriage  with  the  Duke  of  Rich- 
mond, 438. 

Stone  (primate  of  Ireland),  his  great  share  in  the  govern- 
ment of  Ireland  in  the  reign  of  George  II.,  709,  710. 

Storie  (John),  his  committal  by  authority  of  ParUamcnt, 
159. 

Stow  (John),  his  library  seized.  142. 

Strafford  ('Phomas  Wentworth,  earl  of),  character  of, 
261,  and  note  " ;  made  president  of  the  Council  of  the 
North,  262  ;  lord-lieutenant  of  Ireland,  263  ;  his  corre- 
spondence with  Archbishop  Laud,  ibid.,  264,  and  note 
t ;  his  sentiments  and  practice  on  ship-money,  266 ;  ad- 
vice to  Charles  I.  against  war  with  Spain,  267  ;  his 
sentiments  and  use  of  Parliaments,  ibid.,  268  ;  sum- 
mary of  his  conduct,  &c.,  268,  and  note  *  ;  his  impeach- 
ment, 295,  and  note  '  ;  its  justice  discussed,  296-299, 
and  296,  note  *  ;  his  able  government  of  Ireland,  699, 
and  note  *,  700.  and  notes ;  procures  six  subsidies,  700. 

Strangers  amenable  to  law  wherever  they  dwell,  99,  100. 

Strickland  (Mr.),  his  attack  on  the  abuses  of  the  Church 
of  England,  116  ;  taken  from  his  seat  in  the  House  of 
Commons.  149  ;  restored  to  it,  150. 

Strongbow  (Earl),  his  acquisitions  in  Ireland,  680  ;  his 
possessions  divided  among  his  live  sisters,  681. 

Stuart  (Arabella),  her  title  to  the  English  crown,  167,  and 
note  *,  168,  note ;  her  unhappy  hfe  and  persecutions, 
201,  203,  and  note  *. 

Stuart  (house  of),  want  of  legal  title  to  the  crown,  168, 
169,  and  note  *. 

Stuart,  Henry  VII.,  Henry  VIII.,  EUzabeth,  and  the  four 
kings  of  the  house  of,  master-movers  of  their  own 
policy,  651. 

Stuart  papers  in  the  hands  of  his  majesty,  629,  note*. 

Stubbe,  his  pamphlet  against  Elizabeth's  marriage  with 
the  Duke  of  Anjou,  138,  139. 

Subsidies,  popular  aversion  to,  19  ;  grant  of,  in  1588, 153 ; 
in  1593-1601,  155  ;  less  frequent  in  Scotland  than  in 
England,  660. 

Subsidy,  value  of,  examined,  213,  note  *. 

Succession,  difficulties  in  regard  to  the,  created  by  Hen- 
ry's two  divorces,  31 ;  Princesses  Mary  and  Elizabeth 
nominated  in  the  entail  after  the  king's  male  issue  ; 
crown  devised  to  the  heirs  of  Mary,  duchess  of  Suffolk, 
to  the  exclusion  of  the  royal  family  of  Scotland,  ibid. 

Suffolk  (Frances  Brandon,  duchess  of),  emigrates  on  ac- 
count  of  her  religion,  69,  note  *. 

Suffolk  (family  of  Brandon,  Duke  of),  succession  of  the 
crown  settled  in,  79,  83,  167,  168 ;  title  of,  nearly  de- 
feated by  Elizabeth,  81,  82;  descendants  of,  hving  at 
the  death  of  Ehzabeth,  169,  171 ;  present  representa- 
tives of  their  claim,  171. 

.Suffolk  (Edmund  de  la  Pole,  earl  of),  conspires  against 
Henry  VII.,  attainted,  flies  to  the  Netherlands,  given 
up  by  the  Archduke  Philip  on  condition  of  safety; 
Henry  VIII.  causes  him  to  be  executed,  27. 

Suffolk,  county  of,  assists  in  placing  Mary  on  the  throne, 
and  suffers  greatly  from  her  persecution,  68,  and  note  ]:. 

Sully  (Due  de),  wears  mourning  for  Elizabeth  at  tlie 
court  of  James  I.,  173,  note  *. 

Sunday,  differences  on  the  observance  of,  227,  and  nffU  *  ; 
statutes  for,  229,  and  note  X- 


Sunderland  (Robert  Spencer,  earl  of),  early  mention  of 
his  inclination  to  adopt  the  Cathchc  religion,  451 ;  his 
intentions,  525,  note  t ;  enters  into  secret  negotiation 
with  the  Prince  of  Orange,  Sil ;  reproached  for  hie 
conduct  in  the  Peerage  Bill,  621. 

Supply  to  the  crown,  ancient  mode  of,  509;  the  Com- 
mons are  the  granting  and  the  Lords  the  cousentiBf 
power,  ibid. ;  present  practice  of  ibid. 

Supplies,  origin  of  the  estimates  of,  435 ;  remarks  on  the 
appropriation  of,  5.55,  556. 

Supremacy  of  the  Church  given  to  Henry  VIII.,  48 ;  diffi- 
culty of  repealing  the  act  of,  under  Queen  Mary,  69  ; 
restored  to  the  crown  under  Elizabeth,  72 ;  character 
and  power  of  the  Act  of,  73 ;  Oath  of,  ibid.,  7iote  *  ; 
penalty  for  refusing,  ibid. ;  Lord  Burleigh's  memorial 
on  the  Oath  of.  94  ;  Act  of,  hnks  the  Church  with  the 
temporal  Constitution,  105 ;  the  sovereign's,  rejected  by 
Cartwright  and  the  Puritans,  114;  acknowledged  by 
some  of  the  Puritans,  126  ;  executions  for  denial  of, 
129.  note  *  ;  act  of  resistance  of  the  Irish  to  it,  688,  689  ; 
Oath  of.  Catholics  murmur  at  the,  695.  and  7io[e  *  ;  im- 
posed  on  the  Commons  by  the  5th  of  EUzabeth,  never 
adopted  by  the  Irish  Parliament,  708 ;  resolution  of 
Commons  of  Ireland  to  exclude  those  who  would  not 
take  the  Oath  of,  ibid.,  709. 

Surrey  (Thomas  Howard,  earl  of),  futile  charges  against, 
of  the  crime  of  quartering  the  royal  arms,  29 ;  igno- 
minious behavior  of  his  father,  ibid. 

Sussex  (Henry  Ratchffe,  earl  of),  writes  to  the  burgesses 
of  Yarmouth  and  others,  requesting  them  to  vote  for 
the  person  he  should  name,  37. 

Sussex  (Thomas  Ratcliffe,  earl  of),  his  letter  concerning 
the  imprisonment  of  Mary  Stuart,  84,  note 

Sweden  (King  of),  leagues  with  the  Pretender,  623. 

Swift  (Dr.  Jonathan),  employed  by  government  to  re- 
taliate on  Ubelers,  583. 

Talbot  (Lord-chancellor),  bill  to  prevent  smuggling 
strongly  opposed  by  him,  649  ;  his  arguments  against 
it,  ibid.,  650. 

Tanistry,  law  of,  defined,  677  ;  strong  inducement  of  the 

native  Irish  to  preserve  the,  682 ;  custom  ofi  determined 

to  be  void,  695. 
Tax  upon  property  in  the  reign  of  Henry  VIII.,  mode  of 

its  assessment,  22,  note  f  ;  discontents  excited  by  it,  24  ; 

opposed  tumultuously,  and  finally  abandoned,  ibid. 
Taxation  under  Henry  VIII.,  mode  of,  21 ;  arbitrary, 

under  the  two  Henries,  26. 
Taxation,  arbitrary,  restrained  by  the  Petition  of  Right, 

224,  249. 

Taxations  not  attempted  by  Elizabeth,  144,  and  note  t. 

Taxes  not  to  be  levied  in  England  without  the  consent 
of  Parliament,  183 ;  larger  in  amount  in  the  reign  of 
Charles  II.  than  at  any  former  period,  432. 

Temple  (Sir  John),  his  relation  of  the  number  of  Protest- 
ants massacred  in  Ireland,  702,  note  t ;  his  History  of 
the  Irish  Rebellion  unjustly  depreciated,  703,  note  *. 

Temple  (Sir  William),  his  views  of  government,  447,  nott 
t;  new  council  formed  by,  478,  and  note  *,  479,  and 
notes. 

Tenancy  from  year  to  year,  of  very  recent  introduction, 

516. 

Tenison,  Archbishop,  extract  from  his  speech  on  the 

Union,  675,  note*. 
Test  Act,  Dissenters  give  their  support  to  the,  454,  note  t. 

455,  and  notes. 

Testament,  !feiD,  1526,  translated  into  Enghsh,  and  pro- 
scribed, 57. 

Thompson  (Richard),  taken  into  custody  for  preaching 
virulent  sermons  at  Bristol,  and  impeached  upon 
strange  charges,  481. 

Thorough,  a  phrase  used  by  Archbishop  Laud  and  the 
Earl  of  Strafford  to  express  their  system  of  govern- 
ment, 263,  et  seq. 

Thurloe  (John),  letter  from,  to  Henry  Cromwell,  387, 
note  *. 

Tithes,  subsisted  during  the  Commonwealth.  412. 

Toleration,  ancient  avowal  of  the  principle  of,  79,  note  * ; 
religious,  584,  find  note  *,  585,  note  ;  act,  a  scanty  meas. 
ure  of  religious  liberty,  586 ;  no  part  of  the.  extended 
to  papist',  or  such  as  deny  the  Trinity,  ibid. ;  repealed 
by  the  Whigs,  ibid. ;  natural  right  of  the  Irish,  694. 

Tom  Tell  truth,  a  libel  against  James  I..  212,  note  *. 

Tonnage  and  poundage  granted  to  Henry  VIII.  by  his 
first  Parliament ;  mistaken  assertion  of  Hume  and 
Lingard  respecting  it,  22,  note  * ;  the  king's  right  to, 
disputed.  225 ;  levies  of,  254. 

Topcliffe  (  ),  his  persecution  of  papists  tinder  £liz> 

abeth,  90,  note  t. 


736 


INDEX. 


Topham  (sergeant  at  arms),  actions  brought  against  blm 

for  false  imprisonment,  645. 
Torture,  use  of  denied  by  the  judges,  243 ;  instances  of, 

in  England,  ibid.,  244,  note  * ;  strictures  on  Mr.  Jar- 

dine's  view  of  tliis  subject,  244,  noU  *. 
Tortures,  used  under  the  house  of  Tudor,  93,  and  note  * ; 

under  Elizabeth,  denied  by  Lord  Burleigh,  94. 
Tory  principles  of  the  clergy,  490 ;  firmly  adhere  to  the 

established  religion,  491 :  party,  their  rage  against  tlxe 

queen  and  Lord  Oxford  for  retaining  Whigs,  GIT,  note 

618,  note ;  ministry  annoyed  by  the  vivacity  of  the  press, 

654. 

Tories,  thcii-  inconsistency,  COl,  G03 ;  ill  received  at  court, 

and  excluded  from  office,  630,  631. 
Toryism,  its  real  character,  480 ;  cardinal  maxim  oC  ibid. 
Tower  of  London,  historical  associations  connected  with 

the,  93. 

Towns,  chartered,  their  jurisdiction,  16. 

lYacts,  political,  extraordinary  number  published  fi'om 

the  meeting  of  the  Long  Parliament,  495. 
Trade,  foreign,  proclamations  of  EUzabeth  restricting, 

141 ;  the  king's  prerogative  of  restraining,  183,  and  note 

*  ;  project  for  a  council  of,  571. 
Transubstantiation,  persecutions  concerning.  56, 64  ;  met- 
aphysical examination  of,  61 ;  modem  Komish  doc- 
trine of  ibid.,  note  *. 

Treason,  consideration  of  the  law  of,  as  applied  to  the 
papists  under  EUzabeth,  102,  note  *  ;  trials  for,  unjustly 
conducted  under  Elizabeth,  138 ;  perversions  of  the  law 

'  .of,  under  James  L,  198,  note  t ;  law  of,  574 ;  statute  of 
Edward  III..  Hid. ;  its  constructive  interpretation  and 
material  omission,  ibid. ;  various  strained  construc- 
tions of  the,  575 :  statute  of  William  III.,  578, 579 ;  pros- 
ecutions for,  under  Charles  II.,  disgraceful  to  govern- 
ment, 579 ;  Scots  law  of,  its  severity  and  odium,  667. 

Treasury,  reduced  state  of  the,  in  1639, 284, 285,  and  note  {. 

Treaty  begun  at  Oxford,  323 :  pretended,  signed  with 
France,  secret  between  Charles  II.  and  Louis  XIV., 
462 :  of  peace  broken  off  and  renewed  by  the  Tory 
government  607. 

Treaties  of  partition,  two,  571 ;  impeachment  of  four 
lords  on  account  of  the,  572. 

Treating  at  elections,  origin  of,  656,  note  J. 

Treby  (Chief-justice),  his  conduct  in  the  case  of  Ander- 
ton,  579,  580. 

Trial  by  jury,  its  ancient  establishment,  15,  note  *,  16. 
Trials  "for  treason,  (fcc.  imjustly  conducted  under  Eliza- 

betli.  138  ;  of  Russel,  488  ;  and  Sidney,  489. 
Triennial  Bill,  its  constitution  and  privileges,  291,  and  note 

*  ;  act,  repeal  of,  420 ;  and  of  the  act  for  its  repeal,  421. 
Trinity,  denial  of  the,  or  of  the  inspiration  of  any  book 

of  the  Bible,  made  felony,  350,  note. 

Triple  alliance,  public  satisfaction  at  the,  445. 

Trust  estates,  view  of  the  laws  relating  to,  198,  199. 

Tudor,  house  of,  difficulty  experienced  by,  in  raising  sup- 
plies, 19 ;  one  of  the  most  important  constitutional  pro- 
«sions  of,  34  ;  strengthened  by  Mary,  ibid. 

Tudors,  military  lertes  imder  the,  312. 

Tunstall  (Cuthbert),  bishop  of  Durham,  Uberally  enter- 
tained by  Parker,  76,  note  t. 

Tutchin  (John),  law  laid  down  by  Holt  in  the  case  of,  583. 

Tyndale  (WiUiam),  his  translations  of  the  Scriptures,  57, 
and  note  *. 

Tyrconnel  (Earl  of),  charged  with  conspiracy,  and  at- 
tainted of  treason,  696 ;  lord-lieutenant  of  Ireland  in 
1687,  his  secret  overtures  with  the  French  agents,  707, 
and  note  *. 

Tyrone  (Earl  of),  charged  with  conspiracy,  and  attainted 

of  treason,  696. 
Tyrrel  (Antony),  an  informer  against  papists,  96,  note  t. 

Udal  (  ),  tried  and  imprisoned  for  a  hbel  on  the 

bishops,  125,  and  note  t,  138. 

Ulster,  the  most  enlightened  part  of  Ireland,  696 ;  the 
colonization  of,  first  carried  into  effect  by  Sir  Arthur 
Chichester,  in  the  reign  of  James  I.,  ibid. ;  linen  manu- 
facture first  estabUshed  by  Strafford,  701. 

Undertakers,  agents  between  the  king  and  the  Parlia- 
ment so  called,  196,  205,  note  t. 

Uniformity,  Act  of,  passed  under  EUzabeth,  72,  and  note 
t ;  its  character  and  extent,  73  ;  links  the  Church  with 
the  temporal  Constitution,  105. 

Union  of  the  two  crowns,  sovereign  and  court  mth- 
drawn  by,  from  Scotland,  674 ;  general  observations  on 
the  same,  675. 

Universities,  foreign,  bribed  on  the  subject  of  Henry 
VIII.'s  divorce,  45,  ?io/et;  diliiculty  of  procuring  the 
judgment  of  Oxford  and  Cambridge  against  the  mar- 
riage, 49. 


Usher  (James),  archbishop  of  Armagh,  his  scheme  for  • 
moderate  Episcopacy,  301,  and  nou  t ;  model  of  Church 
government,  414,  and  notes;  scheme  of  Church  gov 
emment  not  inconvenient  or  impracticable,  423. 

Utrecht,  treaty  of,  arguments  for  and  against  the,  60B ; 
negotiations  mismanaged.  610;  advantages  lost  by  the. 
ibid.,  611 :  misconduct  of  Lords  Bolingbroke  and  Ox- 
ford in  the  management  of  it,  611,  aninou 

Uxbridee,  negotiations  at,  332,  and  nou  1 :  rupture  of 
the,  335. 

I 

Vagabonds,  act  of  state  against,  under  Elizabeth,  144. 
Vane  (Sir  Henry),  his  message  to  the  Commons,  1640. 
;    288  ;  and  General  Lambert,  excepted  from  Act  of  In- 
demnity, 417 ;  injustice  of  his  condemnation,  418,  and 
'■    note  t ;  execution  and  character,  418,  419  ;  his  commu- 
I    nication  to  the  lords-justices  relating  to  the  connection 
I     between  Spain  and  the  disaffected  Irish,  702,  note  *. 
Vaughim  (Chief-justice),  his  argument  with  regard  to  the 

power  of  juries,  499. 
Venner,  insurrection  of,  in  1660,  411. 
Verdict,  general,  question  of  the  right  of  juries  to  return 

a,  discussed,  499. 
Vestments  of  priests,  retained  in  England,  68  ;  dislike  of 

the  German  Reformers  to,  ibid. 
Vintners'  Company,  fined  by  the  Star  Chamber,  258. 
Visitations  of  monasteries,  character  and  truth  of  51. 
Vote  of  Parhament,  to  prevent  the  meeting  of  caballing 

officers,  388,  and  noU  t ;  the  Parhament  dissolved  iu 

consequence,  383,  and  note 
VowcU's  Treatise  on  the  order  of  ParUamcnt,  extract 

from,  517,  noU  *. 

Waldgrave  (Sir  Edward),  and  his  lady,  imprisoned  for 
hearing  mass,  74. 

Wales,  Court  of  the  Council  of,  its  jurisdiction,  190,  and 
note  t ;  court  and  council  aboUshed,  293 ;  right  of  elec- 
tion extended  to,  by  Henry  VIII.,  514. 

Waller's  Plot,  325 ;  oath  taken  by  both  Houses  in  conse- 
quence of,  ibid. 

Wallingford  House,  cabal  of,  form  a  coaUtion  with  the 
RepubUcans,  388 :  oblige  Richard  CromweU  to  dissolve 
his  Parhament,  ibid. 

Walpole  (Sir  Robert),  reconciles  the  Church  to  the 
royal  family,  628  ;  remarks  on  his  administration,  630 ; 
character  of  the  opposition  to  him,  632,  633 ;  the  suc- 
cessors oi,  do  not  carry  reform  to  the  extent  they  en- 
deavored, 636;  and  Pelham,  condemn  the  excessive 
partiality  of  their  masters  for  their  Hanoverian  do- 
minions, 652,  653,  note  * ;  bis  prudent  administratloD, 
656. 

Walsingham  (Sir  Francis),  deceived  by  Charles  IX.,  87 ; 
his  advice  against  Mary,  queen  of  Scots,  88 ;  fideUty 
of  his  spies  upon  her,  97,  98 ;  his  enmity  to  her,  99, 
and  note  * :  his  moderation  and  protection  toward  the 
Puritans,  118 ;  his  disinterested  liberality,  134 ;  his  let- 
ter in  defense  of  Elizabeth's  government,  136,  and 
note  *. 

Walton  (Dr.  Brian),  ejected  by  the  Covenant,  329. 

War  with  Holland,  infamy  of  the,  452,  and  note  t ;  be- 
tween WilUam  HI,  and  Louis  XIV.,  its  ill  success  and 
expenses,  5G5 ;  of  the  succession,  its  object,  606. 

Wards,  extraordinary  Uvcries  taken  for,  20. 

Warham  (William),  archbishop  of  Canterbury,  his  letter 
to  Wolsey  on  the  grants,  &.C.,  of  1525,  23.  note  *. 

Warrant  of  commicuil,  form  and  power  of,  debated,  220, 
2-H,  241. 

Warwick  (Edward  Plantagenet  carl  of),  his  long  cap- 
tivity, attempt  to  escape  with  Perkin  Warbeck,  hi? 
trial  for  conspiracy,  induced  to  confess  himself  guilty 
in  the  hope  of  pardon,  his  execution,  and  the  probable 
motive  for  it,  26 ;  John  Dudley,  earl  of,  a  concealed 
papist,  64,  note  |. 

Werdock,  the  first  charter  for  returning  members  to 
Parliament,  515. 

Went^vorth  (Paul),  his  discussion  of  the  Church  authori- 
ty with  Archbishop  Parker,  117;  his  bold  motion  on  a 
command  of  Elizabeth,  148  ;  Peter,  his  motion  on  the 
succession,  153 ;  his  bold  defense  of  the  privileges  of 
Parhament  against  Elizabeth.  151 ;  examined  concern- 
ing it,  ibid. :  questions  of,  on  the  privileges,  &.c„  of 
Parhament,  152 ;  committed  to  the  Tower,  ibid. 

W'estbury,  borough  of,  fined  for  bribery,  157. 

Westminster,  ancient  courts  of  law  held  at,  15;  Abbey, 
preserved  from  destruction  in  the  Reformation  under 
Edward  VI.,  63 ;  Hall,  tumult  in,  on  demand  of  a  loan 
hy  Charles  I..  219,  and  note  t. 

Westmoreland  (Mildmay  Fane,  earl  of),  his  forest  amerce- 
ment, 245. 


INDEX. 


737 


Whallfy  (Abbey  oOi  Dr.  Whitaltcr's  schcmo  lor  dis- 

tribulini;  its  revenues,  55,  note  '. 
Whig  nnd  Tory,  first  hcai  d  of  in  the  year  1679, 478 ;  their 

first  meeting,  480 ;  remarkable  triumph  of  the,  544 ; 

necessity  of  accurately  understanding  their  dcfinitiou, 

600 ;  their  (Ustinctivo  principles,  ibid. ;  changes  cfl'ected 

In  them  by  circumstances,  ibid. 
VVhiggisni,  genuine,  one  of  the  teats  of,  572. 
Whig  party,  justified  In  their  distrust  of  Charlea  II.,  403. 
Whigs,  their  inlluence  in  tho  councils  of  Williiun  III., 

552 ;  oppose  a  gencriU  amnesty,  553  ;  bold  measure  of 

the.  616  ;  come  into  power,  617. 
Whiston,  extract  from  his  Memoirs,  599,  note  *. 
Whitaker  (Dr.  Thomas  Dunham),  his  plan  for  distributing 

the  revenues  of  the  Abbey  of  Whalley,  55,  note  *. 
Whitbread,  a  Jesuit,  his  trial,  471,  472. 
White  (John,  bishop  of  Winchester;,  speaks  against  the 

Protestants  in  his  funeral  sermon  for  Queen  Mary,  72, 

note  t. 

Whitelock  (Sir  James),  cited  before  the  Star  Chamber, 
201 ;  Bulstrode,  palliation  of  his  father's  phoney,  241, 
note  *  ;  curious  anecdote  recorded  by,  395. 

Whitgifl  (John,  archbishop  of  Canterbury),  orders  given 
to,  concerning  papists  m  Denbigh,  89 ;  his  allowance 
of  torture,  93,  note  * ;  his  answer  to  Cartwright,  121,  '• 
and  note  t ;  rigor  of  his  ecclesiastical  government,  ibid.,  i 
and  note  J  ;  ez  cfficio  oath  tendered  by,  122;  his  inter-  j 
cession  for  Udal,  125 ;  liis  censure  of  lawyers,  128,  and 
note  J  ;  his  bigoted  Bwny  over  the  press,  142,  and  note  ' 
'[Is  exclamation  at  Hampton  Court,  665.  j 

Wickhfte  (John),  ctJ'ect  of  liis  doctrines  in  En"land,  43.  ' 

Wildman  (Major),  unites  tlie  Republicans  and  Koyalists  \ 
against  the  power  of  Cromwell,  376.  j 

Wilford  (Sir  Thomas),  EUzabctli's  illegal  commission  of  \ 
martial  law  to,  143. 

Wilkins  (Bishop),  opposes  tho  act  for  suppressing  con- 
venticles, 452. 

William  the  Conqueror,  capacity  of  his  descendants  to  ' 

the  seventeenth  century  described,  650. 
William  the  Lion,  statutes  ascribeel  to  him,  657.  j 
William  III.  receives  the  crown  conjointly  witli  his  wife, 
546  ;  discontent  with  his  govenimcnt,  550 ;  his  charac- 
ter and  errors,  552 ;  his  government  in  danger,  ibid.  ; 
hia  dissatisfaction,  556;  his  magnanimous  and  pubUc- 
spirited  ambition,  ibid. ;  dissolves  the  Convention  Par- 
liament, and  gives  his  confidence  to  tlie  Tories,  558, 
and  ?iotc$  t*  ;  scheme  for  his  assiissinadon,  503,  and  ! 
note  *  ;  his  magnanimous  conduct,  505 ;  unjustly  ac- 
cused of  neglecting  tlie  navy,  566.  and  note  *  ;  skill  and 
discipline  acquired  by  tlie  troops  under  his  command, 
ibid. ;  aware  of  the  intentions  of  Louis  XIV.  on  the 
Spanish  dominions,  567 ;  £700,000  grimtcd  him  during 
lite,  568 ;  leaves  a  sealed  order  to  keep  up  the  army, 
tAiVi. ;  obUged  to  reduce  his  army,  and  send  home  his 
Dutch  guards,  ibid.,  569 ;  his  conduct  censurable  with 
regard  to  tlie  Irish  forfeitures,  569,  no/o  ;  unpopular- 
ity of  his  administration,  571 ;  his  conduct  witli  respect 
to  the  two  treaties  of  partition,  572 ;  his  superiority 
over  tli(^  greatest  men  of  tlio  a"e,  573 ;  improvements 
in  the  English  Constitution  under  him,  ibid,  t  his  stat- 
ute of  treason,  574 ;  hatred  of  the  Tories  to,  588 ;  dis- 
tinction of  the  cabinet  from  the  privy  council  during 
his  reign,  592 ;  reser\'edne8s  of  liis  disposition,  593 ; 
his  partiality  to  Bentinck  and  Keppel  not  consistent 
with  the  good  sense  and  dignity  of  liis  character,  594  ; 
influences  members  of  Parliainent  by  bribes,  ibid. ;  re- 
fuses to  p(u.s  a  bill  for  rendering  the  judges  independ- 
ent, 597;  truly  his  own  minister,  651;  never  popular 
in  Scotland,  673  ;  the  only  consiiteut  friend  of  tolera- 
tion, ibid,,  and  note 


Williams  (  ),  his  prediction  of  Kin"  James's  death, 

198,  note  t ;  Dr.  John,  bishop  of  Lincoln,  suspicion  of 
corruption  in,  223,  note  t;  fined  by  the  Star  Chiunber, 
258  ;  made  lord-keeper,  260 ;  suspected  of  popish  prin- 
ciples, 277,  note  \. 

Wills,  lees  of  the  clergy  on  the  probates  of,  limited,  47. 

Winchester,  statutes  ot,  on  defense  of  the  nation,  311. 

Wines,  duties  imposed  on  their  importation,  184,  note  *, 
185. 

Wisbech  Castle,  factions  of  the  prisoners  in,  103,  note  *. 
Withens  (Sir  Francis),  expelled  the  House  of  Commons, 
481. 

Woad,  proclamation  of  Elizabeth,  prohibiting  its  culture, 
141,  and  note  '. 

Wolsey  (Cardinal  Thomas),  bis  motion  for  a  supply  of 
£800,000,  to  bo  raised  by  a  tax  on  lands  and  goods,  21 ; 
opposed  by  the  Commons,  ibid.  ;  circumstantial  ac- 
count of  tills  transaction,  22,  and  note  * ;  his  arbitrary 
mode  of  raising  money  without  the  intervention  of  Par- 
liament, 22  ;  letters  to,  concerning,  23,  note  *  ;  obloquy 
incurred  by  these  measures,  24  ;  estimate  of  his  char- 
nctcr,  ibid. ;  articles  against  him  never  intended  to  bo 
proceeded  upon  by  the  king,  25,  note  * ;  cause  of  the 
Duke  of  Buckingham's  execution,  27,  and  note  *  ;  aug- 
ments the  authority  of  the  Court  ofStar  Chamber,  41 ; 
rifjid  in  resn  aining  tlie  turbulence  of  the  nobility,  &c., 
ibid.,  note  *  ;  Luther's  attack  on,  45,  note  " ;  a  delegate 
of  Clement  VII.  on  Henry  VlII.'s  divorce,  45;  increase! 
the  fees  of  the  clergy  on  wills,  47,  note  *  ;  his  reforma- 
tion and  suppression  of  tho  moniistic  orders,  50  ;  did 
not  persecute,  but  proscribed  heretic  writings,  57. 

Wool,  &c.,  ancient  unjust  tolls  on,  185,  note  *. 

Wotton  (Sir  Henry),  his  palliation  of  impositions,  196, 
note  J. 

Worcester,  victory  of,  its  consequences  to  tlie  future 

power  of  Cromwell,  369. 
WVight  (  ),  his  case  of  conscience  and  confinement, 

91,  note  '. 

Wri"ht  (Mr.  1'horaas),  notico  of  his  edition  of  "  Letter* 
relating  to  the  Suppression  of  Monasteries,"  51,  note  t. 
Wyatt  (Sir  Thomas),  insurrection  of,  71,  note. 

Yelverton  (Mr.),  his  defense  of  the  privileges  of  Parlia- 
ment, 149. 

Yeomou  of  the  guard,  establishment  of  tlic,  311. 
Yeomanry  of  England,  under  the  I'lantageuets,  described, 
15. 

York,  Council  of,  summoned,  289,  and  notes  *§. 

York  (James,  duke  of),  protests  against  a  clause  in  Act 
of  Uniformity,  426 ;  suspected  ot  being  n  Catholic  be- 
fore the  Kestoration,  427,  nnd  note  "  ;  his  marriage 
with  Lady  Anne  Hyde,  430,  and  tiote  f ;  converted  to 
tlie  liomish  faith,  447 ;  particulars  relating  to  his  con- 
version, 448,  and  7101c  ;  always  strenuous  against 
schemes  of  comprehension,  4.')1 ;  obliged  to  retire  from 
the  otfice  of  lord-admiral,  45-1,  and  note  t;  dangerous 
enemy  of  the  Constitution,  400  ;  his  accession  to  the 
throne  received  with  great  apiirclicnsion,  473 ;  i  ngaged 
in  a  scheme  of  general  conversion,  474  ;  resolved  to  ex- 
cite a  civil  war  rather  than  yield  to  the  exclusion,  476 ; 
plan  for  banishing  him  for  life.  478,  and  note  '  ;  his  un- 
popularity among  the  niiddUng  classes,  480 ;  liis  tyran- 
ny in  Scotland,  669. 

Yorkc  (Philip,  second  Earl  of  Hardwick),  his  account  of 
the  ToriiB  in  1745,  030,  note  '. 

Yorkshire,  levy  of  ship-money  refused  in,  iSC. 

Zeal,  religious,  in  Scotland,  its  furious  etTects,  661. 
Zuingle  (Uli  ic),  his  belief  coiu  orning  the  Lord's  Supper 
neiu  ly  fatal  to  the  Kcformation,  61. 


THB  END. 


A  NEW  Classified  and  Descriptive  Catalogue  of  Harper  &  Broth- 
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been  constructed  vrith  a  view  to  the  especial  use  of  persons  forming  or 
enriching  their  Literary  Collections,  as  well  as  to  aid  Principals  of  Dis- 
trict Schools  and  Seminaries  of  Learning,  who  may  not  possess  any  re- 
liable means  of  forming  a  true  estimate  of  any  production ;  to  all  such 
it  commends  itself  by  its  explanatory  and  critical  notices.  The  valu- 
able collection  described  in  this  Catalogue,  consisting  of  about  two 
thousand  volumes,  combines  the  two  fold  advantages  of  great  economy 
in  price  with  neatness — often  elegance  of  typographical  execution,  in 
many  instances  the  rates  of  publication  being  scarcely  one  fifth  of  those 
of  similar  issues  in  Europe. 

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New  York,  January,  1847. 


